A Critical Analysis Of The Application Of Retributive Justice Theory In India

C R Keertitha, B.A LL.B (Hons), School of Law, Christ (Deemed to be University)

ABSTRACT

“If we do an eye for an eye and a tooth for a tooth, we will be a blind and toothless nation.”

~ Martin Luther King, Jr.

The retributive theory is a form of punishment equivalent to the crime that a person has potentially committed. The approach seeks to believe that a person who committed a crime of such harm deserves the exact treatment in their case without any mercy. The theory contradicts the quote,

The theory of retributive justice was the basis of the entire codes of Hammurabi and The Old Testament under the principle of the lex talionis: “life for life, eye for an eye.”1 H.L.A. Hart defined retributivism as ‘the application of the pains of punishment to a morally guilty offender2 In India, the theory applies when people commit the most gruesome crimes under the doctrine of “rarest of the rare cases.” Only under extreme circumstances where someone kills another will they also be given capital punishment. The constitutional right to life can be taken away with the procedure that the law establishes. This paper will explain the Retributive Justice theory and analyze the application of retributive justice theory by the apex court in the country, setting aside one has constitutionally guaranteed right to life in the cases Jagmohan Singh v State of Uttar Pradesh3, Mukesh & Anr vs. State For Nct Of Delhi & Ors4 and Vinay Sharma vs. Union Of India5 as well as the case, Bachan Singh vs. the State Of Punjab6 after which the application of retributive punishment was included with the introduction’ rarest of rare case’ doctrine.