Theories of punishment & feminist jurisprudence

Introduction Theories of punishment

Punishment. A term which is inherent to criminal justice. It is only because of the
term punishment, that certain acts are classified as ‘crimes’. Down the lane of the
history of the society, we have seen that without punishments, it would have
sometimes been impossible to tame the barbaric, as well as primitive tendencies of the
public. It was the weapon named ‘punishment’, that the rulers used against their
subjects in order to maintain a fear in the minds of the public regarding the capacities
and powers of their rulers. Punishments sometimes were also given as an insult to
someone else. However, the most common punishment from which all of us are
familiar is the scolding or mild beating that we get from our parents. In that case, what
are the theories of punishment actually in case of serious crimes? How did they
develop? What are the pros and cons of the various ways of punishing people? Do the
Hindu scriptures too depict any form of the punishments mentioned hereinafter?
Through this paper, we will try to answer all such questions and understand how far
are the various Theories of Punishment applicable in the present era. The theories of
punishment are as follows:

 RETRIBUTIVE THEORY.
 DETERRENT THEORY.
 PREVENTIVE THEORY.
 INCAPACITATION THEORY.
 COMPENSATORY THEORY.
 REFORMATIVE THEORY.
 UTILITIRIAN THEORY.

Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people
in the society would perceive it as, is the most basic, yet inconsiderate theory of
inflicting a penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
Now, if looked at from the perspective of very serious and heinous offences, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.

However, we forget to understand sometimes that always having a retributive

approach will render the society one with a primitive system of justice, where the
Kings or the Judges were considered to be the supreme beings and were provided with
the stature of God Himself (hence the address My Lord) and thus, collapse the very
concepts of the representatives being ‘servants’.
Doctrine of Societal Personification and the Doctrine of Correctional Vengeance:

 Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of
which, the whole society, as if it were a natural person, considers the offence to be
inflicted upon itself, comes to the defence of that person either by way of demanding
justice or by conducting the same on its own, the society is said to be personified.’

1
A very self-explanatory doctrine. To be put simply, it means that the society,
whenever a heinous crime of an extreme form is committed, assumes the form of a
natural person and behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape
case, etc.

 Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict
vengeful (as painful as the original act, or even more) punishments upon the victim
for creating a deterrent, it is said to exhibit correctional vengeance.’

The above definition, too, is quite self-explanatory in its nature. Now that we have
understood these two doctrines, we have a basic idea about what really is
retributivism or retributive justice. Let us now have a closer look upon the same.

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically serious
crimes, morally deserve to suffer a proportionate punishment;

2. that it is intrinsically morally good—good without reference to any other goods

that might arise—if some legitimate punisher gives them the punishment they
deserve; and

3. that it is morally impermissible intentionally to punish the innocent or to inflict

disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further. We
may understand retributive justice in this manner. The place where both Criminal Law
as well as Moral Law meet, is the place where mostly the retributive punishments are
generated.

Retributive Theory and the Hindu Scriptures:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga
Saptashati, are primarily based on Retributive Theories but also, depict the ways in
which one should proceed while applying them.

Ramayana- In the Ramayana the whole story began from retribution itself.
Lakshmana cut the nose of Raavan’s sister, because of which he kidnapped Sita. In
order to rescue her and also to avenge her kidnapping, Ram went to kill Raavan.

Mahabharata– Mahabharata, once again, is a very good example of how retributive

punishment should be inflicted. The Pandavas had not started-off with the war right
away. They had sent Shri Krishna as their messenger of peace a number of times to
the Kauravas, but, they did not give in. Mahabharata, especially Shrimad Bhagvad
Geeta, talks about the time when the retributive mode should be used.

2
Durga Saptashati– In this too, Goddess Durga warns the various demons, i.e.
Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon
them.

Now, let us move on to see some important case laws regarding this theory of
punishment.

Case Laws:
1. Nirbhaya Judgement– This case is indeed the first and foremost case to be
mentioned, while talking about retributive justice in India. In this Judgement, the
Supreme Court sentenced four out of six felons involved in the extremely heinous
Delhi gang rape case to death, much to the delight of the society, as they had
committed an extremely gruesome, as well as morally unimaginable crime.

2. Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted
had already undergone a six month imprisonment term, before being officially
convicted by the Court. The Court held that since the convict had been convicted and
also, the required ‘blemish’ had also been imposed upon him, it was not necessary to
sentence him again in the name of ‘retributive punishment’,

3. Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was
observed that both deterrent and retributive punishment aim at prevention of the
recurrences of the offences by others passing exemplary punishment for a particular
offence. But the civilization and the societies are progressing rapidly. There is
advancement of science and technology. The literate people and the experts in
different branches of knowledge started thinking in a different way.

