Interview with Prof Saurabh Ubale- Traditional Justice in relation to Deterrent Theory

Updated: Jun 16

Transcript by:

Miss Saumya Srivastava (Research Intern)

Interviewed by:

Miss Vijaylaxmi Raju(News Editor)

Mr Vaibhav Dwivedi(Interview Editor)


The talk starts and in conversation are Mr Abhivardhan, Miss Vijaylaxmi and Mr Vaibhav.

Mr Abhivardhan proceeds with greetings and Miss Vijaylaxmi does the formal introduction of the guest, Prof Saurabh Ubale Sir.

· The ancient system, when studied in consonance with the Kautilya'sArthashastra as a separate chapter, the natural law or positivists approach is considered with the written law as in Manusmrirti. The concept of punishment with focus on deterrent punishment has been of prime importance whether it be in ancient times or later in Queen Elizabeth's period. According to Arthashastra, deterrent punishment is important to deter which ultimately leads to a peaceful society.

· State administration is required to maintain peace and tranquillity which gives in addition to it the role of dispute resolution. When explained deterrent theory with the system of justice in layman's terms justice means revealing the truth with evidence, finding a solution to disputes of the society, etc. From the very beginning, we had a justice sys but not a proper judicial sys that's why traditional justice can be traced from that time. There was no legal process only the simpler norms existed which meant mightier always has the power. This, when equated with the contemporary world, when hooligans fight amongst each other for a specific purpose, the one physically strong mostly wins, this creates a deterrent for other individuals.

· When put in simple words "If anybody tries to violate my rights or infringe my legal privileges, the person is to be punished by myself." This is applicable both in contemporary as well as in primitive societies. Therefore, the concept of the deterrent theory was made.

· Various studies by eminent jurists have been made on the said subject. Both Salmond and Bentham focus on the deterrent theory approach, that is when you create an example for the society by way of punishment so that other individuals restrain themselves from committing offences.

· The theory of deterrence in Traditional Justice System is directly proportional to the above- stated explanation.

· Traditional Justice also includes justice at grass root level like in the panchayat system, Khaappanch etc.

· Researchers suggest that Traditional Justice is different for different people and different communities. For example- In Africa, community system is prevalent, that is, a common community code is practised and justice there is imparted by that particular code only.

· Salmond pointed out, the chief aim of the law is to punish the wrongdoer and set an example so that others shall not commit any such offence again.

· The Deterrent Theory can be further divided into- Specific and General. Now, there also lies the concept of Incapacitation which can be included under the same or not is ambiguous as researchers do not have a solid- criteria to decide.

Ø The Specific Deterrence is to restrain a specific individual from committing some particular crime by punishing them for the offence they've committed. For example, pickpockets are punished to set an example for themselves from committing this specific offence ever again.

Ø The General Deterrence is for any offence and its punishment, for every person of a community. This is to set an example. Like: It is important to obey traffic rules as a part of general responsibility and good behaviour, not to violate peace or harm, when not followed the necessary fines or tickets are issued. Similar is the idea of jurisprudence.

· According to Pons postulates, it is assumed that no one should intervene with your matters or harm you without any reason. Now consider a situation, if everyone thought so then no traffic rules would be required. Yet the society has been thriving such that we still have rules and regulations which are to be followed mandatorily. The reason behind this may be that the people are of the thought that they can easily escape from the penalty in absence of the police officer or due to the laxity in the implementation of the rules by the authorities. Some tend to disobey these rules which further instigates others to do the same, especially when they go unpunished. Now this will create chaos in the society if not curbed rightly. Herein to control the situation, if cameras are installed and people who break rules are captured and penalized others will restrain themselves from doing so because there will exist slight fear of getting caught by the cameras. When this is correlated with the Deterrent Theory, the contention and its solution both can be understood.

· There had been a constant debate on whether there should be the death penalty or not. The Human Rights stand as a firm boulder in easy execution of death penalty because for some humanity stands first while for others law of retributive justice is of prime importance. Let's discuss:

· Whenever the discussion over the death penalty is put forth it is crucial to take into consideration the criminal psychology. The UN says "Though there is the death penalty for specific offences in some countries, there is no decrease in the rate of crime."

· The element of primary importance here is to first ascertain- What is the need of such jurisprudence? Or things which are to be studied in a jurisprudential context.

· The answer to this is numerous but what makes the most sense is the requirement of the exact and correct implementation of theories and principles.

