CRIMINOLOGY AND PENOLOGY

Compiled by N.L.SAJIKUMAR, MA (Criminology & Police Science)

Assistant Professor, Government Law College, Trivandrum

Elements of crime

Any act or omission forbidden by law, for which punishment is prescribed, is a

crime. There are 5 elements for criminal liability:

1. A human being bound by law to act in a particular way.

2. An evil intention on the part of that human being. (mens rea)
3. An act committed or omitted (actus rea) in furtherance of evil intent.
4. An injury to another human being or to the society at large by that act or
omission.
5. Punishment

‘Actus non facit reum nisi mens sit rea’ is a well known maxim of criminal law
which means that the act itself does not make a man guilty unless he intents
so.Though mens rea is a basic ingredient of crime, the basic Indian Criminal
Law, IPC does not contain the term; instead, Macaulay used the terms
“knowingly”, “fraudulently”, “dishonestly”, “intentionally” etc.The requirement
of mens rea as an essential aspect of criminal liability has been clearly
underlined by the chapter on General Exceptions or Defenses (s.76-s.106) of
Indian Penal Code, 1860. E.g. Mistake of fact, necessity, infancy, insanity,
consent, trifles, compulsion, intoxication, private defense, etc:

Intention & Motive

According to Salmond the wrong doer has in view some ulterior object which
he desires to obtain by means of it. Every wrongful act may raise two distinct
questions with respect to the intent of the doer. The first of these is, how did he
do the act, intentionally or accidently? The second is if he did it intentionally
why did he do it? The first is an enquiry into his immediate intent; the second
is concerned with his ulterior intent or motive. Thus motive is an ulterior end
or aim which is at the root of the intention. Both are distinct things though they
are closely related. IPC uses the word intent for motive and intention both.

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Sometimes an act is accomplished with a pious motive but the act if it is
unlawful will not be excused. (Eg. stealing of bread for feeding the child)

CRIMINOLOGY

Definition, Nature & Scope

The term is derived from the Latin word ‘crimen’ which means ‘accusation’ and
Greek word ‘Logia’. The word criminology etymologically stands for scientific
study of the nature, extent, causes and control of criminal behavior in both the
individual and in society – (Dictionary of Criminology).

In the words of Colman & Norris, Criminology is the analysis of the nature of
crime and the modes by which the crimes can be controlled.In the words of
Sutherland Criminology is a science that deals with delinquency and crime as
social phenomena – the impact of crime upon the society and the influence of
the society over a person’s character.

The difference between criminology and penology has been spelt out by Donald
Traft as follows: Criminology is a scientific analysis and observation of crime
and criminals – whereas penology is concerned with the punishment and
treatment of offenders.

Criminology can be further split into two:

1. Theoretical or pure criminology

2. Applied or practical criminology

As observed by Prof.W.A.Bonger, theoretical criminology can be:

1. Criminal Anthropology - It seeks to understand the personality of the

offenders in physical term. E.g. Cesare Lombroso (Lombroso Test) – He
concluded that there is a relationship between the physical features of the
offenders and criminality and that criminals were different physically from
normal persons and possessed inferior physical characteristics. However
Prof.Goring proved to the contrary.

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 2. Criminal sociology: This theory is based on Sutherland’s theory of
Differential Association which explains criminal behavior as a process of
learning through association with other criminals.
3. Criminal psychology: It seeks to co-relate criminality to emotional
aspect of human nature. French psychologist Alfred Binet and Prof. Jerman
(U.S.A) are the advocates of this branch of criminology.
4. Criminal psycho-neuro pathology: The factors like inferiority complex,
frustration, depression, anxiety and other mental conflicts may lead to
criminality. – Dr. Glueck and Sigmund Freud were the advocates of this branch
of criminology.

Criminology is “a systematic study of the criminals” – the study of crimes, the

nature of crimes, the causes of crimes, and the detection and prevention of
crimes. In the words of Sutherland, the U. S Criminologists “criminology is the
body of knowledge regarding crime as a social phenomenon; which includes
within its ambit, law making and law breaking”

Differences between:

Criminology Criminal Law. E.g. IPC, Arms Act,

NDPS Act

1 It traces out the root causes of 1 It defines the offences and prescribes
crimes punishments for the same

2 It is a body of knowledge 2 It is a body of legal principles.

(Science)

3 It is linked with many social 3 It is linked with ‘penology’ (the study

sciences: Sociology, of punishments)
psychology, economics, etc.

4 A new branch of science 4 Criminal law has been in existence

since thousands of years

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 5 It has a sympathetic attitude to 5 It does not look into social, economic
criminals, and consider the and other backgrounds of the
social, economic and other criminal. It prescribes rigid
background of the criminals provisions for punishments

• Schools of Criminology

(The question is: what causes crime?)/ Causation of Crime

1. Demonological/ Pre-scientific school/Pre classical School

This is the ancient school of criminology.
The devil enters into a man and causes evil doings. In ancient India, Vedas
endorses the view and states that such man goes to hell (narakam) and others
goes to Heaven (Swargam).It was generally believed that a man commits crime
due to the influence of some external spirit called ‘demon’ or ‘devil’. Thus, an
offender commits a wrongful act not because of his ‘free will’ but due to the
influence of some super power. The principle of divine ‘intervention’ especially
through ordeals played a very important role in the ancient judicial system in
determining the guilt of the offender.

Criticism: Nobody has actually seen heaven or hell so far. Hence modern
scientists and criminologists regard this theory as ‘unscientific school’ or ‘pre-
scientific school.

2. Free will school / Classical school: ( propounded by Cesare Beccaria in

16th Century)
This school evolved in 16th & 17th Centuries. This theory states that ‘a crime is
committed by the free will of the doer. “For example, despite opportunities for
employment, rehabilitation etc; a prostitute does prostitution with her free will.
During the middle of 18th century, Beccaria, the pioneer of modern criminology
expounded his naturalistic theory of criminality by rejecting the omnipotence
of evil spirit. He laid great emphasis on mental phenomenon of the individual
and attributed crime to ‘Free will’ of the individual. He was much influenced by
the utilitarian philosophy of his time which placed reliance on hedonism,
namely the ‘pain and pleasure theory’.

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Arguments:
(1) Crime is a product of ‘free will’
(2) Greed or personal needs causes crimes.
(3) Crimes can be controlled by sanctions (punishments) that should be
proportionate to the crime committed. Jeremy Bentham, who belongs to this
school argued that the fear (pain) of punishment can deter persons from
committing crime, and that by applying the pain of punishment greater than the
pleasure of the criminal gains, society can control criminal behavior. To
Beccaria, crime is caused not by bad persons; but by bad laws; Hence
punishments must be imposed by law; punishments must be prompt, effective
and proportionate; compelled confessions and death sentence shall be
abolished. To Beccaria, ‘prevention is better than cure”.

