Friday, January 26, 2007


Crime & Criminology

The conduct which are prohibited by the existing law at a given time and place are known as wrongful acts or crime. In fact, crime is a constant phenomenon changing with the social transformation. Historically, the concept of crime seems to have always been changing with the variations in social conditions during the evolutionary stages of human society.
Primitive societies did not recognize any distinction between the law of crime and torts but only knew law of wrongs. During this period, recourse to legal remedy was considered merely an optional alternative to self-redress. The wrongdoer was supposed to offer compensation to the person wronged, the quantum of which depended on the extent of the wrong caused and status of the sufferer. The payment of compensation washed away the guilt of the wrongdoer and relegated him to a position as if he had done no wrong.
However, if compensation was refused, the law had no other means to enforce its payment. In that event, it was for the victim or his kindred to prosecute a ‘blood-feud’ against the wrongdoer and law could help him only by declaring the wrongdoer as an ‘outlaw’ who could be chased and killed by anyone like a wild beast.
According to ‘Dharamsastra’ writers ordeal was a living institution in India. Ancient writers have referred to the ordeals as divine methods with various names. Ordeals were treated as a divine means of proof about guilt or innocence of the accused. The two important aspects of ordeals were: (i) they indicated the divine aspect of trial, and (ii) the basic idea underlying this method of trial was the need of divine intervention at a crucial moment in dispensing justice. ‘Yajnavalkya mentions five kinds of ordeals – Balance, Fire, Water, Poison and Kosa.
It was once believed that some persons inherit devilish tendencies by birth. They, were therefore, known as born criminals or criminals by nature and were considered incorrigibles. The only way to keep them off was their complete elimination from the society. In the middle of the 18th century Beccaria, the pioneer of modern criminology advanced his classical theory founded on ‘free will; of the individual. Through a series of systematic reserches he successfully exploded the theory of ‘born criminals’ and established that everyone is master of his ownself and is free to act what he wants. Thus a man resorts to criminal act out of his intelligence and free will; Beccaria’s ufree will theory challenged by the positivists, Lombrose and Tarde who suggested that man is not self-determining agent free to act as he desires but is fundamentally a biological organism. It is, free to act as he desires but is fundamentally a biological organism. It is, therefore, the biological consideration which determines his acts and behaviour. Every person, as a biological creature tries to adjust himself to social environment. With the advance of knowledge and development of criminal science, it was gradually realized that no one is a born criminal but it is the circumstances that make him so; not because he wants to be a criminal but he is rather forced to lends into criminality.
The change in civilization, culture and advancement of scientific knowledge brought about a change in the concept of crime which eventually led to the emergence of criminology as an independent branch of knowledge.
The concept of crime is closely related to social policy of a given time. With changes in ideologies the concept of crime also changes. That is to say, certain new crimes spring up whereas some existing crimes become obsolete and, therefore, they are deleted through adequate changes in the criminal law. The criminal law has often been considered as a barometer to gauge the moral turpitude of the society at a given time.
In the opinion of Sociologists, every anti-social act emanates from some criminogenic tendency which needs to be cured by society. Thus they attempt toe correlate the concept of crime with other sociological and environment factors.
Many writers have defined ‘crime’ as an anti-social, immoral or sinful behaviour. Garafalo, preferred sociological definition of crime and stated that crime is an act which offends the basic sentiments of ‘pity’ and ‘probity’. Yet another view about crime is to treat is as an anti social behaviour which is injurious to society. Garafalo, observed that “crime is an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community”
According to Stephen, crime means an act which is both forbidden by law and revolting to the moral sentiments of society.
Judicial approach to criminology suggests that an act to become a rime must conform to two cardinal principles of criminal liability, namely:-
(i) no one is held criminally liable unless he has done an act which is expressly forbidden under the existing criminal law of the land and has a reprehensible state of mind to do it.
(ii) no one can be punished for an act unless it is made punishable under the law.
An obvious way of defining crime is in legal terms, to distinguish it from sin, religious and moral wrongs. A legal definition gives a basic premise in which the pitfalls resulting from individual or group opinion are avoided.
According to the legal definition, ‘crime’ is any form of conduct which is declared to be socially harmful in a State and as such forbidden by law under pain of some punishment. Paul W. Tappan, defined crime as, “an intentional act or omission in violation of criminal law, committed without any defence or justification and penalized by the law as felony or misdemeanour.”
In other words it could be said as, an act or omission in violation of criminal law, since any defence or justification is to be found within the criminal law, and there is no question for a particular act or omission in certain circumstances. Further, it is not necessary for an act or omission in certain circumstances. Further, it is not necessary for an act or omission to be intentional in order to be a crime; it could be made punishable on the basis of knowledge, recklessness or negligence or even without any reference to the mental element of the wrongdoer i.e. based on the concept of strict responsibility.
Halsbury, defines crime as unlawful act which is an offence against the public and the perpetrator of that act is liable to legal punishment.
The exponents of each one of the above schools accuse the other of being unscientific in approach. The legal definition has been criticized on the ground that whether any act or omission is recognized as crime at a given time in a society depends upon values which are relative and not on any intrinsic worth of the act or omission and that makes the study of crime unscientific. The categories set up by the criminal law are of a “fortuitous nature” and do not arise intrinsically from the nature of the subject-matter the scientists attempt to analyze. This charge of variation in the legal attitude towards various acts is countered by the supporters of the legalistic approach by pointing out that not only do the legal norms vary due to various circumstances but also all the social norms which are essentially relative and impermanent. Criminal law not only given precise definition of forbidden acts but also has the machinery and procedure to determine the violation and, the5refore, is able to identify the offenders, which is not possible in cases where certain conduct is branded as criminal in social terms irrespective of prevailing legal notions. This certainly is the advantage in the legal definition over the social one despite the various inherent weaknesses of criminal law processes like non-prosecution of many offenders, the possibility of false conviction, greater possibility of failure to convict all guilty persons and of innumerable cases remaining unreported to the police, the best exposition of the case for legal definition has been made by Paul W. Tappan, as :
The validity of this contention must depend, of course, upon that the nature of the subject-matter is. These scholars suggest that, as a part of the general study of human behaviour, criminology should concern itself broadly with all anti-social conduct, behaviour injurious to society. We take it that anti-social conduct is essentially any sort of behaviour which violates some social interest. What are these social interests which are weighty enough to merit the concern of the sociologist, to bear the odium? What shall constitute a violation of them? Particularly where, as is so commonly true in our complicated and unintegrated society, these interests are themselves in conflict? Roscoe Pound’s suggestive classification of the social interests served by law is valuable in a juristic framework, but it solves no problem for the sociologist who seeks to depart from legal standards in search of all manner of anti-social behaviour. However desirable may be the concept of socially injurious conduct for purpose of general or abstract description, it does not define what is injurious. It sets no standard and it does not discriminate cases, but merely invites the subjective value-judgment of the investigator.”
From the forgoing definitions, it may be said that a crime is a wrong to society involving the breach of a legal wrong which has criminal consequences attached to it, i.e. prosecution by the State in the criminal court and the possibility of punishment being imposed on the wrongdoer.
The issue is in favour of the legal definition by observing that convicted criminals represent the closest possible approximation of those who have in fact violated the law even if this group may not be complete or fully representative of all those who have committed crime.
Broadly speaking, every criminal behaviour must respond to the following tests in order to be reckoned as a crime:-
(i) There should be an external act (Actus).
(ii) It should be done with some criminal intent (mens rea).
(iii) It should be prohibited conduct under the existing law, and
(iv) It should carry with it some kind of punishment.
Criminology as a branch of knowledge is concerned with those particular conducts of human behaviour which are prohibited by society. It is, therefore, a socio-legal study which seeks to discover the cause of criminality and suggests remedies to reduce crimes.
Even if the legal definition of crime is accepted in preference to the social definition for the study of criminology, it does not provide any guide as to what kind of human conduct should be declared ‘criminal’. It is true that in most of the crimes there is the common element of immorality and the harmful nature of the acts constituting crime. This is particularly true of traditional crime known as mala in se. But there are various other offences in which there is no eleme4nt of immorality in the traditional sense, these are known as mala in prohibita, and, on the other hand, there are many acts which are not crimes, despite the element of immorality being present in the accepted sense. What conduct should be made criminal depends not only on the question whether the conduct is moral or immoral but also on the considerations of the possibility of its implementation through the legal machinery.

Paul W. Tappan was of the opinion that criminology is synonymous with the sociology of criminal law. The view that crime is an undesirable social behaviour is in particular reflected in the field of juvenile delinquency since delinquency is wider term than criminality.
Even when the word crime is used in the legal sense by criminologists, it is not all types of violation of criminal law which would fall within the domain of criminology as the proper subject of study. In contemporary society many offences have been created which are known as ‘social welfare offences’ based on strict responsibility. They are different from traditional crimes and, therefore, mala in prohibita and not mala in se. The concept of mala in Prohibita almost concides with the modern notion of ‘public welfare offences’.
The widening of the area of crime by ‘public welfare offences’ has been caused due to the tremendous governmental activity almost everywhere in the world to deal with various socio-economic problems.

