Juris Project.docx

FAILING OBJECTIVES OF CRIMINAL PUNISHMENT AS REGARDS JUVENILE JUSTICE AMENDMENT ACT

OBJECTIVES OF PUNISHMENT Theories of social justice and vary jurisprudential philosophies put forth a number of objectives that the State seeks to achieve through its judicial mechanism. The criminal justice system, substantive and procedural laws and sentence imposition derive colour and further these objectives of the State. A State may seek to achieve various objectives but broadly these objectives can be clubbed under two major heads: a) Retributive b) Utilitarian1 Retribution pertains to retaliation for a past wrong rather than being concerned with the subsequent consequences of the punishment. The goal is to avenge a prior misdeed rather than prevent a future one. The two major theories this objective relies upon is the ‘Just Desserts’ and ‘Lex Talionis’. The aim of Just Desserts theory is that “we should do unto others what others do unto us”. The offender gets what is deserved and social balance or equilibrium is attained in the distribution of positive and negative experiences. This principle of punishment makes the criminal “pay a debt” that he owes to the victim which is ultimately to the society. Just Desserts may be guided by the rule of ‘strict liability’ where only the severity of the wrongdoing determines punishment. Immanuel Kant considers guilt as a necessary condition for punishment. In Kant’ view, ‘a sentence can be pronounced over all criminals proportionate to their internal wickedness’2. If the guilty are not punished, according to Kant, justice and equality, the only proper foundations of law, will not have been served in the society.3this retributive object can further be classified as moral and legal retributivism.

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Bernard Weiner, An Attributional Examination of Retributive versus Utilitarian Philosophies of Punishment, Social Justice Research, Vol. 10, 1997 2 Kant, The Metaphysical Elements of Justice, cited by A.E. Bottoms, The Coming of the Penal Crisis (Edinburgh: Scottish Academic Press, 1980) 62. 3 Simon Young, Kant’s Theory of Punishment in a Canadian Setting, (1997) 22 Queen’s LF 347-388.

Strong moral retributivism argues on the lines that all those deserving punishment ought to be punished with the severity they deserve because and only because they deserve it. 4 The problem with moral retributivism is that the State does not have any kind of justification as regards the punishment it serves. The question is how far state punishment is justified as regards the high cost of a police force, criminal courts and prisons. Legal retribution on the other hand nowhere argues that the reason for punishing is to give those whose actions evince moral faults their just desserts. From the broad class of evildoers, it singles out those whose actions manifest choices to which a denial of rights must be imputed, and it only selects these for retributive punishment. It does not justify punishment on grounds that the evildoer deserved it but considers judicial punishment as an executive arm of equal agency rights. The point of punishing is to annul crime, which otherwise would have been held valid, and to restore the right5. Jeremy Bentham’s views strongly influenced the shift in penal theory at the beginning of the 20th century. Retributive theory was then replaced with the idea that prisons now ought to be used to rehabilitate offenders. The basis of this theory was that blameworthiness was a pointless exercise and punishment should be backed by prospective and not retrospective considerations. Utilitarian goals consider the cost and benefits of punishment; the focus is on the future, with aims reached through a reduction in the likelihood of the misdeed by the perpetrator and/or by others in the society.6 This Utilitarian approach can be furthered by actions like isolating, rehabilitating and creating fear in the Offender, thereby creating a deterrent effect. Jeremy Bentham’s utilitarianism is prospective in nature and is based on the belief that a guilty act by itself does not warrant redress7. Considered in isolation, assuming the offense would never recur, punishment according to Bentham would entirely be useless and add another evil. The act of punishment which seeks to create a break in the path of that crime for those who may have had similar motives and objectives, it is perceived as a source of security for all. The act should thus not be viewed as an act of vengeance but an indispensable sacrifice to common safety. 4

A Response to Critics of Retributivism. Hegel, Philosophy of Right, Para 99. 6 Murphy and Coleman, 1990. 7 Morris J. Fish, An eye for an eye: Proportionality as a Moral Principle of Punishment, Oxford Journal of Legal Studies, Vol. 28, 2008. 5

