This article is written by Nimisha Mishra.
Table of Contents
Introduction
Theory of Deterrence was propounded by famous Italian criminologist Cesare Beccaria who examines the nature of crime and they ways in which it can be reduced. He observed that the idea of deterrence is to instill fear in the minds of the criminals through the enforcement of severe punishments which will dissuade them from committing crimes and this will reduce the degree of crime rates in the society. He proposed three elements to ensure deterrence: Certainty, Celerity and Severity.[1]
Certainty is certitude of due process, celerity refers to the effectiveness in the disposal of justice and severity refers to the strict and harsh punishment. In order to ensure justice to the society and reduced crime rate it is essential that all the three elements should function together. Any inefficiency in one has a huge possibility of affecting the faith in the legal justice.
In other words, when severe punishments are enforced it might ensure the component of severity. However unless there is certainty and uniformity while delivering justice, there are very less chances that the perpetrator will deter in real sense.
The concept of bad man was introduced in the realist school of thought; where the bad man does not care about the moral or ethics and his only resistance to crime is the imposition of punishment. All that the bad man cares about is whether his action will lead to punishment or not. In such circumstances the states should ensure that all the three elements function together in order for people like bad man to deter from committing crimes. Moreover care must also be taken with regards to the consistent application of the laws, in order to prevent the disproportionate incarceration against marginalised communities. [2]
Furthermore, timely completion of investigation and trail procedure is celerity, and success could be achieved when adequate state machinery is employed. However, the reality is very different, the recent report of vacancies in the Maharashtra Police and the Bombay High Court reflects the unavailability of staff up to the extent of 28,550 police officers [3] and sanction of only 64 judges against the strength of 94. [4]
Various laws in relation to grave crime including rape have been formulated and harsher punishments have been incorporated. Important legislations such as Shakti Bill, POSCO Act, Disha Act, etc have been introduced whenever there is public outcry due to heinous rape incidences. Apart from these Bills and Acts the legislature seeks to amend the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 to increase the gravity of punishments for offences including acid attacks, sexual abuses against children, rape, etc. [5]
Moving onto the third element which is severity; while several laws have implemented to ensure stricter punishment, the intention and result behind the same remains questionable. Despite several amendments, the graph of these crimes is moving upward and there is no sign of any reduction in crime rates. The increase in the stringency of punishments does not reflects the sincerity in reducing crimes rather it seems more like to console distressed populace. This argument becomes stronger from the fact the death penalty for rape was introduced however little was done to deter sexual harassment by ensuring the availability of the well-equipped treatment centres. [6]
This raises a question whether stringent punishment is really acting as deterrence. Whether state should adopt different mechanism to ensure reduction in crime rates? It is high time that government should incorporate other mechanisms such as flow of higher funds for the proper implementation of law enforcement bodies. Harsher punishment has led to the commission of further crimes; this trend is largely observed in the physical assault crimes especially in rape.
Murder of the victim after the commission of crime
Recently, Andhra Pradesh passed the Disha Act which is considered as a counterpart of Maharashtra’s Shakti Act; both these acts introduced death penalty and increased imprisonment and fine, for the offenders of sexual assault. Both these acts were severely criticized since they failed to consider that in several rape cases the offender is known to the victim. He is generally someone from her family or the place where she lives. In such circumstances where death penalty is an ultimate result, victims are restrained from filing complaint by their family member, in order to protect the life of the offender. As per NCRB report almost in 94.6% of rape cases are underreported because victims and their guardians do not report the cases. [7]
The Disha case [8], from feminist point of view it was argued that death penalty, rather than deterring crimes, has escalated murder rates of victims particularly rape victims. When the accused knows that end result is going to be death penalty then the stringing punishment has chances of backfiring- instead of deterring the accused, it could provoke him to kill the victim so to prevent her from making any complaint.
Targeting weaker sections of society
Caste system is still prevalent in India, despite various laws being passed against any kind of discrimination on the basis of race, caste, sex, etc. The highlight of caste discrimination can be clearly seen in the conviction rate of the offenders.
As per the observations made by Anup Surendranath in his research project documenting imposition of death penalty for rape convicts, harsher punishments were awarded in cases where offender belongs to lower caste or class and victim belongs to upper of middle class or caste. In a latest survey conducted by Project 39A it was observed that out of the total death penalty that was awarded, majority of them were people belonging to backward classes or were religious minorities.