Schools Of Criminology

The Pre-Classical School:
The history of primitive societies and early medieval period reveals that human thinking in those days was predominated by religious mysticism and all human relations were regulated through myths, superstitions and religious tenets prevailing in a particular society. There was a general belief that man by nature is simple and his actions are controlled by some super powers. It was generally believed that a man commits crime due to the influence of some external spirits. They considered crime and criminals as an evidence of the fact that the individual was possessed of devil and the only cure for which was testimony of the effectiveness of the spirit. Worships, sacrifices and ordeals by water and fire were usually prescribed to specify the spirit and relieve the victim from its evil influences. Ever since the time of Manu it has been repeatedly argued that ordeals are the creations of Brahma and have been practiced by gods, great sages and all thoughtful persons.
The pre-classical thinking, however, withered away with the lapse of time and advancement of knowledge. Though these practices appear to be most irrational and barbarious to the modern mind, they were universally accepted and were in existence in most countries.
The Classical School:
During the Middle of 18th century, a systematic study of criminology was first taken by the Italian scholar Beccaria who is known as father of modern criminology. His greatest contribution to the science of criminology was that he for the first time proceeded with the study of criminals on a scientific basis and reached certain conclusions from which definite methods of handling crime and criminals could be worked out. He expounded his naturalistic theory of criminality by rejecting the omnipotence of evil spirit. He laid greater emphasis on mental phenomenon of the individual and attributed crime to ‘free will’ of the individual. Thus he w as much influenced by the ‘Utilitarian Philosophy’ of his time which placed reliance on hedonism, namely, the “Pain and pleasure theory”. He sought to humanize the criminal law by insisting on natural rights of human beings. Beccaria’s tightly reasoned argument can be summarized in relatively simple terms:-
(1) In order to escape war and chaos, individuals gave up some of their liberty and established a contractual society.
(2) Because criminal laws placed restrictions on individual freedoms, they should be restricted in scope. They should not be employed to enforce moral values.
(3) The presumption of innocence should be the guiding principle in the administration of justice, and at all stages of the justice process the rights of all parties involved should be protected.
(4) The complete criminal law code should be written and should define all offences and punishments in advance.
(5) Punishment should be based on retributive reasoning because the guilty had attacked another individual’s rights.
(6) The severity of the punishment should be limited and it should not go beyond what is necessary for crime prevention and deterrence.
(7) Criminal punishment should correspond with the seriousness of the crime; the punishment should fit the crime, not the criminal.
(8) Punishment must be a certainty and should be inflicted quickly.
(9) Punishment should not be administered to set an example, neither should it be concerned with reforming the offender.
(10) The offender should be viewed as an independent and reasonable person.
Benthem was greatly influenced by Beccaria and carried on the work in the same direction subsequently. Benthem like Beccaria, was an outright Utilitarian and to him the only rational basis of any law could be the greatest happiness of the greatest numbers. The principle, known as Utilitarian Hedonism, requires that punishment, being an evil in itself, should not exceed more than what is absolutely necessary to produce the desired effect on the criminal and society.
The contribution of Classical School to the development of rationalized criminological thinking was by no means less important, nevertheless, it had its own pitfalls. The major shortcoming of the classical school was that it proceeded on an abstract presumption of free will and relied solely on the act without devoting any attention to the state of mind of the criminal. It erred in prescribing equal punishment for same offence thus making no distinction between first offenders and habitual criminals. However, the greatest achievement of this school of criminology lies in the fact that it suggested a substantial criminal policy which was easy to administer without resort to the imposition of arbitrary punishment.
Neo-Classical School:
The ‘free will’ theory of Classical School did not survive for long. It was realized that this approach ignored the individual differences under certain situations. The neo-classists asserted that certain categories of offenders such as minor, idiots, insane or incompetent had to be treated leniently irrespective of the similarity of their criminal act because these persons were incapable of appreciating the difference between right and wrong. This tendency of neo-classicists to distinguish criminals according to their mental depravity was indeed a progressive step inasmuch as it emphasized the need for modifying the classical view. The conditions under which a criminal commits a crime was studied first time in this theory.
Neo-classists approached the study of criminology on scientific lines by recognizing that certain extenuating situations or mental disorders deprive a person of his normal capacity to control his conduct. They supported individualization of offender and treatment methods. The distinction between responsibility and irresponsibility, i.e. the sanity and insanity of the criminals paved way to subsequent formulation of different correctional institutions. Neo-classists adopted subjective approach to criminology and concentrated their attention on the conditions under which an individual commits crime.
The main contribution of the neo-classical school of criminology lies in the fact that it came out with certain concessions in the ‘free will’ theory of classical school and suggested that an individual might commit criminal acts due to certain extenuating circumstances which should be duly taken into consideration at the time of awarding punishment.
The Positive School:
With the advance of behavioural sciences, the monogenetic explanation of human conduct lost its validity and new trend to adopt an eclectic view about the genesis of crime gradually developed. By the 19th of century, certain French doctors were successfully establishing that it was neither ‘free will’ of the offender nor his innate depravity which actuated him to commit crime but the real cause of criminality lay in anthropological features of the criminal. This led to emergence of Positive School of criminology.
The most significant difference between the classical school and the positivist school is the latter’s search for empirical facts to confirm the idea that crime was determined by multiple factor. They primarily emphasized the mind and the body of the criminal, thus to some extent neglecting social factors external to the individual.
The modern search for multifactor explanations of crime is usually attributed to Lombroso, an Italian often called “the father of modern criminology”. Lombroso, a specialist in psychiatry, was serving as army physician handling the mentally afflicted soldiers at various military posts. For Lombroso the objective search for explaining human behaviour meant disagreement with free will philosophy. Lombroso made observations on tattooing, particularly the more obscene designs which he felt distinguished infractious soldiers. Later Lombroso used the practice of tattooing as a distinguishing characteristic of criminals.
Lombroso adopted an objective and empirical approach to the study of criminals through his anthropological experiments. After an intensive study of physical characteristics of his patients and later on of criminals, he came to definite conclusion that criminals were physically inferior in the standard of growth and, therefore, developed a tendency for interior acts. He further generalized that criminals are less sensitive to pain and therefore they have little regard for the sufferings of others. Thus through his biological and anthropological researches on criminals Lombroso justified the involvement of Darwin’s theory of biological determinism in criminal behaviour .
The central tenet of Lombroso’s early explanations of crime is that criminals represent a peculiar physical type, distinctively different from non-criminals. In general terms, he claimed that criminals represent a form of degeneracy that was manifested in physical characteristics reflective of earlier forms of evolution. He described criminals as atavistic, a thrownback to an earlier form of evolutionary life.
Lombroso classified criminals into four major categories:
(i) The born criminals, people with atavistic characteristics. He considered these criminals beyond ;
(ii) Insane criminals, who included idiots, imbeciles, and paranoiacs, as well as epileptics and alcoholics;
(iii) Occasional criminals or criminolids, whose crimes are explained primarily by opportunity, although they too have innate traits that predispose them to criminality. They have a tendency to commit crime to overcome their inferiority in order to meet the needs of survival; and
(iv) Criminals of passion who commit crimes because of anger, love or honour. They are characterized by being propelled to crime by an “irresistible force”.
Lombroso modified his theory throughout five editions with each one giving attention more and more environmental explanations including climate, rainfall, sex, marriage customs, laws, the structure of government, church organization, and the effects of the other factors. However, he never completely gave up the idea of the existence of a born criminal type.
Most noteworthy here is the attention he gave to a multifactor explanation of crime that included not only heredity but social, cultural, and economic variables. He was positive in method and objective in approach which subsequently paved way to formulation of multiple-causation theory of crime by the sociologists. The multiple factor explanation is common in today’s study of crime. Lombroso is credited also with pushing the study of crime away from abstract metaphysical, legal, and juristic explanations as the basis of penology “to a scientific study of the criminal and the conditions under which he commits crime.”
Lombroso’s legacy of positivism was continued and expanded by a fellow Italian, Enrico Ferri. Unlike Lombroso who gave more attention to biological than to social factors, Ferri gave more emphasis to the interrelatedness of social, economic, and political factors that contribute to crime. He firmly believed that other factors such as emotional reactions, social infirmity or geographical conditions also play a vital role in determining criminal tendencies in men. He argued that criminality could be explained by studying the interactive effects among physical factors, individual factors and social factors. He also argued that crime could be controlled by social changes, many of which were directed toward the benefit of the working class.
In the first four editions of his work Ferri had only five classes of criminals:
(i) The born of instinctive criminal whom Lombroso had identified as the atavist;
(ii) The insane criminals who was clinically identified as mentally ill;
(iii) The passion criminal who committed crime as a result of either prolonged and chronic mental problem or an emotional state;
(iv) The occasional criminal who was the product of family and social conditions more than abnormal physical or mental problems; and
(v) The habitual criminal who acquired the habit from the social environment.
In the fifth edition of his work he added a new explanation of crime, the involuntary criminal.
After Lombroso and Ferri, Raffele Garofalo was the last major contributor to the positivist school of criminology. Unlike Lombroso’s emphasis on criminals as abnormal types with distinguishable anatomic, psychological and social features, or Ferri’s emphasis on socialistic reforms and social defenses against crime, Garofalo is remembered for his pursuit of practical solutions to concrete problems located in the legal institutions of his day and for his doctrine of “natural crimes”.
Garofalo’s theoretical arguments on the nature of crime and on the nature of criminals were consistent with social Darwinism. He argued, for example, that because society is a “natural body” crimes are offences “against the law of nature”. Criminal action was therefore crime against nature. Accordingly, the “rules of nature” were the rules of right conduct revealed to humans through their reasoning. Garofalo’s thinking also included some influence from the classical school and its emphasis on reasoning. He nevertheless identified acts that no society could refuse to recognize as criminal and repress by punishment: natural crimes. These offences, according to Garofalo, violated two basic human sentiments found among people all ages, namely the sentiments of probity and pity.
He argued that true criminals lacked properly developed altruistic sentiments. True criminals, in other words, had psychic or moral anomalies that could be transmitted through heredity. This conclusion led Garofalo to identify four criminal classes one distinct from the other because of deficiencies in the basic sentiments of pity and probity:
(i) Murderers whom he called “endemic” criminals
(ii) Violent criminals who are affected by environmental influences such as prejudices of honour, politics and religion;
(iii) Criminals lacking in sentiments of probity (Thieves);
(iv) Lascivious or lustful criminals who commit crimes against sex and chastity.
He reasoned that because true criminals’ action revealed an inability to live by the basic human sentiments necessary for society to survive, they should be eliminated. Their death would contribute to the survival or society. For lesser criminals, he proposed that elimination take the form of life imprisonment or overseas transportation.
It is clear that deterrence and rehabilitation were secondary considerations for Garofalo. However, he favoured “enforced reparation” and indeterminate sentences, which indicates that Garofalo’s social defenses against crime were modeled to some extent on the psychic characteristics of the offender. In this regard his position of punishment is more in line with the free will reasoning of the classical scholars than Garofalo might admit.
He strongly pleaded for elimination of habitual offenders who were incapable of social adaptation as a measure of social defence.
Ernest A. Hooton, proceeded to a detailed analysis of the measurements of criminals and non-criminals from eight different states. He argued that “criminals are inferior to civilians in nearly all of their bodily measurements”. He also reported that low foreheads indicated inferiority and that “a depressed physical and social environment determines Negro and Negroid delinquency to a much greater extent than it does in the cases of Whites”.
These and similar conclusions generated severe criticism of Hooton’s work, especially the racist overtones and his failure to recognize that the prisoners he studied did not represent criminal offenders who had not been caught or offenders who had been quality but not convicted. His control group was criticized also for not being representative of any known population of people. Hotoon was criticized also for treating some small difference in measurement as greatly significant and for ignoring other differences that were found.
It is important to notice that despite the stinging criticism received by Hotoon and by others who were searching for biological explanations, the search nevertheless continued and expanded. The work by Sheldon, for shifting attention away from adults to delinquent male youths. In an effort to link physiques to temperament, intelligence, and delinquency. By relying on intense physical and psychological examinations, Sheldon produced an ‘Index to Delinquency” that was used to give a quick and easy profile of each male’s problems.
Sheldon classified the boys’ physiques by measuring the degree to which they possessed a combination of three different body components. The three components were:

(i) endomorphy;
(ii) Mesomorphy; and
(iii) Ectomorphy.
Each could dominate a physique. Endomorphs tended to be soft, fat people; mesomorphis had muscular and athletic builds; ectomorphs had skinny, flat, and fragile physiques.
Sheldon concluded that because youths came from parents who were delinquent in very much the same way that the boys were delinquent, in very much the same way that the boys were delinquent, the factors that produce delinquency were inherited.
The greatest contribution of positive school to the development of criminal science lies in the fact that the attention of criminologists was drawn for the first time towards the individual, that is the personality of criminal rather than his act or punishment. The positive school introduced the methology and logic of natural science in the field of criminology. The positivist school also helped to usher in an approach to policy that was reformative rather than punitive in impulse. To be sure, the conclusion that offenders are characterized by unchangeable bodily or psychological characteristics leads logically to the conclusion that offenders should be either eliminated, caged indefinitely, or altered physically through instructive measures.

Individualistic Approach
(Crime Causation Theories)
Criminologists have always differed in their views regarding crime-causation. Continental criminologists often support the endogenous theory of criminality which is founded on bio-physical consideration of criminals. The American criminologists on the other hand, are more inclined to explain criminality in terms of social factors. Thus, the former approach the problem of crime-causation subjectively while the latter are objective in their approach. This subjective approach to crime-causation has eventually led to the evolution of typological school of criminology which suggests that there are certain personality type of criminals who take to criminality because of their heredity, psychopathic and bio-physical traits. To many people, crime is a consequence of some faulty characteristic of the individual or the individual’s life experiences. The Individualistic approach focus attention on biological, mental and other characteristics of the offender to explain the cause of his delinquent behaviour.
The positive school of Italy focused its attention on the personality of the offender and rejected the free-will theory. They explained crime primarily in terms of factors within the criminal, i.e. physical, biological and mental traits and, therefore, either ignored external factors altogether or gave them secondary importance. The main utility of Individualistic Theories is that for the first time the focus of the attention was shifted from crime to the criminals.
Lombrosian is regarded as the father of modern criminology since he was the first to employ scientific methods in explaining criminal behaviour and shifted the emphasis from crime to the criminal. Lombrosian through their biological and anthropological researches succeeded in establishing a correlation between heredity of the criminal and his criminogenic tendencies.
The psychiatrists, on the other hand, located crime in mental depravity of the criminals. Mental deficiency does not play any direct role in the causation of criminal tendency in a person but indirectly it may be relevant because social adjustment can be more difficult for persons with low intelligence. The psychologists explained crime in terms of personality deviations.
Lombroso’s theories have been severely criticized by modern criminologists. It has been pointed out that he used the term atavism loosely since physical traits of criminals as well as social customs were regarded by him as of atavistic significance. His assumption regarding some sort of nexus between atavism and criminal behaviour has no scientific base. He also failed to appreciate that both criminal as well as non-criminal behaviours were the result of the process operating on the basis of various social and physical factors.
Biological differences in human personality also accounts for criminality in human beings. The logic behind biological explanation of crime is that structure determines function and persons behave differently owing to the fact that they are somehow structurally different. The physical and biological abnormalities are generally responsible for criminal behaviour. Hooton attempted to show that crime and other anti-social behaviours are due to physical and social factors. He seemed to vindicate Lombroso’s anthropological findings about criminal behaviour. After an intensive study of prison inmates he concluded that prisoners differ from non-criminals in various physical particulars that composed definite pattern of physical inferiority.
Hooton said that, “Criminals are organically inferior. Crime is the resultant of the impact of environment upon low grade human organism”. He also tried to establish some nexus between the physical characteristics of the offenders and the type of offences committed by them. His study disclosed that murders and robbers were of tall and thin stature, thieves and burglars were undersized, while sexual offences and assaults were committed by persons of short and heavy constitution.
Hooton’s studies was contradicted on various grounds. It was said that there was no such nexus by pointing out that half of the prisoners studied by Hootan were convicted of different offences earlier. There is yet another defect as pointed in the studies undertaken by Hooton & Sheldon. The two have different ideas regarding physically inferior type of people. To Hooton the criminal is an inadequately developed, runty fellow, while Sheldon chooses the husky and athletic type as the typical criminal.
Sheldon tried to establish a co-relation between physical structure of the criminal and the crime through what he called the application of constitutional theory to human behavioural problems. He developed his ideas from the fact that life begins in the embryo which is made up of three different tissue layers, namely, an inner layer called endoderm, a middle layer known as mesoderm and an outer layer or ectoderm. He correlated a corresponding physical and mental typology consistent with the known facts from embryology and the physiology of genetic development. He pointed out that physiologically, the endoderm gives rise to the development of digestive viscera, the mesoderm to bone, muscle and tendons of the motor-organ system, the ectoderm to connecting tissues of nervous system, skin and related appendages. He summarized the basic characteristics of physique and temperament of these types of physical structure as follow:
(1) Endomorphic structure: They are persons with fatty or bulky body having short tapering limbs, small bones, soft and smooth skin and are usually of mild temperament and comfortable persons.
(2) Mesomorphic Structure: Persons with such structure are strongly built with prominent muscles and bones and connective tissues. They have heavy chest and large wrists and hands. These persons are temperamentally somotonic, active, dynamic, assertive and behave aggressively.
(3) Ectomorphic: Persons with ectomorphic structure are constitutionally lean and fragile with delicate body, small face, sharp nose and fine hair. They are sensitive by temperament and avoid crowds.
Sheldon further asserted that these physical structures were directly related to temperament of the person who committed crime. Thus according to him, endomorphic were moody and accommodative by nature while the mesomorphics had a rigid and somewhat ‘serious’ temperament. The ectomorphics, on account of their delicate physical built-up, are often shaky in their decisions and are short tempered. He attributes criminality to endomorphic and mesomorphics rather than the ectomorphics.
While discussing the personality aspect of the criminal Taft lays emphasis on the effect of intelligence and its impact on crime causation. He asserts that persons lacking in average intelligence are generally not aggressive, anti-social or sexually promiscuous, but are rather inactive and timid. They easily lend into criminality because they cannot foresee the possible consequences of their acts and are unable to adjust to the complexities of modern life. Their incapability to distinguish between right and wrong or to foresee the danger of detection is yet another cause of their criminal behaviour. But it has been sufficiently established by now that feeble-mindedness forms a very small proportion of delinquencies and in fact crimes are mostly committed by persons of considerable intelligence and sharp outlook.
Psychopaths contend that offenders lend into criminality on account of functional deviations and mental conflicts. Sigmond Freud explained mental conflicts in the personality of criminals in terms of :
(i) id;
(ii) ego; and
(iii) super ego.
He asserted that ‘Id’ generates basic biological and physiological urges and impulses in a person. ‘Id’ is the source of basic biological drives in a human being and is present at the time of birth and also operates in the unconscious state. Throughout life the ‘id’ constantly seeks expression of a social drive. The viewpoint that we are all potential criminals is not peculiar to psychoanalytic approach alone but has been expressed by many other philosophers and writers.
While ‘ego’ refers to the conscious personality, an attitude which grows out of contact with the material and social world, of which the individual is aware. That is to say, although the desire for sex pleasure and hunger are basic urges of a person yet he is all the time conscious that only the righteous means urges of a person yet he is all the time conscious that only the righteous means to fulfil these desires protect his personality and any deviation from the normal course shall cast aspersions on his personality.
‘Super ego’ according to him is the force of self-criticism and control inherent in every person. Thus there is a constant conflict between ‘Id’, ‘ego’ and ‘Super-ego’. He therefore, contends that crime is the substitute of symbolic behaviour of a person.
According to Freud, the ‘ego’ does not exist at birth, but it is something the individual learns. Gradually ‘ego’ develops and starts controlling the temper i.e., ‘id’. The ‘super-ego’ is largely part of the unconscious personality. It is the conscience which exists in the unconscious areas of mind. The super-ego thus characterizes the fully socialized and conforming member of society. It is the impact of moral and ethical attitudes of parents with whom the child has his or her earliest contacts and relationships which helps in formation of the ‘super-ego’.
Thus, it would be seen that ‘id’ demands pleasure, while the ‘super-ego’ demands control and repression and both push ego towards its own. As a result of this, there is a conflict which is difficult to resolve. Where the ‘super-ego’ in a child is not well developed, he is likely to be drawn towards delinquency. Freud postulated that the failure to develop ‘super-ego’ was generally the result of parents being unloving, harsh or absent during the child’s upbringing. It is for this reason that socializing processes had failed to work on those children whose latent delinquency had become dominant; the children were, therefore, dis-social, if not anti-social.
Psychologists also recognise that other factors such as relationships with persons outside the family and general social environment can also affect the formation of ‘super-ego’. If ‘super-ego’ is over-developed, it may lead to guilt feeling.
The adherents of the approach appear to hold the view that no other approach is capable of disclosing the whole truth about the criminal. The obvious merit of the psychoanalytical approach is that social factors are also accommodated in the analysis of the ultimate personality of the offender by taking into account the interaction of ‘ego’ and ‘super ego’.
The difficulty in the application of psychoanalytical approach in cases of individual criminal behaviour is the fact that it is quite difficult to examine the actual mental state of a person with the tools available to psychoanalytical science at present. To investigate the measure emotion is an extremely complex job.
The individualistic approaches have lost mush of the credibility with the advent of more sophisticated environmental theories. Their main weakness lies in the fact that they fail to see that crime represents a socio-cultural phenomenon which is not associated with the physical or mental equipment of an individual as such.

