Penology & Victimology SAL1053 Past Paper PDF

SCHOOL OF LAW DEPARTMENT OF LEGAL STUDIES PENOLOGY & VICTIMOLOGY-SAL1053 SCHOOL OF LAW DEPARTMENT OF LEGAL STUDIES UNIT 1 – PENOLOGY& THEORIES OF PUNISHMENT Dimensions of Crime in India -Definition of penology-Theories of punishment-classical Hindu and Islamic approaches to punishment- Capital Punishment-Law reforms proposals- Criminal Justice System. Introduction Penology is a multi-disciplinary subject that aims for the study and evaluation of the application of penal laws onto the wrongdoers. It broadly explains the justification, characteristics, and effectiveness of punishment in its various forms. In other words, it is a systematic study of different facets of punishment and its impact on crimes, criminals, and society. As a matter of fact, penology owes its origin to Cesare Beccaria, the classical school of criminology. This Italian criminologist argued that justification of punishment must be to deter potential criminals, and not merely to punish the offender. Later, it was during the end of the 19th century that different theories of punishment were propounded focusing on the aims and objectives of the punishment. Scope The scope of penology is vast and hence it becomes difficult to define the same. Penology is almost seen in every aspect and type of punishment for the crimes and offences. To limit the scope we have to study basically all the aspects of penology, where all the things are explained in their wider senses. Modern penologists lay greater emphasis on the rationalism of punishment. The penal policy should be more reformation oriented rather than coercive penal sanctions. As Lewis Gillin (1871-1958) rightly observed: “The criminal is the product of his biological inheritance conditioned in his development by the experiences of life to which he has been exposed from early infancy up to the commission of a crime. By studying the offender in every possible way, the modern penology promises to throw light on his conditioning and arrive at a diagnosis of the factors entering into each individual case. From the standpoint of penology, it attempts to adapt the treatment of each offender in accordance with the diagnosis obtained by the scientific study of the criminal.” Adopting a similar approach to penology, the Supreme Court in Santa Singh v. State of Punjab , observed that “penology regards crime and criminal as equally material when the sentence has to be awarded. It turns the focus not only on the gravity or nature of the crime but also on the criminal and seeks to personalize the punishment so that the reformist component is also many operatives as the deterrent element. A proper sentence is an amalgam of many factors such as nature of the offence, circumstances, previous record of the offender, his age, education, employment and family background, the possibility of social adjustment and reformation, etc.” Relationship between penology and victimology It must retreat that criminology is one of the branches of criminal science which is concerned with the social study of crimes and criminal behaviour. It aims at discovering the causes of crimes and effective measures to combat it. Penology deals with care, custody, treatment, prevention, and control of crimes as also the various modes of sentencing and rehabilitation of criminals. The primary concern of victimology is to seek justice for victims of crime who are faced with multiple problems. It deals with the rights and claims of victims of crime and their dependents. The focus is on mitigating the sufferings of crime victims and providing them with compensatory and other reliefs. The policies which are postulated by these three branches i.e., criminology, penology, and victimology are implemented through the agency of criminal law. Broadly, all these taken together constitute the subject-matter of criminal science. Approach of penology Like in criminology, penology may also be approached from various points of views. These may be denoted as Administrative Penology, Scientific Penology, Academic Penology, and Analytical Penology. Administrative Penology The administrative personnel employed for custodial functions in prisons ought to be capable persons conscientious of their responsibility to the society. They must be well-educated and imparted entry-level training before taking the job. Services old psychologists, social workers, and media persons should be availed for assisting the prison authorities in carrying out their correctional programmers. Prison guards and jail supervisors owe a special duty to keep the inmates under control and special vigil on prisoners who have no loyalty to the prison. Scientific Penology Individualization of prisoners should be the object of privatization and the effectiveness of rehabilitative techniques is essentially dependent on relaxing the custodial and disciplinary conditions keeping in view the personality needs of each inmate. The services of therapeutic specialists may be used for scientific corrective treatment of inmates in prison. The prison environment should be corrective rather than punitive. Academic Penology Academic penology is basically descriptive in character, and its main purpose is being the dissemination of penological knowledge. It limits itself with the theoretical knowledge of penology. Analytical Penology It aims at ascertaining as objectively as possible, the adequacy of existing penal policies and methods and suggests measures for improving the system. Thus, it makes a critical analysis of penal measures and offers solutions for the efficient administration of penal justice. The basic principle underlying the modern penology is that the sentences awarded ought to be proportionate to the gravity of the offence. In operating the sentencing system, the law should adopt the corrective machinery or deterrence based on the factual matrix of the case. The nature of the crime, the manner in which it was planned and committed, the motive of the commission of a crime, the conduct of the accused, the nature of the weapons used, and all other attending circumstances are relevant facts which should be taken into consideration before sentencing the accused. The court must not keep in view the rights of the victim to the crime but also the society at large while considering this imposition of an appropriate sentence. Awarding inadequate sentences out of uncalled for sympathy for the accused would do more harm to the justice system and undermine the public confidence in the efficacy of the penal system. Caution against excessive reformation Despite the fact that traditional methods of deterrent and retributive justice have fallen into disuse and they are now substituted by modern reformatory measures, it must be stated that excessive reformation is likely to defeat the very object of penology. If the difference between life inside and outside prison is narrowed down beyond a certain limit, it is bound to culminate into catastrophic results. The element of deterrence is as necessary for any penal program as reformation; otherwise, the very purpose of punishment will be defeated. It must be realized that the ultimate control and prevention of crime depends on the proper utilization of criminological knowledge to the needs of society. This accounts for the emerging importance of applied criminology in recent years. The focus of attention should therefore not only be the offender or his criminal act but the interest of society in general and the rights of the victim, in particular, which must be protected at all costs. It is only then that the real objective of penology would be accomplished. A balanced penal program justifying deterrence when it is absolutely necessary and reformation as a general model of treatment of offenders would perhaps be the best policy to achieve the desired ends of criminal justice administration. Justice must be prompt, stern, and summary inspiring a wholesome fear in the criminal. It must not be forgotten that the protection of society against crime and criminals is far more important than the personal gain of the individual offender in committing a particular crime. Therefore, it is the offender who must suffer in the larger interests of the community. Then only the real ends of penal justice can be accomplished. It must be remembered that punishment presupposes an offence and the measure of punishment must not be lesser than the offender deserves. It must be recognized that there is a strong and wide-spread demand for retribution in the sense of reprobation. It may have retreated that the faith and philosophy behind the administration of criminal justice is the attainment of social justice and not individual justice. Therefore, a blatant shift to reformation cannot be accepted as our constitutional creed. Commenting on this aspect of penal justice, Justice Gulab Gupta, a former judge of the High Court of Madhya Pradesh pointed out “if reformation, in fact, benefits the society, the conscience of social justice would be satisfied but if the reformation accrues to the benefits of the individual alone, social justice would remain suffocated. Let this not happen even unwillingly or unknowingly.” The active participation of the people in the implementation of the correctional penal program may be helpful in exercising effective control and supervision over the offenders. Since the criminal is the product of the community is for the community to devise ways and means to solve this problem. The Nyaya Panchayat system representing community justice may perhaps play a significant role in this sphere. The Lok Adalats which are meant for quick and cheap justice may also go a long way in accomplishing the objective of social justice. The statutory recognition given to Lok Adalats by the Legal Services Authorities (Amendment) Act, 2002 is indeed a progressive step in this direction. Above all the impact of information technology and its widening dimensions have to be recognized by the legal fraternity, particularly those who are concerned with the administration of criminal justice. The courts, advocates, academicians, law teachers, and even the litigants have to acquaint themselves with the use of the developed and developing tools and technologies to meet the demands thrown up by numerous statutes and litigation explosions. The computerization of courts, offices, law-chambers, and libraries, a listing of cases, judgments, etc. has rendered it possible to make the necessary information instantaneously available. Thus, it will greatly help in plugging the loop-holes of the existing criminal justice system and expose and destroy inefficiency, unfairness, and injustice which have crept into the administration of criminal justice. The efforts that are being made in recent years to switch over to e-courts with e-governance for e- justice would certainly go a long way in restoring the confidence of the people in the criminal justice system which lost its credibility being too expensive and dilatory. The development of ADR mechanism Lok Adalat’s plea-bargaining and setting up of the Fast- Track Courts are some of the measures which certainly help to strengthen the cause of the criminal justice system in India. Recent development According to the modern view, lawbreakers can be deterred by harsh penalties as a cost of breaking the law. It has been generally observed that developing countries like India focus more on penalties rather than their effective implementation. The weak implementation of laws and harsh punishments lead to a culture of public and private violence, lawlessness and impunity, as can be observed in India today. The laws relating to social policies such as Article 377 on homosexuality or beef bans and prohibition laws, which are gaining popularity all over the country are accompanied by over-strict penalties. Even in non- prohibition states like Delhi, the possession of a few cases of beer, or a collection of more than nine bottles of single-malt whiskey, could land one to a jail term of three years. Added to the list in upholding criminal defamation under section 400/500 IPC. Defamation is essentially a civil wrong that was criminalized during the British period when duels