In a recent judgment, Justice Syed Mansoor Ali Shah of the Supreme Court has adopted a new and unique approach to our jurisdiction in deciding a bail application filed by a juvenile. He centred his reasoning around ‘therapeutic jurisprudence’ in the juvenile justice system while deciding a bail application.
Therapeutic jurisprudence, as defined by David B. Wexler, refers to “the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical well-being of the people it affects.”
Justice Shah argued that, in the juvenile justice system, the law does not function as it does in cases involving ordinary offenders. Rather, in the said system, the law should be applied and construed in a way that is more therapeutic or reformative, rather than retributive or punitive. He further ruled that, on one hand, the juvenile justice system addresses accountability of the offender, but, on the other hand, it also takes into account the well-being and upbringing of a juvenile offender. This part of the judgment implies that the well-being and reformation of a juvenile offender take precedence over their legal accountability. The approach of the courts, he emphasises, must be more reformative and less retributive and punitive when adjudicating a case in the juvenile justice system.
This unique and wonderful reasoning of the court underscores the four concepts or purposes of punishment and integrative approach to them. These purposes are deterrence, reformation, retribution and prevention. Any punishment to be inflicted or suggested for an offender should serve all or any of these purposes of punishment. Otherwise, the punishment will not be just and fair, as it would not serve any purpose. A legislature must take into account these purposes of the punishment, duly deliberate over them, and should devise a punishment for offenders which serves these purposes.
In modern times, the reformative theory of punishment is frequently advocated for and emphasised. However, an exclusive approach towards these theories will not serve the true purpose of punishment
Deterrence suggests that the punishment should be such that it creates deterrence within society so that others do not commit a crime in future. It should set an example for others. Punishments aimed at deterrence are mostly harsh. Reformation allows the award of punishment in such a manner that does not harm the offender; rather, it helps the offender improve themselves and modify their behaviour. Retribution suggests that the punishment should be proportionate to the crime committed, and it should be awarded as the crime has been committed. It also aims to take vengeance on the part of the aggrieved from the offender so that the aggrieved can feel relieved that vengeance has been taken. This will deter the aggrieved from taking the law into their hands and exacting revenge themselves. Prevention aims to punish the culprits in a manner where they cannot repeat the crime. It prevents culprits from committing a crime and causing harm to society.
The question then arises: what should be the approach to determining different punishments for different crimes? Should we just prefer one theory of punishment over the others? In modern times, the reformative theory of punishment is frequently advocated for and emphasised. However, an exclusive approach towards these theories will not serve the true purpose of punishment. A great legal luminary, Imran Ahsan Khan Neyazee, argues in his book ‘General Principles of Criminal Law’ that the correct approach towards punishment is integrative. All theories should be considered when determining punishment or imposing punishment, applying one or more as circumstances require.
Justice Shah’s reasoning that “...the juvenile justice system not only addresses legal accountability but also prioritises the well-being and developmental needs of juvenile offenders.” is based on an integrative approach towards punishment. He stresses on both accountability—related to the deterrent theory of punishment—and the well-being of a juvenile offender—aligned with the reformative theory of punishment. This integrative approach makes his judgment unique and distinguished. This approach will change the jurisprudence in our criminal justice system, especially the juvenile justice system.