Conflict Theory of Crime

The popular view, of the definition and concept of crime is that (1) the law represents the values of society; (2) if it does not represent the value of everyone, then it at least expresses the best common denominator of society and operates through a value-neutral governmental structure, which is ultimately controlled by the choice of the people; and (3) in the long run the law serves the best interest of society. A contrary view has been taken by the modern conflict criminologists holding that the apparent consensus may be deceptive and a deeper analysis would lead to the conflicting forces operating in the formulation of criminal conduct and administration of criminal justice.

1. Sellin’s Culture Conflict Theory:- Sellin asserted that culture conflict emnates from conflict of conduct norms, where each separate culture sets out its own norms i.e. rules of behaviour to be instilled into its members. In a situation like this, law would evidently reflect the values of the dominant class and not of the society as a whole; the phenomenon thereby often bringing the members of the non-dominant group in collision with the legal norms.
Conflict between the norms of divergent cultural codes may arise in the following situations:
(i) When these codes class on the border of contiguous culture areas;
(ii) When, as may be the case with legal norms, the law of one cultural group is extended to cover the territory of another; or
(iii) When members of one cultural group migrate to another.
2. Vold’s Group Conflict Theory.- Vold propounded his theory based on conflict among various interest groups; emergence of new groups making it a continuous process. He argued that people are naturally group oriented and those who have same interests come together to form a group in order to carry forward these interests. The central theme of Vold’s theory is that different groups have different and often incompatible interests which gives rise to conflicts. Where groups have similar strength, then they often resolve their conflict by compromise thus lending stability to society. But, if the groups are of differing strength, the powerful one dominates which creates frustration and feeling of discontent among the weaker group which eventually leads to crimes. Thus, crime according to Vold is not the result of abnormality, but it is rather a natural response to an attack on the way of life of the deprived or weaker group.
3. Quinney’s Theory of Social Reality of Crime.- Quineey focused on the conflicts of groups in the context of the various institutions, and public. The diverse groups, according to Quineey, were linked to the major institutional concerns but the interest structure was characterized by the unequal distribution of power. He rejected the pluralist notion that law represents the compromising of diverse interests; rather law supports some interests at the expense of others.
Quineey laid down six propositions regarding crime and operation of criminal law, the propositions by no means original but based on earlier theories. Some of the aspects in the propositions may be elaborated as follows:
(i) Law in operation is an aspect of politics. Thus crime not a matter of individual pathology, ‘but is a judgment made by some about the actions and characteristics of others’.
(ii) In the creation and interpretation of law, the values of some necessarily taken into account may negate the values held by other. The relative power and influence of the segments to which individuals may belong would determine the situation.
(iii) The politics of reality is that people grant those in power the authority to carry out the actions that best promote the interests of the authorities.
4. Turk’s Theory of Criminalisation.- The main thrust of this theory is that cultural differences alone do not cause social conflicts, the crucial factor is the difference between the perspectives of authorities and subjects which are bound to be at variance and may clash overtly. In his analysis Turk uses the factor of sophistication ‘by which is meant knowledge of patterns in behaviour of other which is used in attempts to manipulate them’.
5. Chambliss and Seidman’s Analysis of Criminal Justice.- some conflict criminologists have studied the working of criminal justice system and one such study made by Chambliss and Seidman is the most exhaustive.
They did not find the consensus theory operating in the criminal justice system. According to them, “every detailed study of the emergence of legal norms has consistently shown the immense importance of interest-group activity, not the ‘public interest’, as the critical variable in determining the content of the legislation. Like other conflict criminologists, they also maintain that “ higher a group’s political and economic position, the greater is the probability that its views will be reflected in the laws”. The personal values of the judges, as reflected in deciding ‘trouble cases’, are primarily oriented to the wealthy than the poor. This bias on the part of the appellant judges can be appreciated keeping in view their privileged social and economic background. Thus public interest in criminal justice is represented only to the extent that it coincides with the interest of the existing power groups.
A number of studies have been made to test the ‘differential behaviour of criminal law’; to examine whether the system operates in favour of wealthy and powerful persons. Sutherland’s theory of Differential Association as an explanation of crime-causation seems inevitable as it extends positive support to the impact of psychological traits on incidence of crime. Considering the structural aspect of human association, Sutherland suggested that social organization consists of three main groups, viz., one supporting the criminal activities, the other remaining neutral to criminal circumstances third acting anti-criminal. He further observed that the differential association in human organization is a logical consequence of the phenomenon.
It is often argued that Sutherland’s theory of differential association as an explanation of crime-causation has only a theoretical significance because it lacks reality. Alternatively, the conflict theory of crime which considers crime as a minority group behaviour places reliance on psychological trends of human behaviour in relation to crime.
It must be stated that conflicts generally arise from misunderstanding, lack of understanding, clash of interests, gulf between the views of beliefs of persons or parties, suspicion, lack of justice, fair play or honesty, intolerance and violence and lack of rapport, love, and cooperation etc. Once the conflicts arise and not quickly resolved, the situation leads to confrontation, social instability, disaffection and lawlessness which finally culminates into violence and criminality. It is, therefore, in the interest of the society that the cause of tension and conflict be eliminated and if they do arise, they must be resolved at the earliest. This is perhaps the best way to mitigate crimes.

