PENAL POPULISM
Introduction
Penal populism is a process whereby the major political parties compete with each other to be
“tough on crime”. It is generally associated with a public perception that crime is out of
control and tends to manifest at general elections when politicians put forward hard-line
policies which would remand more offenders into prison prior to sentencing and impose
longer sentences.
It is actually the use of punitive measures and rhetoric by politicians to gain popular support,
often by exploiting public fears and anxieties around crime and disorder. It typically involves
advocating for harsher sentencing, more punitive policies, and tougher enforcement
measures, with a focus on punishment rather than prevention or rehabilitation.
So, majorly we can say that it is based on the principle of retribution rather than on
reformation and rehabilitation.
Various Definitions given by scholars
In the year 1995, Sir Anthony Bottoms, one of the most renowned British Criminologist,
coined the term ‘populist punitiveness’ to describe one of the key influences which he saw at
work on contemporary criminal justice and penal systems. It was intended to convey the
notion of politicians tapping into and using for their own purposes.
The term changed to ‘penal populism’ when Julian V. Roberts of Oxford
University stated that ‘penal populists allow the electoral advantage of a policy to take
precedence over its penal effectiveness.”
In France, this concept was popularized by Denis Salas, judge and university fellow, who
defines it as a “sympathetic discourse towards the victims”, which leads to a perversion of
justice. Salas says that in France, penal populism has led to a plethora of new laws designed
to achieve an unrealistic or utopian goal — a society where there is no risk. He says many
new criminal statutes have been passed which can be traced to their impact on public opinion,
rather than their actual effectiveness at reducing crime.
John Pratt, a criminologist and international authority on the subject, “as with populism itself,
penal populism usually takes the form of ‘feelings and intuitions’ rather than some more
quantifiable indicator: for example, expressions of everyday talk between citizens which
revolves around concerns and anxieties about crime and disorder; anger and concern about
these matters volubly expressed in the media — not simply the national press or broadcasters;
and a variety of new information and media outlets which allow the voices of the general
public a much more direct airing — local newspapers and news sheets, talk-back radio and
reality television.”
How related to human rights and why is it important to study
There is a direct relationship between penal populism and human rights, as such policies
often involve a disregard for human rights and can lead to violations of basic civil liberties by
providing disproportionate punishment, denial of due process, harsh treatment of
marginalized groups, and disregard for fundamental rights such as the right to life, liberty,
and security of person.
Additionally, penal populism can contribute to a culture of fear and stigmatization of certain
groups, such as immigrants, minorities, and those living in poverty, leading to further
marginalization and discrimination. This can result in violations of their human rights, such
as the right to equal protection under the law and the right to a fair trial.
Examining penal populism in the context of human rights violation, we can hold governments
and policymakers accountable for their actions, raise awareness about the negative
consequences of such policies, and advocate for more balanced and rights-respecting
approaches to criminal justice.
Further, we can also equip ourselves in advancing social justice by helping those
disproportionately affect marginalized and vulnerable groups, such as ethnic minorities,
refugees, migrants, and those living in poverty.
By studying penal populism in the context of human rights violation, we can better
understand the impact of populist policies on human rights and work towards protecting and
upholding human rights for all individuals, regardless of their background or status
International perspective: Is there any specific covenant? Or the law needs to catch up?
there is no specific international covenant or treaty that explicitly addresses penal populism
as a distinct legal concept. The concept of penal populism is a relatively recent phenomenon
that has gained attention in the field of criminology and criminal justice, and the existing
international human rights framework may not specifically address it.
However, several existing international human rights instruments and principles can be
relevant in the context of penal populism and its impact on human rights. For example:
International Covenant on Civil and Political Rights (ICCPR): The ICCPR, which is a core
human rights treaty, guarantees a wide range of civil and political rights, including the right
to life, liberty, and security of person, the right to fair trial, and the prohibition of torture and
cruel, inhuman, or degrading treatment or punishment. These rights can be implicated in
cases where penal populism leads to violations of due process, harsh treatment of individuals,
or denial of fundamental rights.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT): The CAT, a specialized treaty, prohibits torture and cruel, inhuman, or
degrading treatment or punishment in all circumstances. In the context of penal populism,
where populist measures may result in harsh or disproportionate punishment, the CAT can be
relevant in preventing and addressing human rights abuses.
Basic Principles for the Treatment of Prisoners: These principles, adopted by the United
Nations General Assembly, outline the minimum standards for the treatment of prisoners,
including the prohibition of torture, cruel, inhuman, or degrading treatment or punishment,
and the requirement of fair and humane conditions of detention. These principles can be
relevant in cases where penal populism results in harsh or degrading treatment of prisoners or
detainees.