Jeremy Bentham who propounded ‘utilitarianism’ or ‘hedonism’ argues that by

punishing the offenders who are lesser in number, law renders happiness to
the society who are maximum in number. Punishments shall be severe so that
the criminal shall repent by comparing the pleasure derived from the crime;
and that derived from the painful punishments. He was against death sentence.
He maintained that capital sentence increases the amount of cruelty in the
society; and hence some other severe punishments shall be imposed. Bentham
developed a new model of prison called Panapticon.

This classical theory influenced European countries. These countries amended

their criminal laws and abolished cruel and brutal punishments; and adopted
the “doctrine of proportionality” (punishment shall be proportionate to the
offence committed).

Criticism: The school concentrated only on the ‘act’ but not on the “actor”. The
school ignored important factors that cause crimes (economic statue, family
background etc)

3. Neo—Classical School
The neo-classists asserted that certain situations and categories of offenders
such as minors, idiots, insane or incompetent had to be treated leniently

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irrespective of the similarity of their criminal acts because these persons were
incapable of appreciating the difference between right and wrong.

4. Lombrosian School/ Italian School/ Positivist School

This theory concentrates on ‘biological factors’. In his work, The Criminal Man,
Lombroso stated that criminals are a lower form of life, nearer to their ape like
ancestors. Criminals can be distinguished from non-criminals by “physical
features”. He argued that criminals frequently have huge jaws and strong
canine teeth, similar to that of carnivorous who tear raw meat. Therefore
Lombroso is regarded as the “Founder of Criminal Anthropology”, and “Father
of Criminology”. His follower, Enrico Ferri, who was an MP of Italian
Parliament, lawyer and editor of newspaper, modified Lombroso’s theory and
observed that criminal behaviour is related to social factors. He did not blame
the criminals because they are forced to do crimes due to economic, social and
political pressure. Hence he came to be called “The Founder of Criminal
Sociology”.

Raffaek Garafolo, another follower of Lombroso, propounded that the roots of

criminal behaviour can be traced to psychological features of the criminals; and
not to physical features.

The main exponents of this school were three eminent Italian criminologists,
namely Cesare Lombroso, Raffacle Garofalo and Enrico Ferri. It was for this
reason that this school is also called the Italian School of Criminology.

The Positive School differs from the Classical School of criminology in the
following manner:-

CLASSICAL SCHOOL POSITIVE SCHOOL

1 This school defined crime in 1 It rejected legal definition of crime

legal terms and preferred sociological
definition.

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 2 It placed reliance on “Free-will” 2 It explained crime in terms of
as an explanation of crime biological determinants or
features.

3 It believed in deterrent and 3 It advocated treatment methods for

definite punishment for each criminals instead of punishments.
offence and equal punishment
for all criminals committing the
same offence.
4 It gave greater attention on 4 It laid greater emphasis on
crime namely the act rather personality of the offender rather
than the criminal. than his act.

5 The main exponents’ were 5 The main exponents were

Beccaria and Bentham. Lombroso, Ferri and Garofalo.

6 It was the product of the 18th 6 It was the product of the 19th
century. It attempted to reform century. It emphasized the
criminal justice system in order scientific method of study.
to protect criminals against
arbitrary discretion of judges.

5. Ecological school:

Ecology is a branch of biology that deals with plants and animals in relation to
their natural surroundings or environment. It explains the impact of
environmental changes on the growth and development of plants and animals.
Criminologists like Tarde, Core, Henry etc; supported this theory and
maintained that social environment affects the behaviour of individuals. Bad
social environment like high density of population, unemployment, illiteracy
etc: induce a person to commit crime. They found that if the economic disparity
is greater in the society, the crime rate will also be greater.

6. Geographical school or Cartographic school:

Montesque who propounded of this school argued that crime depends upon the
geography, climate and altitude of the place. To them, crimes against person

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take place in summer, and that against property take place in winter. Crime
rate is lower in the fertile areas. Excess temperature causes irritation and
induces them to commit crimes.

7. Typological school / Psychoanalytical Theory

This school maintains that there is relationship between an individual’s

physical and psychological behaviour and criminality. This school combined
‘anthropology’ and ‘psychology’ of the individuals, and studied their behaviour.
Sigmund Freud was the founder of Psychoanalysis. Sigmund Freud was the
founder of ‘psychoanalysis’. The physically handicapped person is ridiculed by
the society. He gets inferiority complex. This inferiority complex gradually
grows into hostility against the society. Similarly a mental deficiency also
creates criminality. In fact psychological feelings override the physical traits.
Both are the reasons for the man’s behavior and personality i.e. psychological
factors as well as physical factors mould a person’s character and personality.
Psycho analysts are those professionals who analyse the psychology and its
effects on human behavior. They divide human beings into 3 categories, namely
(viz)

1. Normal or Average
2. Abnormal
3. Superior
Normal or Average persons are those who behave in the society with reasons
and abide laws and customs. They are adaptable and have ordinary
competence in self Management.
Superior persons are those who possess definite superior intelligence,
personality, emotional, stability, leadership etc. Mahatma Gandhi, Nehru,
Tagore etc belong to this group.
Abnormal persons are those who have limited intelligence, emotional
instability deformed personality and character defects. They are not able to self
management. They can be classified as follows:
1. Psycho-neurotic: - Individuals who “go to pieces” easily when
confronted with a difficult situation. They burst out and it persists for several
weeks or months.
2. Psychoses: - are mental disorders; in the eyes of law. E.g. Schizophrenia
(Paranoid)

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 3. Mental deficiency: - They have retarded mental development. They are
having feeble mind.
4. Anti social personality: - They are hybrids of above said categories.
They are convicted law breakers and it includes psycho-pathetic
personalities, who break law, but don’t know that they are doing illegal acts.

8. The Socialistic School/ Economic Theory / Marxist Criminology /

Marxist School

The foundation of this school of criminology can be traced to the political and
economic philosophy of Karl Marx; especially in his writings ‘Das Capital’,
‘German Ideology’, and his colleague ‘Frederick –Engels’ and the contribution
of the Dutch Social Philosopher ‘William Bonger’

Marx believed that a social phenomenon including crime was governed by a

universal principle, namely the ‘Economic Principle’. The law is made by the
capitalist society which distorts it to suit themselves. The capitalist gives a false
picture and implement thereon will. The capitalist moulds the social habits to
suit their selfish pursuit of private gains by commercialization of alcohol.
Marxist criminology looks behind the power, to the political and economic
system for the ultimate explanation of criminality. This school believes that
crime is a byproduct of economic system and that is the result of poverty.
According to Marx, capitalism believes in ‘survival of the fittest’, the fit
cannibalize the less fit; over a period of time property and money gets
concentrated in fewer hands making the masses poorer and the capitalist
richer. The problem is further complicated by increased mechanization of
production. This leads to under employment and unemployment. Poverty,
unemployment and under employment also leads to crime.

Marx also suggested that when the masses become unproductive and
unemployed they become demoralized and are subject to all forms of crimes
including drinking, prostitution, gambling, theft etc.

Since private ownership of the means of production is the origin of social

inequality and criminality, private ownership must be abolished. Therefore, he
advocated for a class less society.

Similarly Bonger believes that, to reduce criminality the best solution is to

reduce the gap between the haves and the have-nots.