Sociological (Environmental) Approach

Sociological approach seeks to explain the phenomenon of criminal behaviour with reference to factors outside the personality of the delinquent. The subject-matter for the analysis of criminal behaviour extends from the individual delinquent to the community, social institutions and group relationships which shape both criminal and non-criminal behaviour. In this approach criminal behaviour is looked upon as resulting from social interactions.
In this approach the impact of various social and environmental conditions within which crimes generate. American criminologists preferred to approach the problem of crime causation objectively. They attributed criminality to social conditions of the criminal.
The sociological theory of crime asserts that there are persons who do not conform to the established norms and traditions prescribed by law. These persons do not adjust themselves within the framework of normal standards of society and are more or less indifferent to societal norms.
Tarde provided the starting point of the explanation of crime in terms of social factors. He is considered as father of social psychology. He criticized and even ridiculed the theories of his contemporary, Lombroso. He compared the detection of criminality on the basis of physical traits by Lombroso with the detection of divinity by Tibetan priests in a newborn baby on the basis of appearance while choosing the future great Lama. Tarde did not think that even psychological criminal were unique compared to non-criminals. According to him criminal behaviour is the result of a learning process. A person learns criminal behaviour just like any other trade which he picks up in his childhood. Tarde’s theory was the precursor of the modern ecological and differential association theories.
Garofalo was perhaps the first legalist to attempt a sociological definition of crime. He designated all those acts as crime which no civilized society can refuse to recognize as criminal redressible by punishment. He observed that crime is an immoral and harmful act which is regarded as ‘criminal’ by public opinion because it is an injury to so much of the moral sense as is represented by one or the other of the elementary altruistic sentiments of probity and pity.
Sociological view point about the concept of crime is more realistic than its legal definition. It is true that with the repeal of law relating to theft, stealing shall no longer remain a crime, nevertheless it would still entail public indignation. Thus “although the name of the behaviour would be changed yet the behaviour and social reaction to it would still remain the same, because the social interests damaged by the behaviour would still remain unchanged”. Sociologists assert that every crime involves three essential elements, namely,
(i) Values that are appreciated by the law-makers who are politically dominant;
(ii) Conflict of interests in society due to environmental variations;
(iii) Use of force and coercive measures by the offenders.
Sociologists contend that like any other social behaviour the criminal behaviour also results from certain environmental conditions. Therefore, the variations in crime-rate are due to variations in social organization under different systems.
Social Disorganization Theory
This theory pre-supposes that criminals are a product of society. Social change is inevitable in a dynamic society and though not bad in itself, it results sometimes in disharmony, conflict and cultural dichotomy. This is specially true when the social change happens to be of a fast pace. This kind of unnatural pace obviously is inevitable to lead to disorderly social change. The impact of sociological factors is so great on persons that they either shun criminality or embrace it, depending on their environment and immediate social conditions. Social change may in such a situation, produce what is called ‘social disorganization’.
The term social disorganization was used to describe the disruptive impact of life in a strange new environment. It was defined as the decrease of the influence of existing rules of behaviour on individual members of the group. As Wirth has noted referring to a community as “disorganized” implies some criteria by which an organized society may be identified. Personal disorganization and social disorganization are two distinct phenomena. According to Thomas, social organization is not co-extensive with individual morality nor does social disorganization correspond to individual demoralization.
Social disorganization has been defined as a decrease of the influence of exiting social rules upon individual members of the group. This phenomenon is different from the violation of social rules by individuals, because that is something normally expected in even relatively stable societies where not much damage is possible due to effective social sanctions, including criminal law. Social disorganization may be due to cultural conflicts between different values of different sections of society.
A general flow of showing the development to a stage of social disorganization:
Industrialization, urbanization leads to migration to cities → Leads to change in life style → Lessening of family control & social sanctions → Tensions for want of food, cloth, housing, medical, educational facilities lack of employment → Migrators are stronger → Less fear of detection → Increase in Crime.
W.I. Thomas said that social disorganization occurs due to rapid change in technologies due to:
(1) Sudden booms and depression;
(2) Crises & natural disasters.
This theory focus on Five conditions in environment”
(i) Deteriorated neighborhood;
(ii) Inadequate social control;
(iii) Conflicting social values;
(iv) Inadequate supply of necessities in life; and
(v) Breakdown of social institution like family.
Thomas isolated several possibilities in looking at society and community, or a group:
1. Social disorganization can exist without persona disorganization. The “Creative man” is one who appears during a period of disruption and realizes his interest by violating traditional rules and incorporating into his own life plan elements of schemes which are competing with traditional ones.
2. Personal disorganization can exist without social disorganization. Personal demoralization can occur in the happy village. An individual may fail to realize his life goals precisely because of his conformity and lack of flexibility. This personality type was labeled the ‘philistine’.
3. Personal disorganization may result from social disorganization. This is the response of “behaviour” personality.
Disorganization, according to Thomas, can occur as a result of excessive rapid change, like an increase in the volume and density of population. It might also be caused by its opposite, sudden decline in population, or rapid changes in technology or material culture might generate a temporary state of disorganization. Sudden booms, depressions, crisis, and natural disasters may cause a state of social disorganization. It may result due to cultural conflict between different values of different sections of society. The difference may be between old and new values local and imported values and traditional values imposed on a community by the law or administrative organs. In this context two studies made in the Thomas relation to the Polish peasants settled in the U.S.A. and the Eskimos are reproduced as illustrations to demonstrate a vast difference in the old and new value system among the most disorganized group of Polish Peasant settlers in the US. The members of the group no longer had the urge to continue to cherish their status on the basis of taste for luxurious things like fashionable clothes and liquor which they were not willing to share with the other members of the group. Under the influence of new environment the “we-attitudes” based on peasant family values changed into highly hedonistic individualistic attitude.
The phenomenon of social disorganization was conceived of as part of a three-state process-organization, disorganization, and reorganization. The total theory heralded the emergence of newer, more complex and more cohensive forms of reorganization.
Normally the process of disorganization and organization may be thought of as in reciprocal relationship to each other, and so co-operating in a moving equilibrium of social order towards an end vaguely or definitely regarded as progressive. So far as disorganization points to reorganization and makes for more efficient adjustment, disorganization must be conceived not as pathological, but as normal.
Another corollary of disorganization is the variable of political stability as measured by political scientists. Park maintains the political stability is one index of organization in a community.
The social disorganization may also emerge sometimes due to ‘cultural leg’. Cultural leg can be described as an unequal growth of the various components of culture in a society resulting in a gap between those components.
Theory of Differential Association
Theory of Criminality based on ‘differential association’ has been presented by Sutherland. The theory asserts that crime is learnt by association with others. According to him, behavioural learning takes place through personal contacts with other people. This learning, in the context of crime, involves both the techniques for committing the crimes and the attitudes and rationality or justification for their committal. The theory of differential association centers round the theme that a person becomes criminal if there is an excess of influence on him favourable to the violation of the law as compared with the influences which are unfavourable to violation of law.
Sutherland does not think that delinquents are disorganized and hence has no use for the expression ‘social disorganization’. He prefers instead the term ‘differential group organization’. In other words, according to Sutherland, there are in fact two types of organization operating within the community, namely, organization for criminal purposes and organizations against criminal activities.
Sutherland maintained that so far as the learning process was concerned, it was the same for both criminal and non-criminal conducts. Some techniques relating to the commission of crimes may be learnt through association with criminals alone but others are acquired in the normal course of education since it is not the difference between criminal and non-criminal techniques as such which matters but the particular use made of them. So what is actually needed to develop criminal behaviour in many of them. So what is actually needed to develop criminal behaviour in many instances is not the crime-committing technique but some sort of rationalization to use the techniques for criminal purposes. This rationalizing capacity is learnt through association with criminals which gives him definitions justifying his deviant conduct.
The elements of Sutherland’s theory are summarized in nine propositions:
(1) Criminal behaviour is learned.
(2) Criminal behaviour is learned in interaction with other persons in a process of communication.
(3) The principal part of the learning of criminal behaviour occurs within intimate personal groups.
(4) The learning of criminal behaviour includes (a) techniques of committing a crime, (b) the specific direction of motives, drives, rationalization, and attitudes.
(5) The specific direction of motives, drives, etc. is learned from definitions of the legal codes as favourable or unfavourable.
(6) A person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to violation law. (This is the principle of differential association).
(7) Differential association may vary in frequency, duration, priority, and intensity.
(8) The process of learning criminal behaviour by association with criminal and anti-criminal patterns involves all of the mechanisms that all involved in any other learning.
(9) Although criminal behaviour is an expression of general needs and values, it is not explained by these needs and values, since non-criminal behaviour is an expression of same needs and values.
The significant feature of Sutherland’s theory is his claim that pro-criminal sentiments are acquired, as are all others, by association with other individuals in a process of social interaction.
Various criticisms and question have been directed to this theory. Firstly, it has been said that no all those persons who come in contract with criminals become criminal themselves. Quite rightly, Sutherland found the answer in the counteracting influence of contact with anti-criminal groups. In other words, the definitions provided by the contract with anti-criminal groups happen to be more persuasive in their case than the ones provided by the contact with criminals. Another connected question posed is that once initiated, why does not criminal behaviour increase indefinitely until everyone is a criminal? Sutherland answered it on the basis of his concept of differential group organization. The measures taken by the anti-criminal group organization, as a result of the threat of crime posed by the opposite group, are effective enough to curb the delinquent tendencies.
Another criticism has been that Sutherland meant “contract” when he used the term “association” and thereby implied physical proximity with the criminal. According to him most individuals are believed to identify themselves with both criminal and non-criminal persons in the course of their lives. Hey may have first-hand experience in delinquency groups. They may identify themselves with criminal roles presented in fiction, movies, television, or the press. They may react against any criminal group.
Principal criticism against the theory is that it does not adequately take into account the “personality traits”, “personality factors” or “psychological variables” in criminal behaviour. Sutherland took this kind of criticism seriously, and in an early period he stated that this theory probably would have to be revised to take account of personality traits.
Anomie is a vital term vaguely defined and generously applied. The literal meaning of the word ‘anomie’ is normlessness. Durkheim formulated the concept and used it in particular to explain the behaviour which he referred as anomie suicide. Human beings have unlimited desires, the only control to these being provided by society and public opinion which lose much of their efficacy in time of economic changes and moral stresses and strains. A high rate of both suicide and homicide is to be found in an anomie-ridden society.
Robert K. Merton, the other sociologist who based his theory on ‘anomie’ used the concept a bit differently that the needs and desires which went beyond that could be achieved through socially approved channels in societies which profess to be of egalitarian character capable of giving equal opportunities to all.
It is paradoxical, though true, that sometimes the very norms which are laid down by society for achieving conforming behaviour tend to produce just the opposite result in the form of criminal behaviour. According to Merton’s theory of anomie, delinquency ( and other forms of deviance) is a response to the unavailability of conventional or socially approved routes to success, and is characteristic of lower-class persons since the social structure strains the cultural values, making action in accord with them readily possible for those occupying certain status within the society and difficult or impossible for others. The term anomie was used by Merton for a condition in a social system when cultural regulation of behaviour is weakened. IN other words, what is encouraged in society is “success” and so goals are more important than the means to achieve those goals. Merton gives the example of sports and games, the way they are sometimes played in the USA. Winning the match is more important than the spirit of the game.
Messer Rosenfelt said that every person in USA has a goal to achieve and means to achieve it. There are two perception to achieve a goal. Firstly, “It is playing the game that matters not the winning” and Secondly “It is winning that matters not the game”. People who adopt the goals of the society but lack the means to achieve that seeks alternatives such as crime. He points out how competition for success create conflict & crime. He suggest that it is social conditions & not personality can account for crime. Material goals are the goals for the day.
His theory was criticized on :
(i) Goals & Means: This is not a universally acceptable factor.
(ii) Choice of Crime: Why is it when some persons have some goal. Same goals cannot be achieved it then tend to adapt different means.
(iii) Dwindling with age: Why most young criminals dissent from crime when they grown in age.
The position obtained in contemporary Indian society does not appear to be an absolute misfit in the “scale of anomie”. The scale comprises five items related to an individual’s perception of his social environment and his perception of his own place within that environment. They are as follows:
1. The perception that community leaders are indifferent to one’s needs.
2. The perception that little can be accomplished in society which is seen as basically unpredictable and lacking order.
3. The perception that life’s goal are receding rather than being realized.
4. A sense of futility.
5. The convention that one cannot count on personal associates for social psychological support.
An analysis of the forgoing socio-cultural and economic explanation of crime suggests that no single theory can offer an adequate explanation for crime causation. It , therefore, follows that delinquent behaviour is an outcome of the combination of a variety of factors which create situation conductive to criminality. With the widening of social interaction due to the impact of industrialization, urbanization, etc there is need for community control.

Economic Approach

In the words of Carl Marx economic conditions determine the general character of the social, political and spiritual processes of life and with the change of economic foundations, the entire superstructure is also rapidly transformed. Legal philosophers of all ages have accepted that economic conditions have a direct bearing on crime. Economic structure is one of the important causes of criminality. Poverty gives rise to hunger, misfortune, diseases and anger, which destroys the personality of an individual and makes him irresponsible to do undesirable acts. Under the circumstances, he is forced to lend himself into criminality. The economic factor has a close bearing on criminality and crime-rate rises when poverty increases in times of economic depression.
Marxists Theory:
Marxists have propagated a view that crimes emerge solely out of capitalist domination of society. Under such society the upper class can exploit the weak, put them in physical danger, and transgress their human rights either with impunity or with only lighter punishment. The Marxists believe that unfair division of labour and capital would eventually lead to a conflict between rich and the poor and finally to the overthrow of capitalist ideals. In result, communism would replace capitalism. Criminal law in a capitalist regime is an instrument of the State and ruling class to perpetuate the capitalist social economic order and it is meant for the protection of their interest. Under these circumstances, the poorer sections of society remain oppressed through the coercion of legal system and their discontentment generates crimes. It is not only with the collapse of capitalist society that the problem of criminality can be solved.
The Marxists, however, differ in their view regarding the effect of economic conditions on criminality. In their opinion the two vary in inverse proportion. This view has, however, been refuted on the ground that despite constant economic progress throughtout the world, the crimes are constantly recording an upwards trend. The real cause for rise in crime-rate with economic prosperity is perhaps the capacity of people to spend more in manipulating escape from arrest and detection. A large number of crimes go undetected and unreported for want of lack of initiative on the part of victim in getting the offender prosecuted or due to the manipulative tactics of the criminal. Present conditions have created a peculiar situation wherein crimes are rampant whether the economic conditions are favourable or unfavourable.
Bongers’ Theory of Economic Structure and Crime:
The most notable and stimulating contribution to criminology in understanding the relation of crime and economic structure has been made by Bonger who sought to explain the phenomenon of crime on the basis of the Marxist approach. He emphasized the importance of environmental factors not only in the case of criminals but also in great men. Bonger insisted that the criminal was a product of the capitalistic system which, instead of promoting altruistic tendencies among members of the society, created selfish tendencies. The system based on ‘capitalistic exchange’ is motivated by profit element. In such a system each member tries to get the maximum from others in return of the minimum from himself. This attitude of the capitalist, according to Bonger, affects the attitudes of the proletariat as well.
Bonger defined crime in the formal sense as, ‘A crime is an act committed within a group of persons who form a social unit, and whose author is punished by the group as such, or by organs designed for this purpose, and this by a penalty whose nature is considered more severe than that of more disapprobation.
Bonger identifies many evils in the capitalist system which are conducive to the spread of criminal behaviour i.e. child labour, long hours of work by workers, illiteracy.
According to Bonger motives for economic crimes can be subdivided into three: they could be (i) crime of poverty, (ii) crimes of cupidity and (iii) professional crimes. All three he attributed to social arrangements which encouraged of extremes poverty and wealth
He believed that poverty was a major cause of such crimes as theft. Cupidity he placed next in importance. Theft from this motive tended to increase rather diminish in times of prosperity. This was because at such times people’s want increased whilst many of them were unable to satisfy them in a lawful manner. The difference between rich and poor had been greatly increased by capitalism and the wider the difference the more cupidity was stimulated.
Professional criminals were not responsible for a high proportion of theft as such but the more serious offences such as burglary and robbery were almost exclusively theirs, professional crime in the training of children to steal by their parents, who saw it merely as “work” and had no qualms of conscience about it.
While establishing a co-relationship between economic conditions and crime, Bonger drew the following conclusions:
(1) He tried to establish a co-relationship between poverty and delinquency.
(2) He further observed that the influence of economic conditions on delinquency is essentially due to the capitalistic economy which breeds disparity and leads to unequal distribution of wealth.
(3) In an economic system based on capitalism, economic cycle of inflation and deflation are frequent. Inflation gives rise to bankruptcy and insolvency with the result the persons affected thereby are forced to lead an anti-social life and some of them may even resort to criminality.
(4) Another peculiar feature of capitalistic economy is the competitive tendency among entrepreneurs. When efforts fails to meet the competition, unlawful devices such as violation of laws are committed by the manufactures. This gives rise to increase in crime-rate.
(5) There is yet another danger of the capitalistic economy which contributes to enormous increase in crimes. The employment of children and women furnishes soothing ground for criminality despite effective legislative restriction banning their improper utilization in industrial establishments. Employment of children as labour is a potential cause for crimes because a child who earns spend his money on undesirable items, which ultimately drag him into the criminal world.
The theory propounded by Bonger no doubt indicates one very important basis of the cause of criminality. He, however, ignores the tangle of interrelationships among social, cultural, economic, political, religious and other sets of factors. According to his theory, the phenomenon of crime should have come to an end, or at least controlled to a very great extent in socialist countries like the USSR, which is not at all the factual position.
He said that the mode of production based on private property and individual profit was essentially inimical to the development of social instincts and of links of reciprocity. Under it the economic mechanism itself made man more egoistic and hence “more capable of crime”. Once the producer found himself with a surplus above subsistence level which he could exchange with his neighbour instead of sharing with them freely, each tried “to get as much profit for himself as possible and consequently to make the other lose,”. From this sprang lying and fraud. The next setup was the development of forced services, ranging from slavery to wage labour, leading masters to see their servants as mere instruments, servants to resort to dissimulation in self-defence. From this also came envy and hatred on the part of the poor, pride and domination on that of the rich. To Bonger the conclusion was inescapable that the egoistic tendencies of the capitalist system inhibited the development of man’s social instinct.
The proponents of the Marxist view, however, hold that crime cannot be eliminated in socialist societies within a short period after a new economic order has been introduced. It will need a long time for the “remnants” of criminality to disappear altogether, which can happen only after “the remnants of the bourgeois way of thinking are eventually eliminated”.
There is no doubt, however, that poverty does play an important role in delinquency and the capitalistic system may also contributive to poverty in certain sections of the society and give values which determine success in life purely in terms of money.
Criminal statistics showing high representation of lower groups may not necessarily give the exact relative positions of deviants from different socio-economic strata because of differential police action in different situations. The changes of a crime committed by someone from the upper strata going unreported to the police or lack of action by the establishment are higher than in case of persons from lower economic strata.
Inadequate housing is one of the most serious problems in such delinquent areas which creates tension between members of the family living in a cramped atmosphere.
In spite of Bonger’s generalization regarding the effect of economic conditions on crime many critics have opposed his views on different grounds. Prof. Cohen criticized Bonger’s economic theory of criminality on the following grounds:
(1) Research to establish a relationship between their respective occupations and frequency of committing crime has shown that poverty has no correlation with the frequency of convictions. Cohen observed that honesty is not the monopoly of only the rich persons, many people lead an honest and upright life despite their poor financial conditions.
(2) Tarde, subscribes that a large number of crimes occur not due to commercial or industrial progress but because of inequitable distribution of wealth and man’s lust for luxurious life. The acquisitive tendency in man often tempts him to commit illegal acts.
(3) Bonger’s assertion that poverty is an essential condition of crime because a person is always prepared to do anything to get relief from his miserable economic condition, seems untenable in the light of the fact that even the wealthiest persons who are usually big industrialists, businessmen, financiers or monopolists often resort to dishonest means such as black-marketing, tax-evasion, etc., despite their huge earnings. This obviously does not support Bonger’s theory of criminality founded on poverty-delinquency relationship.
(4) Bonger’s view that capitalistic trend of society is responsible for criminality is also not wholly true. The socialistic policies launched with a view to eliminating excessive profits and other evils of capitalistic economy have equally failed to yield favourable results.
From the foregoing analysis, it may be inferred that crimes are committed by persons because of their subjective tendency therefore, economic changes through State control and nationalization cannot inject a change in this human tendency. It is not the poverty alone that generates crime but it is the poverty in relation to other factors such as acquisitive tendency in man and his craze for gaining more and more wealth that tends to make him a criminal.

