“No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been.” – Hannah Arendt in Eichmann in Jerusalem (1963)
From a cursory examination, Arendt’s postulation of the relationship between crime and punishment may appear cynical at best. Theories of punishment have ranged from retribution, a retaliatory action of the state in response to a crime, to deterrence, a deliberate measure to punish a crime and deter its recurrence.
Intuitively, one may believe that punishment is required to be both reactive and impactful in order to maintain legal order in society. The obligation of the state to secure the society from all wrongdoings makes deterrence the most plausible and convincing justification for punishment.
However, even the normative understandings of deterrence as justification for punishment has undergone several transformations. An insightful look into the working of our present criminal justice system, and a whole array of existing criminal laws, calls into question our presumptive understanding of crime and punishment. One of the many underlying assumptions, which stand to be interrogated, is the value of deterrence as justification for introduction of laws criminalising, and consequently, punishing certain actions.
My interest in probing theories of punishment, specifically the value of ‘deterrence’, was neither accidental nor intentional. It was a curious case of being waylaid by an interesting theoretical question that was incidental to my work on the Narcotic Drugs and Psychotropic Substances Act, 1985 or the NDPS Act.
Initially, when I began studying the impact of the NDPS Act on Punjab, the primary points of inquiry were: what constitutes as success of a criminal statute and whether deterrence is an indicator of such success? If yes, we were compelled to further inquire into what constitutes deterrence and measures of deterrence.
Unfortunately, the absurdities of the legal process, more so, the absurdities of realities of research, forced us to abandon these questions. But over a period of time, the NDPS Act has struck me as a remarkable instance of statutes that have been enacted with the specific objective of deterrence of certain offences, but have miserably failed in delivering those results. Not only do they stand to demonstrate the shortcomings of deterrence as a theory of punishment, but also reveal a vacuum in our theoretical understanding of deterrence.
Recently, the National Crime Records Bureau (NCRB) released statistics for crimes in India in the year 2015. The numbers show an increase in all categories – number of arrests made, total cases reported and total cases of seizures by various authorities. Although we do not have state wise data for Punjab, the aggregate number of NDPS cases registered in India indicate an increase.
In 2015, the number of cases reported under the Act were 50,796, as opposed to 46,923 in 2014. Total number of arrests in 2015 were 59,625, an increase of 3,516 from the previous year. However, the total number of convictions have also increased from 22,893 in 2014 to 29,679 in 2015.
The NDPS Act also ranks among the few legislations that have high conviction rates (77.2%) as well as high pendency rates (80.6%). While these numbers may not appear alarming or significantly different from those under other criminal statutes, it goads us to think about the utility of ‘deterrent laws’ that have failed to make any impact even after three decades.
Legislative history of the law
Number of scholarships for the study of criminological theories in India has been astonishingly low. Thus, most discourses on crime and punishment are limited by an excessive reliance on western academic writings, which are removed from our socio-economic contexts. Not to mention, their own homegrown debates about validity of theories and justifications for crime and punishment have been far from cordial.
The source, which partly informs our understanding of the process behind the making of a law, and the choice of certain provisions or procedures, have been the parliamentary debates. These provide us with key insights into the intentions of the legislators and the processes of designing a statute.
I had the opportunity to closely examine the legislative history of the NDPS Act and the context in which ‘deterrence’ was used while the objectives of the Act were laid down. It was a statute, with stringent punishments and strict liability built into its architecture, enacted to address problems spawning out of an illicit economy.
If we scrutinise the parliamentary debates during the passage of the Bill, we are bound to be baffled by the language used. There is a constant mention of ‘deterrent effect’ of the law, especially during passionate speeches on the need for an effective law, with harsh punishments, to counter the evils of illicit trafficking or caste related violence. This leads one to wonder if our legislators use ‘deterrence’ in the same sense as Cesare Beccaria did in his exposition of criminal law. Did they consider the three factors – severity, certainty and celerity (swiftness) of punishment – that deter criminal act in their imagination of the deterrent effect of the statute? While some legislators equated harsh punishment with deterrence, others thought that the certainty of enforcement would realise deterrence.