aimed at defending honour and reputation posed a threat to public order. The need of the hour is that India should improve the delivery of speedy justice in civil defamation cases, instead of retaining criminal defamation. Conclusion Some penologists have suggested that punitive reaction to crime varies and fluctuates in accordance with the phase through which a particular society or nation is passing. For instance, during the periods of revolution or war, the use of death sentence, banishment, solitary confinement, confiscation of property, etc. as punishment may be extensively used, but the same may not be justified In periods of peace and tranquillity. In the Indian context with the incidence of terrorist attacks rising unabated, the death penalty for terrorists may be fully justified though it has to be used in rarest of rare cases. Similarly, the widespread corruption at all levels, particularly, among the high placed bureaucrats, politicians, corporations’, etc. fine to the tune of lakhs of rupees accompanied but the confiscation of ill-gotten wealth as a punishment would be more appropriate rather than incarceration, and perhaps, ostracization of such culprits would be more effective. Commenting on the prevailing criminal justice system in the country, the Chief Justice of India, Justice P. Sthasivam, while speaking on the occasion of National Legal Services Day (on 6th November 2013) observed that “justice is still in a cynical phase for the common man despite efforts being made to make it accessible. Endorsing his views, Justice G.S. Singhvi in his address to the legal fraternity said that,” it is time to ponder whether in 65 years we have been able to achieve the goal to provide justice for people and whether we have created an atmosphere where everybody has equality of opportunity and status for people. According to him, “Justice was still an illusion for millions of people in the county and it is not accessible to a majority of the population.” The plight of the victims of crime needs to be on the priority list of courts and law adjudicators. HINDU AND ISLAMIC APPROACHES OF PUNISHMENT Introduction Man has passed from the stages of being uncivilized to becoming a social being. There are many factors responsible for promoting man for this change, one of which is common fear and reciprocity. Over time, man has become more and more social which resulted in the increase of moral restraints on his interaction with the society. Whenever a man acted in an unrestrained or unsocial manner, he came in conflict with others and in order to do away with such conflicts many rules and regulations enforcing various kinds of punishments came into being. Earlier when there was no criminal law to govern the society, people were under a constant threat of being attacked at any time by one another. The weak, the young and the old were easily dominated and overpowered by the strong and the powerful. However as time advanced, societies became more integrated and various norms came into practice, whose violation resulted in punishments and penalties such as: compensation, death penalty, banishment, mutilation etc. With the rise of the humanitarian aspect in penal philosophy fines, forfeiture, confiscation of property and imprisonment to life became common forms of punishment meted out for almost all offences in many parts of the world. Historical Perspective Of The Punishment System “Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise considers punishment as the perfection of justice” Proverb by Manu From the earliest times, punishment of offenders was a private matter. Punishment was basically based upon the principle of Lex Talionis. It is a principle that states that the victim or a member of the victim’s family retaliates against the offending party as a remedy for personal wrongs, i.e. an eye for an eye. In many instances, personal revenge was not only a right but also a responsibility. Every tribe, family and kin in every kind of society were obligated to avenge the harm caused to them and their family. The Sumerian code and the code of Hammurabi are the earliest written criminal codes. These codes carry the harsh translation of ‘lex talionis’ but further specify the concept of ‘equality on revenge’, meaning that the severity of retaliation must be equal to the severity of offence or amount of retaliation must fit the crime. Mythological Perspective of Punishment It is believed in many religions that an individual’s ultimate punishment is being sent to hell by God who is the highest authority that upholds justice. Hell is considered to be a place which exists after the life of a person, corresponding to the sins committed during his/her life. In Plato’s ‘Myth of Er’ and Dante’s ‘Divine Comedy’ it is said that in hell, damned souls suffer for each of the sins that they committed. In many religious cultures including Christianity and Islam, hell is traditionally depicted as a fiery and painful place where souls are punished. In Hinduism, Garuda Purana is considered to be a set of instructions given by lord Vishnu to his carrier, Garuda (king of birds). This version of Garuda Purana that survives into the modern era was written somewhere between 800 to 1000 CE. It deals with law, astronomy, medicine, grammar, gemstones, etc. It is also known as Vaishnava Purana. In this Purana, different offences were defined and their respective punishments prescribed. Indian Jurisprudence Under Hindu Kings Under Ancient Hindu kings, there was an administration of civil and criminal justice which was done according to the rules of the Dharma Shastras. In ancient Hindu law, laws were discussed under 18 heads covering both modern civil and criminal branches of law which fell under heads such as gifts, sales, partition, bailment, non-payment of debt, breaches of contract, disputes between partners, assault, defamation, trespass of cattle, damage to goods and bodily injury in general. A Hindu code was compiled by the Pandits of Banaras at the instance of Warren Hastings when he was governor general of India. It was known as the Gentoo code which was printed by the East India company in 1776 in London. It provided that the penalty for theft be divided into open theft and concealed theft and different punishments were prescribed for them according to Roman Law. The former was punished by fine and the latter by the cruellest form of punishment of cutting off the hand or foot, at the discretion of the judge. Death punishment was also given for crimes like housebreaking and highways robbery. Unequal And Discriminatory Punishment System in Ancient India During the ancient Indian period there was a clear distinction made between the people of higher and lower castes while imposing punishments. Kautilya’s Arthashastra prescribed lower punishment to higher caste offenders and more severe punishment to lower caste offenders. According to him, a brahmin is not to be tortured like other people even though he may have committed an offence; they were also exempted from death penalty. For example: A Kshatriya who commits adultery with a woman would be punished with the highest punishment, while a Vaishya doing the same thing would be deprived of his entire property and a Shudra would be burnt alive. During that time the powers of the judge were also very limited and kept in check. According to Kautilya a judge or a magistrate, who imposes an unjust fine shall be fined either double the amount or 8 times over the prescribed fine. If he imposes corporal punishment wrongly, he shall himself suffer the same. Forms Of Punishments Under Hindu Code of Law The history of the penal system states that in the past punishments were torturous, cruel and barbaric in nature. The objectives of such punishments were to create deterrence and retribution. Such punishments were classified under the following heads: 1. Capital Punishment 2. Corporal Punishment 3. Social Punishment 4. Financial Punishment Capital Punishment Capital punishment is an authorized killing of someone in a legal manner as a punishment for the crime committed, such as a death penalty. In other words, it means a government has itself sanctioned a practice where a person is put to death by the state as a punishment for a crime. In Ancient India, capital punishment was a very common practice. It was the most extreme form of punishment and the methods of meting out this punishment varied from time to time. Some of those methods were: Stoning: ‘Stoning’ is that method of capital punishment in which a group of people throw stones at a person until he dies. In it, the guilty person is made to stand in a small trench dug in the ground and the people surround him from all sides and throw stones on him until his death. This mode of punishment is still meted out in some of the Islamic countries, especially in Afghanistan, Saudi-Arabia etc. Pillory: In ‘Pillory’, the offender was compelled to stand in a public place with his head and hands locked in an iron frame so that he couldn’t move. Then he would be whipped, branded or stoned, or his ears would be nailed to the beams of the pillory. Sometimes, dangerous criminals were nailed to the walls and were then shot or stoned to death. It undoubtedly was a very cruel and brutal form of punishment which was in practice till the 19th century. Immurement: In it the offender was constructed into a wall. It was the most cruel, barbaric and the most painful form of execution of a death penalty. Execution by elephant: Under this punishment, the offender was thrown under the feet of an intoxicated elephant, to be painfully crushed to death. Corporal Punishment Corporal Punishment simply means a form of punishment which is intended to cause physical pain on a person. It is also known as physical punishment. This form of punishment is for the violation of a law which involves infliction of pain on or harm to the body of the offender. The objective behind corporal punishment is not only to punish the offender but also to prevent the repetition of the offence by the offender or by any other person. The following are the corporal punishment which were meted out in ancient times: Flogging: It simply means ‘beating or whipping’ someone with a stick or whip as a punishment. It was the most common method of meting out corporal punishment to offenders. In India, it was recognized under the Whipping Act, 1864 which was repealed in 1909 but was finally abolished in 1955. The method of flogging differed from country to country. Some used straps and whips with a single lash while others used short pieces of rubber hose since they leave behind traces of flogging. It was one of the most barbaric and cruel forms of punishment. This method is being used in most of the Middle East countries even today. Mutilation : Generally it means ‘to cause severe damage to the body of a person’. In other words it means damaging a person severely, especially by removing a part of the body. This mode of punishment was in practice in ancient India. During that period one or both of the hands of the person were chopped off if the offender committed theft, if he indulged in sex offences, his private parts were cut off, if he told a lie or criticized God his tongue was cut off, and if he was deceitful or untrustworthy his ears were cut off. This system was also in practice in the European countries. But in modern times this method has been completely disregarded because of its barbaric nature. Branding : It means ‘searing of flesh with a hot iron’. In this method of punishment, the culprit was branded by hot iron on the forehead with the words describing his offence. This method was commonly used in classical societies. In Roman Penal Law, criminals were branded with appropriate marks on their forehead so that they could’ve been identified and subjected to public ridicule. In India it was in practice during the Moghul rule, which has been completely abolished. Pressured by iron rods : In this method of punishment the body of the offender was pressured by two iron rods in a very inhumane and cruel manner where he suffered a lot of pain. Imprisonment : The Punishment of imprisonment which is seen today is totally different from the kind of imprisonment which