This article has been written by Yash Dodani, a first-year student at NALSAR University of Law, Hyderabad. He has analysed the theories of Punishments involved and developed from the primitive to modern society.
The punishment and the process of the trial had been running since the formation of the societies and the development of crime. The amount of punishment was depending either on the nature of the society or the theories of the punishments set by the people of that society or ultimately the State [if any]. There were many theories which were given by either the law or some power working as law in the society. This paper will deal with elaboration of these theories and the debate around the idea of Capital Punishment and will analyse the shift of giving punishment in primitive societies to modern societies.
Keywords: theories of punishment, Capital punishment, primitive, modern
Crime is something that cannot be deleted from society, for a simple reason that no society is an ideal society. The sociologists have argued that the crime is normal in society and should happen because society gets a chance to improve laws to atleast control the crimes if not completely abrogate the crime. To punish the person who has committed a crime is one part of improving society. For this reason, the people who were convicted of a crime were punished in different ways. Later these ways were considered to be called ‘Theories of Punishment’. When a person is said to commit a crime, he is not committing it against the person in particular but against the society in large because every other person in the society is shaken by the acts of the criminal. The word ‘crime’ itself is very subjective, for some countries a crime X is a crime but not for other countries which are defined in the statutes itself.
Various theories which were used were based on the thinking of the state as to how they want to see the crime as and how they want to feel the society after the commission of the crime. The theories were in the form of Deterrent theory, Preventive theory, reformative theory and the Retributive theory. The capital punishment is considered under the Deterrent theory which I will discuss in detail in the upcoming sections.
Next section will deal with the theories in brief and I will analyse how effective that theory is in modern times.
- The Deterrent Theory
The state used the deterrent theory to give an effect and an example that if the same offence is repeated by others, the consequences will be harsh. The main object of the state here is to bring a feeling of fear in the society and it will help to stop the crime. The punishment given is of rigorous nature. The punishment for any offence which is not so grave was also very harsh. To add an example, the thief’s hands were chopped when he committed an offence of theft. The people who commit a sexual offence had to face an organ cut off as the punishment. This theory believes that the punishment should be grave to inflict the feeling of fear in society. The people will think many times before committing a crime and he will have a fear that “if I commit this crime, I will face these kinds of punishments” and this fear will resist him from committing a crime.
However, the deterrent theory has failed to be applied to those criminals who are stone-hearted people and are accustomed to the punishments but still commit the crime. As far as the people who are not habitual criminals are concerned, the crimes are not always planned and the people who have committed the crime in a flip will also face saviour punishments and this fails the object of the deterrent theory. It is that the deterrence is converted into reformative theory in modern times. In the case of Phul Singh v State of Haryana[i] the Supreme Court said the following lines- “the incriminating company of lifers and others for long may be counterproductive and in perspective, we blend deterrence with correction, and reduce the sentence to rigorous imprisonment for two years.”
- The Preventive Theory
If the deterrent theory would not work as we have seen above, the alternate method would be to prevent the criminal from committing the crime again. To achieve the purpose, the criminal is put into imprisonment so that he could not commit the crime, or by ending the means by which that person would commit the crime. This would also solve the purpose of reducing the crime. However, this approach fails because the criminals today have a tendency to commit the crime in jail also and hence would not solve the purpose completely.
- The Reformative Theory
The theory assumes that crime is a disease and the reform is a medicine. When a person commits a crime, he is sent to the reform centre and the counsel present there try to change his mind with moral values. By bringing these values, this theory tries to reform the person and that person would stop himself from further commission of that crime. The environment of the prison should be so positive so that it can help in the reformation of the person. But addressing the rising numbers of criminals in India, it is difficult for the authorities to keep prisons in a healthy environment. It has another problem, the poverty in India is much and if the prison is a good place, the people will certainly commit a crime to get shelter and food.
In the case of Sunil Batra v Delhi Administration[ii], the court said the following lines- “ the
rule of law meets with its waterloo when the state‟s minions become law breakers, and so the court as a sentinel of justice and the voice of the Constitution runs down the violators with its writ, and serves compliance with human rights even behind iron bars and by prison wardens.”
- The Retributive Theory
This is the most ancient among all theories, which took place in very old times. The feeling of revenge gave birth to this theory. This type of punishment will mean that the person who has committed a crime and has caused harm to a person, he will be subjected to the same harm. The examples will include eye against the eye, blood against blood etc.
A special reference to the Capital punishment
When we look into the past of the punishments, we see in the times of kings, the very preferred mode of punishment which was used is capital punishment or the death penalty. The punishments which were followed were either the retributive theories or the deterrent theory. And in the deterrent theory too, death penalty was prevalent. There are various forms of execution of the death penalty which I will come upon in upcoming parts. Let’s look at the definition first.
Definition of Death penalty
The death penalty is a legal process of taking a life of the criminal as he has committed a crime. The judicial decree which the court pronounces is called the death sentence. The actual killing of the person is called the execution of the sentence. The offences which lead to the death penalty is called as capital offences. In India s368 of the Criminal Procedure Code gives power to the High Court to give the death sentence.
