Dr.

Ram ManoharLohia National Law University --- Criminology and Penology---Synopsis Draft

DR. RAM MAHOHAR LOHIYA

NATIONAL LAW UNIVERSITY

Retributive theory and its relevance in Modern world and India

SUBMITTED BY: UNDER THE GUIDANCE OF:

ANJANAY PANDEY Mr. P. K. GAUTAM

ROLL NO: 29 FACULTY OF LAW

SECTION ‘A’ DR. RAM MANOHAR LOHIYA

B.A. LLB (Hons.), NATIONAL LAW UNIVERSITY

SIGNATURE OF STUDENT SIGNATURE OF PROFESSOR

1
Dr. Ram ManoharLohia National Law University --- Criminology and Penology---Synopsis Draft

Research Question- What has been the various forms that the Retributive
theory has undertaken throughout various legal systems and time periods?

Introduction-
Retributive theory is a theory which comes under penology. This theory seeks to give an
explanation for the infliction of punishment upon a wrongdoer so as to justify the very act of
giving punishment. This theory is probably one of the oldest theories of the world in
penology and it has basically two constituents or parts namely- Lex talionis1 and the theory of
Just Deserts2. It essentially implies that the culprit, if his crime be proven, will be subjected to
the same act as a punishment. It is probably the oldest theory of punishment; the term itself
implies that this theory aims to exact vengeance upon the culprit and aims at taking revenge
for the victim of society as a whole.

Retributive justice is way of ensuring justice by giving such a punishment which is equal to
or proportional with the criminal act committed. It requires that for each wrong committed,
there has to be a corresponding punishment which is proportionate to the harm inflicted, if a
punishment is too severe or too light, justice has not been fully achieved3.

Tentative Chapterization-

Punishment-

Punishment in criminal law essentially implies is a sentence passed upon the conviction of
person following his guilt is proven. Punishment is a universal phenomenon. No society
confronted with the infringements of its regulations leaves itself powerless to impose
sanctions. Crime is an act of an individual which incurs a formal and solemn pronouncement
of moral condemnation of the community and the society.
Retribution

1
Law of Talon.
2
The principle of proportionality of punishment with the act committed.
3
Phelps, Shirelle(2002) World of Criminal Justice p. 423.

2
Dr. Ram ManoharLohia National Law University --- Criminology and Penology---Synopsis Draft

The term retribution does not imply severe and excessive punishment, though this is not the
case as the word itself comes from the Latin word ribuere which means to give back or to
repay. It seeks to give the criminal that which he deserves. It is basically a backward looking
approach towards dealing with criminals wherein the act of the criminal and its seriousness
are far more important concerns than the rehabilitation of the victim or the future state.

Historical basis-

This theory is probably one the oldest theories in the world which deals with crime and
punishment. We have evidences of it being followed in principle and in fact in several of the
ancient and medieval societies going as back as the Code of Hammurabi to the more common
examples such as the Sermon of the mounts and the Babylonian and Assyrian laws. This
region is famous its laws which due to invention of writing could be written on mud tablets
and later preserved for the posterity.

Lex Talionis

Lex Talionis is simply the rule of retaliation rather than a rule of modern retribution. It seeks
to quench the revenge in the aggrieved party rather than provide justice. There is distinction
between both of them, i.e. revenge is taken on behalf of the aggrieved party for the loss and
pain they suffered because of the act whereas when we talk about retribution, we mean
proportionality in a broader way in which we seek justification for the punishment inflicted
upon the principle of justice and not on the part of the victim rather on the part of the whole
society in general. The law of equal retaliation codified the natural inclination of individuals
to seek revenge upon being harmed by another, however is often very uncontrolled and
vengeful as that of the grieving person himself afflicted with the harm.

Just Deserts-

Retribution came in a new form in the form of the theory of Just Deserts. Just Deserts is an
old English word with possibly French origins to mean the situation in which a person gets
what he deserves. This idea of proportionality of the criminal act and the punishment inflicted
is one that resonates strongly with this theory. Synonymous to this theory is the idea of the

3
Dr. Ram ManoharLohia National Law University --- Criminology and Penology---Synopsis Draft

Justice system, which is prevalent in United States wherein the punishment is given to restore
the values of justice and not to achieve any other means.

Modern Opposition in India-

God alone can take it,

Because he alone gives it4

Modern and relatively modern outlook in India towards this theory of retribution is actually
negative in many ways. Many acts and judgments can actually be cited as preferring the later
versions of punishment theory. In case of Ramnaresh Pandey vs. State of Madhya Pradesh
5
and in the case of Jugal Prasad Kishore vs. State of Bihar 6 , the court said and later
affirmed that the Probation of offenders Act was enacted in 1958 with a view to provide for
the release offenders of certain categories on probation or after due admonition. It is also
subjected to prevent youthful offenders from turning into obdurate criminals as a result of
their continued association with hardened criminals during their prison sentence. This thought
is more in line with reformatory theory rather than retributive. In Bishnu Deo Shaw vs. State
of Bengal7, renounced the ethos behind Retributive theory and said that it is incongruous in
an era of enlightenment and said that it is inadequate as a theory as it does not showcase any
beneficial effects to the society or the person punished. Even while hearing the plea of the
minor accused in the much discussed case of Delhi gang-rape, the judge while declaring that
the Juvenile Justice (Care and Protection of Children) Act, 2000, emphasized it being
restorative and not retributive and that there is scope of betterment of those who are under the
legal to improve and not become hardened criminals in future8.

Criticism

4
(1979) 3 SCC 646,Note- Justice V.R. Krishna Iyer quoting Mahatma Gandhi’s lines in Harijan in the case of
Rajendra Prasad vs. State of Uttar Pradesh.
5
(1974)3 SCC 380.
6
(1972) 2 SCC 633.
7
(1979) 3 SCC 714.
8
Salil Bali vs. Union of India (2013) 7 SCC 705.

4
Dr. Ram ManoharLohia National Law University --- Criminology and Penology---Synopsis Draft

One of the significant point which comes up in opposition of Retributive principles is that is
largely a state-sponsored vendetta. This statement might be true in the bygone era wherein its
inherent nature was such, However during modern times; it is subject to many regulations
and largely neutral in its approach.

Hypothesis-

We can hypothesize that it is mainly a theory which evolved and was implemented mostly in
the western world. This theory being cold and mechanical has many plenty of attributes
which render a lot of holistic and positivist thinkers to be against this theory. Also, there is an
inherent dislike of most of the people in society towards this theory mainly because of their
misconceptions. This theory has evolved a lot, from being a retaliatory measure used to
silence and satisfy the vengeful desires of the society to being a system based on neutrality
and proportionality. India mainly due to its holistic passions and its somewhat lacking sense
of retribution has always taken a negative stance for this theory. In modern application of Just
Deserts and Justice model in the western world and specially in America has replaced the
utilitarian models which existed before them. The same cannot be replicated in India because
of vast diversity, holistic and reformatory concerns and anti-retributive opinion.