was awarded in the past. Many kingdoms awarded the punishment of imprisonment by shackling the hands and legs of the culprit and throwing them down a dry well or in a small dark room. Social Punishment Social punishment is a punishment in which a person is restrained from making any kind of contact with any other person, or is moved to a distant place, breaking all of his social connections. No person can extend any help of any sort and if anyone tries to do that, they are held liable for punishment. Social punishment wasn’t aimed at inflicting any bodily pain, but a psychological one. This form of punishment was divided into two parts : Banishment : Banishment means ‘to expel a person’. It is also known as ‘transportation’. In this form of punishment, undesirable criminals were transported to far off places with an aim to isolate them from the society. This type of punishment was also in practice during the British rule in India. It was popularly known as ‘kalapani’. At that time, people deemed as ‘dangerous criminals’ were transported to remote islands. This practice was abolished in 1955 and was replaced with “Imprisonment for life”. Social Boycott : Social Boycott means ‘an act of forcing a person to abstain from any kind of contact with other people of the society’. In ancient times, the nyaya panchayat in villages used to give the punishment of social boycott to offenders. Under this punishment, no person of the village was allowed to share any occasion of joy and happiness with the offender. In other words the offender was degraded from his caste and no caste member was allowed to come into contact with him. For example in those times smoking ‘Hukkah’ was considered as one of the means for social gatherings and acceptance by the society. But offenders were not allowed to participate in smoking ‘Hukkah’ with the rest of the people, thereby boycotting them. This was termed as stopping a person’s ‘Hukkah- Pani.’ Financial Punishment It is also known as imposition of fine. It was the common mode of punishment which was not serious in nature and it was awarded specially for the breach of traffic rules, revenue laws and other minor offences. It also included the payment of compensation to the victims of the crime and also the payment of the costs of prosecution. Ancient Mohammedan Jurisprudence The criminal law practiced in northern and southern parts of India was the Mohammedan law, which was introduced by the Moghul conquerors whose power culminated under Akbar in the second half of the sixteenth century. The most authoritative written exposition version of the Mohammedan Jurisprudence in India was the Hidayah, which expresses the views of Aboo Huneefah and his disciples Aboo Yousuf and Imam Mohammed who were regarded by the Sunni sect of the Muslims as the principal commentators on the Quran. The Mohammedan criminal law as stated in the Hidayah presents a curious mixture of great vagueness and extreme technicality. The Mohammedan criminal law was open to all objections. It was occasionally cruel. Thus, for instance, immoral intercourse between a woman and a married man was in all cases punishable by death. The primary base of the Mohammedan criminal law was the Quran which was believed to be of Divine origin. But the laws of the Quran were found to be inadequate. Only eighty or ninety verses of the Quran talked about general rules which might come before a civil or criminal court of justice. Also under this system, the Sultan himself as a ruler exercised criminal jurisdiction over his subjects and accordingly sentenced the offenders to temporal punishments. Forms Of Punishments Under Mohammedan Jurisprudence The Mohammedan Jurisprudence had four broad principles of punishment. They were as follows: 1. Qisas or retaliation 2. Diyut or blood-money 3. Hadd or fixed punishment 4. Tazir and Siyasa or discretionary and exemplary punishment Qisas or Retaliation The principle of Qisas states, ‘an eye for an eye, life for a life, and a limb for a limb‘. Under this principle, crimes called Jinayat were also included. The qisas crimes were murder, manslaughter and any physical injury to another individual, intentional or unintentional. However the punishment of retaliation was classified under two heads: Life Qisas- If the intentional injurious act of the criminal causes the death of the victim, the heirs of the victim may take revenge and ask the judge for Life Qisa (death penalty). Limb Qisas- When the intentional injurious act does not cause the death of the victim, but rather the loss of a limb or its proper function, the victim, herself/himself, may take revenge or ask for Diya. Diyut or Blood Money The second form of punishment was called Diyut which meant the fine or compensation for blood in cases of homicide. The amount of Diya received for a murdered person and injury of different parts of the body is determined in Fiqh books; the Islamic jurisprudence compiled in books by different Islamic jurists. The punishment of Qisas in all cases of willful homicide was exchangeable with that of Diyut, if the person having the right of retaliation wished so. He was given an alternate remedy either to take Diyut or Qisas as a form of compensation. Hadd or Specific Penalty The third principle of punishment under the Mohammedan law was called Hadd which is defined in the Hidayah, which comprises the specific penalties fixed to promote public justice. Under Hadd the quantity and quality of punishment was fixed for certain offences and this could not be altered or modified. If the offence was proved, the Qadi had no other alternative but to sentence the convict to the prescribed punishment. But Hadd could not be executed if there was any doubt, or legal defects and then the Sultan was directed to administer the law with moderation. The punishment of Hadd also extended to the crimes of adultery, of illicit sexual intercourse between married or unmarried individuals, on false accusations, drinking wine, theft and of highway robbery. Types of Hadd Punishment Given for Different Crimes Whipping is the Hadd punishment for adultery, sapphism, procuring, sexual defamation and drinking alcohol. Maximum amount of Hadd lashes is 100 lashes. Some offences receive 80 lashes and the minimum amount is 75 lashes. Amputation form of punishment is given for burglary, rebelling and doing corruption on earth. The perpetrator of rebellion was punished either by maiming of his/her hand and foot, crucifixion for three days, banishment or death. Death Penalty is given for crimes such as sodomy, rape and incest. Death penalty is considered as the most cruel and sadistic form of punishment given in those times. There are still many Islamic countries which encourage the practice of death penalties. Lapidation or Stoning was the punishment for the offences of Zina, when legally established against a man of sound understanding and mature age, being a Musalman and free, and being married to a woman of the same description. Tazir and Siyasa Tazir and Siyasa were the discretionary and exemplary form of punishments, which rested completely on the discretion of the judge. Under Tazir, the punishment could be anything from imprisonment and banishment to public exposure. The Qadi was authorized to exercise discretion according to the nature of the offence, rank and situation of the offender in adjudging him to receive his punishment for the crimes he committed. At the discretion of Qadi, banishment was also allowed. Public exposure with a blackened face was expressly declared to be the punishment to be inflicted upon a false witness in addition to forty lashes. This general doctrine of discretionary punishment was clearly set forth in the preamble of Mohammedan law which states that “The Mohammedan law vests in the sovereign and his delegates the power of sentencing criminals to suffer discretionary punishment in the following three cases. 1. In the cases of offences for which no specific penalty of Hadd or Quisas has been provided by the law. 2. For crimes which are within the specific provisions of Hadd and Kisas and the proof of such crimes being committed may not be such as the law requires for a judgment of the specific penalties. 3. For repeated heinous crimes in high degree which causes injury to society at large and particularly other offences of this description that require exemplary punishment beyond the prescribed penalties. Siyasa was also the same as Tazir which was meant to create an example by punishing dangerous criminals habitually committing atrocious crimes, and of whom there could be no hope of reformation. Therefore Tazir and Siyasa might in all cases be inflicted by the ruler upon strong presumption, whether arising from the credible testimony of such incompetent witnesses or from circumstances which raised a presumption of guilt or from any other reasonable cause. Conclusion From the above brief survey, it can be said that the punishment system during Ancient India was cruel and barbaric. The laws regarding punishment which existed both in Hindu and Muslim laws promoted harsh punishment following the principles of retaliation (Lex Talionis), deterrence and incapacitation giving less importance to restoration and rehabilitation theories. Also, punishment was discriminatory in the Hindu societies, handing out stringent punishment to lower castes. Most of the laws that existed in ancient times were a result of various religious interpretations ie, for the Hindus it was Manusmriti and Arthashastras and for Muslims it was Sharia and teachings of Mohammad. Due to following, the principles of religious offences were interpreted as evil incarnation, therefore harsh punishment were very common in those days. There was no regard for human life and human rights, people believed that bodily pain and harm is the only way for rehabilitation. However, with the advent of British rule in India, new theories of law came into existence which evolved the definition and forms of punishment. Fines, compensation, confiscation of property became the most common form of punishment. Later on, an official criminal code of India was introduced which covered all substantive aspects of criminal law. The code was drafted on the recommendations of the First Law Commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Macaulay. This code came into force in British India during the early British Raj period in 1862, known as the India Penal Code. Since then many amendments have been made to it, bringing many significant changes into the theories and forms of punishment. HISTORICAL PERSPECTIVE OF CAPITAL PUNISHMENT IN INDIA Capital punishment or death penalty is the penalty of death for a person convicted of a serious crime. It is derived from the Latin word ‘capitalis’ which means ‘of the head.’ The penalty is so-called since centuries ago beheading was the most frequent form of punishment for serious crime. Among the current methods of implementing capital punishment are firing squad, electrocution, gas chamber and lethal injection, apart from hanging by neck. From the study of history, we can see the prevalence of capital punishment since time immemorial. Right from ancient Indian period, thro’ medieval period of India and as well as in modern India, capital punishment has been very much prevalent. The punishments are provided in order to deter crimes. The punishments are imposed to make the threat credible. Threats and imposition of punishments are obviously necessary to deter crimes. This material focus is on the extent of implementation of capital punishment in ancient India and medieval period and also examines trends and developments in India particularly in terms of the challenges in implementation of the Capital Punishment in modern India. Capital punishment, often referred to as the death penalty, has been used as a method of crime deterrence since the earliest societies. Historical records show that even the most ancient primitive tribes utilized various methods of punishing wrongdoers, including taking their lives, to pay for the crimes they committed. Murder most often warrants this ultimate form of punishment. “A life for a life” has been one of the most basic concepts for dealing with crime since the start of recorded history. Early forms of capital punishment were designed to be slow, painful, and torturous. In some ancient cultures, law breakers were put to death by stoning, impaling, being burned at the stake, and even slowly being crushed by elephants. The prescription of punishment is a clear recognition of the principle that such offences are no longer a private affair between individual, but a matter between individual and state, a matter with which the whole society is concerned. Here we have the existence of the common principle to all ancient society that evil should be returned for evil. It is the dictum of an eye for an eye and a tooth for tooth. ANCIENT PERIOD In ancient India, punishments were generally sanctioned by the ruler. There were two main purposes for punishment in Hindu society. Incapacitation was the first purpose and was used to ensure that an offender would not be able to commit the same crime again. For example, the hands of a thief would be cut off. Deterrence was the second purpose of punishment. Criminals were punished to set an example to the public, in hopes of preventing future offenses. Although these were the two main purposes of Hindu Law, other purposes such as rehabilitation were used as means of punishment and correction. Retribution is another theory of punishment; however, it does not have a prevalent role in Hindu punishment. Types of punishment In his digest, Manu cites four types of punishment: Vakdanda, admonition; Dhikdanda, censure; Dhanadanda, fine (penalty); Badhadanda, physical punishments. Later authors added two more types of punishment: confiscation of property and public humiliation. Ancient India was not a safe place to live. Many groups of thieves existed already at the time of the Buddha ( 6th century BC). They were bandits from generation to generation, robbing and killing their victims like the thugs did later. These are professional bandit caste, but not only them, constituted an important problem: punishment of crimes and offences was then harsh.1 Maurya Dynasty The Mauryan administration is famous in history for its judicial system. The Mauryan legal system was based on idealism and not reformism. The king was the highest judicial officer. Penalties were imposed on those who break the law. Monetary fines were imposed for ordinary crimes. Capital punishment was practiced. During the rule of Chandragupta and his son Bindusara: the laws were harsh and the death penalty was applied to a myriad of offenses. The Maurya Dynasty, which had extended to substantial parts of the central and eastern regions during the 4th Century B.C., had a rigorous penal system, which prescribed mutilation as well as death penalty for even trivial offences. Written in the 4thcentury BC by Kautilya, minister of the king CandraguptaMaurya, the “Arthashastra” is a treatise on the art of ruling and one of the main Indian books ever written. It recommends : cutting off the right hand for pick pocketing or theft; cutting off the nose for theft; cutting off one hand for false dice player; cutting off the nose and ears for abetting in theft and adultery; chopping off one hand and leg for kicking preceptors and using royal coaches; blinding by poisonous ointments for sudras pretending to be Brahmins or for slandering the king; chopping off one hand or foot for freeing culprits, forgery or sale of human flesh; cutting off the tongue for slandering preceptors, parents and the king and for defiling a Brahmin’s kitchen. There were also different forms of death: death with torture for murder in a quarrel; death by impaling for theft of royal animals; death by burning hands and skin for treason; death by drowning for breaching dams or reservoirs, for poisoning or for women who administered poison; death by tearing off the limbs of criminals, for women who administered poison or set fire to houses; death by burning for incendiarism.2 Guptha Dynasty: Fa-hein (337 – 422) was the first of three great Chinese pilgrims who visited India from the fifth to the seventh centuries, in search of knowledge, manuscripts and relics. Fa-hein arrived during the reign of Chandragupta II and gave a general description of North India at that time. Among the other things, he reported about the absence of capital punishment, the lack of a poll-tax and land tax. The cruel punishments during the Mauryan Dynasty had been abolished. The government operated without the system of espionage often practiced by Mauryan rulers. Law breaking was punished without death sentences – mainly by fines. Punishments such as having one's hand cut off were applied only against obstinate, professional criminals. Gupta law was exceptionally generous.3 Vardhana dynasty: The down fall of Gupta Empire formed into a number of small independent kingdoms in North India. One kingdom was at Thaneswar ruled by the Vardhana dynasty. PrabhakaraVardhana was the one who founded the Vardhana dynasty. He was the first king of the dynasty with his capital at Thanesar. After the death of the founder, his son RajyaVardhana succeeded him. But, soon the enemies murdered him and then Harsha became the ruler of Thaneswar in A.D. 606 and ruled up to A D 647. King Harsha left for the holy abode in the year 647 AD, after ruling over the Indian subcontinent for more than 41 years. The Vardhana Dynasty came to an end by the death of Harshavardhana. As he did not have any heirs, his empire rapidly collapsed into small states again. During his period, punishments were not so harsh and there was no death penalty. MEDIEVAL PERIOD The ancient law of crimes in India provided death sentence for quite a good number of offences. The great Indian epics, viz., the Mahabharata and the Ramayana also contain references about the offender being punished with vadhadand (death penalty). During the medieval era, capital punishment was sentenced even for extremely trivial and inconsequential matter or in other words we can say that they were executed for minor crimes such as stealing, cheating or even trespassing. Also, the methods of administering death penalty were immensely harsh and gruesome. The punishment which was given to the accused can’t be compare to the act which has been done by accused. Can you imagine someone getting executed for stealing a fruit from their landlord's tree? Or someone gets decapitated for shoplifting? Bizarre, it might sound, but such petty 'crimes' accounted for capital punishment during the medieval period. There were several hundred offenses which 'qualified' for death penalty. Once convicted of these ridiculous crimes, convicts were executed in the most heinous way possible. Some of these ways include, hanging, decapitation, burning at the stake, drowning, crucifixion, quartering by horses, stoning, strangulation, impalement etc. There are records of other violent and brutal execution methods being practiced in that era. Capital punishments during various dynasties of Medieval Period: The Medieval Period of Indian History comprises a long period, spanning from 6th century i.e. after the fall of the Gupta Empire to the 18th century i.e. the beginning of colonial domination. Pallava Dynasty Pallavas were a powerful Dynasties of Andhra Pradesh in Indian medieval history in the end of 500 AD.4 They ruled from its capital placed at Pallavapuri. For better administration, they moved it to Kanchipuram and established a more strong empire by the founder of pallavas Dynasty Simha Vishnu Pallava. The highest judicial organization was called Dharmasena. The king acted as its head. Punishments were not cruel and harsh. Fines were also imposed along with punishment. Chola Dynasty The Cholas dynasty was one of the earliest dynasties that ruled in South India. Vijayalaya (850-875) was the founder of the dynasty. The punishments for minor crimes were in the form of fines or a direction for the offender to donate to some charitable endowment. Even crimes such as manslaughter or murder were punished by fines. Capital punishment was uncommon even in the cases of first-degree murder. Only one solitary instance of capital punishment is found in all the records available so far. Crimes of the state such as treason were heard and decided by the king himself and the typical punishment in such cases was either execution or confiscation of property.5 The Chalukya Dynasty The Chalukya Dynasties were in power of Indian medieval history from the reign of 600 to 1200 AD in the state of Deccan. There were separate military and civil courts during the reign of Chalukyas. King was the highest judicial authority and gave his decision in accordance with conventions and on the advice of his ministers. All sorts of punishments such as imprisonment, exile, fines and sentence to death etc. were prevalent in his period.6 Pandya dynasty The Pandyan Empire started around the 6th century and ended around the 15th century. The modern districts of Madurai ,Thirunelveli and parts of the Travancore State were parts of the Pandyan Kingdom. Punishments were severe unlike during Chola rule. Justice was administered free of charge, by special officers appointed as judges and magistrates, but the king was supreme and the final arbiter in all civil and criminal cases. The punishments were very severe and hence crimes were rare: one caught in the act of burglary, adultery or spying was given the death penalty and one giving false testimony would have his tongue cut off. If a debtor can’t pay back his creditor and keeps making incomplete promises, and the creditor can draw a circle around the debtor, then the debtor cannot leave that circle until the debt is paid. If he does then he is punished with death. Corporal punishment was common and by modern standards barbarous. Instances of persons being tied to the leg of a buffalo bull and being dragged by the brute are not wanting as models of punishment. There was ony tyrant king, GunaSundaraPandyanwho signaled his change of creed by outrages on the Jains. Tradition claims that eight thousand Jains were impaled.7 Delhi Sultanate Dynasty A number of Delhi Sultanates were in power from 1210 AD to 1526 AD. During the Muslim period Islamic law or Shariat was followed by all Sultans and Mughal Emperors. The Shariat is based on the principles enunciated by Quran. Under the Muslim criminal law, which was mostly based on their religion, any violation of public rights was an offence against the State. There were three types of punishments recognised by Muslim Law, Hadd, Tazir and Qisas. The penal code was severe in those days. Capital punishment and physical torture were frequently awarded as punishments like cutting of limbs driving nail into the body, pouring molten lead into the throat, beating with stones and such other inhuman punishments were common in those days. Death by elephant was most prevalent in those days. In 1305, the sultan of Delhi (Sunni Muslims) turned the deaths of Mongol prisoners into public entertainment by having them crushed by elephants. In the sultanate of Delhi, elephants were trained to slice prisoners to pieces “with pointed blades fitted to their tusks”. Such executions were often held in public as a warning to any who might transgress. The executions were intended to be gruesome and, by all accounts, they often were. They were sometimes preceded by torture publicly inflicted by the same elephant used for the execution. Vijaynagara Dynasty Vijaynagar Empire was established by two brothers Harihara and Bukka in the middle of 13th century. It continued for three centuries. Krishnadeva Raya was the best ruler of Vijaynagar Empire; He was always unbeaten in the wars throughout his reign. He always treated with the beaten enemy as a friend. During Krishnadevaraya period, crimes were less. Mild to severe punishments were awarded according to the crime. Death was the sentence for treason Mughal Dynasty Babur (1526 to1530 AD), was the founder of the Mughal Empire in India. The judicial system of the Mughals was very similar to that of the sultanate. It became more systematic, particularly under Aurangzeb. Capital punishments and mutilations were frequent, and there are records of impaling, dismemberment and other cruel punishments. They were, however, limited in their incidence and