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Criticisms

1. This theory ignores crime causation due to heredity and inborn

criminality.
2. Sex offenders completely falsify this theory
3. Many crimes of violence have not economic basis. E.g.: (i) Pyromania or
the terrorizing of people on motorbikes by gangs who do it for thrill of it.
(ii) Klemptomania (stealing unintentionally) has no economic basis
(Stephy Graph’s water bottle case).
4. This theory exaggerated the economic influence on criminality. For
instance, ‘jealous’ has no root in economics.
5. Marx’s assumptions that primitive society was happy since there was no
private ownership – cannot be justified. As Hobbes described “in
primitive society life was brutish and short”.
6. Marx featured law as an instrument of domination and exploitation. This
is illogical. For instance: labour legislations are intended to prohibit
exploitation.

Karl Marx, Engels and Bonger were the chief exponents of this theory.
They argued that there is a relationship between economy and crimes.
Radical criminology is closely related to this theory.

9) Sociological School:

From 1915 onwards, American Sociologists studied crime causation on the

basis of social structure. This school came to be called ‘sociological school’. The
main advocates of this school were Sutherland, Taft, Carr, etc: Subsequently,
many sub-schools emerged: (the basis of these schools was “Society is the root
cause of crime”. Sociological school of criminology seeks to locate causation of
crime in social environment. Tarde held that crimes were the outcome of
human tendency to imitate others. They successfully established that other
factors such as mobility, culture, religion, economy, political ideologies density
of population employment situations etc have a direct bearing on the incidents
of crime in a given society.

The main sub-schools were:

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 (1) Strain theory: Emilie Durkheim propounded the ‘Anomie Theory’ as
follows: In a society without ‘norms’, chaos or confusion and
disintegration replace the social solidarity or social cohesion. Robert
Merton developed his strain theory on the basis of this idea of ‘Anomie’
(normlessness) and argued that in every given society, one can see two
or more classes; one class having highest privileges, properties and
respect; and struggling to retain its top position. The other classes try to
get such privileges etc; consequently different groups with different goals
emerge: one with a goal of restoring the existing privileges; and the
others with a goal of extending such privileges to them also. This causes
frustration and strain and this strain in the society is the root cause of
criminality (In India also, such a strain exist between higher castes and
lower castes).
(2) Cultural Deviance theories: There exist some cultural values that
permit behaviour in violation of the law. This theory argues that such
cultural value instigates crimes.

a) Social disorganization theory:

This theory states that the breakdown of social bonds, group associations
etc: result in crimes. Sutherland, Taft etc supported this view. To quote an
example, before industrialization, majority lived in villages and maintained
a ‘closely-knit’ life. In those days, people do not even care for locking their
houses; and the crime rate was very low.But, due to rapid industrialization,
urbanization increased; and this caused disorganization; which ultimately
resulted in criminal behaviour.

b). Differential association theory:

This theory says that when a person is associated with criminal
neighbourhood, he also becomes a criminal. Sutherland was the main
advocate of this theory. He states:

i. Criminal behaviour is ‘learned’

ii. Criminal behaviour is ‘learned’ by interaction with others in a process
of communication.
iii. Criminal behaviour is ‘learned’ from intimate personal groups.
iv. A person becomes criminal because of an excess of definitions
favourable to violation of law over definitions unfavourable to violation of
law.

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 Criticisms: (i)This theory does not tell how the first criminal became a
criminal; (ii)This theory states that like a disease, criminality also spreads by
association with the affected person. But prison officials, courts, who are
frequently associated with criminals may not become anti-social.

c). Cultural conflict theory/ Social control theory:

George Vold and Sellin were the chief exponents of this theory. According to
them, there are certain norms of conduct in every society; including
ethical/moral/economical/social rules. There are several groups in each
society; with different norms. Conflict occurs when the norms of two cultures
clash. A clash may also occur when the law of one cultural group is extended
over the territory of another one when member of one group migrate to
another culture. There are group conflicts between” Whites and Blacks in U.S’
Muslims and Hindus in India, Shias and Sunnis in Pakistan.

The theory further states that when social controls are weakened, the
individuals are not motivated to conform to social control mechanism.

9. CLINICAL SCHOOL OF CRIMINOLOGY

This theory regards criminality as a product of biological inheritance of a
person conditioned in his development by experiences of life to which he has
been exposed from infancy upto the time of the commission of crime. Thus,
clinical school takes into account variety of factors that causes crimes.

10. MULTIPLE FACTOR THEORY

The above said theories failed to give a satisfactory explanation for crime
causation. Each school concentrated on single factors – (physical / economical
/ mental / social etc) Hence, Cyril Burt propounded a new theory on the basis
of all existing theories, called multiple factor theory, through his book ‘The
Young Delinquent (1944). This theory argues that no single factor can be
regarded as the cause of crimes. There are several factors like individual causes,
circumstances, instigation from society etc. This is the most flexible theory. The
behaviour of a person is the resultant of all the forces impinging upon him plus
the personal character of the individual. The major factors / causes are:

1. Social causes ; e.g. broken family, child abuse, negligence of parents,

inequality, bad friends

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 2. Economic causes; e.g. poverty, unemployment, population explosion,
industrialization, urbanization.
3. Physical & mental causes; e.g. mental defects, insanity, heredity,
intoxication, physical deformity.
4. Geographical causes; e.g. climate, fertility of land.
5. Political causes; e.g. red tapism, corruption, selfish politicians.

Organized crime & its causes – (Two or more persons committing a crime
jointly)

IPC provisions are applicable: S.34 – Joint liability or constructive

liability; Criminal conspiracy – S.120 A

Dacoity, Riot, Unlawful assembly etc….

➔ Terrorism is another aspect

➔ There will be a hierarchy of criminals.
➔ Organized Crime

It is an act which is committed by two or more criminals as a joint venture in an

organized manner. It is an illegal act, which the members of an unlawful
association commit with their mutual cooperation and adventure.
The definition of Dr.Walter Reckless highlights the hierarchical nature of
organized crime - the crime is carried on by a boss, his lieutenant and operators.

➔ Characteristics:

1. Numerous persons – engages itself in continuous crime over a long usually

indefinite period of time
2. Generally it dominates the political class and the law enforcement
agencies.
E.g. highly sophisticated or complicated weapons, technology etc…
3. Centralization – the authority is vested in one or few among the group.
4. Like any modern business, there is careful planning, risk insurance etc.
5. To protect the members, they will have close association with doctors,
lawyers, policemen, Judges, politicians and government officials.

➔ Main categories:

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 1. Organized Gang Criminality.
Bank robbery, high jacking, murder, kidnapping, automobile and jewel
theft are some of the common examples.
2. Racketeering
Extorting money from legitimate or illegitimate business amounts to what
is known as racketeering. Those in illegal business like prostitution,
gambling and drug trafficking are especially vulnerable to racketeering.
3. Syndicate Crime
This is the most significant area of organized crime and consists of the
supply of illegal goods and services; smuggling, boot legging, gambling,
prostitution and foreign exchange violations are examples.
4. Smuggling
It is the direct result of import and export policy of the Govt. of a country.

