In the Times of India dated August 20, 2024, former Chief Justice of India, NV Ramana argues that mere law is not sufficient to save the doctors. His writings confused me and couldn’t decipher what he wanted to convey. A reader could guess only.
The incident, the alleged crime of rape and murder, in RG Kar Medical College, Kolkata is not only an important case but also raised the voice for the deterrent theory of punishment. The Indian constitution assigns the job amongst its three pillars viz. Legislature, Executive and Judiciary. The legislature’s work is to enact the law while that of the executive/ police is to execute and that of the judiciary is to apply and interpret the law. Ramana takes a stand that the law for doctors must be central. He argues that the punishment must be similar across the country. He hints at the execution of the same but his writings lack the very basic idea which at some point in time remained under his control i.e. application. He just omitted it for the reasons best known to him.
Criminologists always fail to know the rudiments of crime. At first, they developed a pre-classical theory that a crime is a demonic act. Hence the priestly class was vested with the power of punishment specifically admonition. Despite the crime surged. This gave birth to the classical theory which was opposed to the pre-classical theory which postulated that crime is the outcome of self-centered behavior. Be it noted here that the pre-classical theorists agreed to the fact that crime happens due to the influence of external force which is beyond the criminal’s control. Classicists abide by the maxim mens rea (guilty mind) and actus reus (guilty act). They blame free will for crime and establish that a criminal commits a crime under his conscious choice where the benefit of crime outweighs the punishment for the same.
On the other hand, they identify three key elements of the cause of the crime which are: a) a motivated offender, b) an attractive target and; c) a lack of capable guardian. This identification may be kept on a higher pedestal as the incidents of crime, in many cases, have been directly proportional to the routine activities of the criminals. In the crime of rape and molestation, it has been witnessed that the criminals are following the victims for days. The same is true with theft and robbery where criminals are reiking the targets for days. Watching pornography is such a routine activity that must be resisted with full force. An effective guardian can prevent this from happening by changing the routine activities of his wards.
Classicists believed that the situation stimulates crime. This theory is not tenable barring a few cases. Had it been true in all cases, people residing near brothels would have been rapists or polygamists. Then comes positivists who exert all research on criminals instead of crime. According to them, every individual is different and thus punishment should be inflicted based on criminals, not crime. Strange! They think heredity and environmental factors are the most responsible for the crime. Again it is not tenable because according to this theory, thieves’ sons would have been thieves. Murderers’ sons would have been murderers. Rapists’ sons would have been rapists.
Neo-classicists rightly argue that nobody has absolute free will and determinism. They appoint judges who are law experts to review the mitigating factors. Here comes the editing point. NV Ramana could have deliberated on the roles and responsibilities of the judiciary in applying the law on the fast track.
The Prime Minister of India from the Red Fort while hoisting the national flag on the auspicious solemn occasion of India’s 78th Independence Day asserted that the offender must be afraid of capital punishment which means he was advocating for the deterrent theory of punishment, a theory that views punishment as a means of discouraging people from committing crimes. And, therefore, he relied on hedonistic calculus, a utilitarian theory of Jeremy Bentham which postulates that the amount of pleasure or satisfaction an individual receives from an action is directly proportional to the amount of pain someone else suffers due to that action.
Hammurabi, the sixth Amorite king of the Old Babylonian Empire who reigned from 1792 BC to 1750 BC is famous for his retributive theory of punishment, in which punishment of the offender provides some kind of solace to the victim or to the family members of the victim of the crime, who has suffered due to the action of the offender, by establishing, “An eye for an eye and a tooth for a tooth” and India’s well know penologists, Dr. Prosanto Kumar Sen, argues, “An evil should be returned for an evil.”
Mahatma Gandhi was opposed to this retributive theory of punishment. According to him, “An eye for an eye will turn the whole world blind”. Ironically his murderer, Nathuram Godse was executed for the charge of his murder by his disciples only. It is easy to argue the fallacy of the retributive theory of punishment but tough to apply the same arguments when crime hurts the very individual. Sonia Gandhi, Priyanka Gandhi and Rahul Gandhi are an exception to those who advocated the reformative theory of punishment, a theory of punishment where emphasis on the rehabilitation and reform of offenders as the primary purpose of punishment is laid, by pardoning the murderers of the former husband and the father of the other two.
The judiciary in India lags behind the evolution of criminology. They go by the intent of the legislature which is good for any democracy but some crimes need individual circumstantial interpretation and thereby deterrence. The execution of Afzal Guru in charge of the Parliament attack in 2001 was based upon such interpretations. The court must be careful and fast to lead the justice of such crimes based on equity, the concept that similar crimes should receive similar punishments, with individual circumstances taken into account. Execution is the result of the rarest of the rare cases.
In his seminal work, “Does Prison Work?”, sociologist Peter Saunders argues that punishment does exercise substantial influence on conduct. The punishment in India is subject to Article 21 of the constitution of India which mandates the due process of law. N V Ramana is silent upon this. He was silent on the way to obeying due process of law under the fast track mode.
John Rawls in his book “Justice as Fairness” argues two ideas to develop a political conception of justice viz. ‘the idea of citizens as free and equal persons; and the idea of a well-ordered society.’ Society must be in order and the same is required on an individual basis. Even a residential complex would be chaotic once a few groups of individuals started disobeying the committee. Any such insubordination is dealt with the iron hand by the committee just to maintain order. On the larger canvas police in India are vested with the power of maintaining law and order.
After the Nirbhaya case, a judicial committee headed by J. S. Verma, a former Chief Justice of India and one of India’s most highly regarded Chief Justices and eminent jurists was appointed by the Central government to submit a report within 30 days to suggest amendments to criminal law to sternly deal with sexual assault cases. On 3 February 2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by then-President Pranab Mukherjee. It provides for amendment of the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973, on laws related to sexual offences. The amendment was brought into force under the retributive as well as deterrent theory of punishment.
Unfortunately, the punishment did not cater to the prohibition of crimes against women. While the year 2012 witnessed 24,923 rape incidence, the year 2022 witnessed 31516 incidences: a 126 per cent growth in 10 years span; the data is fetched from National Crime Records Bureau, Delhi. The reason could be due to the surge of fundamentalists who are chauvinists but George Wilber argues that anti-social behaviour in society cannot be scientifically interpreted. Salmond opines, “Retributive punishment gratifies the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large.”
Crime can be roped in by reforming the fundamentalists of any religion and delivering fast and fair justice because Justice delayed is Justice denied. Jails that are correctional homes must be correctional homes in practice but this is not true as the atrocities of jail authorities are noticed frequently. The government honouring the United Nations appointed the trainer of jail inmates but their roles in practice are threatening and sabotaging the inmates. If this is true, criminals cannot be reformed and making jail a correctional home is just a thing on paper. Preaching must be reflected in practice. To prevent crime is based upon delivering justice on time and reforming the criminals.
(This rejoinder was sent to TOI on August 21, 2024 and withdrawn after ten days due to no response)