In order to arrive at the objective that is sought to be achieved a number of theories have been proposed. Bernard Weiner in 1995 performed certain surveys and based on the analysis he came to certain conclusions, some of them being8: Transgression → Perceived Cause → Cause is controllable → Person is responsible → Anger, no sympathy → Retributive goal, long(er) sentence Transgression → Perceived cause → Cause is unstable → Low(er) expectancy of future crime → More focus on utilitarian ends and means (eg rehabilitation), short(er) sentence These conclusions were based on theories wherein the causal aspect of a crime was analysed. Thus, in a case where the cause, being the driving factor behind the act of the offender was controllable and not provocative the punishment was supposed to be retributive in nature whereas where the cause was unstable, in which case it wouldn’t be repetitive, the punishment imposed should be utilitarian. REVENGE V RETRIBUTION One of the most important concept is the difference that needs to be drawn between revenge and retribution for it is the vengeance driven by public opinion that tends to create an influential impact on the decision makers. In almost every criminal act, it is this revenge that overshadows the objective of the State and retribution is sought over utilitarian forms of punishment. Robert Nozick, an American philosopher has differentiated the two concepts in the following way: 1. Retribution is done for a wrong, while revenge may be done for an injury or harm or slight and need not be wrong. 2. Retribution sets an internal limit to the amount of the punishment, according to the seriousness of the wrong, whereas revenge internally need set no limit to what is inflicted. 3. Revenge is personal, whereas the agent of retribution need have no special or personal tie to the victim of the wrong for which he exacts retribution.

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Bernard Weiner, An Attributional Examination of Retributive versus Utilitarian Philosophies of Punishment, Social Justice Research, Vol. 10, 1997.

4. Revenge involves a particular emotional tone, pleasure in the suffering of another, while retribution shall not air any such emotions. 5. There need not be a generality in revenge. Whether he seeks vengeance, or thinks it appropriate to do so, will depend upon how the avenger feels at the time about the act of injury. Revenge thus, comes across basically as a moral response; it suggests another answer to the question of which harmful acts might lead to revenge. It is not the harmful act as such that evokes anger and vengeful desires, but the interpersonal message of disrespect that is conveyed through these acts. The harm doer signals that he does not care for norms of respectful treatment. This is a personal side of revenge and harm, which cannot be settled easily by legal punishment. Relying on a concept that is most easily influenced by morals is a very fluid idea for the complete judicial system to function. Therefore, one needs to extract the two concepts and identify the difference, drawing distinction between the two while decision making. Retributive action by the State cannot be allowed to be influenced by the vengeful emotion of the society as was the case with the recent Amendment to the Juvenile Justice Act, the reason the legislation was passed immediately in response to the hue and cry created by the society over the release of a juvenile in a gang rape case. EVALUATION OF JUVENILE JUSTICE AMENDMENT ACT, 2015 The Act which was passed in wake of certain events in recent times has introduced a number of amendments. The prime focus of this project will be on some specific provisions which changed the face of punishments and the objectives behind it imposed by the State. 15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Explanation.—For the purposes of this section, it is clarified that preliminary

assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 18. (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,— (3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences. 19. (1) After the receipt of preliminary assessment from the Board under section 15, the Children´s Court may decide that— (i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere; (ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18.

The amendments mentioned herein basically seek to create a Juvenile Board consisting of psychologists and sociologists who would decide whether a juvenile in conflict of law is to be tried as an adult or child in cases of heinous crimes depending upon his intentions. Further, this decision would be referred to the Children’s Court who would again be deciding the same question and the trial would take place accordingly. Once the trial is done, a review would take place after three years. The problem with this proposed system is that the very objective behind this amendment is contrary to the objectives of State punishment. At the behest of announcing sentence the first thing that the court looks at is the past record and the age of the offender in order to scrutinise