Legal provisions against organized crimes

I. Provisions of IPC relating to joint liability, (S.34) Criminal

conspiracy, unlawful assembly, riot, dacoity etc.
II. Narcotic Drugs and Psychotropic Substances Act, 1986
(NDPS Act)
III. Foreign Trade (Development & Regulation) Act, 1992 etc.
(Export Import Law of India)
IV. Foreign Exchange Management Act (FEMA)
V. Conservation of Foreign Exchange and Prevention of
Smuggling Act (COFEPOSA)

Female criminality

➔ Lombroso observed female criminals to be more terrible than the male

criminals because her cruelty was much more ‘refined’ and ‘diabolic’
➔ In 19th Century Lombroso and Ferrero wrote a book called “The Female
Offender”, (1985). Their theories are based on atavism - a belief that all
individuals who displays antisocial behavior were biological throwbacks.
The born female criminal was considered to have criminal qualities of men
and the worst qualities of women.
Another criminologist, Otta Pollack explained the influence of hormonal
changes over menstruation, pregnancy and menopausal state.
➔ Psychological factors.
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 Fraud offers a physiological explanation of female criminality holding that,
normal woman accept and internalize social definitions of feminity. But
women criminals suffer from masculinity complex. Normal women exhibit
normal feminine traits. But criminal women exhibits perversions of or
rebellion against the biologically natural female role.

Normal women can be regarded as ‘adjusted ones’ who can perform

successfully the roles of mothers and wives; and the other woman can be
regarded as ‘un adjusted ones’. They are fit to be called criminals.

Sociological factors

The sociological factors can be discussed through the following various

theories:

1) Equality theory
2) Economic Theory
3) Opportunity Theory
4) Social Disorganization theory
5) Role Theory

The term criminality is defined as the process of acting in a manner that

contravenes the law of the State. Female criminality is a product of various
socio-economic cultural and environmental factors resulting out of rapid
industrialization, westernalisation & urbanization. Female criminality has
given a strong blow to Indian social & cultural heritage and affected the social
structure of the Indian society. Maharashtra is found to be the State having
more criminal offences committed by women between years of 2010 and 2012
(National Crimes Record Bureau Report – 2012-2013) – Next come Andhra
Pradesh, Madhya Pradesh, Tamil Nadu & Gujarat.
Most of the crimes committed by women are ones in the age group of 30-45
years.
Female Criminality: Theoretical perspective.
The early researchers attributed female criminality to biological or sociological
antecedents:
Biological factor: Ceasor Lombro’s contribution is considered as the beginning
of scientific study of female crime

Insanity

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M’Naghten’s Rule of Criminal Responsibility (U.K.) - In India, S.84, of IPC
deals with the defence of insanity.
In Nimanshah v. State of M.P, where the accused who had murdered two ladies
without any reason or notice, had some previous history of mental illness and
it was in evidence that, he was not behaving normally at the time of his arrest
and had suffered the attack of insanity during investigation; and the defense of
insanity u/s 84 of IPC was held applicable.

Supreme Court in Paras Ram V. State of Punjab, held that the ceremonial
beheading of a 4 year old boy by his father /relative to propitiate the blood
thirsty diety does not show or prove insanity of any kind.

In Mehram V. State, soon after the incident the accused was behaving normally
and was talking coherently and admitted having killed the deceased as he
thought her to be an evil spirit and there was no previous history of mental
illness. The plea of insanity was not available to the accused.

The U.S position – Durham’s rule:

Durham rule or ‘product test’ was adopted by US Court in the case of Durham
v. U.S, (1954) which held that an accused is not criminally responsible if his
unlawful act was the product of mental disease of defect.

The problem with ‘The Product Test’ was it gave psychiatric & psychological
experts too much influence in a decision of insanity. Hence Durham’s principle
was overturned in U.S V Drawner in 1972. After this, US jurisdictions do not
recognize this argument as it places emphasis on ‘mental disease or defect.

To conclude one can say that, various jurisdictions maintain a difference

between legal insanity and medical insanity while deciding of questions of
defense of insanity.

Euthanasia or Mercy Killing

The word ‘Euthanasia’ is derived from the Greek word ‘Eu and “Thanotos’
which literally mean ‘Good death’. It is otherwise described as mercy killing.
The death of a terminally ill patient is accelerated through active and passive
means in order to relieve such patient of pain or suffering. It is the act of
practice of ending the life of a person either by lethal injection or the suspension

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of medical treatment. It appears that the word was used in a medical context
in the 17th Century by
Francis Bacon to refer to an easy, painless and happy death for which it was the
physician’s duty and responsibility to alleviate the physical suffering of the
body of the patient.

In some countries there is a divisive public controversy over the moral, ethical
& legal issues of Euthanasia. The US Supreme Court ruled in 1997 in
Washington V. Gluckberg, that there is no federal, constitutional substantive
right to assisted suicide. In a 1997 companion case the US Supreme Court ruled
in Vacca v. Quill, that there is no federal, constitutional equal protection right to
assisted suicide. Therefore ‘Euthanasia’ has been declared totally illegal by the
US Supreme Court.
Classification of Euthanasia

1) Voluntary Euthanasia: - (conducted by the consent of the patient.)

2) Involuntary Euthanasia: (conducted against the will of the patient.) It is
legal in Switzerland.
3) Non-Voluntary Euthanasia: - (Where the consent of the patient is
unavailable e.g. in the case of a child. Child Euthanasia is illegal worldwide,
but decriminalized under certain specific circumstances in Netherlands.
4) Active Euthanasia (“Killing): (use of lethal substances or forces such as
administering lethal injections etc.)
5) Passive Euthanasia ‘(Letting die’): (Withholding of common treatment
such as anti biotic necessary for the continuance of life.)
6) Physician Assisted suicide: - (accomplished with the aid of a medical
doctor intentionally providing a person with an overdose of prescription
medication.

The arguments for Euthanasia

1) The compassion argument: Allowing people to die with dignity than forcing
them to continue their lives with suffering.
2) The autonomy argument: Every person has a right to choose when and how
to die.
3) Public policy argument: Euthanasia can be safely regulated by Government
legislation – let them die but any misuse in this regard must be checked by
the law.

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4) The Libertarian argument: Should be allowed when it is in the best interest
of all involved and does not violate anyone’s right.
5) Resource based argument: Where health resources are scarced –
(medicines, hospitals and other facilities) – not considering Euthanasia
might deprive society of these resources needed to help people with curable
illness.

Arguments against Euthanasia:

1) Alternative treatments are available such as palliative care – we do not have

to kill the patient, to kill the symptoms. All pains can be relieved.
2) There is no right to be killed and there are real dangers of slippery slopes –
by giving doctors the power to decide when a patient’s life is not worth
living, results in arbitrary termination of life.
3) Undermines medical excellence: - Doctors tend to be uninterested in
palliative care. It is easier for doctors to administer Euthanasia, than learn
techniques for caring the dying.
4) Personal autonomy important, but never absolute – a person’s decision to
end his life can have profound, often lifelong effects on the likes of others.
5) Voluntary Euthanasia sometimes become involuntary; the consent may not
be free. E.g.: there will be pressure on the elderly. Old people can be made
to feel themselves to be a burden for their families. Therefore ‘the right to
die’ will become a duty to die.