· One of the most striking theory is of Jeremy Bentham where it has been stated that there shall be deterrent punishment based on the fulfilment of the listed three elements is:

1. The Severity of punishment.

2. Certainty, associated with the judicial system or the police which brings the executive machinery in the picture as well.

3. Celerity of particular punishment, that is swiftness in punishing the offender. Like- Generally, when a heinous crime is committed and presented before the court it delays the process as well as the punishment. Though the blame of leniency cannot be entirely on the judiciary because the pendency of cases is extremely high but such delay in imparting justice is not desirable as it results in people losing faith in the judicial system. Here we are not only talking about what is wrong with the system we are also equating it in very simple terms with the importance of Deterrence Theory in imparting justice. In the same context, we delve further:

1. Severity-

Severe punishments fall under the deterrent theory. Whenever the death penalty is debated it is salient to keep the psychology behind it in the picture. If read with psychology, though the Deterrent Theory with deterrent punishments solely looks to find solutions to balance all the crimes and secure the interests of all beings of the society. This also holds ground that severe punishments might or might not reduce the rate of crimes, prolongment of punishment does not necessarily give output on the individual or society at large.

2. Certainty-

The certainty of getting caught while perpetrating a crime is one of the most crucial parts of the Deterrent Theory. The papers of Daniel S. Nagin suggest the mathematical and economical formula that can be used to find the impact of the Deterrent Theory in society at large. Taking the previous example of obeying of traffic rules, if there are cameras the fear of getting caught increases considerably and this will create an impact on society and the number of such offences might come down. Wherein on the other hand, if the example of a Netflix series is considered wherein the offender hides his identity to do cybercrime and the authorities are not able to catch the culprit leads to an increased rate of cybercrime in that particular area because people are free from the fear of getting caught.

3. Celerity -

Celerity refers to the swiftness or the speedy advancement of justice.

· The agents of the UN's department of justice suggest that five important principles are to be kept in mind:

1) They conclude that the certainty of being caught is a more powerful deterrent than that of severity or celerity of punishment because the aim of punishment is not to inflict injury to the wrongdoer but to affect the society and focus on the betterment of it, that is, for the greater good.

2) Sending the culprit to the prison might or might not be effective because it has been observed that if a person is jailed, he or she has a comparatively higher chance of committing that particular crime in various other ways as his vicinity will be crowded with mischievous minds. The Deterrent Theory falls apart here.

3) The police deter the crime by increasing the fear for the culprit of getting caught which brings the executive machinery into play. When a culprit is caught and is presented in the court, numerous things affect the whole process, like- IO's statement etc. Therefore, the police machinery plays an important role in determining the punishment of a culprit.

4) Increasing the severity of punishments does little to increase the deterrence. People deter by long punishment interval but it might also trigger them to leap more bounds and become even more serious criminals. Both aspects are equally important.

5) There exists no proof that the death penalty deters criminals. Again, both aspects are to be looked upon. Some may be affected some may not be as deterrence is majorly a psychological factor. For example- When a terrorist is convicted and the death penalty is given some people are of the view that instead of this we could have worked on his reform. The evolution suggests offences like waging war or heinous crimes etc are punished severely and deterrent theory is actively applicable.

· The whole oration concludes that the main aim of the law is to maintain peace and resolve the disputes for bona fide administration of justice. The society should have faith in the system of judiciary. With the three parameters stated above the hunt for solutions and better application of the Deterrent Theory in different perspective should not seize.

· In communities where Traditional Justice is still in play, the disputes may be resolved by using Deterrent Theory because that might also reduce the burden of cases already pending in the court of law. In criminal cases, no strict jacket form can be implemented for settlement. Researchers and scholars need to keep working and discovering newer methods for a better system of dispensing justice. The perspective of students and every other analyst is required for a positive approach to tackle the nuances or disturbances of the society for the treatment of criminal minds.

QUESTION- ANSWER SESSION

1) Does traditional justice require transition? If so, how?

Yes, it requires transition, though not in all cases. As indigenous or tribal communities need their code so they implement their laws according to their own needs. While transition might work in the panchayat system. Therefore, the transition would be different for diff platforms.

2) Can we think of bringing back the Deterrent Theory to strengthen the administration of justice?

We have to use the three perspectives explained above. In the contemporary era or after modernization or after privatization the three principles of severity, certainty and celerity are needed to be implemented with a change. For example- white-collar crimes- a person does one, forfeiture of property takes place as a part of the Deterrent Theory. Each wrong has to be understood from the perspective of curbing the crime and not by punishing the individual at large. The irony here is that from 1960 till now considering Daniel N's papers there are yet to be many experiments in a better manner relating the Deterrent Theory. The death penalty is not given for petty offences like pickpocketing rather the thief's hands are cut off and this punishment stands as not equivalent to the offence committed. In the modern context, this might not be with every crime. In my opinion, it is crucial to apply the Deterrent Theory only in some extreme cases because that can hold the beacon of change for society by setting an example.