While there is no specific covenant or treaty on penal populism, the existing international
human rights framework provides a foundation for addressing human rights violations that
may arise in the context of penal populism. However, it is important to note that the
interpretation and application of human rights norms in the context of penal populism are still
evolving, and legal frameworks may need to catch up to address this relatively new
phenomenon in a comprehensive and effective manner. Legal scholars, practitioners, and
policymakers need to continue to monitor and analyze the impact of penal populism on
human rights and advocate for legal responses that uphold human rights principles and
protect the rights and well-being of all individuals, irrespective of their background or status.
Indian perspective: Finding issues and challenges
The death penalty: In recent years, there has been an increase in calls for the use of the death
penalty in India, particularly in cases of sexual violence against women. However, the death
penalty is a violation of the right to life and can lead to miscarriages of justice.
Mob violence: There have been several instances of mob violence in India, where people
have taken the law into their own hands and attacked individuals suspected of committing
crimes or belonging to certain communities. This vigilante justice is a violation of the right to
a fair trial and can result in innocent people being targeted and harmed.
Police brutality: The police in India have been accused of using excessive force, torture, and
extrajudicial killings. These practices are a violation of the right to life, liberty, and security
of the person and can lead to a culture of impunity.
Media Trials: Both penal populism and media trials can result in a disregard for due process
and the presumption of innocence. The focus on punishment over prevention and
rehabilitation can lead to the adoption of harsh and disproportionate sentencing policies,
while the sensationalized coverage of criminal cases can create a biased and prejudiced
public opinion that can influence the outcomes of trials.
Media trials can also lead to the violation of the privacy and dignity of the accused,
witnesses, and victims, as their personal details and private lives are often aired in the public
domain without their consent. This can lead to a culture of trial by media, where individuals
are judged and condemned before the completion of a fair and impartial trial.
Anti-terror laws: India has several anti-terror laws, such as the Unlawful Activities
(Prevention) Act, which have been criticized for their vague and overbroad provisions that
can be used to stifle dissent and target marginalized communities. These laws have been used
to detain activists and journalists without trial, violating their right to due process and
freedom of expression.
There is no national covenant specifically on penal populism, but some countries have
taken steps to address the issue through national legislation or judicial guidelines.
For example, the United Kingdom has enacted the Crime and Disorder Act 1998, which
introduced several measures aimed at curbing penal populism, such as requiring courts to
consider the impact of a sentence on the offender's family and the wider community and
allowing judges to depart from mandatory minimum sentences in exceptional cases.
Similarly, in India, the Supreme Court has issued several guidelines aimed at curbing the
influence of penal populism and ensuring that trials are fair and impartial. These guidelines
include the requirement for courts to ensure that media coverage of criminal cases does not
prejudice the rights of the accused or the victims, and the need for courts to apply the
principles of proportionality and leniency in sentencing.
In addition, many countries have established independent bodies or commissions to oversee
the administration of justice and ensure that the rights of individuals involved in the justice
system are respected and protected. These bodies may play a role in monitoring the influence
of penal populism and promoting a fair and impartial justice system.
Examples:
Mulayam Singh Yadav, Sadhvi Pragya, Akbaruddin Owaisi, Azam Khan, Kailash
Vijayvargiya, R K Singh, Giriraj Singh
Way forward
There are several suggestions and recommendations for curbing penal populism at both
national and international levels. Some of these include:
1. Promoting evidence-based policies: Governments should focus on developing
evidence-based policies that are grounded in research and data, rather than adopting
punitive measures that are driven by political expediency. This can involve investing
in crime prevention programs, improving access to education and employment, and
addressing social and economic inequalities that contribute to criminal behavior.
2. Strengthening the rule of law: Governments should prioritize the strengthening of
the rule of law and the promotion of an independent judiciary that is free from
political influence. This can involve providing adequate resources to the judiciary,
ensuring that judges are appointed based on merit and qualifications, and
implementing judicial codes of conduct.
3. Encouraging responsible media coverage: The media has a crucial role to play in
shaping public perceptions of crime and the criminal justice system. Governments and
media organizations should work together to promote responsible media coverage of
criminal cases, by avoiding sensationalism and focusing on the facts of the case.
4. Protecting human rights: Governments should prioritize the protection of human
rights, including the right to a fair trial, the right to be free from torture and cruel,
inhuman, or degrading treatment or punishment, and the right to privacy and dignity.
This can involve implementing international human rights instruments and
establishing independent oversight bodies to monitor the administration of justice.
5. Educating the public: Finally, governments should invest in public education and
awareness campaigns to promote a better understanding of the criminal justice system
and the principles of due process and human rights. This can involve providing
information on the causes of crime, the role of the criminal justice system, and the
importance of fair and impartial trials.
6. Overall, curbing penal populism requires a comprehensive approach that involves
promoting evidence-based policies, strengthening the rule of law, encouraging
responsible media coverage, protecting human rights, and educating the public. By
taking these steps, governments can help ensure that the criminal justice system is
fair, impartial, and effective in promoting public safety and security.
