Introduction
The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in society would perceive it, is the most basic, yet the inconsiderate theory of inflicting a penal sentence on a perpetrator. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. Now, if looked at from the perspective of very serious and heinous offenses, like the Delhi gang rape case, people may feel that it is better to inflict such retributive punishments, so as to ensure that a deterrent is set across society, in order to prevent such crimes in the near future.
However, we forget to understand sometimes that always having a retributive approach will render the society one with a primitive system of justice, where the Kings or the Judges were considered to be the supreme beings and were provided with the stature of God Himself (hence the address My Lord) and thus, collapse the very concepts of the representatives being ‘servants’.
The doctrine of Societal Personification and the Doctrine of Correctional Vengeance:
Doctrine of Societal Personification can be stated as-
‘When a member of the society is subjected to a very heinous crime, as a result of which, the whole society, as if it were a natural person, considers the offense to be inflicted upon itself, comes to the defense of that person either by way of demanding justice or by conducting the same on its own, the society is said to be personified.’
A very self-explanatory doctrine. To be put simply, it means that society, whenever a heinous crime of an extreme form is committed, assumes the form of a natural person and behaves in a collective manner so as to get justice.
Doctrine of Correctional Vengeance may be stated as-
‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful (as painful as the original act, or even more) punishments upon the victim for creating a deterrent, it is said to exhibit correctional vengeance.’
The above definition, too, Is quite self-explanatory in its nature. Now that we have understood these two doctrines, we have a basic idea about what really is retributivism or retributive justice.
Understanding Retributive Theory of Punishment:
‘The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles:
That those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment;
That it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and
That it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.’
The above three principles clarify the need for retributive justice even further. We may understand retributive justice in this manner. The place where both Criminal Law, as well as Moral Law, meet, is the place where mostly the retributive punishments are generated.
In fact, although people may classify punishments into seven different types, in reality, every punishment, indeed, is retributive in nature. It is very interesting to see that the damages claimed under Torts, or the remedies sort for environmental violations, may be compensatory, but at their hearts, are retributive in nature. Then why aren’t they labeled as retributive, instead? Well, the answer to the question Is simple. Retributive punishments are somewhat vengeful in their nature (an eye for an eye). They may not be vengeful always, but maybe merely morally vengeful. When we say this, it means that although the punishment is not literally the thing that was originally done by the perpetrator, is still acts as a vengeance by virtue of its seriousness.
Anwar Ahmad v/s. State of Uttar Pradesh and Anr.–
In this case, the convicted had already undergone a six-month imprisonment term, before being officially convicted by the Court. The Court held that since the convict had been convicted and also, the required ‘blemish’ had also been imposed upon him, it was not necessary to sentence him again in the name of ‘retributive punishment’, as it would inflict a very big loss upon the family as well.
Sri Ashim Dutta Alias Nilu vs State of West Bengal–
In this case, it was observed that both deterrent and retributive punishment aim at the prevention of the recurrences of the offenses by others passing exemplary punishment for a particular offense. But civilization and societies are progressing rapidly. There is an advancement in science and technology. The literate people and the experts in different branches of knowledge started thinking in different ways. Eye for an eye and tooth for a tooth is no more considered the correct approach towards criminals. Such a principle may perpetuate the rule of the Jungle but cannot ensure the rule of law.
Author: Abhinav Pandey, II year of B.A.LL.B.(Hons.) from The University of Lucknow