By: Priyam Goyal* |
Suppose there is an orange tree in the yard of your neighbour, but he doesn’t allow you to take the oranges from his garden and scolds you each time you attempt to steal them. The neighbour doesn’t beat you or report it to your parents because of which it becomes a fun activity for you. One day, you steal some oranges from the neighbour’s yard and this time, he catches you and beats you. Also, he complains about it to your parents. As a result, you stop committing that act.
The aftermath of this strictness/ stringency in action is the deterrence in crime. One of the ways of making a law stringent is to establish a rigorous punishment in the criminal justice system. For instance, the National Safety and Transparency (TSN) Act, 2006 has established accountability, controlled nuisance etc. that has been lacking in the previous legislations and rules due to which nuclear safety and radiation protection were at stake.[i] According to Austin’s[ii] command theory, “The command of the sovereign is backed by the threats of imposition of sanctions, i.e., punishment in the case of non-compliance of its command.”
But in the view of Cesare Beccaria[iii], the intention of imposing punishment is neither to torment a conscious soul nor to undo the crime already committed. The primary objectives of punishment are to ensure that no further criminal activities will be in existence that could harm society and to avert the same offence. The same intention has been witnessed under Indian Penal Code, 1860, designed by Sir Macaulay, where the death penalty is inflicted in the case of murder under section 302 and not in any other heinous offence such as rape, waging war against the government, as the only objective was to deter the crime and warn the criminal.
RELATIONSHIP BETWEEN STRINGENCY OF LAW AND DETERRENCE IN CRIME
Deterrence refers to the use of punishment so as to stop potential criminals from committing crimes. Cesare Beccaria, a classical criminologist[iv], conjectured that criminals had a tendency of analyzing the risk and consequences of their action before breaking any law. The sanction is the mean by which individuals are forced to respect the law and also prevent the commission of crimes.
The relationship between stringency in law and deterrence in crime can be understood through three concepts[v], i.e., swiftness, certainty and severity.
1. Swift - In this the time period between the violation of the law and the punishment should be negligible. This is because the offender will not have enough opportunity to run away from his liability.
In India, the Motor Vehicles (Amendment) Act, 2019 has enormously increased the number of on-spot fines/ penalty which created a fear in the mind of the defaulter which although seems arbitrary but has a positive impact in the reduction of road accidents and crimes. This as a concept establishes a functional relationship between stringency in law and deterrence in crime. A function is a mathematical relationship in which the value of a dependent variable is determined by the value of an independent variable.[vi] Usually, the independent variable is denoted by the letter X and dependent variable is denoted by letter Y. Due to amendment, increase in the number of on-spot fines (X) by the administration has reduced the road fatalities (Y), which establishes a functional relation between stringency in law and deterrence in crime. In addition to this, the negative or inverse correlation[vii] between the strictness of law and an increase in crime has been witnessed in the same case. If there is swiftness in action, then the stringency in law will establish a positive relation with the deterrence of crime.
(Source: Lok Sabha: Starred Ques No 80, Nov 21, 2019)
2. Certain – The law should be such that the offenders must have a notion that if they get caught, there is no way to avoid the punishment.
3. Severe - There must be a punishment that will be serious enough to outweigh any kind of pleasure and reward received by the offender while committing the crime.
These concepts established an elastic relationship between stringency in law and deterrence in crime. Here, elasticity refers to the measure of the responsiveness of offenders to a change in certainty or severity of punishment. Since more certain or severe punishment will attract fewer offenders to commit a crime, the elasticity of crime would be less than one. On the other hand, if the punishment is less certain or severe then the offenders would believe in the commission of a crime and in this case the elasticity will be more than one. Another way to express elasticity is,
Certainty = No. of admissions to prison for offence ‘X’/ Number of ‘X’ crimes reported to the police[viii]
Elasticity of crime = Change in the crime by offender/ Change in the certainty or severity of the punishment
In ‘The Criminal Law (Amendment) Act, 2018’[ix], under section 376 AB, the punishment for committing rape of a woman below twelve years of age is ‘minimum imprisonment of twenty years which may extend to imprisonment for life and death penalty.’ The elasticity, in this case, is lesser, i.e., the crimes reduced due to an increase in the certainty as well as the severity of the punishment, according to the data compiled by the Nation Crime Records Bureau.