Euthanasia in India:

Passive Euthanasia is legal in India. On 07.03.2011 the Supreme Court of India

legalized passive Euthanasia by means of the withdrawal of life support to
patients in a permanent vegetative state. Aruna Shanbaughs’ case (2011) 4 SCC
454 was working as a nurse in K E M hospital, Mumbai.

On 27.11.1973 she was strangled by Sohanlal. This attack left her in a

permanent vegetative state for 37 years. On behalf of Aruna, a friend filed writ
petition in the Supreme Court arguing that the continued existence of Aruna is
in violation of her right to live in dignity. The Supreme Court rejected the plea
to discontinue Aruna’s life support but issued a set of broad guidelines
legalizing passive Euthanasia in India. The Supreme Court took such a stand
because; the hospital staff who treated and took care of Aruna did not support
euthanizing her.

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The guidelines made by the Supreme Court:

1) A decision has to be taken to discontinue life support either by the

parents or spouse or close relatives or next friend.
2) It can also be taken by doctors attending the patient subject to the
condition that it shall be taken bona fide in the best interest of the patient.
3) Such a decision requires final approval from the High Court concerned.
4) In such a case, the Chief Justice shall constitute a two Judges Bench to
decide the matter. Such a bench shall constitute a doctor’s committee
consisting of 3 reputed doctors, to report the condition of the patient.

5. Before giving the judgment notice to be given to the close relatives.

Recently, in February 2014, another PIL was filed by Common cause. The
Supreme Court referred to a 5 Judge Constitution Bench this petition seeking to
declare dying with dignity a fundamental right for terminally ill patient. The
Supreme Court discussed various aspects of ‘living will’ ‘Living will’ means an
advance directive given by a patient himself giving explicit instructions about
medical treatment to be administered when the patient is terminally ill or
permanently unconscious.

White Collar Crimes:

White collar crimes means a crime committed by persons of respectability and

high social status in course of their occupation (Sutherland)
E.g.: Misrepresentation through fraudulent advertisement, infringement of
patent etc.

Usually such criminals are highly influential and they are able to prevent the
enforcement of law. Such crimes are more harmful to society than ordinary
crimes (blue collar) crimes committed by ordinary persons of lower
occupational strata.

Presently India is under the grip of white collar criminality. The reason for
white collar crimes in recent decades is to be found in fast developing economy
and industrial growth of the developing country. The Santhanam Committee
Report in its findings gave a vivid picture of white collar crimes committed by
persons of respectability such as business men, industrialists; contractors etc;
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 The most common forms of white collar crime in India include:
1) Hoarding
2) Black marketing
3) Adulteration
4) Violation of foreign exchange law, import and export law etc. frequently
resorted to for huge profits. E.g. violation of:
i) Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act.
ii)Foreign Trade Development & Regulations Act, 1992
iii) FEMA Foreign Exchange Management Act.
iv) Customs Act
v) RBI Regulations

5) Tax evasion is another glaring example for white collar crime – this pave
the way for another economic issue – black money
➔ Instances of white collar crimes in medical profession:
1) Issuance of false medical certificates
2) Helping illegal abortion
3) Secret service to dacoits like Veerappan
4) Illegal sale of drugs.
➔ Instances in Engineering Profession:
a) Illegal dealings with contractors
b) Construction with substandard materials.
➔ Instances in legal profession:
a) Unethical practices by public prosecutors
➔ Instances in private educational institutions
a) Securing large sums by way of Govt. grants by submitting fictitious and
fake details about their institutions.
➔ Remedial measures:
1) Generation of awareness among public through print and other media
2) Special tribunals to deal with white collar crimes.
3) Amendment of IPC and insertion of a new chapter on white collar crimes
including socio economic offences.
4) Stringent punishments – as observed by Supreme Court to M.H Hoskot V.
Maharashtra ‘Soft sentencing justice is gross injustice’ where many
innocents are the potential victims.
5) Constitution of a ‘National Crime Commission’.

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Religion and Crime

Religion is one of the fundamental social structures which is not only capable
of influencing each other but also create the required space for criminality.
Religious philosophy and violence are theoretically opposite to each other. No
religion preaches violence. Religion always preaches love, compassion and
mutual respect. However, whenever religion is used not as an ‘eternal idea’ but
as an ‘ideology’ or ‘super structure’ then violence is inevitable – i.e., the changes
in religious ideologies have a direct bearing on the incidents of crime in a
particular region.

Religion is one of the basic factors of social change, social control and social
solidarity. Religion injects /infuses moral principles into human conscience.
Law and morality are having different canvas. Both have the same centre” but
different circumference e.g.: not to kill, not to steal etc covered both under the
law and morality; but saving of a drowning child falls within the domain of
morality alone.

Auguste Comte, the ‘father of sociology’ argued that beyond language and
division of labor, religion is needed for social order.

Religion as a cause of crime

In India, even religious places have become well known centers/ notorious
centers for vices. Cheating, stealing, sexual exploitation and kidnapping are too
common in these places.

Today, most wars are fought in the name of religion. For instance, those
between Iran and Iraq for over 8 years, the wars in Lebanon and continuing
fight between Catholics and Protestants in Northern Ireland and even the
terrorism in India. e.g.: as in the case of Parliament attack case.

Hirschi and Stark argued that religion deters criminal behaviors by increasing
the cost of delinquency through the promise of punishment in the afterlife
(‘Hellfire’ theory) conducted by the consent of the patient.

As per this approach religion positively helps in reducing crimes. But other
approaches stresses that religion instigates crime.

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Religion provides fertile ground for criminality in the form of radicalism or
fundamentalism by providing greater conservative ideologies. Here religion
tries to regulate the identity of a man by way of his or her religious faiths and
belief. This further nurtures radicalism and fundamentalist way of thinking.

India provides a good example of religious influence and related criminality in

the form of honor killing (e.g.: In the case of inter caste marriages, to protect
the honor of a family, killing the couples) religious violence etc.

The notable instances of religious motivated crimes include, the Babari Masjid
Demolition (Islam v Hinduism) ‘Jihadi activities’ of terrorists groups like Al-
Qaeda, Taliban etc – Parliament Attack case – (Afsal Guru’s case)

At the International level, a grave crime based on religion is genocide – killing

of a race, caste or religion e.g.; Hilter – Jews Saddam Hussain – Krurds;
Yugoslavian Tribe by Slobodhen Miloschevic.

Genocide is regarded a a crime against humanity or mankind and hence an

International crime for which International Law recognizes universal
jurisdiction – any State can exercise jurisdiction over such crime irrespective of
the occurrence, the nationality of the individuals etc. In addition terrorism,
hijacking, piracy etc are also international crimes.

