INTRODUCTION
The constitution of India mentions under article 21 that each individual has Right to Life which includes Right to live with dignity as per Kharak Singh v Union of India1. This principle applies to all the people notwithstanding with the fact that anyone is a criminal. On the contrary Indian Criminal Laws which are heavily inspired by British Laws lays a major emphasis on Retributive theory of punishment which focuses on preventing crime by increasing the punishments.
Apart from the fact that Retributive Theory has not shown to have curbed crime rates there also lie a loophole in the way prisoners are treated inside prisons. The inhuman treatment which people behind bars face is heavily criticized and prohibited by the Hon’ble Supreme Court in the case of Sunil Batra v Delhi Administration2.
What has been observed in India is that there is a continuous upsurge in the crime commission rates despite an increase in the punishments. This fact in itself renders the application of Retributive Theory ineffective. This demands a change in the way Indian Criminal Justice System looks to prevent the commission of crimes. Rather than operating from the base of fear the focus should be to look at the root cause behind commission of such crimes which often is poverty and overlooked social and psychological problems.
While retributive theory seems correct on the moral grounds and public sentiments also lead to establish the concept of ‘Eye for an Eye’ as an ideal solution, the fact that goes unnoticed is the potential of the punished people to resort to even more cruel practices once they are out of jail, as they spend a major chunk of their lives in prison which takes away from them a crucial period of their lives which they could have utilized productively. This derogation increases their potency to turn into habitual offenders.
On the contrary if we look at Rehabilitative theory, it provides a great opportunity for the offender to improve and learn from his mistakes. An offender, instead of being harshly punished is treated with leniency while still being reprimanded, has a great potential to convert himself into a nicer being as he still has precious years of his life which he could used for better.
While historically majority of nations have seemed to consider Retribution as their remedy to ever increasing crime rates, recent trends and practices seems to paint a different picture wherein much focus is laid on the aspects where a middle ground can be reached which ensures that the offender does not receive such harsh a punishment that rather fill him with revenge and turn him into a repeated offender.
In the recently enacted Bharatiya Nyaya Samhita we see theory of rehabilitation getting due consideration where a provision is added regarding Community Service3 that gives chance to a person to engage in community service without receiving any payment for it.
THEORIES OF PUNISHMENT
A. Retribution Theory
This theory works on the principle that an individual committing an offence must be reprimanded with same level of cruelty which he has inflicted on the victim, this works on the philosophy of ‘Eye for an Eye’ which means that the person committing the offence must be made subject to same punishment.
As per this theory the punishment to which the offender is subjected must be in proportion to the crime that he is committed. The offender must not go unharmed after committing such an offence. Immanuel kant was a staunch believer of theory of retribution he said that a person who commits crime must be subjected to punishment as it holds him responsible for the acts which he has done using his own free will4.
However he never endorsed deterrence theory which somehow has a lot in common with retributive theory. As per him humans should not be used as a means to an end wherein punishment given to an individual puts other people in fear of getting punished if they commit same offence.
Another famous jurist Hegel supported theory of Retribution as per him if an individual is not being punished he is being forgiven for his wrong deeds which will motivate him to commit further crimes. He considered law as something which has been agreed upon by entire population of a country and when one person breaks that what he basically doing is considering his act as supreme to the law agreed upon by all.5
B. Deterrence Theory
This theory says that a person should be punished for his wrong deeds but for a reason different than retribution. This theory posits that an offender should be punished but not primarily to reprimand him rather to set a precedent and instill a sense of fear in the minds of people that in case they commit the same act they will also be subjected to same punishment. It uses people as an example to inflict fear in mind of people.
It is explained by drawing reference from economic principles of demand and price. The crime is taken as demand which will decrease if the punishment which is the price will increase. The more the punishment the lesser people will attempt to break the law as they will always remain under the fear that they will be subjected to such harsh punishment if they commit such an offence.6
However, one of the major flaws that this theory has is the assumption that the person committing the crime has complete knowledge of its consequences, it considers the offenders to be some rational beings often forgetting that they usually are the ones who either are drunk or are completely unaware or bothered about the consequences that the crime might bring with it.7
C. Preventive Theory
The preventive theory of punishment similar to earlier two theories lays emphasis on punishing the offenders but the primary objective behind punishment is different from that of earlier mentioned two theories. Here the offender is punished to ensure that no crimes are committed in the future. If the criminal will be put behind the bars or incapacitated in some other way than he will be abstracted from indulging in such unlawful activities in the future.