were inflicted only under the royal orders. Furthermore, they were confined to those cases where an example was to be made of the individual concerned. One famous punishment of the Mughal dynasty is crushing by elephants. Execution by elephant was a common method of capital punishment in India during later medieval period.8 MODERN INDIA After the downfall of Mughal Empire, no empire was able to establish their rule in India. In the meantime, East India Company started their rule and started to occupy many regions forcibly. When once the British colonial rule was started, the British had taken control over the judicial system. Making of Indian Penal Code- Historical Background: The Charter Act of 1833, plausibly to achieve uniformity of laws and judicial systems in all the parts of British India, introduced a single legislature for the whole of British India. It made the Governor-General of India, for the first time, solely responsible for promulgating laws for all persons and the Presidency towns as well as for the mofussil. The Charter Act of 1833 also provided for the appointment of a 'Law Commission' for inquiring fully into, and reporting on, the state of laws in force in British India and the administration of justice. During 1834-36, the Law Commission, under TB Macaulay's supervision, prepared the Draft Penal Code. Thus, it is evident that the Indian Penal Code 1860, which is an outcome of vision, and laborious efforts of about three decades (1834 - 1860) of the law commissioners, particularly of Lord TB Macaulay, the main architect of the Code, emerged as a codified the then prevailing English criminal law.9 Provisions awarding Capital Punishment under Indian Penal Code: The offences for which capital punishment is granted under IPC includes, waging War Against The Government Of India, (Sec. 121), aggravated Forms of The Offence Of Giving Or Fabricating False Evidence (Sec. 194), punishment for murder (Sec. 302), abetment of suicide of child or insane person (Sec. 305), aggravated form of Decoity (Sec. 396), kidnapping for ransom etc. (Sec. 364A). by the Criminal Law (Amendment) Act, 2013, capital punishment has been included for the offence of sexual assault also (Sec. 376). Prior to 1955, under the old Code of Criminal Procedure 1898, Section 367(5) of the Code stipulated that the court had to give reason, if the sentence of death was not imposed in a case of murder. In 1955, sub-s 5 of Section 367 was deleted. The result of the deletion was that the discretion available to the court in the matter of the sentence to be imposed in a given case widened. The Code of the Criminal Procedure was further amended in 1973, making life imprisonment the normal rule. Section 354 of the new code, has now made imprisonment for life a rule and death sentence an exception, in the matter of awarding punishment for murder. The constitutional validity of death penalty was considered by a Constitutional Bench of the Supreme Court in Bachan Singh Versus State of Punjab.10 Rarest of the rare doctrine was introduced in this case. The Supreme Court's ruling that death sentence ought to be imposed only in the 'rarest of rare cases' was expanded in Machhi Singh Versus State of Punjab11 wherein it was held that life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. The recent executions broke with a trend of gradual abandonment of the death penalty. According to statistics, India had approximately 140 executions per year between 1954 and 1963. Between 1996 and 2000, this rate was roughly 1 execution per year. It is, however, interesting to note that despite the punishment being handed down by the courts, both the lower and appellate ones, not many have been carried out. According to official statistics, only one sentence, that of Dhananjoy Chatterji in 2004 was carried out since the execution of ‘Auto’ Shankar in 1995. After 8 years without executions, India carried out two executions in close succession in November 2012 (AjmalKasab) and February 2013 (Afzal Guru). Both prisoners had been convicted of taking part in terrorist attacks. In July 2015, Mumbai serial bomb blast convict YakoobMemon was hanged for his offence against the State. All other death sentences pronounced earlier have, in some cases, been reduced to life imprisonment and the in the other cases, are in Court for revision or before the President or Governor on the plea of mercy. There are some main differences between the ancient and the modern Hindu law with respect to the death penalty. The first difference is that in classical India the death penalty was permissible in a very large number of cases. Second, the death penalty was not prescribed solely in cases in which death resulted or was likely to result. Instead, it was also used in cases such as adultery and theft. Third, there were numerous ways to inflict the death penalty, unlike modern India which uses hanging as their only means of imposing death. Fourth, in modern India the death penalty is an exception whereas in ancient India it was a rule. Fifth, today the underlying principle seems to be retributive while in classical India it was a means of deterrence. Lastly, today the law in relation to the death penalty is the same regardless of caste or colour. However, in ancient India Brahmins were never subject to the death penalty. As of now, death penalty is good and serves a definite purpose of reducing crime as well as bringing justice to the criminals and innocent. In order to serve its purpose, it must be adjusted and made more effective and efficient. THEORIES OF PUNISHMENT The Critical Evaluation of the Different Theories of Punishment Introduction Punishment is a form of social control which helps the society to sustain its rules and regulations, not to mention the peacefulness of the lives of its inhabitants. Because of that reason if the wrongdoing is not controlled then it will create problem within the society and in the lives of people. In order to deal with the wrongdoing; and in this particular case, crimes, which can be said as the violations of law, we have the theories of punishment. The theories of punishments try to explain and justify punishment by their own viewpoints. There are mainly three theories of punishment which are the deterrent theory which tries to deter crimes by punishing the criminal, retributive theory which aims to attain retribution by punishing the criminal for his or her wrongdoing and finally reformative theory which hopes to reform the character of the criminal by inflicting punishment. Nevertheless, every one of these theories has their own merits and demerits. Deterrent Theory of Punishment Deterrent theory of punishment is one of the theories of punishment. This aims at, according to Mackenzie “to deter others from committing similar offense” whereas Lillie describes it “when the judge makes example of some offender.” (Lillie, 1948, p. 253) Thus it is also preventive theory of punishment or exemplary theory of punishment. Similarly, it is thought that “Punishment is said to have a deterrent effect when the fear or actual imposition of punishment leads to conformity. Specifically, punishments have the greatest potential for deterring misconduct when they are severe, certain, and swift in their application.” So in general, the aim of punishment is to deter crimes. So, punishment is inflicted upon the criminal in order to deter or prevent similar offenses. It is done as a preventive measure towards crimes. It is exemplary so that the others do not commit similar crimes. It is forward-looking. It is focused on society. It is done as a preventive measure towards crimes. It is generally held that when a person commits a crime, he or she gets mental satisfaction by doing so. Pain and pleasure being natural feelings of human beings, the satisfaction of a crime leads to more crime. In order to prevent that pain is given to the offender so that he or she may have the dissatisfaction of the act and thus deter from doing so. For example, if a person steals something and as a result of that, he is given a punishment in which his or her hand is cut off then the negative effect that is to say the pain will abstain him or her from stealing. It is done as a preventive measure towards crimes. It is exemplary so that the others do not commit either the identical or the similar crimes. For example, if a person takes drugs, this crime can influence other latent criminals to indulge in the same activity. And punishing the drug user can deter others from doing the same kind of heinous act. Crimes can influence more crime of the like, for example, taking drugs can influence others in selling drugs. So deterrent theory comes here to deter the similar offense by infliction of punishment upon the criminal, for example, if the criminal, in this case, the drug user is punished, then this act will be exemplary towards the latent criminals, reframing them from committing the similar crime; that is to sell drugs. And this is why it is exemplary so that the others do not commit either the identical or the similar crimes. It is forward-looking. This is because it tries to deter crimes in the future. For example, if a person is found guilty of fraud and is punished for it then this act of punishment will deter future offense like that. So it is “forward-looking.” It is focused on society. The aim of this theory is not towards the individual but towards the society. This is because by exercising punishment it wants to deter or prevent crimes, not to mention set an example of what would happen if the crime is committed. Thus, it is focused on society. There are mainly four types of deterrent theory. They are specific deterrence, general deterrence marginal deterrence, and partial deterrence. “Specific deterrence involves the effectiveness of punishment on that particular individual’s future behavior.” For example, if a thief is punished, he will be deterred from future crimes as such. “General deterrence asks whether the punishment of particular offenders deters other people from committing deviance.” For example, if a thief is punished then this will deter other latent criminals from committing the same crime in the future. Marginal deterrence “focuses on the relative effectiveness of different types of punishments”. For example, if the punishment for a certain crime, being jail time has more effectiveness than giving fine, then the former has higher marginal deterrent value. Partial deterrence involves the partial abstaining from a crime, or part of a crime. For example, a hijacker may threaten his or her victims by words or by weapons, and this threatening by weapon deserves severe punishment than threatening by words. Critical Evaluation of Deterrent Theory of Punishment The deterrent theory has the purpose to demonstrate a certain act as wrong, thus inflicting punishment on the criminals, and also to deter the criminal and the others from doing the same kind of act. Utilitarian’s or consequentialists are the main advocate of this theory. “Utilitarian’s want a system of punishments designed so that everyone can feel a maximum of security. This means that the system of criminal justice should prevent people from committing crimes by threatening them with those kinds of punishment that are best suited to the aim of preventing further crime. At the same time, those who do not commit crimes should feel reasonably certain that they will not be punished. The system is consistently looking forwards.” This is because it wants to deter crimes in the future by inflicting punishment upon the criminal at the present. J. Bentham advocates this by saying that “people would be deterred from crime if the punishment was applied.” The two versions of utilitarianism that is act utilitarianism and rule utilitarianism think deterrence as adequate. As act utilitarianism is a version of utilitarianism that holds that an act is good if it results in greatest utility. “It seems right, in general, to suppose that punishing people for breaking the law is useful.” and as rule utilitarianism is a version of utilitarianism where the action is good if the resulted greatest utility is gained by following the rule. A major limitation of the theory is that it promotes