Police bias is not only prevalent against vulnerable section of society for employment records; it is extended even in judicial sphere as well. In some parts of the country women are also victim of police bias where police refuse to register complaint against men when they commit crime involving death penalty. [9]
According to the survey conducted by Project 39A, 75% of the death sentence convicts belonged to lower caste and religious minorities in India. Among the marginalised communities, the proportion of death sentence among Schedule Castes and Schedule Tribe is comparatively higher to the extent of 24.5%.
The survey highlights educational status as an important factor for this disproportionate application of death penalty among the backward caste. Out of the total prisoners around 23% never attended schools and around 62%, prisoners to whom death penalty was awarded, have not completed their secondary education.
Moreover, as per the survey around 76% of prisoners sentenced to death belonged to religious minorities. In many states including Maharashtra, Bihar, Karnataka, etc around 79% of the prisoners belonged to Muslims community and in the southern states including Kerala Christian have also shown a larger part in the statistics. Even though there is no explicit or direct relation between death penalty and caste, class and religious minorities, however the statistics implies otherwise. Henceforth, an inference can be drawn that vulnerable section are more exposed to structural violence organised by the state.
Justice Verma Committee
Justice Verma Committee was setup after the horrific Delhi gang-rape incident in 2012, to propose amendments in criminal law concerning crime related to women.[10] The most significant recommendation of the committee was that death penalty for rape cases is not a solution to make India safe for women.
Even prior to the setup of Verma Committee, several legal provisions were made to ensure the equality and equal protection of women including enactment of Article 14 for right to equality, Article 15 for right against discrimination based on the gender, Article 21 for right to life.
The dignity and honour of women are violated directly or indirect. It is violated directly by commission of crime against state such as rape, acid attack, murder, etc. In recent time various indirect crimes have been identified both online and offline; online crimes including stalking through social media or cyber stalking and offline crimes such as teasing, passing verbal sexual remarks, etc. The committee observed that these social and legal pitfalls need to be amended in order to discourage direct or indirect violence against women. [11] For the first time verbal abuse was introduced under the category of sexual assault rather than mere remark upon the modesty of women.
It is pertinent to mention that The Verma Committee recommended quick trial proceeding and enhanced punishments in cases of sexual crime against women. The committee even suggested that the punishment of life imprisonment should mean imprisonment for “entire natural life of the convict”, and it must not be unreasonable or disproportionate.
Several suggestions were made by the committee for the crime involving sexual assaults, rape, acid attacks, sexual harassment at work place, trafficking and child abuse, in relation to the Indian Penal Code.
The committee placed reliance on Amartya Sen’s capability approach wherein the existing laws, if implemented efficiently, are sufficient to produce the desired result. Wherein, it proposed Gender Budgeting in Justice for effective implementation of finance strategies on “Nirbhaya Fund” in the national budget. Gender budging at decentralised level was considered more efficient than the “one size fits all” budgeting.
In a country like India, simply by increasing the quantum of punishment, reduction in crime could not be expected since most cases are either dismissed due to lack of evidence or languish in the courts. Moreover, in 2015 the ‘262nd Report: The Death Penalty’ headed by Justice (Retd.) A P Shah proposed the abolition of death penalty for all the crimes except for the terror crime including wagering war.
In 2013 the Criminal Law (Amendment) Act was passed which introduced several stringent punishments into the IPC, including death penalty for rape, despite the Verma Committee’s recommendation.
The above amendment act was severely criticized by the Law Commission, which recommended to make criminal justice system more hospitable for victims and that “victims should not be made to accept the idea of death penalty as the only measure of justice”.
Shortcomings of the report
The 657 page Verma Committee extensively covers every major aspect of the gender and law and it was the first committee to recognise the crime against women due to gender inequality; however it fails to consider the sexual assault as an act of power and hence the recommendations was not practically applicable to a larger extent. There were two notable shortcomings in the report.
Firstly, by increasing the severity of punishment by introducing death penalty, deterrence cannot ensure and hardly any reduction in that particular crime was observed. Furthermore, many a times it is observed that whenever any incident of crime gets public attention followed by public outrage and demands of gruesome punishments like stoning of perpetrators, chemical castration, etc, legislature increase the severity of punishment to console the outraged public. It is pertinent to note that such actions has direct impact upon the decision of the judiciary since it also get influenced due to the pressure created by the victim’s family and people in general.