(Source[x]: NCRB data on Women & Girls Victims of Rape under Different Age-Groups 2017 & 2018)
HURDLES IN IMPLEMENTING LAWS STRICTLY
While establishing a positive relationship between stringency in law and deterrence in crime there are certain obstacles and setbacks that affect the essence of their relationship. Some of them are discussed here-
a) Judicial attitude behind punishment:
The judicial system in the country has failed to oblige the settled law and as a result, has rendered various wrong convictions. In Santosh Kumar Bariyar v. State of Maharashtra[xi], the court stated that it did not follow the settled law and passed the death sentence per incurium while deciding the case of Ravji @ Ram Chandra v. State of Rajasthan[xii]. It also overlooked the circumstances of ‘crime as well as criminal’[xiii] as established in Bachan Singh[xiv] case while pronouncing the death penalty. The judiciary became wonted to committing errors while pronouncing judgments as in 2012, 14 retired judges had admitted that there is a miscarriage of justice and appealed to the President of India to commute the death sentences of nine death-row prisoners. Some reports also state that since 2018 the courts acquitted around 10 death row prisoners and also commuted 23 death sentences into life imprisonment.[xv]
b) Faulty administrative actions:
The administration, especially the police department is not performing its duty in accordance with the law. Padmanabhaiah Committee on Police Report also highlighted that most of the human rights violations start with wrong or malicious arrests made by the police officers.[xvi] There are reports that define the atrocities by police and one such atrocity is custodial violence. As per the data released by National Crime Records Bureau (NCRB) [xvii], there are cases of extortion against police officers in which as many as 17 cases have been registered out of which final report has been submitted in 9 cases only. According to Centre Media Report of 2018, it was estimated that during the year 2016-17, an amount of Rs. 1007 crores (approx.) has been taken by the police department as a bribe.[xviii] According to the report issued by the Anti Corruption Bureau (ACB), the Mumbai police is the most corrupt department out of the 44-state official departments.[xix] All the facts clarify that the administration especially the police department is hindering the strict implementation of laws.
All these factors are an impediment to the strong relation between stringency in law and deterrence in crime.
CONCLUSION:
The relation between stringency in law and deterrence in crime can be established only when the execution of punishment will be led by the procedure established by law. The effect of stringent laws will not be applicable when the adversary (offender) is out of senses or does not pay heed to the degree of punishment while committing crime. For instance, the number of complaints registered for the crime of ‘Sexual Harassment, including ‘Sexual harassment at Workplace’ observed a significant rise from 539 in 2016 to 965 in 2018.[xx] The judiciary has also committed the act of arbitrary deprivation, ignored excessive and unjust delay, ignored many doctrines while pronouncing judgments.[xxi] Many argued that the imposition of extreme punishments will shake the concept of civilization and will lead to a barbaric world. However, the imposition of punishment is necessary as the crime rate in states having stringent laws and punishments witnessed a lesser crime rate than the average of rest of the nation. In Bosnia and Herzegovina v. Serbia and Montenegro[xxii], International Court of Justice held on the application of the Convention on the Prevention and Punishment of the Crime of Genocide that, one of the factors of preventing genocide is the deterrent effect of punishment.[xxiii] This cannot be stated in the case of capital punishment as providing equal punishment for crimes of different nature that are not harming society equally will not deter men from committing a greater crime.[xxiv] There are cases in which the crime rate went up in the crime of death penalty, i.e., according to a NCRB report,[xxv] the rate of murder increased by 30% after committing the rape of the victim and is done to destroy the evidence. This all happened after the amendment. Such an increase is the result of an increase in punishment and fear.