Putative Approach

Punishment is a means of social control. H.L.A. Hart had defined “punishment” in terms of five elements:
(i) It must involve pain or other consequence normally considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human being other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.
The three components must be present “if punishment is to act as reasonable means of checking crime. First “speedy and inescapable detection and inescapable detection and prosecution must convince the offender that crime does not pay. Second, after Punishment, the offender must have “a fair chance of a fresh start.” And Third, “the State which claims the right of punishment must uphold superior values which offender can reasonably be expected to acknowledge.
The concept of punishment is that of inflicting some sort of pain on the offender for his violation of law.
Prof. Jerom Hall has set out a detailed description of punishment as, “First punishment is a privation, Second, it is coercive, Third, it is inflicted in the name of State, it is “authorized”. Fourth, punishment presupposes rules, their violation, and a more or less formal determination of that, expressed in a judgment. Fifth, it is inflicted upon an offender who has committed a harm, and this presupposes a set of values by reference to which both the harm and the punishment are ethically significant. Sixth, the extent or type of harm and aggravated or mitigated by reference to the personality of the offender, his motives and temptation.”
Criminal may be described as a monster or be pictured as a hunted animal or as the helpless victim of brutality. As a result of the changing attitudes, three types of reactions can be discerned in various societies. The first is the traditional reaction, of a universal nature, which can be termed as the punitive approach. It regards the criminal as a basically bad and dangerous sort of person and the object under this approach is to inflict punishment on the offender in order to protect society from his onslaughts. The second approach, of relatively recent origin, considers the criminal as a victim of circumstances and a product of various factors within the criminal and society. Finally, there is the preventive approach which instead of focusing attention on particular offenders, seek to eliminate those conditions which are responsible for crime causation. It should, however, be understood that the three approaches are not mutually exclusive. Not only do they overlap with each other, but sometimes they may coexist as parts of the overall system in a society.
The punitive approach has its focus of attention on the damage caused to the victim and danger posed to society. The criminal is treated as something incapable of being reformed.
Crassey on the basis of his “scapegoat hypothesis”; the criminal is made a scapegoat to give relief or gratification to the members of the community. This relief or gratification is due to their sense of freedom from their own guilt feeling about the crime, as a result of punishment given to the offender. This is based on the theory that all human beings have criminal propensities though in most cases they may not be reflected in actual behaviour. According to another view, the hostile reaction to the criminal works as a bond between non-criminal members of the community. The bond represents the reassertion of moral principles common to the members of the society and serves as a reminder of taboos to all of them.
It is only the extreme and pure retributionists who perceive punishment as inherently good, i.e. per se. Justification for punishment is also argued on the basis of ‘social contract’ which creates a ‘give and take’ situation. Individual rights and benefits, it is only reasonable and inevitable that individuals curtail their freedom vis-à-vis others and in the event of their failure to do so, punishment must be inflicted on them.
The rationalization of punishment may be divided into two classes, based on retributive and utilitarian theories. Retributionists assert that the infliction of punishment is justified in itself since offenders should be given their just deserts, the utilitarians regard punishment as an evil which should be used only if it serves some purpose like deterrence from commission of crime.
Retribution Theory:
Retribution has been regarded as a very important feature in the punitive scheme. According to Hegel, punishment ‘annuls’ the crime. It aims at restoring the social balance disturbed by the offender. The offender should receive as much pain and suffering as inflicted by him on his victim to assuage the angry sentiments of the victim and the community. Various theories have sought to justify the retributive aspect of punishment in theological, aesthetic and expiatory grounds. Retaliation fulfils a religious mission of punishing the offender, it re-establishes the social harmony affected by the offence and the offender’s guilt is washed away through suffering.
The most forceful presentation of the case for retribution is the justification for punishment by Kant. He expressed his opposition to the utilitarian concepts. The Kantian objection is that a mere use of a person for some social purpose violates his moral autonomy and he, therefore, finds the justification of punishment in retribution alone.
Some other supporting arguments for retribution may be summarized as follows:
(i) Retribution connects the offender to correct values; it sends the message to the wrongdoer that what he did was wrong. Retribution should, therefore, not be confused with revenge.
(ii) It would be unfair to victims if there is no retribution against the wrongdoers.
(iii) It would also be unfair to the law-abiding citizens if the offenders get undeserved benefit through their criminal acts.
These postulates of retributivism have been criticized. It has been asked, for instance, that if individuals have no moral right to exact retribution, how can a group of individuals in the society acquire such a moral right. There is some merit, at least theoretical, in the expiation argument that the offender gets an opportunity of making a new start after the ‘atonement’. The practical sang is that it becomes extremely difficult for a person to start with a clean slate after being convicted of an offence. The chances of his being admitted to society as a normal human being are certainly affected after undergoing punishment.
The theories of punishment based on retribution have also been sought to be defended on the ground that punishment reflects denunciation of the criminal and his act by the society. Such an approach tends to invert the priorities since punishment should not be for the sake of denunciation alone but a deserved punishment does serve as a denunciation. According to Hart, we do not live in society in order to condemn though we may condemn in order to live. It follows, therefore, that the concept of denunciation belongs to the utilitarian rather than to the retributive theories.
It appears from the above discussion that the retribution theory in its purest form, which provides that the penal system should be designed to ensure that offenders atone by suffering for their offences and their sufferings should be of the same magnitude as that of their victims, has lost much of its ground in the context of modern and more enlightened views on the functional value of penal law.
In modern society the idea of revenge in the punishment is rejected and the modern concept is hate the sin not the sinner. There are some other ways to achieve the social solidarity and the need is to develop such measures where a person will not commit a crime. The various studies have established that the social structure and the functioning of the social system is more responsible for a crime than an individual. Modern criminology states that it is important to protect the interest. A criminal after his release should not become an enemy of society. But still there are certain expectations where the retributive punishment can be considered necessary.
Utilitarian Theory:
The utilitarian view punishment as a means to achieve certain ends with the aid of criminal law. Punishment must serve as an instrument for reducing crime either by deterring the offender and others from doing similar acts in future or it should prevent the commission of offences by incapacitating the offenders. Reformation of the offenders through punishment is also sought to be achieved, though the efficacy of the punitive approach in the reformation of the offender is extremely doubtful.
Utilitarians accept punishment only for achieving ‘good consequences’ but there may be disagreement as to the nature of the ‘good consequences’. Three issues to be considered in a given situation are as to whether the punishment would be:
(i) Useless;
(ii) Needless; and
(iii) Involving more evil than what it purports to solve.
Deterrent Theory:
One of the Utilitarian rationalizations which are advanced to justify punitive reaction is that punishment acts as a deterrent to the offender punished and also to others in the community. It has been suggested that the so-called deterrent approach is a veiled form of the retributive spirit. Deterrence is usually defined as the preventive effect which actual or threatened punishment of offenders has upon potential offenders. The deterrence theory finds no justification for action in a past offence, which has more than a certain evidential importance, and it depends upon consequences of punishment other than the immediate satisfaction given to victims of offences and other. It need not ignore these satisfactions.
Punishment is justified to control individual crime and to have a deterring effect on other criminals. According to Bentham, general prevention ought to be the chief end of punishment as it is its real justification.
Bentham thus goes on to suggest that punishment may help in control of crime in three ways:
1. By making it impossible or difficult for a criminal to commit the offence again, at least in certain ways;
2. By deterring both offenders and others;
3. by providing an opportunity for the reforming of offenders.
Bentham and other supporters of the deterrence theory considerably under-estimated the number of offenders whose punishment is unlikely to have an acceptable deterrent effect.
Efficacy of the deterrent aspect of punishment can be pointed out with reference to the Islamic law of crimes as applied in Saudi Arabia, the only country where the system with all its severity is being applied even now. It is reported that crimes are almost unknown in Saudi Arabia and it is a common sight in towns that people leave their shops open and unattended while they are away from them for some time. It may be pointed out, however, that several other factors might be operating for creating such a situation, like economic security and religious injunctions. Further, it may be observed that deterrence is not the only purpose of criminal law but has to maintain some other values as well.
Reformative/ Rehabilitation Theory:
Modern penology recognizes that punishment is no longer regarded as retributive or deterrent, but is regarded as reformative or rehabilitative.
Reformation is defined as “the effort to restore a man to society as a better and wiser man and a good citizen. Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his concept of prisons and hospitals-mental and moral- is the key to the pathology of delinquency and the therapeutic role of ‘punishment’”. It is, thus, clear that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge.
Punishment is, therefore, said to be justified because- (1) It provides an opportunity for State to take steps to reform offenders and so control crime. (2) It is both a deterrent and an effective condemnation, and as such it has reformative consequences. (3) The ultimate aim of the punishment is to “resocialise” the offender to “readjust” him to society, to “rehabilitate” him to “change him deep inside”.
According to reformatists, a criminal is to be studied, like a patient in his entire socio-economic milieu, and nor in isolation, to understand causative factors leading to criminality and then attempt be made to reform or treat and rehabiliate the offender.
There are only few aspects of the treatment problem which are to be observed in practice while employing the reformative techniques to treat the offenders. And as such there will still be a little element of the retributive and deterrent aspects of punishment because of the very inevitability of punishment of some sort after crime. But, others say that in view of the changed penal philosophy, the bulk of the component of punishment will naturally be reformation and rehabilitation with a view to refit the offender as a useful member of society.
Modern society considers various objectives in order to control crime and it considers imprisonment a means to attain the twin aims, i.e., reform and treatment of the criminals so that they will commit no crime after their release. Society also seeks protection from criminals. And for this purpose prison isolates criminals from the community for a certain time. All these objectives-reformation, retribution and deterrence, within the prison result in cross conflict.
In James V. Bennet, it was observed that on the one hand, prison are expected to punish, on the other, they are supposed to reform. They are expected to discipline rigorously at the same time they teach self-reliance. They are built to be operated like vast impersonal machines, yet they are expected to fit man to live normal community lives. They operate, in accordance with a fixed automatic routine, yet they are expected to develop individual idleness despite the fact that the one of their primary objective is to teach men how to earn an honest living. To some, prisons are nothing but country clubs, catering to the whims and fancies of the inmates. To others, the prison atmosphere seems charged only with bitterness, rancor and an all pervading sense of defeat.
Conflict between reformative, deterrent and retributive measures have been a controversial issue from the point of correctional administration as well as treatment of the offenders. There is a definite need to protect society by segregating those who are so dangerous as to require a close custody, control and supervision.

Preventive Theory:
This has also been called ‘Theory of disablement’ as it aims at preventing the crime by disabling the criminal. In order to prevent the repetition of crime the offenders are punished with death, imprisonment for life or transportation of life.
Preventive philosophy of punishment is based on the proposition ‘not to avenge crime but to prevent it’. It presupposes that need for punishment of crime arises simply out of social necessities. In punishing the criminal, the community protects itself against anti-social acts which endanger social order in general or person or property of its members.
This theory has been criticized by many writers on the ground that prevention of crime can also be done by reforming the behaviour of criminals.
It is clear that neither theory can be adopted as sole standard of punishment for perfect penal code. The correct view, therefore, seems to be that the perfect system of criminal justice is the result of a compromise between the principles of all the theories.
Protection of society must be the object of law which can be achieved by imposing appropriate punishment. A sentence or its system which does not work properly can undermine respect of law. In order to deter other potential criminals and to meet social necessity, the imposition of appropriate punishment is desirable. Although it is not possible to formulate any ready-made formula in this respect but object should be to see that the crime does not go unpunished and victim of the crime and society have satisfaction that justice has been done to them. Aggravating factors cannot be ignored and mitigating circumstances should get due weightage.