However, this theory also has certain aspects that keep it away from being considered the primary theory to be applied to prevent rising crime rates. It runs on the assumption that once a criminal always a criminal while it may not always be the case, a person might under some situation have committed a crime but that does not mean that he will do it again. This prejudice against the offender does not seem to be justified.8
Another criticism of preventive theory is that it operates against the very basic principle of law that is to punish the offenders who have actually committed the crime and not the ones who might some day in future commit it. This theory lays its foundation on the event which is yet to take place and it makes it makes the theory subject to criticism.9
D. Expiatory Theory
This theory operates on a completely different perspective as compared to the theories that have been discussed earlier. The earlier theories had one thing in common and that was to punish the offender irrespective of the objective behind the punishment. However, this theory posits that punishment cannot be the solution to the ever increasing crime rate.
It says that if the goal is to reduce the crime rates than the change has to be brought about in the internal state of the criminal and make sure that he goes through a mental shift where he realises that he has committed the mistake by committing the crime and feel guilty for it. This acknowledgment of guilty, as per this theory, will help transform the individual and make sure that he does not commit any such crime in future.10
This theory views punishment as making the situation even worse. As per it if an offender is punished the punishment can never lead to the internal transformation that is needed in fact in some cases punishment might leave the offender bitter wherein he might start turning into a person holding vengeance inside him. When an individual is imprisoned he misses out on the all important crucial years of his life which he could have utilized in some positive cause, this inability makes him fill with frustration that results in him committing some other crime.
The modern law operates on the basis of facts that are well established and proven or which have the potential to be proved, to ascertain whether an individual has been mentally transformed and now will not commit crimes further is a task that is not practically possible. There is no way an individual’s internal state of being could be judged and a conclusion can be drawn regarding the same.11
E. Reformative Theory
This theory stipulates that no positive change can be brought about in an individual if he is merely subjected to punishment. It argues that when an individual is punished in the hope that it will instill a sense of fear in him and other individuals that they will be subjected to same level of pain in case they commit the same crime is a fallacy, as it overlooks the root cause behind the commission of crimes which is often the childhood trauma, poverty, social exclusion which an individual faces that pushes him towards the criminal activity.
This theory postulates that an Individual does not turn into a criminal out of some joy or interest, in most cases there is some depravity which an individual faces that result in him choosing the criminal path. It might be poverty or social discrimination or something else at the root of him choosing the path of crime. So to blame only the individual for the wrongful act does not seem to be a justified solution as the society as a whole somehow seems to have contributed in the wrongful commission.12
Apart from this, punishing an individual harshly for the commission of crime further secludes him from the society and makes his chances of becoming a part of the society again completely obsolete. This very inability to become a part of the society again further exacerbates the feelings of frustration and revenge in an individual further pushing him towards the path of becoming an offender.
This theory treats even a criminal as a victim as it believes that no one is inherently bad there are always certain situations and circumstances that an individual is put into that makes him commit the crime. So rather than punishing him he can be given such tasks by performing which he might be of some help to society. Rehabilitation means that an offender is provided with the opportunity to become part of the society by partaking in activities which makes him feel worthy of being a person and gives him a sense of fulfilment.13
An individual’s outer actions are always the manifestation of inner feelings of an individual. So if an individual’s economic and social needs can be taken care of there are high chances that it will bring about a positive change in the individual.
COUNTRIES FOLLOWING REHABILITATIVE PRACTICES
A. Norway
One of the major aspects of rehabilitation process is to ensure that the person is allowed to become a part of the society again. It should not so happen that he gets secluded from the society and find it difficult to become a member of the society. To ensure this, prisoners in Norway are rather than being treated differently are given same treatment as normal people. For instance they are allowed to cook their own food and to purchase the ingredients needed for that.
The security check on prisoners is not just the cameras monitoring their each moment rather they share a very friendly relation with the inmates which never makes them feel that they are not anymore part of the society.14
Another approach that is followed in Norway is of gradual easing of punishment. Initially the offender might be sent to a prison with strict rules and regulations later as time passes by his term of imprisonment gets relaxed. Using all these approaches have proven to be significantly beneficial in lowering the rate of recidivism in the country. The chances of a person committing the offence again has reduced by 50% as compared to the times when other punitive measures were used as a primary way of putting restriction on commission of crimes.15
B. Germany
Germany also posits a prime example of successful implementation of rehabilitation theory where majorly punishment is imposed in the form of fines rather than imprisonment, only in some rare situations offenders are sentenced to imprisonment and even in those situations due importance is given to the fact that they are provided with opportunities to indulge in some meaningful activity. They are made to undergo some form of vocational training and also given facilities to pursue their education while still being in prison.