Crime & Politics

Free and fair election is the ‘heart’ and ‘soul’ of every parliamentary system.
The primary function of legislative bodies is to frame laws according to the
constitution. Politicians are not immuned from public criticism. In R.Rajagopal
v. Tamil Nadu (Auto Shaker Case), the prisoner through his autobiography tried
to expose his relationship with politicians and IAS officials who were his
‘partners-in-crimes’. The government prevented the publication. In the write
petition against this action, the Supreme court observed that the restriction on
the prisoner violates Art 21 and if any damage caused, the affected politician
may seek remedy under the ‘ Defamation Law’ Quoting the U.S Supreme Court
decision in New York Times v. Sulluvian, the Indian Supreme Court held that,
public officials often play an influential role in ordering the society and have
access to mass media communication both to influence the public and to
counter criticism of their views and activities.

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Organized crimes take advantage of the loopholes in our Judicial System. The
inability of the system to deal with extortion, drugs trafficking (selling)
gambling, illegal child labor are having a deep rooted nexus between the
criminals and politicians.

Corruption has percolated to every organs of Govt. It destroyed the nation’s

wealth, prosperity and development. Bank scam, Boffer’s scam, Urea scam,
sugar scam are a few. Political leaders like Jayalalitha, Laluprasad Yadav are
involved in many scandals thereby nicely cutting the country’s throat. In Vineet
Narayanan v. Union of India, Vineet Narayanan, an anti-corruption activist who
lead to the exposure of Jain-Hawala’s scandal through a PIL, applied pressure
on CBI for investigation. The CBI was widely criticized when its prosecution
collapsed. The S.C while deciding Vineet Narayan’s case made directions that
included supervision of the CBI by the CVC.

Political crime:
A political crime or political offence involves act or omission, which prejudices
the interest of the State, its government or the political system. Crimes like
treason, sedition and terrorism are political because they represent a direct
challenge to the Govt. in power.
In India, IPC provides a separate chapter on offences against State ( S.121 to
130) including waging of war against Govt, assaulting President, Governor etc,
sedition, promoting enmity so as to disturb national integrity etc.

Under International Law, under the law relating to extradition, ‘political crime’
is regarded as a non-extraditable offence. Marxist criminologists are of the view
that, most political crimes arises from the efforts of the State to reproduce the
structures of inequality, racism, ethnic preferences and class advantage.

Role of Parents and Teachers in minimizing criminality in children

Moral values are imported to the children by the parents. Children spend most
of their time with their parents within the family. Children are apt to imbibe
criminal tendencies, if they find their parents or members of the family
behaving in a similar manner. The institution of family is expected to cater to
the basic needs of the children. Therefore the child should feel that he enjoys
certain privilege and protection in his family and that he is loved and liked by
the parents and members of the family. This feeling of security warmth and
reliance makes children to learn the virtues of love.

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Giving education is a positive step towards character building. The Indian
Constitution recognises this aspect and hence Art 51A (k) casts a fundamental
duty upon the parent or guardian to send children to schools and to facilitate
them the enjoyment of the fundamental right under Art 21A.

In addition S.317 IPC prescribes punishment for the abandonment of children

below 12 years. The Juvenile Justice (Care & Protection of Children) Act, 2000
also contain provisions in this regard. The logic behind these provisions is that
if the children are abandoned, they will be associated with anti-social elements
easily. For the same reason such abandoned and vulnerable children are
covered under the term ‘child in need of care and protection’ under the Juvenile
Justice Act, 2000, which also provides for the rehabilitation of such children –
as a statutory duty of the State.

Role of Teachers:
The role of a teacher is that of a counselor. He can help the children who face
some problems in their day to day life. Teachers can better understand the
problems of students and can guide them in the right way.

Narco-Terrorism
The term ‘Narco-terrorism’ is coined by the former President of Peru, Fernando
Belcundo Terry
In 1983 when describing terrorist type attack against his nation’s Anti- Narcotic
Police. In the original context, narco-terrorism is understood to mean the
attempts of narcotic traffickers or mafia to influence the policies of a
Government or a society through violence and intermediation and to hinder the
enforcement of anti drugs laws by he systematic threat or use of such violence.
E.g.: Taliban forces in Afghanistan.

Al-Quaida is often said to influence its activities through ‘Drug trafficking’. The
9/11 Commission Report notes that ‘while the drug trade was a source of
income for the Taliban, it did not serve the same purpose for Al-Quaida, and
there is no reliable evidence that Bin Laden was involved in or made his money
through drug trafficking.

‘International initiatives to curb drug trafficking’

With the rapid expansion of trade and commerce beyond national boundaries,
the problem of ‘drug-addiction’ and trafficking has become a global
phenomenon that necessitated International Co-operation. The first
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International initiative was in 1909 – ‘13 Nation International Conference in
China’. Thereafter the International Opium Convention called – the ‘Hague
Convention on Narcotics’ was held in 1912 which was the first Drug traffic
control treaty at the International level.

In 1961 another Convention was attempted to simplify and consolidate

international drug control machinery. Further improvements were made in the
protocol of 1972. It insists on prior authorization for the cultivation,
production, manufacture, conversion and compounding of, preparation, trade,
distribution and import and export of drugs. Despite many conventions, the
International Narcotics Control Board in its Annual Report released on 20 th
February 2001 observed that ‘Internet’ is fast becoming a growing service of
online trafficking since it provides an easy access to control substances
including narcotic drugs and psychotropic substances like Barbiturates and
other stimulants.

Indian Law
India, having proximity with world’s largest producers of narcotic drugs, is
most vulnerable to drug trafficking. The legal measures include the Narcotics
Drugs and Psychotropic Substances Act, 1986 and the Prevention of Money
Laundering Act, 2003.
PENOLOGY?
The study of punishments and management of prisons. It deals with the
principles and methods of punishments.

DIFFERENCES BETWEEN CRIMINOLOGY AND PENOLOGY

CRIMINOLOGY PENOLOGY

1 An independent science 1 A branch of criminology

2 Deals with crimes: their nature, 2 Deals with punishments: and

causes, detection and prevention. the suitability of punishments

3 Thrust on society in general; and 3 Thrust on convicts and

criminals in particular punishments

4 Product of 20th Century 4 Traditional subject

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 5 Wider objectives 5 Narrow objectives

6 Formulates the correctional methods 6 It applies the correctional

methods in practice

7 It is a theoretical science 7 It is a practical science

8 It studies crime in relation to other 8 It concentrates only on

branches or disciplines like criminal law.
psychology, sociology, geography,
economics etc.
9 It mainly answers: what causes 9 It mainly answers: Why
crimes? punishment is given? & what
type of punishment must be
given?

➔ Theories of
punishments.

The question is: why punishment is given?