White Collar Crimes

Certain professions offer lucrative opportunities for criminal acts and unethical practices which hardly attract public attention. They carry on their illegal activities with impunity without the fear or loss of prestige or status. The crimes of this nature are called ‘white-collar crimes’ and are essentially an outcome of competitive economy.
The concept of White Collar Crime is usually associated with Sutherland. He pointed out that besides the traditional crimes there are certain anti-social activities which the persons of upper strata carry on in course of their occupation or business. These activities for a long time were accepted as a part of usual business tactics necessary for a shrewd professional man for his success in profession or business.
Sutherland further pointed out that a white-collar crime is more dangerous to society than ordinary crimes because the financial loss to society from white-collar crimes is far greater than the financial loss from burglaries, robberies, larcenies etc.
These white collar crimes by their very nature are such that the injury or damage caused as a result of them is so widely diffused in the large body of society that their gravity in regard to individual victim is almost negligible. White collar crimes are committed by persons of status not for need but for greed.
White collar criminality thrives because of public apathy to it. The reason for this public insensibility is that firstly such criminals operate within the strict letter of the law and exploit the credibility of their victims; and secondly the legal battles involved are dragged out for years in the courts, with the result the gravity of the offence is completely lost in the oblivion. That apart, the impact of white collare crime is so much diffused in the community that the individual victims are only marginally affected by it, and, therefore, they conveniently forget all about it.
There is yet another important point in context of white collar crime. The members of the community themselves contribute to the commission of various white collar crimes willingly or unwillingly. For instance, illegal gratification to public servants to get the work done quickly such crimes cannot be committed unless there is a demand for illegal favour from consumers and they are actively involved in the deal.
Sutherland’s definition of white collar crime has evoked criticism from certain quarters. The lack of definite criteria for determining who are ‘persons of respectability and status’ has made Sutherland’s definition of white collar crime most controversial. It seems likely that what Sutherland’s meant by this is absence from convictions for crimes other than white collar crimes. The element of ‘high social status’ as used in the definition also leads to confusion. Some critics have suggested that such crimes should have been called as ‘occupational crimes’ instead of being termed as ‘white collar crime’.
Tappan observes that treating persons committing white collar crime as criminals would mean deviating from legal definition of crime inasmuch as personal value considerations of the administrator would gain primary in place of precision and clarity of legal provisions in deciding such cases. Sutherland, however, justifies the special procedure of trial for white collar criminals by administrative agencies on the ground that it would protect the offender from stigma of criminal prosecution.
Another criticism is that it includes even those violations of law which are not committed in course of occupation or profession and these violations do not necessarily belong to upper strata of society or the so-called ‘prestigious groups. For example, tax evasion is not committed only by person of high status but it can be committed by persons belonging to middle or even lower strata of society.
Of all the factors, the economic and industrial growth through out the world has perhaps been the most potential cause of increase in white collar crimes in recent years. Law Commission in its report observed that modern scientific and technological developments and monopolistic trends in business have led to enormous increase in white collar crimes.
The problem of white-collar criminality has its root in competitive business community which tries to oust their rival competitors in order to earn huge profits. Sometimes such crimes may also be committed merely for the sake of retaining existence in the competitive business.
One more reason for the multiplicity of white collar crime is relatively high socio-economic status of white collar criminals. They belong to an influential group which is powerful enough to handle their occupation tactfully and persons affected thereby hardly know that they are being victimized.
The recent development in information technology particularly during the closing years of the twentieth century, have added new dimensions to white collar criminality. There has been unprecedented growth of a new variety of computer dominated white collar crimes which are commonly called as cyber crimes.
India is equally in the grip of white collar criminality. The Report of Vivin Bose Commission of Inquiry into the affairs of Dalmia-Jain group of companies highlights how these big industries indulge in white collar crimes such as fraud, falsification of accounts, tampering with records for personal gains and tax-evasion etc.
The case of M.H. Hoskot V. State of Maharashtra illustrates the attitude of the lower judiciary towards white-collar criminals. Haskot, a reader in Saurashtra University, was found guilty of an attempt to concoct degree certificates of the Karnataka University. The sessions court awarded him a single day’s imprisonment. The court justified the token punishment on the basis of the background of the offender, his not having criminal tendencies as such and the unlikelihood of his indulging in criminal activities in future. On appeal by the State, the High Court enhanced the period of imprisonment to three years. While upholding the sentence awarded by the High court, the Supreme Court termed the sentence awarded by the session court as ‘incredibly indiscreet’.
The Supreme Court has made its approach of white-collar crimes absolutely clear in the above observation. It is however, submitted that Hoskot’s case was truly speaking not a case of white-collar criminality, according to the meaning given to the term by Sutherland and others.
Besides prescribing stiffer punishments for white-collar offenders, the Supreme Court has also held in a number of cases that liberal interpretation must be given to the penal laws dealing with social welfare legislation to see that the legislative object is not defeated. In Murlidhar Meghraj Loya V. State of Maharashtra, the Court observed that ‘it is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused person and defeating criminal statues calculated to protect public health and the national’s wealth.’
Again in P.K. Tejani V. M.R. Dange, a case under the Prevention of Food Adulteration Act, the Supreme Court said that ‘ it is trite law that in food offences strict liability is the rule not merely under the Indian Act but all the world over. Section 7 casts an absolute obligation regardless of scienter, bad faith and mens rea. It you have sold any article of food contrary to any sub-section of Section 7, you are guilty. There is no more argument about it.’
Some of the remedial measures for combating white collar criminality may be stated as follows:
1. Creating public awareness against these crimes.
2. Special tribunals should be constituted with power to award sentence of imprisonment.
3. Stringent regulatory laws and drastic punishment for white-collar criminals may help in reducing these crimes.
4. A separate chapter on white-collar crimes and socio-economic crimes should be incorporated in the IPC by amending the Code so that white-collar criminals who are convicted by the Court do not escape punishment because of their high social status.
5. White-collar offenders should be dealt with sternly by prescribing stiffer punishments keeping in view the gravity of injury caused to society because of these crimes.
6. There is an urgent need for a National Crime Commission which may squarely tackle the problem of crime and criminality in all its facets.
7. Above all, public vigilance seems to be the cornerstone of anti-white collar crime strategy. Unless white-collar crimes become abhorrent to public mind, it will not be possible to contain this growing menace.

Capital Punishment

Death Sentence has been used as an effective weapon of retributive justice for centuries. The fear of being condemned to death is perhaps the greatest deterrent which keeps an offender away from criminality. The justification advanced is that it is lawful to forfeit the life of a person who takes away another’s life. Thus, the motive for death penalty may indeed include vengeance which is a compensatory and reparatory satisfaction for an injured party, group or society.
Penologists in India have reacted to capital punishment differently. Some of them have supported the retention of this sentence while others have advocated its abolition on humanitarian ground. The retentionists support capital on the grounds that it has a great deterrent value and commands obedience for law in general public. The abolitionists, on the other hand, argue that enormous increase in homicide crime-rate reflects upon the futility of death sentence.
The Law Commission of India in its 35th Report said on a consideration of the issues that capital punishment should be retained in the present state of the country. Supporting the view of the Law Commission, the Supreme Court in Bachan Singh V. State of Punjab, observed that notwithstanding the views of the abolitionist to the contrary, a very large segment of people still firmly believe in the worth and necessity of capital punishment for the protection of society.
In this case appellant was convicted for the murder of his wife and he underwent life imprisonment. On being released from jail he came to stay with his cousin Hukam Singh. This was objected to by Hukam Singh’s wife and son and the appellant, therefore, developed a grievance against the family. While Hukam Singh and his wife were away in another town the appellant taking advantage of the situation killed his son and his two sisters and grievously injured a third one in an unusually brutal manner. He was awarded death sentence. High Court conformed his death sentence.
With regard to the application of Art. 19 of the constitution in cases under section 302 IPC the Supreme Court observed that section 302 prescribes death or imprisonment for life as penalty for murder. It cannot reasonably or rationally, be contended that any of the rights mentioned in Art. 19(1) of the Constitution confer the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Art.19. In pith and substance, penal laws do not deal with the subject-matter of right enshrined in Art. 19(1). The Supreme Court observed that they are of the opinion that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. In view of it, the Supreme Court was of the opinion that Sec. 302 of the Penal Code does not have to stand the test of Art. 19(1) of the Constitution.
It may be inferred that neither retention nor abolition of death sentence can be justified in absolute terms. The desirability of this punishment, by and large, depends on the nature of the crime and the circumstances associated therewith. The classification of different types of homicides can be made on the basis of social environment and personality of the offender. Therefore, the efficacy of death penalty in such cases should be judged in the light of the surrounding conditions.
The Report of the Convention of International Congress of Criminal Law concluded that the general consensus was clearly in favour of retention of death penalty though its use may be restricted to “rarest of rare cases”. Justice Krishna Iyer justified retention of capital punishment though to be used sparingly. Justice HIdayatullah observed that the doctrine of “rarest of rare case” evolved in the Indian jurisprudence for the use of death penalty is capable of discounting the possible errors and abuse of this sanction and, therefore, a dispassionate approach to this problem in the context of the mounting crime was most necessary.
The Law Commission in its report observed that even after all the arguments in support of abolition of capital punishment are taken into account, there does not remain a residium of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal. The Commission further expressed a view that ‘retribution’ involved in capital punishment does not connote the primitive concept of ‘eye for an eye’ but is an expression of public indignation at a shocking crime, which can better be described as ‘reprobation’.”
The Law Commission strongly feels that capital punishment acts as an effective, deterrent “which is the most important object and even if all objects were to be kept aside, this object would be itself furnish a rational basis for its retention.” In its concluding remarks, the Commission observed that having regard to the peculiar conditions prevalent in India and the paramount need for maintaining law and order in the country, we cannot risk the experiment of abolition. This is perhaps the most appropriate approach to the problem of capital punishment so far Indian Criminal justice system is concerned.
In the IPC eight provisions provides for death sentence for certain specified offences. The Supreme Court noted that IPC contained fifty-one sections which prescribe life imprisonment for various offences. The basic difference between Section 302 and the other sections was that whereas under those sections life imprisonment is the maximum penalty which can be imposed, under Section 302, it is the minimum sentence which has to be imposed. The Court, however, made it clear that the ruling in Bachan Singh V. State of Punjab upholding the constitutional validity of death sentence could not govern death penalty prescribed in the IPC.
The members of the judiciary are sharply divided on the crucial issue of life or death sentence. Those who support abolition argue that death penalty is degrading the contrary to the notion of human dignity; it is irrevocable and an expression of retributive justice which has no place in modern penology. The retentionists, on the other hand, justify capital punishment as a social necessity having a unique deterrent force.
After the Amendment Act 1955, the Judge had the discretion to commute the sentence of death to that of life imprisonment but in case he considered the imposition of death sentence necessary he had to state the reasons as to why a lesser penalty would not serve the ends of justice.
The CrPC also contains a provision regarding death sentence. Section 354(3) of the Code provides that while awarding the sentence of death, the Court must record “special reasons” justifying the sentence and state as to why an alternative sentence would not meet the ends of justice in the particular case. Justice Krishna Iyer observed that the special reasons which the section speaks of provides reasonableness as envisaged in Article 19 as a relative connotation dependent on a variety of variables, cultural, social, economic and otherwise.
The CrPC further requires that the sentence of death imposed by Sessions Judge can be executed only after it is confirmed by High Court. That apart, Section 235(2) of the Code further casts a statutory duty upon the court to hear the accused on the point of sentence. Section 302 casts a heavy duty on the Judge, of choosing between death and imprisonment for life for the person found guilty of murder, is now expected to be discharged in a highly responsible manner by complying with the provisions contained in CrPC so that the principle of natural justice and fair play holds its away in the sphere of sentencing. These provisions also help the Judge to individualise sentencing justice and make it befitting to the crime and the criminal.
Besides the statutory provisions, the Constitution of India also empowers the President and the Governor of the State to grant pardon to the condemned offender in appropriate cases.
A perusal of some of the Supreme Court decisions involving death penalty would reveal that sudden impulse or provocation uncontrollable hatred arising out of sex indulgence, family feud or land dispute, infidelity of wife or sentence of death hanging over the head of the accused for a considerable long period of time due to law’s delay, have been accepted as extenuating circumstances justifying lesser penalty of life imprisonment instead of death sentence.
Following the ruling laid down in Bachan Singh, the Supreme Court upheld the death sentence of the accused in Machi Singh V. State of Punjab, on the ground that the murder committed was of exceptionally depraved and heinous in character and the manner of its execution and its design would put it at the level of extreme atrocity and cruelty. The accused in the instant case has killed two innocent and helpless women. Their Supreme Court opined that the ‘rarest of rare’ cases doctrine was clearly attracted in this case and that the sentence of death was perfectly justified.
While deciding this case the Apex Court realized that the ‘rarest of rare cases’ doctrine had caused ‘inner conflict’ in the minds of the Judges because it was left much to the judicial discretion to decide whether the case fell within the category of rarest or rare case or not. Hence, the Supreme Court laid down a five-point formula based on the manner in which the murder was committed and the motive, nature and magnitude of the crime and the personality of the victim. The factor which the Court was expected to take into consideration for this purpose may be briefly stated as follows:
1. The manner in which the offence of murder was committed. If it was committed with extreme brutality such as burning the victim alive or cutting body into pieces, it would be a fit case to be considered as rarest of rare case.
2. When the manner reveals depravity and meanness of murdered e.g. crime being committed for material gain.
3. When the murder is socially abhorrent such as bride burning or killing of Harijan.
4. When the magnitude of the offence is enormous as in case of multiple murders.
5. When the victim is an innocent child, a helpless woman, or a reputed figure i.e. the case of a political murder.
The Court however, cautioned that these guidelines should not be applied too literally. Instead, the Judges should interpret the provisions rationally to ascertain whether ‘collective conscience of the community has been shocked and it will expect the Judge to award the death penalty.
The Supreme Court decision in Kishori V. State of Delhi, consequent to the assassination of Mrs. Indira Gandhi, large scale rioting and arson took place in different parts of Delhi. The Charges against four accused persons including Kishori were framed. Having been sentenced to death by the trial court and confirmed by High Court the appellant filed SLP in the Supreme Court challenging the judgment of the High Court. During the hearing, it was stated that Kishori was allegedly involved in several incidents which gave rise to seven cases, four of which ended in his acquittal and in three cases, he was sentenced to death. The Supreme Court observed that the law is well settled by reason of the decision of this Court that capital punishment can be imposed in the rarest of rare cases and if there are aggravating circumstances. Experts in criminology often express a view that where there is mob-action, as in the instant case, there is diminished individual responsibility unless there are special circumstances indicating that a particular person had acted with any predetermined motive such as use of weapon not normally found.
In the instant case, all the witnesses speak that there was a mob attack resulting in the death of three persons. Though the appellant is stated to be responsible for inflicting certain knife injuries, yet it is not clear whether those injuries themselves were sufficient to result in death of the deceased person. The acts of the mob of which the appellant was a member cannot be said to be the result of an organization of group indulging in planned violent activities formed with any prupose or scheme which can be called as an organized activity. The Supreme Court, therefore, decided that “on the totality of the circumstances, this is not a case which can be called “a rarest of rare case” which warrants imposition of maximum sentence of death. Hence while confirming the conviction of the appellant on charges framed against him, the sentence is reduced from capital punishment to that of life imprisonment and with this modification, the appeal stands dismissed.
In Mohd. Chaman V. State of Delhi, the accused had committed rape on a minor girl aged one and a half years when her parents were away from home. As a result of this brutal and ghastly act the child suffered several injuries and died. The trial Court convicted the accused and sentenced him to death which was confirmed by High Court. On appeal, the Supreme Court held that, (1) the extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offenders also.
The Court held that in exercise of its discretion in the above cases the court shall take into account the following circumstances_
(i) That the offence was committed under the influence of the extreme mental or emotional disturbance.
(ii) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat of society.
(iv) The probability that the accused can be reformed and rehabilitated.
(v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(vi) That the accused under the duress or domination of another person.
(vii) That the condition of the accused showed that he w as mentally defective and that the said impaired his capacity to appreciate the criminality of his conduct.
In the instant case the crime committed is undoubtedly serious and heinous and reveals a dirty and perverted mind of a person who has no control over his carnal desires. The case is one which deserves humanist approach and therefore capital sentence imposed against appellant is commuted to imprisonment for life.
In Edigma Anamma V. State of A.P., the appellant was convicted of double murder, of a woman and her tender child, because of the jealousy generated by the fact that the deceased woman had developed amorous relationship with the same man, a widower, with whom the appellant had already been carrying on an affair. The stabbing of two persons was planned and ghastly in nature and careful steps were taken to destroy the evidence by attempting to burn the body of the deceased woman. The Supreme Court observed to justify its preference for life imprisonment to capital sentence. The Court said that here the criminal’s social and personal factors are less harsh, her femininity and youth, her unbalanced sex life and expulsion from the conjugal home being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances-tend towards award of life imprisonment.
The proper approach to the problem, perhaps will be that capital punishment must be retained for incorrigibles and hardened criminals but its use should be limited to ‘rarest of rare cases’. In view of the present deteriorating law and order situation in India, total abolition of death sentence would mean giving a long rope of dangerous offenders to commit murder and heinous crimes with impunity.
The Supreme Court in Allauddin Mian V. State of Bihar has stressed on the penological aspect of death sentence and observed that provisions of the CrPC require the sentencing Judge to state reasons for awarding death sentence and giving an opportunity to the condemned person to be heard on the point of sentence, satisfy the rule of natural justice and fair play.
In this case the accused persons came with deadly weapon in the house of his target. On seeing the target they shouted to kill him. The person ran into a room to arm himself where his wife prevented him. At that time two daughters of his daughters were playing outside the room. Having failed to get him, accused gave farsa blow on the head of the daughters and killed them.
In the instant case, the Apex Court noted that the trial Judge had not attached sufficient importance to mandatory requirements of the above provisions and the High Court confirmed the death sentence without having sufficient material placed before it on record to know about the antecedents of the accused, his socio-economic conditions, and impact of crime etc. which rendered the rationale of the Judgment doubtful.
In Anguswamy V. State of Tamil Nadu, appellants had a quarrel with some members of a community. A constable came to inquire. He tried to caught the appellants. Both the appellants inflicted injures on different parts of the body of police constable and he died. The Trial Court awarded the death penalty which was allowed by High Court.
Here the Supreme Court observed that the trial court failed to take into consideration several relevant factors. AS there was no immediate need for their arrest, no report was made against the appellants and no case was registered against hem for the commission of any offence. The deceased acted over-zealously and attempted to apprehend the appellants. Since the appellants felt that they were being unjustly treated by the deceased and caused the injuries. It can not be said that the attach was pre-planned. It was rather sudden and actuated by a desire to free themselves. It, therefore, follow that the murder can not be said to belong to the rarest of rare category warranting the sentence of death.
The death penalty is no doubt unconstitutional if imposed arbitrarily but it if administered rationally, objectively and judiciously, it will enhance people’s confidence in criminal justice system.