Methods of Execution
There are different methods of execution which are followed to execute the death sentence. Some of them are given below.
- Burning: In this type of execution the body of the criminal is burnt completely.
- Wheel of Spikes: The wheel full of spikes is thrown towards the criminal which results in his death.
- Firing: in this execution, the person is fired with the help of a gunshot. In India recently in Hyderabad, four criminals were encountered by this method.
- Headsman’s Axe: the head of the criminal is placed on a wooden block and then an axe cuts down the head of the person.
- Guillotining: Another common form of execution seen in the French Revolution. Dr Joseph Guillotine was the person who invented this method whereby the accused person’s head was placed in a round hole on a wooden block and a blade is dropped cutting the person’s head.
- Hanging in this process, the person’s neck is tied to a rope tightly and after some time due to no flow of oxygen, the person is dead.
- Gas Chambers: this was used in Hitler times where a lot of Jews were kept together in a gas chamber and poisonous gas was spread in the whole room.
The Validity of Death Penalty
The validity of the death penalty was first challenged in the US after which the death penalty was abolished there. Pennsylvania was the first state to abolish the death penalty completely. But even after such decisions on the constitutionality of the death penalty, it is there somewhere in many countries till date.
The Indian practice of the death penalty is the method of hanging by the neck. This method was practised in India from British times. The Indian Penal Code [s53] provides the death sentence power to the courts and s368 of the CrPC provides power to the High Courts to give a death sentence.
The death sentence in India is given by applying the ‘Rarest of the Rare Doctrine’. This means the judiciary gives death penalty to accused in the cases where the collective conscience of society is so shocked that it will demand and expect the judiciary to give the death sentence. Now what facts will be called as rarest of rare will be considered by the Courts and there are a lot of problems when it comes to whether the case comes under the doctrine of Rarest of Rare cases or not.
Delay in the Execution
The delay in the execution of the Death penalty is reasonable. It is because there are some rights of the accused and he has the right to life under Article 21 of the Constitution. This is the reason why the accused has a lot of options before he is hanged. The defence tries to somehow make this death sentence reduced to life imprisonment.
But it is again a problem for the convicts as it poses an ‘inhuman effect’ of the penalty and the punishment has no point. The family of the accused and the accused himself faces a lot of torture if there is a much delay in the execution in the delay.
The main cause for the delay in the sentence is the courts taking a lot of time to confirm the death sentence. This is the most prime reason why the delay happens. Another important cause is the health of the convict. The convict of the death penalty should be mentally and physically fit while the execution of the death sentence.
Capital punishment has not been seen as a good solution to curb crime. It has been criticised on many grounds by the courts of different countries and many organizations. The UNGS said that there should be a very high standard of a fair trial to be followed in cases of capital punishment. Most of the countries in the EU have abolished the death sentence. The institution UNESC has even asked the member states to abolish the death sentence. Many conventions were made to abolish the death sentence.
Internationally, capital punishment is recognized as cruel or inhumane punishment. The Universal Declaration of 1949 states that no one should be subjected to cruel or inhuman punishment. It is argued that the capital punishment is volatile of the human rights of an individual. However, India does not seem in a position to abolish the capital punishment and it is argued by India that capital punishment is only provided in the cases of rarest of rare which speaks that the crime is done with so grave intention and the facts hit the collective conscience of the society.
Position in India
The Indian Courts work on the principle of rarest doctrine. But the courts are itself confused on what will be rare or not. Article 21 confirms that the person has the right to life, except the procedure established by the law. The whole notion of debate around the death penalty in India works on this argument. The cases like Meenka Gandhi v UOI[iii] said that this process should be ‘due process’ and the accused should get complete rights to reduce the punishment from a death sentence to any other form. Although various NGOs are fighting against the death penalty, the Sc came up with the doctrine of ‘rarest of rare’ which itself is against various provisions of the Constitution but the SC has said that death penalty will be given in cases of very grave nature. In the case of Bachan Singh v State of Punjab[iv] Justice Bhagwati in his dissenting opinion stated that the death penalty is necessarily arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are subjected to the gallows and the rich and the affluent usually escape from its clutches. This is indeed a gross violation of Articles 14 and 16 of the Constitution. In Shashi Nayar vs Union of India (1991), the death penalty was again challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but the court turned it down stating that the time was not right for hearing such a plea. Also, the plea to consider hanging till death as barbaric and dehumanizing was rejected.
Hence, we can say that no theory can solely curb the crime but the mix up
of these theories is essential to at least reduce the crime. The death penalty
is itself an offence against humanity. The government should take steps to
abolish the death sentence by looking at the negative aspects of it.
[i] Phul Singh V. State of Haryana [1980. Cri. L. J. 8].
[ii] Sunil Batra II V. Delhi Administration [1980 3 S.C.C. 488]
[iii] 1978 AIR 597.
[iv] AIR 1980 SC 809.
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