3) Where does India stand when it comes to the Deterrent Theory and Traditional Justice?

In the Indian context, the country has not yet abolished the death penalty. The punishment of 14 years of imprisonment is maximum for most crimes. The Supreme Court says that the main aim of the judiciary is not to punish individuals but to create a positive society for innocents and a negative environment for criminal minds. In the context of punishments, it said that these are needed to be given but the human rights are to be kept in consideration as well. For example- In one of the landmark cases SC quoted, the punishment of rigorous imprisonment also needs to be defined properly. Some parts of the Deterrent Theory is followed but for its complete and right implementation, the three principles by Bentham are to be referred. There might be instances where certainty lags and this maybe because of the system here or the lack of technological advancements.

4) What are the impacts of Traditional Justice and the Deterrent Theory in other countries?

I shall quote two imp countries- 1st Africa and 2nd Indonesia.

Traditional Justice holds firm ground in both countries. We can understand by considering example, I am a part of society without which I cannot live. I need to follow the working of society, abide by its rules and regulations. If something is wrong for one individual of that society it will be wrong for the others as well, fear within the community will be created. Both DT and TJ are impacting each other. I quote, Saudi Arabia and countries near it. People there keep their doors open at night while they sleep. This sounds absurd to people of other countries because obviously what about the thieves and other bad elements of the society. Here this happens, because the DT prevails and the crime rate is extremely low. They have severe punishments resulting in law-abiding citizens. People are safe not only due to their good behaviour but also because the state has a clear impact and control over its people.

5) What are the possible ways to make speedy disposal of cases in Traditional Justice system?

The focus should be on the process of disposal of cases. This problem might have arisen by observing the process from the commitment of crime until its disposal. Therefore, the process is faulty and hence justice lags. In researches, the whys and purpose of punishment can be read along with the fact that the process needs to be followed. The lethargy in the process might be due to the pendency of the cases or, etc. Even after so many technical developments, unless the COVID- 19 crisis had come up, no E- courts existed. All lower courts have every task performance online now. This is also a jurisprudential principle unless we come across a problem, we do not find a solution for it while instead of doing so if we start today, it'll benefit us in the long run.

6) Does 'capital punishment' follow the principle, 'more severe the punishment, lesser the crime'?

No, I go with the word of UN that it does not reduce the crime. If only crimes that need death penalty like waging of war or heinous crime are considered the death penalty is given because it does not reduce crime until its procedurally followed the impact might be positive or negative. For example- when a person indulges in criminal activity, he does it for pleasure, for economic benefits or due to some psychological issues like the theory of jurisprudence states. We can say that in these three contexts we can think of the death penalty and not directly jump it.

7) Will legalization of prostitution in India, put an end to human sex trafficking? Is this an indirect implementation of Deterrent Theory?

In the Indian context whether prostitution is legal or illegal is questionable. We follow ethics or natural justice or moral laws etc maybe this is the reason why the ques is still unanswered by even the authorities. The state of Nevada has legalized prostitution and provides all health and economic benefits to them. Legalization may not necessarily reduce crime rate because when something is legalized it is in one sense understood as, we have got the license to do it, when this approach has applied the purpose of the law is defeated. While this topic has to be thought from a diff angle to find a better solution because it is different from other social problems as this is attached with moral and ethical values.

8) Did the abolition of jury trials lead to less conviction of a crime? Nexus between a jury trial and deterrent theory?

I would quote, Rustom, the movie, which portrayed the last case of the jury system. In other nations, they still have a jury system and evolution of TJ can be traced from that. In the jury system, people are elected and their opinions are compared on that particular offence to conclude the final decision. Maybe at the grass-root level cases can be resolved by jury trials which will further reduce the burden of the judicial system but on the other hand, it may hamper the process at large. I believe that when a particular issue is dealt lawfully in a court without jury it'll be decided by the experts only, while in a jury trial not all jurist might have a judicial background, therefore, the chances of discrepancy increases. Celerity might increase. But the severity and certainty maybe in ques. Though it can surely be tried with diff permutation and combination. It can be implemented at the lowest level but with a better- formulated process of selection of the jury. The judicial authorities are there but when people have similar code then only jury trial can be used. This also is a good subject for the researchers to find a better theory.

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