In the year 2012, a shocking ‘gang rape and murder’ of a girl takes place in Delhi. The incident sends shivers down the spine to civil society. Protests, debates, discussions and censures take place. Eventually, a Criminal Amendment Act, 2013 is legislated, providing more stringent punishment for the crimes against women. But, again in 2017 the ‘Unnao gang rape’ transpires. In 2018, another episode of similar nature happens in J&K, and the victim being a minor. Hate, anguish and the rage— is what instantly explodes. Again the criminal law is intensified to inhibit the iterations. Twixt this, other instances of the same magnitude and nature keep on adding to the unfortunate list. Thereby, making us to think— what’re we off to? Have we reached a phase, where ‘deterrence and retribution’ fail in the entirety? Or, to ensure the safety over empathy, an uncommon bridge should be build.
Hitherto, the 19th century jurists had a ubiquitous belief to hate the crime, but not a criminal. ‘He’s a sick, and needs a treatment’, said psychiatrists. The only viable tool is ‘reformation and rehabilitation’. But, then ‘retributivists’ believed ‘a convicted felon deserves penalty for the harm he has caused’. And, unlike ‘deterrents’ none of the schools believe on the ‘preventive functionality’ of punishment. Thus, in the middle of this jurisprudential skirmish, who shall we pin our hopes to? Before, deciding that let’s first have an extra dig.
World over, and in India— ‘deterrence’ is a substance of sentencing. How far has it triumphed? How much effective it has been in controlling the crime? Whether taking the life of a convict is really an answer? These are some preliminary questions, which arise, every time some (horrific) crime takes place.
In the year, 2011, there were 2, 28,650 reported incidents of crime against women, in India. Owing to the more deterrence oriented criminal law, such crime rate should have dipped in the prospective years. NCRB, however, in 2015 records over 3,00,000 cases. Subsequently, the data for the year 2017, published on Oct 28th, 2019 records over 3,59,849 cases. That’s an increase of around 57%. As compared to 2016, there was an increase of 6% in the year 2017.A decade before, in 2009, the number was just 2,03, 804.
Previously Delhi; now it’s Utter Pradesh (56011 cases) topping the list. Having 31979/30002 documented incidents, Maharashtra and West Bengal, fall second. Though least in these incidents, J&K by 1% makes a contribution too thereby making India the most unsafe place for the women. The rationale is to underscore the relevance of sentencing scheme. Criminal justice in India is applying a peculiar approach. Neither fully laced with deterrence nor purely reformative which makes it vulnerable? Had it been effective— we shouldn’t have witnessed the adversity. If numbers speak, the model of deterrence— private or general— hasn’t been successful. It will be so, if applied with ingenuity. Awarding death to one in a quarter million rape convicts won’t suffice. Let’s not create a paradox of reformation, and retribution. Make every perpetrator an example, or just focus on the correctional-only aspects. A simultaneous rub on both, has yielded, but a despicable crime rate. Prosecution hunts down the beast of a rape victim. True it is. But, has it ever restored her dignity. Answer is no.
The ‘prevention of crime’ should be a focal point; then its aftermath. In so doing, morality can be helpful besides the law. The principles of morality may be related; not the objectivity. If we live by jurists, ‘morality and law are supplementary and complementary’. One might not violate the law every time he violates morality, but vice-versa does produce a tiff. Ethics and imparting of ecclesiastical code has a great gratitude to our society. Although, prone to the tremors of exposition it’s rich in cultural ethos.
There’s no dearth of legal framework. Deficiency, however, lies in its draft work. Sentencing has a philosophy. Either we can rehabilitate a criminal or we have to deter him. A rape victim dies on the bestiality of rape. Weigh such convicts indiscriminately. Else, decades later— criminal law would be still— in the commotions of ‘deterrent reformation’.
(Author is LL.M. Scholar & Research Associate with Legal Aid Clinic)