Pros and Cons:

Pros-

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.
Cons-

1. Sometimes, may become disproportionate with the seriousness of the

crime.
2. Society develops feelings of vengeance and destructive tendencies follow.
3. The State may become autocratic in its functioning, using the punishment
to torment people.

Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,

3
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of
this fear in the minds of the people of the society,

Conclusion
Thus, we saw the different Theories of Punishments in detail. We understood what are
the guiding principles behind them, how are they different from one another and some
very important Case Laws pertaining to the same. However, we need to understand
very clearly that punishment is something which should be inflicted very carefully. As
the famous saying goes that ‘Let go of a hundred guilty, rather to punish an innocent’,
we need to understand that inflicting a punishment upon someone changes his mental,
physical and social status drastically. It has a very grave impact upon him and his
being.

Introduction feminist jurisprudence

Feminist jurisprudence highlights the different strands of philosophy and theory. It is

a natural extension of the engagement of female reflections and speech to one more
area of discourse, namely law and justice. Before we indulge into the concept of
Feminist Jurisprudence, it is important to understand the term “Feminism”. The
author aims to cover the subject holistically and provide a complete picture to the
reader.

 Feminist jurisprudence is a philosophy of law based on the political, economic,

and social equality of sexes. Feminists believe that the age- old law and practices
are made from a law point of view of men and do not reflect women’s point of
view and their role in history. There are three major schools of thought in
feminist jurisprudence:
 Cultural feminism: This school of thought focuses on giving voice to the moral
and ethical values of men and women. This school appreciates and celebrates the
difference between men and women.
 Liberal Feminism: This school promotes freedom of individual, freedom from
aged old belief of male authority and seeks to erase gender based distinction.
 Radical and Dominant feminism: This school is similar to the cultural feminism
on some lines, they also stand against the inequality faced by women, they
believe in abandoning the traditional practices which were made from a male’s
point of view and consider men to be superior.

Feminist try to question laws related to domestic violence, rape, divorce,

maintenance, reproductive rights, and employment, they have significantly changed
the gender discriminatory laws to gender neutral law. One such example is of the
landmark judgment of Joseph Shine v. Union of India where it was held that Section
497 of Indian Penal Code considers women as chattel for the purpose of this provision
and is discriminatory on the basis of sex and abrogate Article 14 and Article 15 (1) of
the Indian Constitution and hence such provisions should not be pronounced at valid.

Feminism in India

4
Feminism is derived from the Latin word ‘femina’, which means ‘woman’. The first
wave of feminism in the world occurred during the period of 1850 to 1940. The very
first declaration was held in the year 1848 at the United States of America, namely,
Declaration of Sentiments, Grievances, and Resolution. The goal of the declaration
was to achieve the “sacred right of franchise”. The first wave of feminism focused on
legal rights of women, mainly the right to vote. Thereafter, the revolution took its
pace and grew all over the United States, leading to the Women’s Revolution.

However, development of feminism in India is a bit different from development in

other countries. In India, the development of feminism took place in three phases, and
unlike other countries it was the men who started this movement.

The First Wave of Indian Feminism started in 1850 -1920, this phase uprooted the age
old practice of Sati. Raja Ram Mohan Roy was the first who spoke against the
subjugation of women’s rights, he out rightly opposed the idea of Sati. Beginning in
1818 he set out to rouse public opinion on the question

The Second Wave of Indian Feminism can be traced around 1920 -1980 or what we
call the Pre- Independence Era. The reign of Indian Feminist movement was in the
hands of the women of India. Popularity of women’s rights started to grow, women
were getting aware of their rights and came in front to demand their rights from the
male members of their family. Mahatma Gandhi drove women participation during
the non-violent civil disobedience movement against the British Raj.

The Third Wave of Indian Feminism began with a triumph when Rebecca Walker out
loudly said “I am the Third Wave” for a magazine in the year 1992. This started by
highlighting the issue of intersectionality and voicing their opinions against
harassment. The setting up of the National Commission for Women in the year 1992
was a big step to promote and protect rights of women.

Sexual Harassment at workplace was considered as important issue to be discussed.

The Honorable Supreme Court of India in Vishaka v. State of Rajasthan introduced
Prevention of Sexual Harassment at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.In the said case, Bhanwari Devi a social activist was brutally
gang raped by five men of the village where she worked in association with Women’s
Development Project and was acting in due course of her employment to educate
people to stop child marriage. Initially the session court dismissed the case and
acquitted the five accused.

Amendment to the abortion laws in India

India has taken a big step in liberalizing their Abortion Law policy. The decision to
abort a fetus should be the sole decision of women and the doctors consulting the
women and any infringement on her decision should be considered as a violation of
her right.

5
Before understanding the Medical Termination of Pregnancy (Amendment) Bill 2020,
we need to appreciate and understand the mindset of the Indian society when we talk
about abortion.