Probation is the ‘submission of an offender while at liberty to a specified period of supervision by a social caseworker who is an officer of the court.’ Probation of offenders has been widely accepted as one of the non-institutional methods of dealing with corrigible offenders, particularly the young offenders and the first offenders. It aims at rehabilitation of offender by returning them to society during a period of supervision rather than by sending them into the unnatural and socially unhealthy atmosphere of prisons. The offender is allowed to remain in the community and develop as a normal human being in his own natural surroundings. With the help of advanced techniques of social case-work, the probation offender endeavours to bring about the desired change in offenders attitude to life and his social relationship with the community.
The release of offenders on probation is treatment device prescribed by the court for persons convicted of offences against the law, during which the probationer lives in the community and regulates his own life under conditions imposed by the court or other constituted authority, and is subject to supervision by a probation officer.
The system of probation involves restriction on the liberty of probationer and refrains him from disapproved behaviour, or conversely, compels him to perform certain required acts which maybe irksome or even painful to him. The basic purpose is to keep the delinquent away from evil consequences of incarceration and offer him an opportunity to lead socially useful life without violating the law.
Probation is often misconceived by some people as an easy let-off or a form of leniency and not a punishment. But this notion is rather misleading. Probation, whether it is for juveniles or adults, permits a more normal social experience than institutionalization and makes possible varying degrees of control over delinquents together with the option of sentencing him to an institution if he violates probation conditions. In other words, probation enables the delinquent to maintain contact with his family and other social agencies. It means a less routinised and more self-directed existence. Unlike imprisonment, it makes the offender the probationer to keep himself away from criminogenic atmosphere of prison and earn his living rather than leading an idle and wasteful life. He does not remain a burden on his family or society because he can earn his living himself. In short, probation offers an opportunity for the probationer to adjust himself to normal society thus avoiding an isolated and dull life in the prison.
The actual selection for release on probation depends on the careful investigation of personal case-history and social circumstances of the offender. The investigation is done by a Probation Officer who prepare a pre-sentence report to find before the trial court prior to the final disposal of the case. The system of probation involves conditional suspension of punishment.
According to Howard Jones, the following conditions must be fulfilled before allowing the benefit of release on probations to an accused person:
(1) No punishment should be imposed initially;
(2) The offender should be given a definite period to redeem himself;
(3) During this period, delinquent should be placed under supervision of a probation officer for two obvious reasons:
a. In order to keep the court informed about his progress; and
b. To help him to make the best use of the opportunity given to them.
(4) If the offender responds favourably, his initial crime should be deemed to have been scrapped, but if he fails to do so, he maybe brought back to court and sentenced for the original crime as also for any other crime he might have committed.
It is thus evident that probation is not a “let-off” as alleged by some critics because the probationer must either respond favourably to reformation or suffer imprisonment later.
The Supreme Court spelt the object of the Probation of Offenders Acts is to stop conversion of youthful offenders into stubborn criminals as a result of their association with hardened criminals of mature age in case of youthful offenders are sentenced to undergo imprisonment in jail. Modern Criminals jurisprudence recognizes that no one is born criminal and that a good many crimes are the result of socio-economic milieu. Although not much can be done for hardened criminals, yet a considerable emphasis has been laid on bringing about reform of young offenders not guilty of very serious offense by preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. Probation is designed only for those who have prospects to reform.
The Probation of Offenders Act contains elaborate provisions relating to probation of offenders which are made applicable through out the country. The Act provides four different modes of dealing with youthful and other offenders in lieu of sentence subject to certain conditions. These include:-
(1) release after admonition;
(2) release on entering a bond on probation of good conduct with or without supervision, and on payment by the offender the compensation and costs to the victim if so ordered, the courts being empowered to vary the conditions of the bond and to sentence and impose a fine if he failed to observe the conditions of the bond;
(3) persons under 21years of age are not to be sentenced to imprisonment unless the court calls for a report from the probation officer or record reasons to the contrary in writing;
(4) the person released on probation does not suffer a disqualification attached to a conviction under any other law.
Thus it would be seen that the provisions of the Act are not confined to Juveniles alone, but extend to adults also. Again, provisions of the Act are not confined to offences committed under the IPC but they extend to offences under other laws. The higher courts have been empowered to grant probation in appropriate cases, which was denied to the accused by the lower court. They may also cancel probation granted by the trial courts.
The appropriate stage at which probation order may be made by a court is at the time of pronouncement of judgment. The Judge may make such an order straightway without calling for a report from the probation officer or he may prefer to call for a report. However, it is always advisable to call for a report from the probation officer because at times material available on record in course of trial is hardly sufficient for the presiding Judge to make up his mind on the point whether the accused should be admitted to the benefit of release on probation or not. The court must record a clear finding about the age of the offender after recording necessary evidence.
Besides the Probation of Offenders Act the provisions of Section 360 and 27 of the Cr.P.C. and Juvenile Justice Act also provide for the release of certain offenders on probation.
(i) Section 360 of the Cr.P.C. provides the rationale of protection which is extended to young offenders. Firstly, the section excludes certain types of offenders from the purview of the Probation of Offenders Act. Secondly, the section prescribes certain age-limit for offenders to be admitted for release on probation; and thirdly, the section explicitly provides that probation applies only to the first offenders. Law suggests a selective application of the probation service to only those offenders who are likely to respond favourably to the rehabilitative process.
(ii) Section 27 of Cr.P.C. provides that any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court, is under the age of sixteen years, may be tried by the court of a Judicial Magistrate or by any Court specially empowered or any other law for the time being in force providing for the treatment, training or rehabilitation of youthful offenders. It must be noted that the age-limit of a juvenile was raised from 15 to 16 years to avoid inconsistency with the provisions of law contained in the earlier Children Act and it is now 18 years under the Juvenile Justice Act.
(iii) The Juvenile Justice Act enunciates the measures for custody and control of destitute and neglected children and also provides of the protection and treatment of delinquent children in need of care and protection as also the children who are uncontrollable and victims of one or the other offence.
(iv) The Juvenile Justice Act further provides for the release of children who have committed offences, on probation of good conduct and placing them under the care of their parents or guardians or other fit persons executing a bond, with or without sureties to be responsible fro good behaviour and well being of the juvenile for any period not exceeding three years.
Offenders whether below 21 or above 21 years of age are equally entitled to avail the benefit of release on probation of good conduct or after admonition. The Court is competent to release a previous convict on probation if it thinks it proper to do so having regard to the circumstances of the case including the character of the offender and nature of the offence.
The final verdict as to whether an offender deserves to be admitted to he benefit of release on probation or not, lies with the court. The Judge has to use his discretion in the matter most judiciously.
In State of M.P. V. Bhola, it was observed that it indicates the intention of the legislature that the benefit of release on probation for good conduct in prison is to be made available not to all but to “certain prisoners” meaning prisoners of a particular class. Thus they can be classified in relation to the offences committed by them for which they are sentenced. Reformative system of punishment by releasing prisoners on the basis of their good conduct in prison and for tuning them out as good citizens after they serve out their periods of sentences is not to be resorted to indiscriminately without reference to the nature of offence for which they are convicted. It is open to the legislature to lay down a general policy permitting reformative method of punishment but by limiting its application to less serious crimes. Gravity of offence is an integral dimension in deciding whether a prisoner should be released or not. If we see that offences mentioned in rule 3(a), in the category of exclusion therein are such serious or heinous offences which are against community and society in general where even release on probation may be found hazardous because of the possibility of the crime being repeated or the prisoner escaping. Habitual offenders or those dealing in explosive substances or involved in dacoities and robberies are treated as criminals guilty of heinous crimes who deserve to be treated differently from other offenders guilty of less serious crimes. The offenders could be classified thus reasonably with the object to be fulfilled of reformation of those prisoners who show prospectus of some reforms. Classification can also be made between habitual and non-habitual offender or between corrigibles and incorrigibles.
In Abdul Qayum V. State of Bihar, the appellant aged sixteen years pick-pocketed rupees fifty six. Despite probation officer’s favourable report for release on probation, he was sentenced to six months’ rigorous imprisonment by the trial court because of his association with a seasoned pick-pocket. On appeal, however, the Supreme Court directed the trial court to place him under probation.
The Supreme Court observed that there was no warrant for inferring that the appellant was his associate. A reference to the report of the Probation Officer would show that the accused was approximately 18 years of age and physically and mentally normal. Though he was illiterate he had a vocational aptitude for tailoring and was working in Bihar Tailoring Works. He was interested towards his work as a tailor and behaves properly with his father and brothers and has normal association with friends. There is no report against the character of the offender, no previous conviction has been proved against him prior to this case and in the circumstances the release on probation may be a suitable method to deal with him.
In another case the Orissa High Court shows even much more latitude to young offenders in Jogi Nayak V. State. In this case, the accused, a young boy of 15 years, was found guilty of robbery and sentenced to undergo rigorous imprisonment for one year. The boy had removed jewellery from the body of a young girl after making her unconscious by inflicting grievous injuries to her. In this case, it was held that probation could not be granted since the offence was punishable with life imprisonment. But strangely enough, after holding that boy could not be released on probation, the High Court ordered his release by saying that the accused was a young boy and a longer stay in the company of criminals would only turn him into hardened criminal and the sentence was reduced to the period already undergone. It was ironical that by placing a restricted construction on the statute, the court found probation inapplicable and let the boy loose, unsupervised, on society.
The Supreme Court took a strict view of the case involving sex-perversity and refused to allow the benefit of release on probation to the accused in Smt. Devki alias Kalia V. State of Haryana. In this case the petitioner was found guilty of abducting a teenage girl of 17 years and forcing her to sexual submission with commercial object and was convicted and sentenced by the trial court for three years imprisonment. The sentence was confirmed by the High Court. On appeal, the Supreme Court refused to allow the benefit of probation to the accused keeping in view the moral turpitude and heinousness of the offence.
In Rajbir Raghubir Singh V. State of Haryana, the accused a government servant was convicted and placed on probation for good conduct. It was held by the Supreme Court that in particular facts of the case, the conviction should not affect his service.
The historical decision in Ishwar Das V. State of Punjab, however, made a departure from the Court’s liberal approach to offenders found guilty of offences involving public welfare. A tendency to keep such anti-social activities outside the purview of the probation law is clearly noticed in the subsequent decisions. Though the Supreme Court allowed the benefit of probation in the instant case, leaving a note of caution, it inter alia observed:
Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. The Courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21years of age found guilty of offence under the Prevention of Food Adulteration Act.
The Supreme Court decision in Pyarali K Tejani V. M.R. Dange, further supports the judicial trend for cautious approach to the application of probation in law to adulteration cases. In this case the accused was convicted for selling adulterated “supari” with prohibited sweeteners under the Prevention of Food Adulteration Act. Disallowing the benefit of probation to the appellant Krishna Iyer observed:
The kindly application of the probation principle is negatived by the imperatives of social defence and the probabilities of more proselytisation. No chances can be taken by society with a man whose anti-social operations guised as a respectable trade, imperial numerous innocents. He is a security risk. Secondly, those economic offences committed by White collar criminals are unlikely to be dissuaded by the gentle probationary process.
It has now been universally accepted that in order to achieve progressive correctional standards there must be added emphasis on probation. Its exponents must interpret the philosophy underlying probation more clearly and initiate a definite campaign of education that will break down prejudices against correctional methods and explain their wider objectives. It is a modern technique in the field of correctional therapy which must be used extensively for treatment of offenders.
Despite the criticism of probation from certain quarters, the fact remains that it is perhaps the only reformative technique which fully endorses the cause of human dignity. Probation, in fact, is an opportunity to an offender to “struggle to recapture self-respect”.