For instance, during the parliamentary debates in 1985, when the NDPS Act was being discussed, members insisted on strict punishment for traffickers in order to address the drug menace in the country. Surprisingly, the Act was introduced at a time when India’s drug problems were not severe. Evidently, it was an effort to bow down to international obligations requiring signatory nations to put down illicit drug trafficking with an iron hand. Further, the law also punished individual consumers and small time peddlers. It is unclear whether deterrence and severity of punishment applied to them with equal force.
Severity or certainty?
In the context of the NDPS Act, the confusion revolves around two aspects of deterrence – harshness of punishment and certainty of punishment. Unfortunately, in the three decades of the existence of the law, neither questions have been resolved. No light has been thrown on what the statute seeks to deter and in what ways.
It is unclear whether the NDPS Act sought to address trafficking alone or whether all forms of consumption were sought to be prohibited. The Act took a hasty step of sweeping in the question of addiction within the criminal law framework. It also ignored the obvious socio-economic contexts in which drug trade flourishes and a market is created – an aspect which cannot be addressed by the bare essentials of law and enforcement. This gulf has led to the drug menace continuing relentlessly in several regions of India, which manifests itself both in terms of the spiralling number of arrests and seizure of drugs and also the sufferings of people in need of health care.
As the recent NCRB statistics indicate, specific regions like Punjab or the North Eastern states, where drug abuse has been rampant, the crime statistics have either remained constant or have registered a marginal increase. Numbers from Narcotics Control Bureau also corroborate this assertion.
Measure of deterrence
It is unfortunate that we lack consensus on even the precise criteria for the assessment of deterrent effects of a statute. Although high conviction rates are a measure of deterrence, they do not indicate success of a legislation. For instance, under the NDPS Act, there is no dearth of statistics. However, the original problems that the statute seeks to address continue to thrive. It behoves careful consideration of a number of people who have benefitted from the use of the law, a number that has successfully accessed it in relevant forums. The most difficult task of quantification of changes brought about as a consequence of such law continues to exist. Since most of the aforementioned factors are not measurable in real terms, it requires us to rethink whether we should continue to insist on ‘deterrence’ as a necessary justification for a criminal statute.
Further, it may be suggested that we overhaul the fundamental approach of a linear narrative – that harsh laws and stringent punishments lead to alterations in social behaviour, hence deterring future criminal acts. It is imperative that the law designed must be mindful of the social realities of the milieu in which it intends to effect a change. Often, deterrence as a theory has been criticised for only bearing the ‘long distance danger’ that is overshadowed by the ‘near pleasure’ of committing a crime. In other words, acts of individuals have considerations which may not necessarily be deliberated upon by the law.
With a profitable drug market promising alternatives to a decaying economic situation, and an even deeper problem of addiction that requires policy intervention, stricter laws can barely act as effective deterrent.
Both the questions of whether deterrence is a valid justification for punishment and whether there are adequate indicators to measure deterrence, are purely theoretical. At any point in time, there would be no sound empirical basis to assert that a criminal statute may have failed or delivered on results in certain ways.
There is always room for debatable counterfactual of what it would have been, had it not been for the enactment of the statute. However, without indulging too much into the merits of the laws, one can safely assume that insistence on vague notions of deterrence, without defining the boundaries of what it entails, defeats the objectives of the legislation. Also, a law designed without understanding its social context will do a poor job of addressing the core objectives and will barely deliver on its promise of social transformation and crime control. To resolve the problem, the first strategic step is to know the problem. One strongly feels that NDPS Act has failed in this task. Perhaps, the time is right to restrategise our fundamental approach to criminal laws.
Sakshi is a research fellow at Vidhi Centre for Legal Policy, New Delhi.