the treatment of a person as a means in order to benefit others. It is also criticized that as the aim is only to prevent crimes, it does not matter if the punished is actually guilty or not. Furthermore, at times, the punishment may exceed the level of the crime. The criminal is also treated as an outsider. It can also be criticized by saying that it fails to deter crime. Finally, it does not focus on reforming the criminal or retribution but only on the prevention of crimes. At first, the opponents of the theory argue that a person will be treated as a means. This is because the person having the punishment is being punished for the sake of deterring these types of crimes, not for his own sake. For example, if a person is guilty of theft, he or she is punished so that others may not do it. Thus, Kant thinks that “it ignores the criminal’s dignity by sacrificing his interest for the public good.” Mackenzie also says “it would involve treating a man as a thing.” Similarly, Kant again says that it treats a person as a means in order to “achieve social ends.” Thus the theory is accused of treating a person as a means. Others think that the aim of this theory is only to prevent crimes, so it does not matter if the punished is actually guilty or not. This is because the focus is not on justice but on the prevention of crime. For example, a car is stolen and in order to prevent this from happening again, an innocent people are charged with the crime and thus punished. So as W. Lillie criticizes “it does not really matter whether the punished is innocent or guilty.” Some think that at times the punishment may exceed the level of the crime. This is because the punishment needs to be an exemplary one and thus crossing the line is not unnatural. But it would be punishing the person more than he deserves. For example, if a person is caught as a pickpocket and he is hanged for it then that will exceed the limit of his or her crime. Thus, William Lillie says that “punishment beyond a certain limit for a particular crime is unjust.” Another objection has emerged as the criminal is also treated as an outsider. This happens while a criminal is treated as a means for social progress he or she is also being treated as an outsider as an insider would not be treated as a mere means to an end. This is an objection recently raised by R. A. Duff where “we the” supposed “law-abiding people would punish the outsiders for their own safety.” Thus, it is contended that this theory treats criminals as an outsider. It can also be criticized by saying that it fails to deter crime. As moreover as “many criminologists say it does not stop crime” as white- collar criminals or the criminals that like punishment may be unshaken by this whether it is specific deterrence, or general deterrence, or The Critical Evaluation of the Different Theories of Punishment marginal deterrence, or even partial deterrence. Thus, Nagin also states this objection that “it fails to deter crime.” It is also criticized for not aiming to reform the criminal or retribution. As the aim of the deterrent theory of punishment is to deter so it does not focus on reforming the criminal. And likewise, it does not focus on retribution of the crime. It only focuses on the prevention of the crime. Retributive Theory of Punishment Retributive theory of punishment is one of the theories of punishment. And the aim of this punishment is “allowing a man’s deed to return to himself” as Mackenzie says, and “make the offender suffer like his victim” as Lillie describes. And it is also said that “offenders under a retributive philosophy simply get what they deserve.” So, the aim of the punishment is to achieve retribution. It holds that when a criminal has done a crime then he or she has forfeited his or her rights of equal value. It also says that the punishment should fit the crime. As a result, the criminal should suffer just as the victim did. So, it has a backward-looking approach. By this theory, the criminal has forfeited his or her rights by committing the crime. As Boonin would say by this “a particular offender has forfeited a particular right.” This is because when a criminal commits a crime, he or she has done an act that dismisses their rights. For example, if a person kills a person, then he or she has forfeited his or her rights to live. And thus, the criminal has forfeited his or her rights by committing the crime. It also holds that “let the punishment should fit the crime.” The reason is that this theory tries to achieve retribution, not vengeance. Thus, for example, if a person steals then he or she must be punished according to the crime, he will not be punished at the degree of any severe or mild offense. That is why the punishment should fit the crime. The criminal should suffer just as the victim did. It is like “an eye for an eye a tooth for a tooth approach.” As punishment is given for retribution so the suffering of the criminal should be the same as the victim. For example, if a person bit another by his or her sick enjoyment then he or she should also be punished in the same way. So, the criminal should suffer just as the victim did. This theory is “backward looking.” Boonin explains that “committing an offense in the past is sufficient to justify punishment now”. For example, if someone harasses a person a month ago, he will be punished for his previous crimes, if found guilty, now. So, it is a backward-looking approach. In the classical times, retributive punishment would follow only an eye for an eye rule. But at the present time, there are versions of retributive theories which punishes by the means which is mainly proportionate to the crime rather than an eye for an eye approach. Thus comes the desert- based retributivism, forfeiture-based retributivism, and fairness-based retributivism. Desert based retributivism which holds “that punishing people for breaking the law is morally permissible because such people deserve to be punished.” So, it is our duty to punish them. Forfeiture- based retributivism states that the offender has forfeited his or her rights while hampering the rights of others. Fairness-based retributivism saying retribution is necessary because of fairness as it is unfair for a criminal not being punished, as the criminal is a “free rider”. Critical Evaluation of Retributive Theory of Punishment Retributive theory of punishment has the purpose of reattribute the unjust act, holding that the punishment should be proportionate to the crime. Deontologists are mainly the advocates of this theory. “The goal of the system of punishment is very different, according to deontological ethics. When a person commits a crime, this means, according to deontologists, that he or she becomes afflicted with guilt. And a guilty person deserves to be punished. So, this system is backward looking.” This is because here it tries to do retribution to the already committed crime. This punishment is given for the person as retribution towards his crime. This is how Kant writes that “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.” So, he supports this by arguing that “retribution is not just a necessary condition for punishment but also a sufficient one.” And it is also said that “the pointer of the scale of justice is made to incline no more to the one side than the other”. So, this is done the wrongdoing comes around towards the criminal himself. Thus, Hegel supports it by saying that “it is the reward of the crime.” This is said to be a theory of punishment which is according to Mackenzie “the most satisfactory of all the theories of punishment.” This is because neither deterrent nor reformative theories of punishment will do any good if the criminal does not understand that the punishment is the consequence of his wrongdoing. And both of them serve the retributive attitude. But like the other theories of punishment, this theory is not beyond criticism. Critics criticize this theory by saying that this uplifts revenge. The Critical Evaluation of the Different Theories of Punishment others say that there is always a possibility of crossing the line while punishing the criminal. Opponents of this theory think that breaking the law must not always result in retribution by punishment. It is criticized against forfeiting the rights of the offender. The fairness-based retribution is criticized on the account of the “free rider”. This also disregards, as others claim, other moral considerations such as deterrence and reformation. Others criticized it by saying that it is not possible to have, and also, we should not have the same retributive punishment in all criminal cases. The theory is firstly criticized by the notion of uplifting revenge. It is assumed that this theory satisfies the need for vengeance. For example, if a criminal is beaten up as he has beaten an innocent person, it will uplift the notion of vengeance. So, the theory is firstly criticized by the notion of uplifting revenge. The critics also say that there is a chance to cross the limit of punishment in these cases. This is because as it is based on retribution the offender may be punished more several than the crime he has committed. For example, in the retribution of beaten up an innocent person the criminal might be beaten even more or he or she may be beaten to death. So, there is a chance to cross the limit of punishment in these cases. Opponents of this theory think that breaking the law must not always result in retribution by punishment. For example, if a person breaks a law, for say, giving someone water without buying it, so that the person receiving the water can recover himself from having a heat stroke, then though it is illegal as the person did not buy the water before giving it to the other person, but still it is not something that should be punished. And this goes against the desert-based retribution, so opponents of this theory contend that breaking the law must not always result in punishment. It is criticized against forfeiting the rights of the offender. This goes against the forfeiture-based retribution. This is because human rights are supreme and held as universal for all humans. Because of that the abolishing of rights due to the offender’s criminal activity is not accepted by some. Furthermore, even if rights are forfeited, the question arises about its length and duration. So, it is criticized against forfeiting the rights of the offender. The fairness-based retribution is criticized on the account of the “free rider”. It is held that though there can be criminals who are free riders it is not necessarily true for every criminal, as for murder, rape, child abuse and so on the free riding concept does not work. And so, the fairness-based retribution is criticized on the account of the “free rider”. It is also criticized by disregarding other moral considerations such as deterrence and reformation. As the focus of this theory of punishment is to attain retribution, so it does not try to deter crimes in the future or it does not try to reform the character of the criminal. And as Lille says this theory in the simplest form makes the criminal suffer. So, it disregards other moral considerations as it does not aim to reform the criminal and demonstrate the act as wrong to others. Finally, it is criticized that it is not possible to have, and also, we should not have the same retributive punishment in all criminal cases. This is because there are some cases where the criminal has done so much wrong that no punishment can make retribution of the act as classical retribution theory would hold as “an eye for an eye”. For example, if a person kills two people and he is also killed then it will be makeshift retribution but not the actual one as he or she cannot be killed twice. So, it is not possible to have retribution in all the criminal cases. Besides, we simply should not have the same act done to the criminal all the time as well. For example, a rapist should not be raped by the name of retribution, so lesser punishment can also serve as well but again it cannot be the same retribution, and then again if higher punishment is given then it simply wrong, so either way the punishment does not fit the crime. Thus, it is