Skip to main content

Retributive theory of punishment

                                       Retributive theory of punishment

“An eye for an eye and a tooth for a tooth” just like this quote Retributive theory of punishment means when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. Retributive theory is one of the parts of under theory of punishment and also it is the most ancient justification for punishment. In the retributive theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed. Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. Retributive argue that criminals deserve punishment on account of their wrongdoing. If they deserve punishment, then justice demands we punish. We do injustice if we fail to punish criminals because they then do not receive what they deserve. 

      Another school of thought of retributive sees punishment as a way to remove the ‘unfair advantage’ that the criminals possess due to commission of the crime. Like a thief  benefits from breaking the law by stealing someone’s possession. The punishment meted out should remove the unlawful and unfair advantage.

Here are the conditions where a person is considered as an offender are:

  • Performed a crime of certain culpability.

  • That similar persons have been imposed for similar offenses.

  • That the action performed was by him and he was only responsible for it. Also, he had full knowledge of the penalty system and possible consequences.


Overall objective of punishment.

One of the prime objectives of criminal law is imposition of appropriate, adequate, just and proportionate sentence. Undue sympathy by means of imposing inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. The object is to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence.


            Retribution certainly includes elements of deterrence, incapacitation, and rehabilitation, but it also ensures that the guilty will be punished, the innocent protected, and societal balance restored after being disrupted by crime. Retri bution is thus the only appropriate moral justification for punishment. Some of its merits are:

1. In the retributive theory, the punishment awarded is an end in itself in comparison to the forms of punishment in other theory, where the punishment is a means to an end hence the success is not definite unlike in the retributive theory.

2. Retributive punishment is not cruel or barbaric.

3. Retributive is impartial and neutral as it.

4. Acts as a strong deterrent.

5. Helps in giving moral justice to the victim.

6. Instils the feeling of trust within the society, towards the judiciary.

7. The penalty given will be equivalent to the grievance caused by the person.


           The requirement of desert required to punish crimes has in itself some difficulties. The very nature of morality being subjective makes it difficult to deliver punishments for crimes. Here are some of the demerits:

1. Retributivists have not given guidelines or principles which makes it more moral than legal.

2. Object of punishment is not only punishing the criminal and not preventing the prospective crime or reformation of the offender.

3. With dealing with amoral crimes. Although most crimes are both illegal and immoral there are crimes like traffic offences and jaywalking which although illegal cannot be said to be immoral. For example, a overspeeding driver on an empty road cannot be said to be doing anything immoral although overspeeding constitutes an illegal act.

4. Retributivists are uncomfortable with mercy and pardons. Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him. 

5. Sometimes, may become disproportionate with the seriousness of the crime.

6. Society develops feelings of vengeance and destructive tendencies follow.

7. The State may become autocratic in its functioning, using the punishment to torment people.

             In the case of Bachan Singh v. State of Punjab, it was stated that the retributive theory of punishment in the sense of society’s reprobates is not an outmoded concept in context to serious crimes, it was further stated that punishment as an expression of society should adequately reflect what the society feels, hence crimes which are of an outrageous nature have punishments which the offender deserves because the society insists on adequate punishment, it does not matter if the punishment is deterrent or not, it would be a mistake to consider the objects of punishment as preventive, reformative or deterrent. 

                In conclusion Retributivists would be bad to offer a more severe punishment than needed. The punishment needs to be in proportionality of the desert and gravity of crime. As the famous saying goes that ‘Let go of a hundred guilty, rather to punish an innocent’, we need to understand that inflicting a punishment upon someone changes his mental, physical and social status drastically. It has a very grave impact upon him and his being. Thus, while administering criminal justice, utter carefulness has to be executed, or else the very principles of justice would go for a toss.
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more