Before 1971, Abortion was illegal in India, it was only after the Medical Termination
of Pregnancy Act, 1971, that it became legal. After 1971 the Parliament enacted
Medical Termination of (Amendment) Act, 2002 and amended rules and regulation in
the year 2003. The amended rule and regulation decentralised the regulation of
abortion facilities from state to district committees that are empowered to approve and
regulate abortion facilities.

Obstacles faced by feminist jurisprudence in India

In this never-ending fight to gain equal rights, the Indian women have faced and still
face more than their fair share of hurdles. Breaking the age old patriarchy and
misogyny which prevails in our society there are chances of getting harassed by the
society at large.

The feminist jurisprudence, focuses on the inherent inequality fostered by the

Traditional jurisprudence. Feminists see the law as the prime source for perpetuating
pre-existing gender based inequities, especially within the framework of capitalism.

Traditional laws
The Traditional law of Manusmriti which was published in 5th Century C.E, has
defined the social structure of our society. It was considered to be an ultimate guide to
live a moral life, it has explained the role and responsibility of all the four varnas, the
Brahamans, the Kshtriye, the Vaishyas, and the Shudras. Manusmriti has told the
roles and responsibilities of women as a dependent and one who requires constant
protection and guidance throughout her life. It has highlighted the characteristics of “a
good women”, it forbade widow remarriage, promoted child marriage and dowry
system in society.

Legal positivism
Legal Positivism is a philosophy as law which emphasises on the conventional nature
of law that is the social construct. According to legal positivism, law is very much
synonymous with positive norms, which are made by legislators or considered as
common law. Law enforcement and effectiveness are sufficient for social norms to be
considered a law. Legal positivism does not base law on divine commandments,
reason, or human rights.

Legal Positivism does not specifically imply an ethical justification for the content of
law nor does it imply a decision for or against the obedience to law. This includes the
view that judges make new law in deciding cases not falling clearly under a legal rule.
Practicing, deciding or tolerating certain practices of law can each be considered a
way of creating law.

6
Anti – Social elements
The recent failure of The MeToo movement led further the name-shame of feminism
in India. Some of the posts and stories shared by women were not authentic which led
change in course of the MeToo movement and instead of raising your voice against
the injustice meted out to you , it became a platform for some women to put false
allegations against innocent men. These Anti –Social elements are one of the biggest
hurdles faced by true feminists in achieving their goals. After these cases, society
looks down at feminism and becomes a force which pulls down their objective to
achieve a better society.

Conclusion

Feminist jurisprudence is a philosophy of law based on the political, economic, and

social equality of sexes. India has witnessed representation of women at all social
fronts for instance in political scenarios, after enactment of Article 243 D one third
offices of Panchayat Raj are reserved for women. We have empowered women
economically our judiciary ensured that women should not bear discrimination at
workplace in the case of Air India vs Nergesh Meerza & Ors., Vishakha v. State etc.
There are schemes to guide and empower women socially for example the
UJJAWALA, a comprehensive scheme A Comprehensive Scheme for Prevention of
Trafficking and Rescue, Rehabilitation and Reintegration of Victims of Trafficking
for Commercial Sexual Exploitation, SWADHAR scheme (A Scheme for Women in
Difficult Circumstances).

The waves of feminism which India has witnessed is a long drawn journey which
celebrates the struggle of every woman who fought against the misogyny and
patriarchal behaviour of society. They have overcome barriers by promoting
communication about women subjugation. These struggles have borne some great
fruits few of which as listed below:

1. The Immoral Traffic (Prevention) Act, 1956,

2. The Dowry Prohibition Act, 1961, (Amended in 1986),
3. The Indecent Representation of Women (Prohibition) Act, 1986,
4. The Commission of Sati (Prevention) Act,
5. Protection of Women from Domestic Violence Act, 2005,
6. The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013.

These are some Acts which can be considered as milestones in the journey of feminist
jurisprudence. The Hindu Succession (Amendment) Act, 2005 which was introduced
to remove the discriminatory provisions and allow the right of inheritance of property
to women. Prior to this amendment women were alienated from their right to inherit a
property. The Criminal (Amendment) Act 2013 ,popularly known as Anti – Rape Act
of 2013, was amended after the Nirbhaya Gang rape case , the nationwide outrage
over the brutal gang rape and subsequent death of physiotherapy intern in Delhi was
the driving force to implement the amendment.

7
The Indian Penal Code which was written in 1860 by Lord Maculay, has the colour of
patriarchy and represents male-centric structure of society. The laws which enforced
male centric values can be traced back to 5th Century C.E, where Manusmrtiti was
developed which categorised the roles and responsibility of men and women.

Feminist Jurisprudence highlights the vacuum created by our society, the difference of
men and women. It is a subject that has come into light very recently but has been
evolving for a long time. In this paper we aim to look at Feminist jurisprudence from
Indian perspective. Understanding the history of Feminist revolution in India and how
it has evolved, with history we can always understand the nature of working of the
society.