criticized that it is not possible to have, and also, we should not have the same retributive punishment in all criminal cases. Reformative Theory of Punishment Reformative theory of punishment is one of the theories of punishment. As Lillie says “the aim of punishment is to reform the character of the offender himself.” Likewise, Mackenzie thinks that “the aim of this punishment is to educate or reform the offender himself”. Thom Brooks thinks “punishment should teach the offenders a lesson.” The goal is also referred to as “to restore a convicted offender to a constructive place in society through some combination of treatment, education, and training.” Thus, it is also called the educational or rehabilitation theory of punishment. Where it aims to reform or educate or rehabilitate the offender. This theory of punishment reforms the character of the criminal by punishing him or her. It also tries to educate the criminal by inflicting punishment. This theory subscribes to the prevalent norms of contemporary humanism. This theory tries to reform the character of the criminal by punishment. Thus, it punishes the criminal in order to reform him or her. For example, if a person has harassed another person, he or she will be punished so that he or she may be reformed. That is why Lillie says “the value of this suffering lies in the capacity to make the offender see the evil of his wrongdoing.” (Lillie, op.cit., p. 254) So by punishment, the character of the criminal is reformed. It tries to educate the criminal or say the offender by punishment. It hopes that when a criminal is punished, he or she will have the education that it is wrong to do such a crime. For example, if a person steals something, then the criminal will be punished so that he or she may be educated. Thus, the theory punishes the criminal to educate him or her. This theory subscribes to the prevalent norms of contemporary humanism. AS Mackenzie states “it fits best in the humanitarian sentiments.” And if they have committed a crime then they can be reformed. They can be educated. There is still a chance that they can come back from the misleading path. There is still hope. Thus, it has a humanistic approach. So reformative or say the educational theory of punishment is a theory of punishment which tries to reform a criminal by punishment, which educated a criminal by imposing punishment upon him or her and not to mention has a humanistic subscription. When this theory of punishment first arrived, it had a diametrically opposed view towards the deterrent theory of punishment and the retributive theory of punishment. It was especially enforced by the criminologists who did not want to treat the offenders as criminals but as patients. But gradually the theory developed and at the present time “there are two general ways of rehabilitation.” They are the deontological rehabilitation and the consequentialist rehabilitation. Deontological rehabilitation tries to rehabilitate criminals as it is the just thing to do. On the other hand, the consequentialist rehabilitation tries to rehabilitate criminals as everyone will get better off. Between these two prominent theories of rehabilitation, the majority of the advocates of rehabilitation are keen towards the latter one. In any case, the rehabilitation is achieved when the criminal understands that what he or she has done was wrong and deliberately chooses to refrain from doing those things again. But still, there are some who think that crime should be treated as a mental illness. Critical Evaluation of Reformative Theory of Punishment The reformative theory has the purpose to reform or educate or rehabilitate the criminal. Thus, the punishment is aimed to reform the character of the offender. This is very popular in the realm of criminology as it has humanistic elements within it as this theory aims to reform the character of the offender. It is thought that by punishment the criminal will be educated and so he or she will be able to live and contribute to society in a positive way. Its root is thought to be grounded by Plato as he thought that “we ought not to repay injustice with injustice or to do harm to any man, no matter what we may have suffered.” Thus, it is supported by criminologists as it holds that criminals have mental disorders. Thus, the crimes they commit are pathological in manner. As they think that criminals are victims of social, political, economic upheavals. So, they should have treatment and should be cured as well as educated. The critics of this theory state that all crimes cannot be attributed to mental disorder. Furthermore, this theory cannot reform the hardcore criminals. It is also criticized that the victim of the crime and his family are disregarded in this theory. Furthermore, punishment and education do not necessarily mean the same thing. It is contended that it deems human dignity. It is also held that both deontological rehabilitation and consequentialist rehabilitation are one- sided. Finally, this theory disregards deterrence and retribution. At first, all crimes cannot be attributed to mental disorder. This is because though there are some criminals who do crimes under the circumstance of being mentally ill, this is not the only cause of crime. There are ample instances where people commit crimes by being mentally sound and also knowing the consequences of the crime. So, critics say that every crime does not happen because of mental disorder. This theory cannot reform the hardcore criminals. The reformative theory may work as wonders for the juvenile delinquents but in the case of hardcore criminals, it is a different case altogether. The hardcore criminals know that crime is and they do it anyways. So, critics think that hardcore criminals cannot be reformed by this theory. Critics think that this theory disregards the victim of the crime and his or her family. This is because if the criminal is punished for reforming or educating him not for justice then the actual victim of the crime and his or her family members are being disregarded as justice has not prevailed. Thus, it disregards the victim and his or her family. It is also criticized that punishment and education are not necessarily the same thing. This is because punishment in some cases implies the implication of pain, but education does not imply pain but communication. Thus, some critics think that criminology misunderstands the reformation to be a benevolent treatment rather than a painful process of punishment. Besides this instead of punishment, Mackenzie thinks that in many instances kind of treatment would have a better effect. Lillie follows him by saying that “it is not always the best way to reform a man by inflicting pain.” Thus, critics object that punishment and education is not necessarily the same thing. Besides these, it is contended that it deems human dignity. Because the offender is not treated as a moral agent but as a diseased person who needs to be cure thus, he needs to change his values, and that is why Hegel says that it is “much the same as when one raises a cane against a dog; a man is not treated in accordance with his dignity and honor, but as a dog.” So, it is criticized that it deems human dignity. It is also held that both deontological rehabilitation and consequentialist rehabilitation are one-sided. This is because deontological rehabilitation focuses on the account of the punishment is just, disregarding the utility, and consequentialist rehabilitation focuses on the account of the punishment on the basis of utility, disregarding whether it is just or not. So, it is also criticized that both deontological rehabilitation and consequentialist rehabilitation are one-sided. Finally, some criticize this theory disregards deterrence and retribution. This is because its aim is to reform the criminal by punishment and so it does not aim to demonstrate to others that the particular act is wrong or trying to attain retribution. Suggestions to Resolve the Basic Problems of the Theories of Punishment: In this day and age, we need the theories of punishment as they can help us to pursue justice, peace, and balance in both the cases of the individual and the society. Nevertheless, the deterrent, the retributive and the reformative theories of punishment are not without their flaws, thus I am suggesting some ways by which the basic problems of the deterrent theory, the retributive theory and the reformative theory may be mitigated, and thus it will help us to ensure justice, peace, and balance in a better manner. That is why I would like to suggest that: in order to apply punishment, the offender should be actually guilty of the crime, the offender should be punished considering the external and internal situations, the punishment should not exceed or fall behind the level of the crime, punishment should be demonstrated and explained to that very person and others as much as necessary and possible. In Order to Apply Punishment, the Offender Should Be Actually Guilty of the Crime The offender should actually be guilty of the crime. This relieves the problem of a potentially guilty person from being punished. This will solve the problem of the deterrence theory where an innocent may be punished. Besides, it will also mitigate the problem of reformative theory where the victim is neglected by not adequately punishing the criminal. So, the offender should actually be guilty of the crime. This relieves the problem of a potentially guilty person being punished. This is because a person must be guilty of the offense. But if the person is not actually guilty then giving him punishment becomes a mockery of the judicial system. For example, if a person looks at another person as he wants to destroy him, he may be potentially guilty of the upcoming crime but he is not actually guilty so he may be consulted but not punished for what he did not actually do, but if he is punished anyway then it will become a mockery of the judicial system. So, I disagree with William James thinks that “people we should blame are the ones whose punishment should benefit us.” As I think that justification is more important than benefit or loss. Thus, the criminal should be the one who has taken part in the action either directly or indirectly to be deemed of guilt thus punishment, thus they must be guilty. For example, directly in the sense that he voluntarily does the act and indirectly in the sense that he voluntarily helps to do the act, so they must be actually guilty. So, this relieves the problem of a potentially guilty person being punished. This will solve the problem of the deterrence theory where an innocent may be punished. This is because like the actual criminal or says the guilty person will be punished so there is no chance of an innocent person getting punished. So, a criminal will be punished after the crime has been proved. Which means his guilt has been proved as well? And by this no innocent person will be punished. It will also mitigate the problem of reformative theory where the victim is neglected by not adequately punishing the criminal. This is because the guilty will be punished, so the victim and along with his or her family will not be neglected. For example, if a criminal rapes a person and he or she is proved to be actually guilty of the crime then the criminal will be punished. Thus, there will be no negligence towards the victim. Therefore, the victim will not be neglected. The Offender should Be Punished Considering the External and the Internal Situations The offender should be punished considering the external and internal situations. The external situation should be considered. The internal condition should be considered as well. Both internal and external condition’s overlapping tendencies should also be considered. Thus, the offender must be punished considering the external and the internal situations. At first the external situation must be considered. This is because external situation may entail involuntary actions such as being forced to do something, or doing it out of extreme necessity or doing something by mistake. For example, if a person is forced to do something such as committing a crime held at gunpoint, then it has to be