By Sidhanth Mor- Advocate (BA.LLB; LLM National Law University Delhi)
In the past decades there have been consistent debates on capital punishment and its implications on the life as well as fundamental rights of criminals in the rarest of rare cases. The key problem that is faced in most countries is to decide -what primary issue which is concerned with capital punishment is. Therefore, while capital punishment may cause a violation of human rights of a criminal who has committed an offence so grave, still as per the historical background of various states around the World, passing capital punishment of granting death penalty to such an individual is the most suitable punishment for committing a heinous or barbaric crime. Henceforth, the correlation between crime and the punishment of sanction which is granted by the court of law to such a criminal is a significant subject of interest for most criminologists as well as legal researchers. Therefore, there is no universal theory following which the court of law of a state can determine that a punishment should be appropriate or equivalent to the crime which has been committed by an individual. However, there are certain theories which are considered by some of the major and most famous legal researchers as significant for determining the punishment which shall be granted for committing a specific crime and so these theories are as follows:
- Retributive
- Preventive As Well As Reformative And
- Deterrent
Even though none of the above mentioned three theories are followed strictly in any state of law so as to determine the right punishment that shall be granted to a wrongdoer, which shall be at par with kind of crime that he or she has committed. Still various legal Scholars believe that these three theories are to some extent relevant in determining the punishment that can be granted to individuals in case the crime committed is barbaric or heinous in nature.
Consequently, this article will discuss these theories in detail and subsequently provide for the justification or criticism of capital punishment, as a means to punish the criminals of serious crimes:
Critical Analysis of the Theories of punishment:
Punishment can be defined as infliction of a certain kind of pain or loss to someone who has committed a wrong or misdeed. Punishment has further been defined as the means through which the court of law of a country or a state could exert social control over its individuals or citizens. Henceforth, the punishment which is granted against a criminal , is mostly in proportion to the kind of crime which has been committed by such wrongdoer, criminal or individual against the society.
HLA Hart with Mr Bean and professor flew has provided for 5 key elements which shall be present within a punishment and these elements are as follows:
1. the punishment that is sanctioned against an individual shall be such which can cause an unpleasant pain or ultimately make him realize of the miss deed which has been committed by him against other individuals.
2. The punishment shall only be passed against the individual only if he has committed an offence against the legal rules of a state.
3. The person against whom a punishment has been passed shall be the actual offender or wrong doer for committing that crime for which the punishment has been granted
4. the punishment should only be granted by human beings against offender and so the offender cannot choose his punishment on his own.
5. Such punishment can only be administered against the wrongdoer by a legal authority established within the legal system of a state. As per Westemarch, a punishment is a suffering which is usually inflicted against a criminal, in the name of the society in which he is living or is a permanent member of.
In pursuance of the above definitions of punishment below is an in-depth analysis of the various theories of punishments which have been generally accepted under legal systems of states around the world.
1. Deterrent Theory of Punishment:
Under the deterrent theory mostly the punishment which is granted against a criminal is such which is difficult in nature. The very meaning of deterrent is discouraging and so from this it can be inferred that under this theory the punishment which is granted against the wrongdoer is such which can discourage the criminal from committing such a crime in future again. Ultimately, under the deterrent theory the very aim of the punishment, is to create some sort of fear in the minds of the wrongdoer and this can be done by either imposing penalty on the person or by providing an exemplary punishment against the offender that can keep him away from committing any crime in the future.
The aim of this theory is to punish the criminal, by establishing penal discipline , so that no person which can be either the offender or any other person, can ever even think of committing a crime which was committed by the wrongdoer who has been punished under this theory. Deterrence theory is considered to be a significant aspect of criminal justice mainly because it helps in not only controlling crimes but also protecting the interest of the society by establishing a sense of fear among the criminals of committing serious a crime in future again. It shall be understood that this theory was used extensively during the mediaeval period in England, where in severe as well as extremely insensitive punishments were inflicted upon those who had committed only minor or frivolous crimes. For example in case if a person committed the crime of stealing then he or she was subject to a punishment which was either death or whipping. However in India, this theory was applied during the Mughal period under which for petty offences the wrongdoer was mainly killed or mutilated.
2. Theory of Retribution:
Retribution theory is considered to be the most ancient as well as old theory that can justify the very concept of punishment. This theory follows the principle of, : “you hurt me, I will hurt you back. henceforth under the theory of Retribution basically the punishment which is granted against the wrongdoer shall be equivalent or in proportion to the crime which has been committed by the accused. The very need for applying the Retribution theory for granting punishment during the old as well as even in the present Era, is mainly to achieve a sense of social security by granting a punishment against the criminal , which can provide justice to the society and also act as an example for any other person who may be thinking of committing an offence which is similar to the one for which a person has been given Retribution punishment. By applying this theory the very balance is achieved within a legal system since then almost all crimes have a valid punishment which is at par with the kind of illegal Act that was committed by the offender or the criminal. The notion of expiation which also means blocking of the guilty is directly related to the attribute of theory under which the suffering that is usually inflicted upon the accused is absolutely appropriate as well suitable to the crime committed by him.
