As the Supreme Court dismissed the review plea of the fourth death convict in Nirbhaya case, holding it to be falling within the kind of rarest of rare crimes, the sense of exultation in society is apparent and evident. Here one is reminded of what Justice Krishna Iyer once observed, “If the murderous operation of a die-hard criminal jeopardises social security in a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated.”
However, penological studies and criminal jurisprudence would never advocate a regime for just vengeance, but rather instead insist, that such extreme punishment to be awarded for, one, instilling a sense of justice in society and, two, as a deterrence against commission of similar offences. There is no denying that, as a society we should abhor crime in any form and more firmly, crime against women and children. And certainly deterrence theory is the most prominent form of criminal jurisprudence that resonates with the aggrieved and the society at large.
The frustration is so high that, we as a society indulge and seek refuge in mob justice and endorse things like, the most recent police encounter of the alleged rapists in the Hyderabad rape case. But this indeed is a warning bell, a trespass of constitutional process. Travesty of justice is phenomenal both in an urge for instant justice and delayed justice. And a natural tendency in us to go for deterrence, which in fact, is in most cases vengeance masquerading as justice.
But in the entire episode of provocation that we have been receiving by the dastardly acts of outlaws, we have lost sight of the reformative theory of criminal jurisprudence, and have not made any effort in making the necessary course correction through social vigilance and attempting behavioural correction of potential outlaws through evolving methods and apparatus to locate and reform them, much before they hit with a crime.
In a most shocking revelation from an India Today story on how a handful of male students from a high-profile school in Mumbai were suspended after being caught for chatting over WhatsApp for, “gang-banging” their fellow girl classmates, we are posed with a question, where are we leading as a society? There are social uprisings against gender crimes and sexual offences, lots of voices are being heard, candle light marches taken out, but then, how it fails to stimulate the conscience of the constituents is not understood. The need of the hour is to identify the black-sheep amongst us, much before they get a conducive moment to devour another Nirbhaya and what is important here is, parameters of assessment and ascertainment at each level is developed to identify them and reform them.
Take for examples the cases of sexual offences, the reformative theory of punishment seems to be a now flawed notion, deterrence theory of punishment is daily getting deadly blows with each new case that is being reported.
According to National Crime Records Bureau(NCRB), the rape vulnerability of women today is almost twice than it was 17 years ago. According to the NCRB data, 4,15,786 rape cases were reported across India between 2001 and 2017. On an average, 67 women were raped every day across the country during these 17 years, or, in other words, about three women had been raped every hour. Then where is the deterrence?
JRR Tolkien has famously written in his book, ‘The Fellowship of the Ring’, “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.” This is something similar to the ‘rarest of the rare’ doctrine as laid down by the Supreme Court of India, in Maneka Gandhi versus Union of India, AIR 1978 SC 597. On the contrary, it has also been held by the Supreme Court in Ravji alias Ram Chandra v. the State of Rajasthan, (1996) 2 SCC 175, that, atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. The point that is to be made is, there is a growing need to reason with justice, which cannot certainly be made without balancing both deterrence and reformation. At times deterrence seems to be perfect but if there is a resistance within the criminals and they attempt to evade the clutches of law mostly by murdering their prey, silencing the victim in sexual offences.
What is therefore important is, an early detection of potential criminals, mostly among juveniles, so that they don’t evolve into seasoned criminals and perverts. The scope of reformation shouldn’t be limited to the reformative theory of punishment, after crime has occurred, but detection of potential criminals before the occurrence of crime, and then reformation.
Perversion is now deeper than it was ever. As per reports, the Hyderabad rape victim’s video was searched over 8 million times over the internet. Who searched for such videos, certainly much of whom constitute India’s net savvy educated generation, who decry rapes in day light and tend to enjoy the clippings in private. Can we afford to hang a million such potential criminals; can we hang a society at large?
The problem is much bigger than it seems, and our approach should rightly be identification and reformation, be it through use of technology or vigilance at institutional and social level.
(The writer is a lawyer and can be reached at sjyotiranjan3@gmail.com)