There are different answers in the form of different conflicting theories:
1. Retributive theory: - The aim of punishment is retribution – ‘eye for eye,
tooth for tooth’ - the barbaric theory.
2. Deterrent Theory: - The aim of punishment is to deter the offender as well
as others. E.g. in Saudi & other Muslim countries.
3. Preventive Theory: - The aim of punishment is to prevent the commission
of crimes – ‘prevention is better than cure’. E.g. To prevent rape cases,
castration
4. Expiatory theory – According to this theory expiation or repentance by
offenders itself is a punishment. If the offender expiates or repents, he
must be forgiven. This type of punishment was prevalent in ancient
Indian Criminal Law; whereby expatiations were performed by way of
utterance of mantras (e.g. Valmiki), fasting, or even burning oneself.
5. Reformative / Rehabilitation theory – ‘No one is born as a criminal,
circumstances makes man a criminal’. Crime is a disease. Kill the crime
not the criminal. Justice V.R.Krishna Iyer & Justice P.N.Bhagawati infused
this theory into Indian Criminal Jurisprudence by declaring ‘death

26 | P a g e
 sentence only in the rarest of rare cases’ (Bachansingh v. State of Punjab
– once life is lost, statuesque is impossible because resurrection is beyond
the power of man.
6. Victim compensation theory- the victim gas to be compensated and
rehabilitated; in addition to the punishment of the offender.

What is needed in the present Indian Context is a unique blend of

deterrent theory, reformatory theory and victim compensation theory.

Probation of offenders
‘If every saint has a past, every wrong doer has a future also’ Hence Gandhi
advocates ‘hate the sin, not the sinner’. ‘Probation’ is an essential aspect of
Reformative Theory of punishment. The term ‘probation’ is derived from the
Latin word ‘probare’ which means ‘to test’. The term ‘probation’ was used for
the first time by John Augustine in 1941. He started the practice of keeping
criminals in friendly protection. The main object of probation is to give the
prisoner a chance of improvement by suspending his sentence for sometimes.
It is done on the basis of his good conduct. The benefit is not given to a
dangerous criminal. It is meant only for those who commit offence under
sudden provocation or due to the weakness of his character.

In India the concept of ‘probation’ is legally recognised under the ‘Probation’

of Offenders Act, 1958. The Act provide for the release of offenders of certain
categories on probation or after due admonition. It also aims to prevent the
conversion of youthful offenders into recidivists; as a result of their company
with hardened criminals of mature age if they are put in prison. This Act is a
statutory recognition of ‘Gandhian thought’.

It gives immunity to offender under 21 years of age from imprisonment unless

the court is convinced with the special reason to send such offender to
imprisonment. The purpose of probation has always been to integrate
offenders under supervision into law abiding society.

The wrong doer is not sent in general imprisonment but released in the open
society and is allowed to live with his family (‘socialization of criminals’).
However, he remains under the supervision of a ‘probation officer’

Essentials for the Grant of probation

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 1. A person should not be guilty of an offence punishable with death or life
imprisonment.
2. The Court consider the following:
1) Circumstances of the case
2) Nature of the offence
3) Character of offender
The period of probation should not be more than 3 years and less than one year.

Importance of probation in reformation of offenders

1. Whenever an offender is kept under probation he is saved from the
society of dangerous criminals in jail.
2. The released offender gets normal social life and relationship and
employment during probation.
3. Probation helps in reducing unnecessary crowds in jail.
4. The probationers are given various professional training during the
period of probation.
5. The feelings of self confidence are created in offenders through various
psychological methods. It helps in making their character sound.

Consequence for failing to observe the conditions.

The person is released on probation subject to certain conditions. If he fails to
observe such conditions, the Court may issue a warrant to the probationer or
his sureties requiring to attend before the Court. It may sentence him for the
original offence and impose him a penalty not exceeding, 50 Rupees.

Demerits of Probation
1. The relative success of probation programmes depends upon the person
who render services,.
2. The Judge has no time to spare and concentrate into individual cases.. He
mechanically depends upon the report of the probation officer.
3. Probation officers are Govt. employees who may not have adequate time
to concentrate on the matters.

Therefore Edward J.Latessa, Gennaro etc suggested to give Shock Probation and
Split Sentence to the probationers for some time. The time may be shorter. He
must be send to the prison for shock treatment. By sending into prison for
shorter period or split sentence, he can experience the prison and prisoners;
and the value of freedom.

28 | P a g e
Differences between Parole and Probation

Parole Probation
1. Govt appoints a ‘Board which • Entirely by the Court
contains political leaders, Judges
etc that grants release on parole.
2 The Parole Board retains • The Court has jurisdiction
jurisdiction

3 The parole officers are the • Probation Officers are the

employees of officers of the Court
the State Govt.
4 Parole is granted irrespective of • Probation is intended for first
age limit offenders and youthful
offenders below 21 years.
5 The accused is in prison: then • Here the convicted is send to
released to the society without seeing the
the society prison
6 Parole is a ‘tail-end’ measure (last • Probation is ‘front-end’
measure) measure.
7 The convict gets eligibility for • The aspect is left within the
parole decision of the probation
depending upon the report of the officers.
prison
officer.

Juvenile Delinquency:

The Children’s Act 1960 defines the term ‘delinquent child’ as a child who has
been found to have committed an offence. The Juvenile Justice Act, 2015
contains another phrase ‘Juvenile in conflict with law’ Juvenile means a child
below 18 years of age.

Causes of Juvenile Delinquency

1. Poor family background
2. Economic factors e.g.: theft committed by children due to poverty

29 | P a g e
 3. Lack of education – The Constitution under Art.21A guarantees
fundamental right to education for children below 14 years. As a follow
up action Parliament enacted the Right to Education Act.
4. Psychological factors.

• The Indian Penal Code regards child below seven years as doli incapex –
unable to form mensrea and hence totally absolved from criminal liability.
• Child above 7 years and below 12 years is regarded as ‘children of
immature understanding.

How to prevent juvenile delinquency?

1. Provide education (Art 51Ak) – parent’s or guardian’s fundamental duty
to send children to school.
2. ‘Street children’ and other abandoned children to be sent to the ‘special
homes’ for rehabilitation (Juvenile Justice Act 2015 provides for the same
for child in need of care and protection)
3. Healthy entertainment like good cinema, books etc. (Cinematograph Act
restricts obscene film, Young Persons (Harmful Publications) Act
prohibits the publication, circulation etc of harmful publications)
4. Teachers must take initiatives to correct them.
5. Strengthen the Child Rights Commission –Seminars, workshops etc to be
conducted.
6. Stringent punishments must be imposed for persons who lure children
into antisocial activities (IPC contains provisions against abandonment
of children below 12 years, kidnapping for prostitution, begging etc.
Juvenile Justice Act also contains stringent punishments)

Juvenile Justice Act, 2015

Aims:
1. To deal with two categories of Juvenile:
i) Juvenile in conflict with law
ii) Child in need of care & protection
2. To rehabilitate such children
3. To provide special provisions for juvenile offenders.
E.g.:
i) Arrest only by a special police unit only
ii) Production not before the magistrate; but before the Juvenile
Justice Board

30 | P a g e
 iii)
No death sentence
iv)
Name, photos, address etc not to be published to any media
v)Bail even in non-bailable offences
vi)
Custody not in jails but in Juvenile homes, special homes or in
observation homes.
vii) If cruelty while in custody, the concerned police officer can be
removed from service (Juvenile Justice Rules)
4. To prescribe punishments for certain acts against juveniles.
e.g.:
i) Cruelty – (physical, mental, sexual)
ii) Begging
iii) Child Labour
iv) Supplying narcotic drugs