Those legal practitioners which support this theory mainly find it appropriate to punish the criminal with such a punishment that could make him suffer to the same extent to which the victim of the crime suffered . Various legal researchers also think, that by not implementing this while granting punishment against the criminal, two significant problems could occur, one being that the victim may seek revenge from the criminal by himself or victim may lose trust within the system and even refuse to file a complaint Thus, hampering the ability of the state to provide justice to the victim and punishment to the criminal.
Henceforth, the very aim of a Retributive punishment is to eliminate the instinct of taking revenge within the mind of the victim as well as even within the society ,because whenever a crime is committed by someone against another person then not only the victim is someone who is disturbed or affected from such crime but in fact the whole society has the same sense of retaliation which can only be fulfilled legally through a retributive a punishment and not by taking revenge personally. Henceforth, it is imperative to understand that retribution is a theory that makes a punishment which is otherwise considered evil as justified will in the eyes of law ,but when revenge is taking instead of punishment then in that case the whole purpose of punishment eliminates and makes the person who has taken such revenge as the accused.
Also, it shall be noted that in the modern era this kind of punishment is not really supported much by the legal Scholars or practitioners and the key reason is that neither this is the kind of punishment which is considered wise nor it is desirable to punish a criminal with the same kind of punishment which is at par with the crime which he has committee.
3. Preventive Theory of Punishment:
As per the preventive theory, the punishment which is granted to the criminal shall not be revenge for the crime but rather it shall prevent crime. The very objective of this theory is to protect the society from the criminal and so this is a key reason because of which it is believed under this theory that the offender shall be put behind bars , for giving the punishment of imprisonment so as to remove the potential danger that is caused because of his presence within the society. Through the various application of the preventive theory, the offender is disabled by the state from committing any further offence or repeating the offence which he has already committed by inflicting punishment upon him like death, exile or even forfeiture. Henceforth a criminal can be effectively prevented from committing a similar or a more heinous crime by being imprisoned for life without remission.
However, there are certain critics of the theory which believes that the said theory is not effective enough to prevent the commission of such crimes in the future and that is because when a criminal is sent to jail, then he gets under the undesirable impact of becoming even worse of an offender ,because of being put in jail with other criminals who are already as bad of an offender as him. However , it has also been highlighted by some researches that by putting an offender in prison the very motive of preventing him from committing any other crime against the society is fulfilled and this is done easily by eliminating his presence within the society. Thus, finally disabling the crime and criminal.
3. Reformative theory:
With development in criminal science a substantial change has been bought within the thinking of criminological researches. Therefore today under the reformative theory various legal researcher believe in analyzing the entire social and economic background as well as other related factors which can ultimately lead to the commission of heinous or barbaric crimes by criminals. As per the supporters of this theory, a criminal shall not be studied in isolation of his circumstances because he does not cease to be a human being when he commits a crime and so it is important to study what actually led him to commit such a crime against the other human being.
The critics of this theory state that if criminals of barbaric crimes are sent to the jail for reformation, then jails will no more be left as a mode of punishment and rather they will become rehabilitation centers through which the criminal will be reformed and transformed into a new individual. Henceforth as per the critics the very significance of punishing an individual with imprisonment will eliminate ,because prison itself will become a friendly as well as familiar place for every criminal out there.
However, those who support reformative theory believe that a criminal shall serve sentence to get free reformed and change as an individual because the key aim of a punishment is to change the mind or thinking of a person who has committed crime and transform him into a better human being who can be taught some sort of art and craft within the prison itself. Reformative theory may not be supported by many legal Scholars or researchers, but it is an absolutely suitable for a country which aims at it bringing suitable reforms for changing the mindset of all the criminals.
It is believed by all the supporters of reformative theory, that before decision upon a specific the punishment, it is significant for the judge, to first considered the age, the intensity of offence committed as well as the social and economic background of an individual, only after which the right punishment shall be granted to the offender. Unlike attributive as well as preventive theory, the very objective of reformative approach is to grant such punishment against an offender, so as to become a better individual and rather rehabilitate them to change their thinking as well as approach towards the society and make them a better human being which are fit for living within the general society. On the basis of these four theories, it can be said that death penalty does have a justification under the retributive theory.