Moreover, feminist never advocated the concept of death penalty. People who support feminist notion are firmly against the idea of an individual’s right to life.
Secondly and most importantly, the actual implementation of the Verma Committee report reflects its shortcoming due to the nature of the society. The committee was not accountable for its recommendations and its application in the institutions which are mostly run by men, who most of the times are not comfortable with such changes.
Increasing rate of death penalty
As per the latest report of the National Crime Records Bureau (NCRB), Prison Statistics India, [12] there was 53% increase in the death penalty from 121 in 2017 to 186 in 2018. Out of these figures more than 40% death sentence was awarded to the people convicted for sexual offences and murder. One of the reasons observed for these death sentences was to meet and silence the public anger and anxiety for the cases involving sexual violence. [13]
After the rape incident at Hyderabad in 2019, the legislature amended the Protection of Children from Sexual Offences (POSCO) Act, 2012 and included death penalty for rape of children below 12 years of age. [14] However, as per the Law Commission of India Report of 2015, there are no major evidences that deterrence effect of death penalty is more than that of life imprisonment.
In the case of Bacchan Singh v. State of Punjab [15] it was observed by the Supreme Court that death penalty should be awarded in the “rarest of rare” only under section 354 (3) of CrPC. This was further elaborated and supported in the case of Machhi Singh v. State of Punjab, [16] where the court deployed “Balance sheet test” for comparison of aggravating and mitigating circumstances of the crime, i.e. comparison of the injury and pain suffered.
Similarly in Santosh Kumar Bariyar v. State of Maharashtra, [17] the court ruled that capital punishment is irrevocable and the price paid by the family members is way to big hence such arbitrary deprivation should be prohibited.
Effective deterrence and the way forward
The above analysis of deterrence effect highlights that harsh punishments are not acting as an effective deterrence and crimes rather than decrease, keeps on increasing. Therefore, it is essential that state should come up with effective deterrence policy which ensures that a) the person who is punished once does not repeat the crime, either because he is reformed or he is deterred from the harsh punishment; b) that the harsher punishment should create deterrent effect upon those as well who have not committed any crime or are planning to commit any crime in future.
More importantly the functioning of state machinery, particularly the Police, needs to be made more effective and vigilant. Effective policing, reduction in time taken for investigation and presentation of the report before the Magistrate on time will assist in efficient working of the criminal justice system. Moreover the focus should be on identifying the causes or reasons for the commission of the crime and strives to work on those reasons.
References
[1] Deterrence Theory available at https://marisluste.files.wordpress.com/2010/11/deterrence-theory.pdf.
[2] TAKING A GOOD LOOK AT THE BAD MAN’S POINT OF VIEW, Cornell Law Review, available at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4252&context=clr.
[3] Data on Police Organization Report, available at https://bprd.nic.in/WriteReadData/userfiles/file/202101011201011648364DOPO01012020.pdf.
[4] List of Sanctioned Judges of High Court and Supreme Court of India, available at https://doj.gov.in/sites/default/files/SCI-&-HCs-01.02.2021.pdf.
[5] Model Guidelines under Section 39 of “The Protection of Children from Sexual Offences Act, 2012” available at https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf.
[6] Barriers to Justice and Support Services for Sexual Assault Survivors in India, available at https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors.
[9] Death Penalty Project of Project 39A, available at https://www.project39a.com/death-penalty.
10) Verma, J. S., Seth, L., Subramanian, G., & Justice JS Verma Committee. (2013), Report of the committee on amendments to criminal law, available at https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.
[11] The Indian Journal of Social Work, Volume 74, Issue 3 & 4, available at https://www.tiss.edu/view/6/research/the-indian-journal-of-social-work/.
[12] Prison Statistics India, 2018 available at https://ncrb.gov.in/StatPublications/PSI/Prison2018/PrisonStat2018.htm.
[14] POSCO Act 2019, available at https://wcd.nic.in/sites/default/files/Protection%20of%20Children%20From%20Sexual%20Offences%20%28Amendment%29%20Act%2C%202019.pdf.
[15] Bacchan Singh v. State of Punjab, (1980) 2 SCC 684.
[16] Machhi Singh v. State of Punjab 1983 AIR 957, 1983 SCR (3) 413.
[17] Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
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