Prisoner’s Rights, Prison reforms & Indian Judiciary

The fundamental rights of an under trial prisoner under Art 21 of the Indian
Constitution is not absolute. Such a fundamental is circumscribed by the prison
manual and other relevant statutes like the prisons Act, CrPC etc. imposing
reasonable restrictions on such rights. The Judges of the Supreme Court who
proved to be strong supporters of the Reformative Theory of punishment,
contributed a lot for prison reforms by bringing within the umbrella of Art 21,
a spate of inalienable rights. For instance:
1. Right of the detained person to send his book, written during detention,
for publication (State of Maharashtra V Prabhakar Pandurang)
2. Solitary confinement only as a last resort (Sunil Batra v. Delhi
Administration)
3. Right to mingle with fellow beings (Charles Sobhraj v. Delhi
Administration).
4. Right against bar fetters and unnecessary hand cuffing (Prem Sankar
v.Delhi Administration)
5. Inmates, especially women to have right to health and other necessaries
(Sheela Barsi v.UOI)
6. Right to speedy trial (Hussainara Khatoor) v. Home Secretary, Bihar)
7. Free legal aid (M.H Hoskot v. State of Maharashtra)
8. Right to compensation for the violation of Art 21 (Rudalshah v. State of
Bihar – Due to the negligence of the prison authorities, a person had to
remain in prison for many years even after the date of his release – the S
C directed the Govt to pay Rs 30,000/- as compensation)

31 | P a g e
 9. Right against cruel & unusual punishment (Jagmohan Singh v. State of U
P)
10. Right to bail (Babusingh v. State)
11. Right to know (R.P.Ltd v. Proprietors, Indian Express Newspapers)

As a follow-up action, the Parliament enacted many laws in this regard. For
instance:
‘Legal Services Authorities Act, 1987 which provides for free legal aid; and
speedy settlements through Lok Adalats. The 2005 Amendment to CrPc added
a new chapter – Chapter XXI A, to provide for ‘plea bargaining’.

The basic idea behind prison reforms is that ‘the criminal should be viewed not
as a bad man but as a sick man in need of treatment’. Therefore, the steps in
reformative process include:
1. Diagnosis of the problem
2. Classification of the offenders
3. Treatment & personal training involving moral and cultural education.

The Prison Manual and Statutes provide for the following:

1. Prison clinics – to protect health
2. Prison diet
3. A system of rewards & punishments.
4. Prison labour and wages for such labour
5. Prisoner’s sexual life so as to prevent homosexuality
6. Visits of relatives and family members
7. Societies for helping released prisoners.
8. Proper maintenance of prison building & environment without
overcrowding.

The Government has also implemented open jail system in India.

Recidivism:

Recidivism may be defined as the habit of relapsing into crimes by the

criminals; and recidivist is a person who relapses into crime again & again; or
hardened and habitual criminal.
John W.Mamering points out ‘recidivist’ or ‘crime repeaters’ are often
characterized as being basically anti-social, aggressive, and highly competitive,
indifferent to well being of others and exceedingly ego centric. Experience has

32 | P a g e
shown that certain criminals are ‘better risks’ for rehabilitative processes while
others may not respond favorably to correctional measures & treatment.
As rightly pointed out by Kathleen Smith, the most severe penalties which are
awarded by the courts are so inadequate and so ineffective that they leave a
major crime so glaringly profitable.

G.B.Vold classifies such criminals into the following categories:

1. Psychologically disturbed criminals who commit crime because of their
mental depravity or emotional instability.
2. Criminals who are relatively unskilled, less educated and
proportionately low level of ability. E.g. Persons suffering from
inferiority complex.
3. Persons who are psychologically normal & possess proper education but
their identification with violations make them criminals. E.g. Innocent
persons getting convicted and turning against the society.
4. Hardened criminals who are professional in crimes and have embraced
criminality as a regular way of life. E.g. Terrorists.

Sir Robert Mark pointed out, they are aware of the limitations of the police and
the system of criminal justice. In India, professional criminals get the protection
of politicians and get the advantage of slow moving criminal justice system.

Recidivism means the habit of relapsing into crime inspite of having

administered correctional treatment. Recidivism reflects the facts that the
correctional therapy has not brought about reformation in the mind of the
criminals. The criminal by reason of his crime and the methods of dealing with
his crime, forms associations, loyalties and attitudes which tend to persist. The
offender who manifest a desire to reform is called ‘yellow’, ‘rat’, ‘square’, or
‘stool pigeon’ by his associates. He may then be isolated and thrown out from
delinquent groups, but he is not on that account accepted by the law abiding
society. Violence and threats of violence may be used to keep him a criminal.

Some of the reasons identified for recidivism are:

1. Hereditary weakness in family line

2. Increasing tempo of criminality.
3. Bad conditions in the parental homes.
4. Failure to complete education once begun.
5. Irregular work.

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 6. Alcoholism.
7. Bad social & family relations during the period of release.

Reformative methods:

1. Changing the mind set up of the society towards a convict.

2. Individualized treatment including psychiatric treatment.

THE PENNSYLVANIA JAIL SYSTEM & THE AUBURN JAIL SYSTEM

There were different attempts on prison system for correcting the criminals.
The main experiments were “The Pennsylvania System” and “Auburn Jail
System.” The former stressed on solitary confinement, and the latter stressed
liberal reformation.

THE PENNSYLVANIA JAIL SYSTEM:

This system was established by the Quakers in the 18th-19th century in

Philadelphia’s Walnut Street Jail. In this system, the prisoners were divided into
two classes: hardened criminals ones who did more serious crimes and others
committed less serious offences. The hardened criminals were detained in
solitary confinement for several months. Others were provided good
accommodation, and were allowed to do works, such as carpentry, husbandary,
etc. These prisoners were also allowed to enjoy their income. All these facilities
were denied to the former class. The French observers who were appointed to
analyse the results found that hardened criminals under solitary confinement
repented for their criminal acts, and there was no chance of recidivism in them.

CRITICISM:
Modern penologists, criminologists and sociologists criticizes the Pennsylvania
System opining that it would create adverse affects on prisoners and also on
the society. Strictly speaking, solitary confinement cannot be called as
reformative measure; moreover it can be named as strict punishment. The
Indian Supreme Court also held that solitary conferment violates Art.21.

AUBURN SYSTEM: This is another experiment. In this system, the prisoners in

Auburn were allowed to work and move freely in day time. Friends or relatives
were allowed to visit the prisoners, only on exceptional circumstances. They
were confined separately. Each one was separated from other prisoners, and

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was not allowed to talk or see in the nights. Strict discipline was maintained in
the nights in the prison.

CRITICISM: The modern penologist, criminologists, sociologist, psycho-

analysts criticized this system also. Since, reformative theory is gaining
importance, these systems become outdated. Today, in India, there is ‘open jail’
system too.

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