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Report No. 262

(ii) Retribution as Punishment Deserved by the offender

4.7.6 The concept of "desert" provides the modern understanding and the basis of the retributive theory.332 It prescribes that a wrong action should be met by a sanction appropriate to the action, and deserved by the offender.333 It states that retribution being equated with revenge is a myth,334 since conflating retribution and revenge does not incorporate "the complexity of modern criminal law, with its focus on degrees of intent and on matters of mitigation and excuse."335

332 Mary Ellen Gale, Retribution, Punishment, and Death, 18 U.C. Davis L. Rev. 973, 1003 (1985).

333 Susan Easton and Christine Piper, Sentencing and Punishment: The Quest For Justice 57 (2012).

334 Gerard V. Bradley, Retribution: The Central Aim of Punishment, 27 Harv. J.L. & Pub. Pol'y 19, 21 (2003).

335 H.L.A. Hart, Punishment And Responsibility 164-165 (1968); Mary Ellen Gale, Retribution, Punishment, and Death, 18 U.C. Davis L. Rev. 973, 1013 (1985).

4.7.7 In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 the Supreme Court ruled that "imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals." Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220, at para 15.

Subsequently, 'Society's cry for justice' has been regularly used by the Supreme Court as a justification to impose the death sentence. Dhananjoy Chatterjee v. State of West Bengal, 1994) 2 SCC 220; Jameel v. State of U.P., (2010) 12 SCC 532; State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan, (2005) 10 SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1; Ravji v. State of Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715; State of U.P. v. Sattan @ Satyendra, (2009) 4 SCC 736; State of Madhya Pradesh v. Santosh Kumar, (2006) 6 SCC 1; Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359.

4.7.8 The justification of punishment using "'society's cry for justice' does not fit into the conception of retribution as punishment deserved by the offender, since it fails to focus on whether the convict deserves the punishment, including the death sentence.

Most cases that have relied on 'society's cry for justice' as a sentencing justification have generally not analysed aggravating and mitigating factors in each individual case, Om Prakash v. State of Haryana, (1999) 3 SCC 19; Jameel v. State of U.P., (2010) 12 SCC 532; State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561. a step that is required for assessing whether the sentence is deserved. Om Prakash v. State of Haryana, (1999) 3 SCC 19, at para 7.

4.7.9 Further, retribution does not provide any guidance in relation to the question of "how much" to punish, or how approximate the punishment should be.341 Retributive justice is said to have calibration problems, wherein one cannot know where to stop while sliding "a scale of punishments past a scale of crimes".342 Theorists say that the use of capital punishment cannot be justified in a retributive system of criminal justice.343

341 Claire Finkelstein, Death and Retribution, 21 Crim. Just. Ethics 12, 13 (2002)

342 Andrew Oldenquist, Retribution and the Death Penalty, 29 U. Dayton L. Rev. 335, 338 (2003).

343 Matthew H. Kramer, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences Death for Retribution 77 (2011).



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