The gravity of the Offence and Severity of the Punishment

The gravity of the offence must decide the severity of the punishment. Every offence must have a proportionate punishment. Retributive justice, as it is commonly known as, is meant to be a deterrent in order to keep a check on rising crime in society. The proportionate punishment theory uses vengeance and revenge as its cornerstones. A person who has been wronged must be rewarded justice with his wrongdoer being punished with the same intensity as he caused harm to his victim. An eye for an eye, a tooth for a tooth, a leg for a leg, and a life for a life.

The principle of retribution was recognized in ancient systems of justice throughout the world civilizations. In India, it was very much in practice, is proved by what Chanakya, the great philosopher opined in his treatise, “Punishment meted out by the ruler, equally, according to offence, without discrimination, to his own and his enemies alike, alone is capable to protect and rule the world”[1]. Even the philosophers, as early as Plato, were the supporters of retribution as a type of punishment, “If justice is the good, and the health of the soul as injustice is its disease and shame, chastisement is their remedy. If a man is happy where he lives in order, than when he is out of it, it is of importance to him to enter it again and he enters it through chastisement.”[2]

Punishment is an essential ingredient for the administration of justice, for a person who is wronged seeks fairness from society. Therefore, the system has to come up from within the society to treat the victim with all fairness and equality. It is henceforth that the criminal law came up with different deterrents as punishments. Sir James Stephen opines that the purpose of punishment is to gratify the desire for vengeance by making the criminal pay with his body. The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.[3] Punishment gratifies the feeling of pleasure experienced by individuals at the thought that the criminal has been brought to justice. That desire ought to be satisfied by inflicting a punishment in order o avoid the danger of private vengeance[4].

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Although vengeance is not a remedy for any crime, yet the crime must be avenged as it threatens the community at large. This whole theory focuses on the culpability of the criminal and the debt that he owes to the victim for any action of his that has caused a grave harm to the victim. And by suffering for his sins, he repays the debt that he owes to the victim.  It is debatable, whether to practice this theory in this era where human rights get the upper hand over any criminal liability (punishment) imposed upon the culprit. Even though a harsher punishment is demanded for any crime, it has not yielded the desired results of a lower crime rate in the society. As far as human rights are concerned, an eye for an eye cannot be allowed by the State as an act of justice as it violates the very fundamentals of being born as a human being. Even as we speak of banning capital punishment, the idea of retribution cannot hold in modern society. As Salmond justly says, “It is questionable, however, whether retribution can be justified. Since, punishment involves inflicting suffering on another, prima facie, it is wrong to and stands in need of justification …….. To exact retribution in order to force offenders to balance the accounts of abstract justice is surely to arrogate to ourselves functions to which we are not entitled.” [5]

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[1]Kautilya’sArthashastra, JAICO, pg150

[2] Plato, The Republic

[3] Sir James Stephen, General View of Criminal Law of England.

[4] V.D. Mahajan , Jurisprudence & Legal Theory 5th edition, pg 130

[5] Prof. T. Bhattacharya, The  Indian Penal Code , pg xxxv

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