By doing this what Germany has also been able to ensure is that the criminals who have committed crime for the first time do not get in contact with the habitual offenders in prison as sharing the same space with the repeated offenders increases the chance that the individuals who are first time offenders might get influences by the ones who have been in prison for a long time.The data shows that by following this approach the Germans have been able to put a curb on the rate of recidivism as compared to other European nations.16
INDIA’S STAND ON REHABILITATION
Traditionally India has heavily relied on the theory of retribution and imposed harsher punishments to put a stop to ever increasing crime rates. However, little success has been observed in curbing the crime rates. Recently the age old criminal laws in India have been repealed and new ones with a few changes have been enforced. One of the key features of the newly enacted laws is their focus on transforming the offenders rather than just punishing them. One such example is the inclusion of the concept of community service for the offences which are less severe in nature.
If an individual has been found guilty of offence of that of an article which has value of Rs. 5000 then he will be ordered to do some community service rather than subjecting being imprisoned. If a person fails to appear in court when a summons has been issued against him than rather than imposing fines on him court will order him to do community service. The nature of community service is usually to do some work for benefit of community without receiving any payment in return.17
CONCLUSION
India has followed the theory of Retribution since inception of its Criminal Laws and has observed the crime rates to be soaring high despite all the efforts to curb it. Retribution works on the principle of “Eye for an Eye” wherein the focus in on punishing the offender and thereby to put a restriction on crime. Similarly the deterrence theory also works along the lines of punishing the perpetrator to deter the general public from indulging in same crime through causing fear of punishment in them.
Preventive theory also looks to punish the offender by keeping him away from the society so that he is prevented from committing another crime. Expiatory theory which seeks to bring about internal change in the mindset of offender and looking to transform the individual from within rather than using punishment as a way to reduce the crime rate. Lastly, Theory of Rehabilitation works with the motive to make an offender part of the society again. To allow him to indulge in activities of community service so he does not feel that he is secluded from the society.
Countries like Germany and Norway have shown reduction in the rate of recidivism once they adopted the practices of Rehabilitation. India also has through its newly enacted Criminal Laws seeks to inculcate the practices of Rehabilitation in its Justice Delivery mechanism. However, its application is still in initial stage but even these small steps promise towards a brighter future wherein offenders will rather than being brutally punished be considered as human and steps will be taken to restore them back into the society and ensure their better future.
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Footnotes
1. State of West Bengal v. Union of India, AIR 1963 SC 1295.
2. Maneka Gandhi v. Union of India, AIR 1978 SC 1675.
3. Bharatiya Nyaya Sanhita, 2023, § 23 (India).
4. Immanuel Kant, The Metaphysics of Morals (Mary J. Gregor trans., Cambridge Univ. Press 1996) (1797).
5. G.W.F. Hegel, Elements of the Philosophy of Right (1821).
6. Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. Crim. L. & Criminology 765 (2010).
7. Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioural Science Investigation, 24 Oxford J. Legal Stud. 173 (2004).
8. Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007).
9. Andrew von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (1985).
10. N.V. Paranjape, Criminology and Penology with Victimology (17th ed. 2017).
11. G.W. Paton, A Textbook of Jurisprudence (4th ed. 2007).
12. Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (1963).
13. The “Norwegian Prison Model”.
14. St. Meld. nr. 37 (2007-2008): This is the seminal Norwegian White Paper, “Punishment that works – less crime – a safer society.” It officially codified the “Principle of Normality” as the bedrock of the Norwegian Correctional Service (Kriminalomsorgen).
15. Manudeep Bhuller et al., Incarceration, Recidivism, and Employment, 128 J. Pol. Econ. 1269 (2020).
16. Marcelo F. Aebi & Mélanie M. Tiago, Council of Europe, SPACE I – Council of Europe Annual Penal Statistics: Prison Populations (2022).
17. Bharatiya Nyaya Samhita, 2023, § 303 (India).