Juvenile Justice

Delinquency is a form of behaviour or rather misbehaviour or deviation from the generally accepted norms of conduct in the society. The term Juvenile delinquency refers to a large variety of disapproved behaviours of children and adolescents which the society does not approve of, and for which some kind of admonishment, punishment or corrective measure is justified in the public interest. It includes rebellious and hostile behaviour of children and their attitude of indifference towards society. It may, therefore, be inferred that a juvenile is a adolescent person between childhood and manhood or womanhood, as the case may be, who indulges in some kind of anti-social behaviour, which is not checked, may turn him into a potential offender. A child might be regarded as delinquent when his anti-social conduct inflicts suffering upon others.
Every conduct prohibited by statute is not to be taken as an act of delinquency. Instead, the conduct which tends to constitute an offence, not only from the legal standpoint but also from the angle of prevalent social norms and values shall be included within the meaning of the term delinquency.
Causes of Juvenile Delinquency:
(i) The industrial development and economic growth in India has resulted into urbanization which in turn has given rise to new problems such as housing, slum dwelling, overcrowding etc. The high cost of living in urban areas makes it necessary even for women to take up outside jobs with the result their children are left neglected at home. Moreover, temptation for modern luxuries of life lures young people to resort to wrongful means to satisfy their wants.
(ii) Disintegration of family system and laxity in parental control over children.
(iii) Unprecedented increase in divorce cases and matrimonial disputes is yet another cause for disrupting family solidarity.
(iv) The rapidly changing patterns in modern living also make it difficult for children and adolescents to adjust themselves to new ways of life. They are confronted with the problem of culture conflict and are unable to differentiate between right and wrong.
(v) Biological factors such as, early physiological maturity or low intelligence, also account for delinquent behaviour among juveniles.
(vi) Migration of deserted and destitute boys to slumps brings them in contact with anti-social. Thus, they lend into the world of delinquency without knowing what they are doing is prohibited by law.
(vii) Poverty is yet another potential cause of juvenile delinquency. Failure of parents to provide necessities of life.
(viii) Besides the aforesaid causes, illiteracy, child labour, squalor, etc. are also some of the contributing factors.
The English criminal justice administrators have preferred to deal with it outside the framework of criminal law. Many reformists feel that delinquency among adolescents is a transient phase and will disappear as they grow older, hence they need to be tackled differently.
The impact of western civilization and temptation for luxuries and pompous life has greatly disturbed the modern Indian youth. India also seeks to tackle the problem of juvenile delinquency on basis of three fundamental assumptions:
(i) Young offenders should not be tried, they should rather be corrected;
(ii) They shold not be punished but be reformed; and
(iii) Exclusion of delinquents i.e. children in conflict with law from the ambit of court and stress on their non-penal treatment through community based social control agencies such a Juvenile Justice Board, Observation Homes, Special Homes, etc.
Any violation of existing penal law of the country committed by a child under eighteen years, shall be an act in conflict with law for the jurisdiction of Juvenile Justice Board.
Juvenile Justice Act, 2000, lays down a separate procedure for dealing with the neglected and uncontrollable juveniles who have been termed as “children in need of care and protection”. The former are to be dealt with the Juvenile Justice Board. The Act clearly indicate that unlike USA and England, the courts in India do not have jurisdiction in relation to child in conflict with law. There is no difference between the contents of delinquency and an offence. The only difference is that an offence committed by an adult person is triable in ordinary court whereas the juvenile who commits a delinquent act is proceeded against the Juvenile Justice Board through special procedure.
In the Act a juvenile who has committed an offence is not addressed as ‘juvenile delinquent’, instead he is called a ‘juvenile in conflict with law’. The object perhaps is to avoid stigma which the word ‘delinquent’ carries with it in the case of juvenile offenders.
The trial of a juvenile in conflict with law is held by the Juvenile Justice Board which has to consider the following issues in respect of the age of the juvenile before proceeding with the trial:
(i) whether the person before it i.e. Juvenile Justice Board, is within the prescribed age of 18 years or not; and
(ii) for the purpose of determining the age, the relevant date is the date on which the juvenile brought before the Board for inquiry and proceedings.
The Madhya Pradesh High court in its decision in Sunil & another V. State, clarified that the Court cannot leave the determination of age of juvenile entirely on the evidence of juvenile, but it is required to make an inquiry suo moto. In this case, the ADJ, had rejected the bail application of the accused on the basis of ossification test and medical report which showed that the appellant was not a juvenile. The High Court ruled that ossification test is not a conclusive proof in the matter and it is the primary duty of the court to find out whether applicants are covered by the Juvenile Justice Act or not and the juvenile may be able to lead any evidence as to his exact age. “The Court must do participatory justice and exercise suo moto powers rather than be a silent spectator.”
In the case of Krishna Bhagwan V. State of Bihar, the High Court observed that for determination of the age of the juvenile for the purpose of his trial under the Juvenile Act, the relevant date should be the date on which the offence was committed. Therefore, where the juvenile accused is within the age limit prescribed by the Act, he or she should be tried in a Juvenile Court despite the fact that he exceeded that age limit at the time when he was brought before the Court for trial.
In a case the Supreme Court ruled if there are two conflicting views about a particular issue, the one which is beneficial to the accused be accepted. According, accordingly the accused be treated as juvenile and be tried under the Juvenile Justice Act.
In Sanjay Suri V. Delhi Administration, the Supreme Court had to lady down a duty on the jail authorities that no young person was to be admitted to an adult jail unless the Court certified that the person was above the age prescribed for juvenile offenders. The Supreme Court issued the directive that in all warrants of detention the age of the detenu must be specified to ensure that no juvenile is sent to adult prison. Further, the jail authorities must not accept any warrant unless age is specified in it.
Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which provides that where the court is satisfied that at the beginning of inquiry, the accused was a juvenile, his trial under the Act would continue even if he or she crosses the prescribed maximum age of 18 years during trial proceedings. Thus the crucial date for determination of age of the accused to be tried under Juvenile Justice Act would be the date on which he was produced before the competent authority or Juvenile Justice Board for inquiry or trial.
In Raghbir V. State of Haryana, The Supreme Court held that the Haryana Children Act was to prevail over Section 27 of the Cr.P.C. and even a child accused of an offence punishable with death or life imprisonment could not be tried by ordinary criminal courts.
Section 12 of the Act provides that the juveniles should be released on bail as a general rule and should be sent to jail/ Observation Home only in special cases.
The Juvenile Justice Board may order the release of juveniles in conflict with law on probation of good conduct and place him under the care of his parents, guardians or any other person. Having regard to the circumstances of the case, the case, the Board may also direct the juvenile to enter into a bond, with or without sureties. But the period of such order of release on probation shall not exceed 3 years. Besides, the Board may order the placement of juvenile in a Special Home.
The Juvenile Justice Board is also empowered to order the placement of the juvenile found guilty of an offence to be placed under the supervision of the Probation Officer for a period not exceeding three years and the Probation Officer shall submit the periodical report about the juvenile and his progress in reformation.
The proceedings of the Juvenile Justice Board being of a confidential nature, their publication is strictly prohibited in the interest of the juvenile. No newspaper or magazine etc. shall publish the name, address, photograph or details or particulars of the juvenile or report of proceedings against him. Any contravention of this provision shall be punishable with fine which may extent to one thousand rupees. The Act does not permit joint trial of a juvenile with a person who is not a juvenile.
Section 22 of the Act contains special provision in respect of juveniles who have escaped from Observation Home, Special Home or from the custody of a person. The section expects a liberal and sympathetic approach towards such juveniles.
A child in need of care and protection as defined in Section 2(d) of the Act means a child who is found without any home or settled place of abode and without means of subsistence or who is neglected by his parent or guardian or does not have parent and no one is willing to take care of him etc. The Act empowers the State Government to constitute Child Welfare Committees for care and protection of children who are in need. Act further provides for establishment of Shelter Homes for destitute and shelterless children.
Four alternative measures for the rehabilitation and re-orientation of such juveniles and children are suggested in Section 40 of the Act which are as follows:
(1) Adoption of orphaned, abandoned, neglected or abused children through institutional or non-institutional means.
(2) Foster care is used for temporary placement of those infants who are ultimately to be sent to some institution or individual for adoption.
(3) Sponsorship programme may provide supplementary support to families, children, home, Special Homes etc, to meet the needs of the children.
(4) After-care Programme provides necessary supervision and guidance to juvenile and children after their release from Children’s Home.
If in the opinion of the competent authority, the presence of juvenile in conflict with law or child is not necessary in proceedings against him, it may be dispensed with. The personal attendance of accused in inquiry or trial is generally dispensed with keeping in view the nature and position of parties in the case.
The procedure followed in the proceeding against juvenile offender under the Juvenile Justice Act, 2000, differs from that of an ordinary criminal trial, and, therefore, it can be rightly termed as ‘special procedure’ in view of the following considerations:
(i) The proceedings cannot be initiated on a complaint from a citizen of the police.
(ii) The hearing is informal and strictly confidential.
(iii) The juvenile offender while under detention, is kept in separate Observation Home.
(iv) The young offender may be reprimanded on security or bond for good behaviour.
(v) The trial of juvenile in conflict with law is usually conducted by lady Magistrate specially deputed for the purpose.
(vi) The procedure followed in the trial of juvenile in conflict with law being informal, he has no right to engage the services of a lawyer in the case.
(vii) No appeal lies against the order of acquittal made by the Juvenile Justice Board in respect of a juvenile alleged to have committed an offence. An appeal shall, however, lie against the order of the Board to the Sessions Court within a period of 30 days whose decision shall be final and there is no provision for second appeal.
It must be stated that the treatment offered to juvenile offenders under the Indian law is prompted by humanitarian considerations but the fact remains that the very concept of juvenile delinquency goes against the spirit of the law relating to liberty, which provides that no one can be proceeded against unless he is charged for some specific offence.
The Juvenile Justice (Care and Protection of Children) Act, 2000 is a comprehensive legislation which contemplates the creation and institution of authorities for the care, protection and correction of juvenile delinquents but the manner of implementation of this welfare legislation is not yet effective in large parts of India.