the scope of reforms. A juvenile, who has not yet attained the status of a major has to be given the maximum leverage when it comes to reformation. The scope has to be wide enough. In such a situation the Board deciding whether the child has to be tried as an adult defeats the entire purpose of reformation and the utilitarian approach of State punishment. Apart from the human rights and fundamental right violations this amendment will be violating the reformative purpose of punishment. It would in fact be completely driven by public emotion as more representation is given to psychologists and social workers, who being part of the society would be easily influenced by the general opinion of vengeance that exists in the society. In a study conducted by Sandra Graham9 a role-playing methodology was used in which college students assumed the role of a judge whose task was to determine the punishment of a defendant accused of murder. The cause of the crime was manipulated along the controllability and stability dimensions. In each case, participants answered questions about the controllability and stability of the cause of the crime, as well as items related to responsibility, expectancy, anger, and sympathy. They also endorsed the severity of punishment recommended, with nine choices ranging from 1 year to the death penalty. Following the punishment decision were two questions related to the goals of punishment. Respondents were asked whether they gave the sentence because it is "what this defendant deserved" or because the sentence would "change the likelihood that this defendant would engage in such behaviour again". Another two questions examined respondents' trait-like attitudes or more general statements capturing the goals of punishment. Subjects rated how much they believed that "punishment should be for the purpose of making the offender pay for his or her wrongdoing" (Retribution) and how much they believed that "punishment is only justifiable if it contributes to the greater good of society" (Utilitarian). These general philosophical questions were answered for half of the subjects prior to responding to the hypothetical murder scenario, while for the remaining participants the responses were made after the specific murder had been addressed. Order had no effects on the responses.

This study established the fact that the choice of punishment precedes the analysis and causal study of a criminal act. Thus, herein public opinion being such a strong influencing factor, there is no guarantee as to the fact that the distinction between revenge and retribution could 9

University of California, Los Angeles, California 90024

be sought by the Board. The situation specific analysis is needed but the problem lays in the pre established notions of punishment. Like in the study conducted by Graham order does not matter because goals of punishment are pre determined. Thus these pre determined notion would affect the decision taken by the Board which would subsequently result in a life changing decision as regards the life of the child. Also, the objective of introducing this Board is not clear because subsequently it is the Children’s Court that takes a final call on the adult status of the child. Thus, judiciary is again empowered with a subjective decision as big as the fact that whether a child should be tried as an adult or not. When judges have not been sieved from the public opinion these psychologists and sociologists represent a greater proportion of the same public and the probability of the decision being influenced by public opinion increases. In the Nirbhaya case which was a significant driving force towards the said amendment, the situation specific analysis was never seen and everything was driven solely on public emotion. This system would fail to create punishment on utilitarian basis and as regards retributive stances, the principle of lex talionis wouldn’t appropriately apply in this case as being a child, the offender’s intentions and mental state cannot be relied on as being the desired act. It needs to be understood that the mental state of a child, in conflict of law or not, is disturbed when he resorts to a criminal act and in such a state serving him just desserts would be against the idea of a ideal society that the State seeks to create. The one prime objective that the State should rely on in Juvenile cases is reformation considering the age and scope that exists. CONCLUSION It may thus be concluded that the amendment that has been brought in would not serve the intended purpose of the Act. This is so because the objective of this act continues to be the welfare of children. However, even on the International platform it contradicts a number of statutes that stand for protection of child rights by the mere provision of leaving it at the option of a Board to decide whether a child can be treated as an adult or not. As has already been established that the very objective of punishment is being defeated here. Also it must not be forgotten that studies have proved that where retribution was sought against a juvenile, the offender ended up indulging in criminal acts after leaving jail. And thus in such cases a utilitarian approach should be adopted. A possible solution could be to make an objective law that is more desired and not influenced by the public opinion. The retributive objective of

punishment is in fact to satisfy a part of the vengeful desires of the public at large. Making it subjective would increase the chances of erroneous decisions as regards innocent as compared to the guilty in the former case. At the end of the day the State has to function as a welfare body and even if certain guilty go punished it has to allow that rather than letting innocent serving sentence.