considered as involuntary action. If a person does a crime because of some extreme necessity, for example, one steals because if he does not, he or she will die of starvation, that has to be considered as involuntary action. So, I agree with Mill as he says “to save a life, it may not only be allowable, but a duty, to steal, or take by force, the necessary food or medicine, or to kidnap, and compel to officiate, the only qualified medical practitioner. Besides this self-defense also falls under this extreme necessity where a person commits a crime. For example, one kills a person as he or she was about to get raped by that person. Then it has to be considered as an involuntary action well. If someone does something by mistake such as while walking step on a product and destroying it, it also has to be considered as an involuntary action. All of these are to be considered as involuntary action as the person did not deliberately do those things. What scopes did the criminal have and what elements influenced him or her whether it was a person or the environment or was it as a whole should also to be considered. But we have to understand that making mistake in the sense of ignorance and deliberate ignorance in the sense of carelessness are two different things. The former is not doing something deliberately. For example, stepping on a product and destroying it. This is an involuntary action. So, this may not render punishment. And the latter is to deliberately choose to be ignorant, knowing the consequence of some sort. For example, not reading the manual before doing construction work though it is mandatory to do so. And as a consequence, having property damage to others. This is not involuntary action as it is done by deliberate negligence. So here punishment should be rendered. Normally one should voluntarily do something to be punishable for it but sometimes in the case of punishment involuntary acts are considered as punishable, it was mainly done for the greater good, according to necessity. For example, not paying taxes or bills in time irrespective of voluntary or involuntary action may get one punished. But that punishment may be less than the amount compared to if it is done voluntarily. On the other hand, some voluntary actions that can be regarded as crime may be exempt from punishment because of the greater good. For example, if one drives to save others life or his own life from fire though he or she do not have a driving license. Nevertheless, the external situation should be considered. The internal condition should be considered as well. Internal conditions should contain the criminal’s age and the mental health of the criminal. The criminal’s age should be considered. This is because whether he or she is a juvenile or an adult is important before giving punishment. The criminal’s mental health should also be considered. Whether he is at the level of insanity and thus the offense is rendered as an involuntary action, and so whether he needs mental treatment is to be cleared before giving him punishment. So, I agree with Mackenzie as he says “in the case of definite insanity it would be dealt with best medical knowledge possible.” If necessary, then medical assistance will be given to the mentally challenged criminals. But in the case of punishment, not all criminals are at the level of insanity so that they may be pardoned. For example, a person may be the victim of anxiety due to birth condition or later trauma in his life but this does not mean that he should act however his body due to biochemical condition influences him unless it is a compulsion that he or she cannot control. He should think it through, and then act. Here acting on hormonal impulse without thinking is a matter of choice. And this type of deliberate loss of control over oneself is, in other words, becoming the slave of instinct. One needs to understand that controlling one’s instinct is controlling the situation in the long run as our internalities also influence our externalities. Here that person is not definitely insane. And this goes against the criminologist’s claim that every criminal should be rendered as a patient. Nevertheless, the internal condition should be considered as well. Both internal and external condition’s overlapping tendencies should also be considered. That is to say, the things the criminal was influenced with. The culture, the society, the creed, ideology the family he or she grew up with the economic, the social, the biological, the educational, and the religious factors should also be considered. Both internal and external conditions overlap on the point of the things the criminal was influenced with. So, both internal and external conditions overlapping tendencies should also be considered. Punishment should not Exceed or Fall behind the Level of the Crime The punishment should not exceed or fall behind the level of the crime. This will solve the problem of deterrent theory in the sense of punishing a criminal more than he or she deserves. It will mitigate the problem of revenge of the retributive theory. It will also solve the problem of retribution where the criminal is said to have forfeited his or her right in order to have punishment. It also solves the problem of treating a person as a means by deterrent theory. It also solves the problem of reformative theory, not punishing the criminal as he deserves. So, the punishment should not exceed the level of the crime. This will solve the problem of deterrent theory in the sense of punishing a criminal more than he or she deserves. This is because the punishment should be given by the extent of the crime no more, no less than that. So, for example, if a person steals something he or she will be punished for that particular crime by the extent of that crime not to the extent of murdering someone or not of merely lying. At the same time whether the offender has directly volunteered in the crime or indirectly volunteered in the crime or say the manner of involvement should also be concerned, and the extent of the punishment will follow. For example, one has voluntarily stolen a car and other has voluntarily helped him or her to steal the car, both of their punishment should be according to the extent of the manner of involvement in the crime. But there are some crimes that the voluntary involvement of any manner should render as identical punishment in all cases, for example, murder, rape and so on. All cases are not identical so we may not give identical punishment but we may give similar punishment considering the extent of the crime. So, this will solve the problem of deterrent theory in the sense of punishing a criminal more than he or she deserves. It will mitigate the problem of revenge of the retributive theory. Retributive theory is said to uplift revenge, so by this punishment may render more burden to the criminal that he or she deserves, for example, fining a man twice as much as he should be fined because of taking revenge. But it will not be done as punishment will not exceed its limits. And so, I agree with Bentham as he says that if the evil of punishment exceeds the evil of the offense, then the punishment will be unprofitable. Thus, it will mitigate the problem of revenge of the retributive theory. It will also solve the problem of retribution where the criminal is said to have forfeited his or her right in order to have punishment. It is said in the retributive theory that the criminal deserves punishment as he or she has forfeited his right by doing the crime. But instead of thinking of forfeiting the right of equal treatment it may be thought that the right is being substituted as the right to be treated unequally as a consequence of the crime. So, the criminal may be said that he or she has the right to have the intended burden. For example, by abusing a child the criminal has substituted the right to equal treatment with the right to unequal treatment because of the consequence of his crime, so the criminal has the right of intended burden. So, I agree with Mill as he says” all persons are deemed to have a right to equality of treatment, except when some recognized social expediency requires the reverse.” Therefore, it will also solve the problem of retribution where the criminal is said to have forfeited his or her right in order to have punishment. It also solves the problem of treating a person as a means by deterrent theory. This is because by giving the punishment that the criminal deserves, he or she is being treated as a person who is achieving the consequence of his or her doing. Where he or she did something and is a person enough to face the consequence. And even in the case of hardcore criminals where the punishment cannot deter them from doing the same crime, the punishment should still be applied as it is a question of justice. So, it also solves the problem of treating a person as a means by deterrent theory. It also solves the problem of reformative theory, not punishing the criminal as he deserves. This is because by this the criminal will be punished if he or she is actually guilty and proved to be mentally sane. Thus, he will be punished as he or she deserves. So, it also solves the problem of reformative theory, not punishing the criminal as he deserves. Punishment should be Demonstrated and Explained to that Very Person and Others as much as Necessary and Possible Punishment should be demonstrated and explained to that very person and others as much as necessary and possible. At first, it should be demonstrated and explained to that very person and others. Then it should be demonstrated and explained to that very person and others as much as necessary and possible. Punishment should be demonstrated and explained to that very person and others. This is because people learn mostly from experience, so it is better if one is demonstrated and explained about what a crime is, why it is so, and the consequence that follows from it. The demonstration is important because seeing something affects a person more than just reading or hearing about it. So public appreciation and humiliation may help people understand more about the consequence of their action. Encouraging good act and discouraging bad act is a process of social control as well. Thus, I agree with Mill as he says “some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.” The explanation is important as the person has the right to know why he is convicted as a criminal and what may happen next. And within the explanation, there may be the scope of discussion. So, I also agree with Mill as he says “one is capable of rectifying his mistakes by discussion and experience. Not by experience alone.” Thus punishment should be demonstrated and explained to that very person and others. It should be demonstrated and explained to the very person and others as much as necessary and possible. It should be demonstrated and explained as much as necessary because everything is not needed to be demonstrated and explained to everyone as there may be things that are unimportant. For example, it is important to demonstrating and explaining to a person what will happen as he or she has committed a murder or if anyone would commit a murder, and also why will it be like that, but it is unimportant to say the history of the concept of murder. And it is also important to demonstrate and explain the wrongness of the crime to that very person and others as much as possible. Because here the ability of the perceiver’s intelligence and understanding should be considered. For example, a person may not understand the technical terms or some technical terms of the crime but he or she may understand the wrongness of the act in general. So, he must be explained in a way that he or she understands. Here the demonstration of the punishment will not make the demonstrated person a mere means as he is getting the consequence of his action. On the contrary, by doing this people may realize the consequence crime and so that they may be encouraged to refrain from it too and to do the opposite. And by doing this people will be accustomed of abstaining

Penology & Victimology SAL1053 Past Paper PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue