Crime and Punishments Malkeet Singh Balianwali, Advocate, Punjab & Haryana High Court, Chandigarh #396 (FF), Phase-XI, Sector-65, Mohali (Pb.—India) – 160062 Mail: lawyercontact@gmail.com Introduction: In complex societies and modern states, where exists a multiplicity of groups and conflicting normative standards, each member of the society is, at some time liable to be considered deviant by one standard or the other. Our society and state encourages all its members to aspire for success and peaceful coexistence. But the stark reality is that our approved ways of reaching goals enable only a few to succeed. The moral mandate to achieve goals thus exerts pressure to succeed, by fair means if possible and by foul means if necessary. Thus crime and deviance becomes widespread. In such a scenario, a need for an effective Criminal law arises. Criminal law is one of the most important methods adopted by the States, to regulate the behaviour of the individuals, who are not law abiding or are chronic recidivists i.e. who constantly break law, without bothering for its consequences. Crimes are usually defined by legislature specific acts performed with certain states of mind, usually termed as ―mens rea‖ that must account for a punishment under law. F.H. Giddings opined that ―on the whole he (individual) likes best, those fellowmen whose ways are his ways, whose foibles are his foibles, whose vices are his vices, whose virtues are his virtues, whose tastes are his tastes, and whose beliefs are his beliefs. His consorting becomes a preferential association, and this is the beginning of society in distinction from the herd‖1. Meaning thereby, any society is composed of the individuals associated with each other on account of their similarity not only in their ways of living and goodness but their weaknesses should also be conforming to their standards of living. In the later part of the book Giddings says, ―The material of society is a plural number of concrete human beings so constituted that they think alike on matters of fundamental importance, behave alike in critical situations and, intellectually knowing that they so do behave, consciously count on one another to keep on so thinking and so behaving. Or, more briefly put, the material of society is a plural number of likeminded persons…..Scientific knowledge of this matter is presumably attainable; but at present we know only that the balance of likemindedness over unlike-mindedness must be large for society to exist at all and that for orderly development a continually appearing unlikeness of behavior, of expressed -2purpose, feeling and thought, must be reconcilable with a great mass of established agreement, and in fact, be harmonized with it, and utilized‖2. Crime and Criminal Law: Criminal Law is one of the important methods to make behaviour of unlike individual to reconcile with the rest of members of the society. Therefore, Criminal Law can be termed as corrective measure to bring harmony in the society and also uniformity of actions and behaviour by admonition and or by punishment, wherever necessary. Punishment for a crime has been in place since the society evolved. However, with changing times, punishments also followed the changing trend and perception of the law givers. Before venturing to discuss about punishment it is necessary to analyse the sociology and psychology of the crime and criminals, as deviance and crime are closely related. A wide range of works by eminent sociologists, publicists and psychologists, res judicata is available on nature, causes and repercussions of crime and reasons for some individuals, becoming criminals/offenders. Emile Durkheim in his book ―Rules of Sociological Method‖ says that ―to make crime a social illness would be to concede that sickness is not something accidental, but on the contrary derives in certain cases from the fundamental constitution of the living creature. This would be to erase any distinction between the physiological and the pathological. It can certainly happen that crime itself has normal forms; this is what happens, for instance, when it reaches an excessively high level. There is no doubt that this excessiveness is pathological in nature. What is normal is simply that criminality exists, provided that for each social type it does not reach or go beyond a certain level which it is perhaps not impossible to fix in conformity with the previous rules.‖3 Durkheim is of the opinion that crime is necessary. It is linked to the basic conditions of social life, but on this very account is useful, for the conditions to which it is bound are themselves indispensable to the normal evolution of morality and law. Emile Durkheim in "The Roles of Sociological Method" develops an argument regarding the functions of deviance. As deviance can be regarded as the pre-stage of crime, so discussing its functional perspective holds relevance. Durkheim argues that crime is an inevitable and normal aspect of social life, it is an integral part of all healthy societies. This is because not every member of society is equally can be equally committed to to the "collective sentiment", the shared values and beliefs of society. Therefore not everybody shares the same restraint about breaking the law. Durkheim opines that crime becomes dysfunctional only when its rate is unusually high. Ramsay Clark says that ―Poverty is the mother of crime‖4. Nigal Walker, in his study of Crime and Punishment in Britain, establishes correlation between economic indices of scarcity and rising tide of criminality. Sir Thomas More in his book ―Utopia‖ is also of the opinion that ―no punishment how severe so ever being able to restrain those from robbing who can find out no other way of livelihood‖.5 -3Sociologist Robert King Merton in his seminal essay ―Social Structure and Anomie" in "Social Theory and Social Structure‖ mentions that crime and deviance results not from "pathological personalities" but from the culture and structure of society itself. Merton distinguishes between the two key elements of the social structure: the goals and rewards which are recognised as appropriate and commendable objects for individual striving, the attainment of which confers status, and those methods of achieving them which are regarded as legitimate. The structural pressures towards crimes arises from the discrepancies between culturally determined goals, on one hand, and the availability of legitimate means for attaining them on the other. Merton identifies five modes of adaptation: Conformity, Innovation, Ritualism, Retreatism and Rebellion. According to Merton, the innovator is the most likely to engage in criminal behaviour, as the innovator accepts the socially recognized goals of society, rejecting the legitimate means to achieve them. He argues that members of the lower social strata select this mode, due to imperfect socialisation, abandoning institutional means while retaining the success aspirations. As Merton emphasises on differential access to legitimate means of attaining goals to explain sociological aspect of crime, Richard Cloward insists that equally important is access to illegitimate means. Punishment: To deal with criminals, Criminal Justice Administration is established, which bring the criminals to Court to face trial and if guilt is proved to face punishment. According to Salmond ―the administration of justice is the modern and civilised substitute for the primitive practices of private vengeance and violent self-help‖.6 Salmond in his ―Jurisprudence‖ discussed 4 types of punishments and describe as under: ―The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may be distinguished as (1) Deterrent, (2) Preventive, (3) Reformative, and (4) Retributive. Of these aspects the first is the essential and all-important one, the others being merely accessory. Punishment is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and a warning to all that are like-minded with him. At the second place he considers the punishment as preventive or disabling, so that wrongdoer may be prevented from repetition of wrongdoing by the disablement of the offender. At third place Salmond considers punishment as being reformative. Offences are committed through the influence of motives upon character, and may be prevented either by a change of motives or by a change of character. And regarding Retributive punishment, Salmond means to gratify the instinct of revenge or retaliation.7 Sir Paul Vinogradoff examined the historical development of concept of punishment and stated, ―in the beginning of civilization punishment was a violent reaction against harmful acts, a form of self-defence. This gave rise to the blood feud and to revenge for personal injuries. The action of the avenger may be spontaneous, or induced by common opinion, but the correspondence between injury and the recoil is obvious in both eventualities. In a second stage political communities of various kinds assumed judicial authority and carried out retribution in the name of the government. -4In a third stage, after the great progress achieved by human individuality with its lofty ideals of freedom and justice, the problem has been shifted from the sphere of struggle with the offender into the sphere of justification of the judge. Instead of being a form of instinctive self-defence criminal punishment became a measure of social education‖.8 Law regarding crimes and punishments was well defined even in Ancient India, when different codes were prevalent providing modes of dealing with crimes and prescribing punishments. Apastamba Sutras, Dharamshastra of Vasishta, Manu Smriti are notable. In PRASNA II, PATALA 5, KHANDA 11 of Apastamba Sutra it is provided that In the cases of (men of) other castes, the king, after having examined their actions, may punish them even by death. Similarly in PRASNA II, PATALA 10, KHANDA 27 of Apastamba Sutra it is provided that A Sudra (who commits adultery) with a woman of one of the first three castes shall suffer capital punishment. Dharamshastra of Vasishta and Manu Smriti also provide for corporal or capital punishment. Manu Smriti, which is considered to be the first codified law of India, apart from other things, prescribes nature of litigations, rules of procedure and of evidence and remedial measures including that of punishments. Manu Smriti also lays down the foundation of principle behind punishments. In Shlokas 17 to 22 of Chapter VII it has been mentioned that the object of the punishment is to secure obedience of law and protects the state and society. Manu was of the opinion that men are used to commit wrong and it is very difficult to find any guiltless person, therefore, the society can be kept in order only by punishments. However, at the same time, he cautions to impose punishments properly and after following due course of law. Conjoint reading of Shlokas 129-130 of Chapter VIII of Manu Smriti, indicates that during that period also repeated commission of offences was also taken care of and at the first instance punishment of admonition was given, which is corresponding to method provided under the Probation of offenders Act, 1958 where under first offender, after conviction, is usually released on probation.9 Baron William Eden Auckland in his work ―Principles of Penal Law‖ opined that the prevention of crimes should be the great object of law giver; whose duty it is, to have a severe eye upon the offence, but a merciful inclination towards the offender. It is from an abuse of language that we apply the word ―punishment‖ to human institutions: Vengeance belongeth not to man.10 Baron William Eden Auckland further speaking on death penalty opined that ―Nothing however, but the evident result of absolute necessity, can authorize the destruction of mankind by the hand of man. The infliction of Death is not therefore to be considered in any instance, as a mode of punishment, but merely as our last melancholy resource in the extermination of those from society, whose continuance among their fellow-citizens is become inconsistent with the public safety‖.11 Sir Paul Vinogradoff opined that as crime is recognized as a social anomaly, punishment is bound to take the shape of treatment rather than of retribution.12 -5Similarly, William Roscoe is of the opinion that punishments, as well as crimes, are evils; and whether inflicted by man, or the Deity, must have good for their ultimate object before we can pronounce them to be just. But that so much pain should be inflicted for so much guilt, resembles the Lex Talionis (i.e. Law of Retaliation—an eye for eye) of fallible and vindictive man, rather than the measures of a perfect being.13 Capital Punishment: Capital Punishment has been practiced in almost every society at one time or another. Till day more than 50 countries have death penalty in force. In India itself, recently, Afzal Guru has been hanged. Before this, Kasab was hanged. Assassinators of the then Prime Minister of India, Mrs. Indra Gandhi were also hanged till death. Now fate of Davinder Pal Singh Bhullar and Balwant Singh Rajoana is yet to be decided; and there has been pressure upon the Government from within and without to abrogate death penalty. Of course, few others are arguing in favour of continuance of death penalty, in wake of Delhi Gang Rape case. However, question is whether death penalty be completely abrogated or be continued sparingly as an ultimate resort, as argued by Baron William Eden Auckland. Death penalty, as stated by Salmond is preventive and disabling. Similar disabling punishment i.e. ―transportation for life‖ was prevalent in India prior to 1955. During British period Cellular Jail at Andaman was used to confine prisoners sentenced with punishment of transportation for life but after independence with adoption of the Constitution, this punishment, vide ―the Code of Criminal Procedure (Amendment) Act, 1955, was abrogated and converted to ―imprisonment for life‖. Consensus could not be achieved on the period for which imprisonment of life should continue. There are diverging views. Still, imprisonment for life is also a disabling punishment, which keeps the serious offender away from the society for a considerably long period and can serve as an alternative for death penalty, which leaves no scope for return of the offender; and also leaves no chance for his repentance and reformation. Only argument that goes in favour of Death penalty is its ability to completely remove an offender from the world, who is so wicked and so cruel to the humanity by instinct that he cannot be reformed in any manner. At the same time, in case period for imprisonment for life is fixed till the death of the prisoner, even that would serve the same purpose and it would be less inhuman. Besides, this way we can keep the hope surviving that the prisoner may sometime introspect and repent on his doings and there will be chances of his being reformed. Life imprisonment too has deterrent capabilities. Furthermore, though not so often, there may be chances of miscarriage of justice, may be due to false & fabricated evidence and also due to biased investigation. Political interests may also come into play. In such cases death penalty may be irreversible. A person once hanged cannot be brought back to life and it is not for a man to take life of a person. Besides death penalty is revengeful action of the state, which does not correspond to the parameters of scientific approach of penal laws. -6From discussion about Crimes with respect to Sociology and Psychology, we can’t say that every crime origins out of complete wickedness of mind without any cause. There are certain conditions under which some crime gets committed. We need not to eliminate the convicts but the conditions which are responsible for commission of crime must be eliminated. In the words of Baron William Eden Auckland ―Penal laws are to check the arm of wickedness; but not to wage war with the natural sentiments of the heart‖.14 The present method of dealing with crime and criminals is full of lacuna and is incomplete. We are waging war against hearts. There is no social and economic security for the dependents of the victims, convicts or the public in general and political will to create an atmosphere eliminating conditions responsible for rising trends of crimes is lacking. In Indian scenario, by punishing a guilty we are not punishing him alone, but all his dependents as well, indirectly. In India, where there is no social security, usually, all the family members are dependent upon their only bread winner. Family needs fulfilment of their three basic needs, no matter, where their breadwinner brings all that from. There may be chance that a person might be earning his livelihood from his acts, which are crime as per statute and on some fateful day he is caught and finally sentenced to any kind of punishment. Law might have disabled the said person by putting him behind the bars or by executing but what happens to the rest of family, nobody thinks. If the dependents of a convict are not having any source of income and without any social security from the State, there are more chances that they will also follow the same path. As such, our criminal justice administration has been, in fact, increasing the criminal tendencies. Conclusion: Imparting justice is the prime concern of judicial reforms, India looks forward to. Justice is the result of negotiation in the interaction process. It is definite that perpetuators of any crime must be punished. However, as world heads towards the mature stage of civilisation, reforming the criminal also is the responsibility of the society and the state. The reformatory process must constitute the integral part of modern day criminal administration of justice. The modern jails, must in true sense, become "total institutions": a place of residence and work where large numbers of like situated individuals, cut off from the wider society for an appreciable period of time, together lead an enforced formally administered round of life. Such an arrangement can help the inmate to break the self-concept which might have been the cause of his deviance. The environment inside the prisons be made so that the "reformed self" of an individual gets slowly rebuilt, partly by means of reward and punishments administered by those in authority. So, it becomes clear that criminal administration of justice does not end with awarding the punishment to the culprit. In fact, the very logic of abolition of death penalty or the sanctity of "awarding it in the rarest of the rare cases" shall be preserved only if above mentioned aspects are taken care of. As for the victim and his family, a support system must be ensured by the government, not, just a monetary compensation of one time but some concrete measure that ensures a life of dignity for the victim himself and dependents. It is high time that we stop labelling the victims and convicts and treat them as outcasts. If we -7demand that law must not be kind to the criminals, as a society we must answer, first, are we kind to the victims either? The answer is No. We have stigma of different degrees attached to all crimes, viz, rape, murder, sexual assault irrespective of gender etc. No amount of punishment or penalty can undo the harm once caused. So, the remedy lies more in reframing and rebuilding the base of our society, so that crime rate decreases by itself. No state can make laws to govern every aspect of human behaviour for peaceful existence and progress of civilisation. The continued existence of society requires that the majority, most of the times, accept without question and overt pressure, their own obligation towards others. The most viable and an indigenous control within the reach of all humans alike is Conscience. It is the inner acceptance of certain moral norms with the feeling of mens rea, if one violates them or is even tempted to do so. Law may serve all the purposes for which it is enforced, but without social solidarity, effective political will and a synchronised government machinery to reinforce the faith of people in principles of justice, fairness and equity, administration of justice through law becomes mockery. Mere repressive force of an embryonic Criminal Law, anyway, will not do any justice to the very process of ―Administration of Justice‖. Endnotes: 1 Franklin H. Giddings (1922) Studies in the Theory of Human Society, The Macmillan Co., New York. Pp.16-17 2 Ibid, pp.166-167 3 Emile Durkheim (1982), Tr. W.D. Halls, The Rules ofd Sociological Method, The Free Press, New York, P.98 4 Clark, Ramsay (1969) Crime in America, Simon & Schuster, New York, pp.56-57 5 Sir Thomas More (1901) Ideal Empires and Republics, M. Walter Dunne Publisher, Washington & London, Sir Thomas More’s Utopia, p.137. 6 Salmond (1913) Jurisprudence, Stevens & Haynes London, p.67 7 Ibid, pp.75-80 8 Sir Paul Vinogradoff (1920) Outlines of Historical Jurisprudence, Vol.I, Oxford University Press, London, p.53. 9 Ch. VII of Manu Smriti 17. Punishment is (in reality) the king (and) the male, that the manager of affairs, that the ruler, and that is called the surety for the four orders' obedience to the law. 18. Punishment alone governs all created beings, punishment alone protects them, punishment watches over them while they sleep; the wise declare punishment (to be identical with) the law. 19. If (punishment) is properly inflicted after (due) consideration, it makes all people happy; but inflicted without consideration, it destroys everything. 22. The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyments (which it owes). 30. (Punishment) cannot be inflicted justly by one who has no assistant, (nor) by a fool, (nor) by a covetous man, (nor) by one whose mind is unimproved, (nor) by one addicted to sensual pleasures. 31. By him who is pure (and) faithful to his promise, who acts according to the Institutes (of the sacred law), who has good assistants and is wise, punishment can be (justly) inflicted. Ch.VIII Manu Smriti 129. Let him punish first by (gentle) admonition, afterwards by (harsh) reproof, thirdly by a fine, after that by corporal chastisement. -8- 130. But when he cannot restrain such (offenders) even by corporal punishment, then let him apply to them even all the four (modes conjointly). 10 Baron William Eden Auckland, Principles of Penal law, B. White, London, p.6 11 Ibid. p.21-22 12 Sir Paul Vinogradoff (1920) Outlines of Historical Jurisprudence, Vol.I, Oxford University Press, London, p.59. 13 William Roscoe (1819) Observations on Penal Jurisprudence and the Reformation of Criminals, T. Cadell and W. Davies, Strand, London, p.5. 14 Ibid p.14