Therefore, the relationship between the stringency of laws and deterrence in crime does not always have a positive relationship.
***
* The author is a student of Indore Institute of Law.
[i] Trade in Nuclear Materials and Equipment, Nuclear Legislation in OECD and NEA Countries, 10 (2011). [ii] Amaresh Patel, Austin’ s Command theory (Mar 30, 2020 07:06 PM), http://www.intolegalworld.com/LegalArticles.aspx?title=austin-s-command-theory (last visited on May 11, 2020) [iii] James Fieser, Classics in Political Philosophy (Jan. 01, 2019), https://www.utm.edu/staff/jfieser/class/410/08-beccaria-blackstone-smith.htm (last visited on May 12, 2020) [iv] ibid. [v] Alida D., Deterrence in Criminology: Definition & Theory, https://study.com/academy/lesson/deterrence-in-criminology-definition-theory.html (last visited on May 11, 2020) [vi] Variables, Functions and Equations, http://www.columbia.edu/itc/sipa/math/variables.html (last visited on May 11, 2020) [vii] Inverse relationship is a relation between two variables in which the deviation in one variable will negatively affect the other variable, i.e., contrary relation between two variables. [viii] 63, William C. Bailey and Ronald W. Smith, Punishment: Its Severity and Certainty, (1973) [ix] https://www.mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf [x] Comparative study of 2017 and 2018: https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.3_1.pdf, https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.3_0.pdf [xi] (2009) 6 SCC 498 [xii] AIR 1996 SC 787 [xiii] The court upheld the view in Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452 [xiv] (1980) (2 SCC 684) [xv] Rahil Chatterjee, The death penalty: a fatal margin of error (Mar. 18, 2019). https://www.thehindu.com/opinion/op-ed/the-death-penalty-a-fatal-margin-of-error/article26572323.ece (last visited on May 13, 2020). [xvi] G. P. Joshi, The Padmanabhaiah Committee on Police Reforms: A Critical Analysis of Some Important Recommendations. [xvii] Cases Registered against State Police Personnel for Human Rights Violation – 2018, https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%2016A.6_0.pdf [xviii] Coreena Suares, Police rule the roost, named most corrupt, (May 20, 2018, 2:15 am), https://www.deccanchronicle.com/nation/current-affairs/200518/police-rule-the-roost-named-most-corrupt.html (last visited on May 14, 2020) [xix] Jayprakash S Naidu, Maharashtra Police most corrupt, assets worth Rs 4 crore amassed by cops, says ACB (Jan 13, 2020 09:06 am), https://www.hindustantimes.com/mumbai-news/maharashtra-police-tops-corruption-complaints-list/story-z8A93s0ZUDKX3V196H78NN.html (last visited on May 14, 2020). [xx] Press Information Bureau, Ministry of Women and Child Development, (Feb 08, 2019 6:06PM), https://pib.gov.in/Pressreleaseshare.aspx?PRID=1563588. [xxi] Human Rights Committee, General Comment, CCPR/C/GC/36, 30 October 2018, para. 41 [xxii] [2007] I.C.J. 191 [xxiii] William A. Schabas, Convention on the Prevention and Punishment of the Crime of Genocide, Paris, Audio Visual Library of International Law (9 December 1948), https://legal.un.org/avl/ha/cppcg/cppcg.html (last visited on May 14, 2020) [xxiv] Nisha Sharma, On crime and Punishments- Beccaria's treatise in 1764, India: India And Its Regressive Step In Crime And Punishment (26 January 2020), https://www.mondaq.com/india/crime/882448/india-and-its-regressive-step-in-crime-and-punishment (last visited on May 12, 2020) [xxv] DHNS, Stringent rape law, unintended effect, (Jan. 21, 2020), https://www.deccanherald.com/opinion/second-edit/stringent-rape-law-unintended-effect-796549.html (last visited on May 14, 2020)
Image Source: https://www.thestar.com/opinion/2009/05/15/better_to_be_smart_than_tough_on_crime.html