This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It is an endeavour to describe each and every criminal law in India in brief. It also has an overview of the history, nature, basic elements, and purpose of criminal law as stated under the Indian laws.
It has been published by Rachit Garg.
Table of Contents
“There is no society known where a more or less developed criminality is not found under different forms. No person exists whose morality is not daily infringed upon. We must, therefore, call crime necessary and declare that it cannot be non-existent, that the fundamental conditions of social organisation, as they are understood, logically imply it.” -Emile Durkheim
In any society, crime (usually defined as an action or omission or illicit activity that is punishable by law) exists, and so do the criminal laws. ‘Criminal law’ is a phrase containing just two words but having several acts enacted underneath it. The basic function of enacting any criminal law is to punish the guilty and provide justice to the injured party through legal procedures. Criminal law can be regarded as the body of laws that deal with matters of criminal wrongs, for instance, theft, murder, sexual abuse, threatening, etc., and is also accountable for conducting a trial for convicted offenders.
Crime rates are increasing at a fast pace in India, which is why we need stringent bylaws to curb and deter such activities, thus keeping our society crime-free and making it healthy. Hence, in the following article, we will be looking at the basics of criminal law along with all the laws enacted for the purpose of safeguarding society from offenders.
Reasons for the occurrence of crimes in society
A criminal commits a crime for several reasons. Some criminals commit crimes to earn money, as it is one of the fastest ways to generate an income, whereas others do it for gaining fame, inter alia. However, there are criminals like Raman Raghav who are totally distinct; this criminal terrorized Mumbai in the 1960s by killing numerous people whom he did not even know and had no qualms of any nature for the commission of such misdemeanours. DPC Kulkarni, in his book ‘The footprints on the sand of crime’, was of the notion that such criminals do not have a motive, nor do they gain anything from committing such an act, but they are simply ‘incorrigible’.
There are even instances where a crime is committed with due authorisation and formerly with the governing bodies. For example, the agricultural lands in India were put to the wrong use even in the British era, when farmers were asked to grow opium instead of foodgrains, not only in India but also in Chinese territories. Nowadays, farmers choose to grow drugs like opium or hashish over other produce, considering the profit margins associated with such crops.
Brief history of Criminal Law in India
The history of the codification of modern criminal laws has its roots in the Vedic age and the reign of the Hindu and Muslim dynasties. However, it started taking shape in the British era. The modern criminal justice system is based on English laws and practices. These practices were pragmatic as well as contemporary, which is why a major chunk of the criminal laws that are prevailing today are similar to those laws implemented during the British era.
Sources of Criminal Law
The criminal justice system and the criminal laws thence, are all based on the penal legal system that was set up by the British in India. If we happen to look at the criminal laws or the criminal justice system today, which is after 75 years of independence, there haven’t been any substantial changes as such in the system or the legislation. The most notable example of such an outworn justice system is Section 124A of the Indian Penal Code (IPC), 1860, which discusses sedition and has a prescribed punishment for the same.
But a note must be taken that efforts have been made to amend the entire Code of Criminal Procedure in 1973. The appointment of the Vohra Committee was the very first attempt toward making amends to the Indian criminal justice system. The report published by the Vohra committee in 1993 made an observation on the criminalisation of politics and the nexus among criminals, politicians, and bureaucrats in India.
Moreover, in 2000, another effort was made by the Indian government to recommend reforms in the age-old criminal justice system. There was a committee formed, which came to be known as the Malimath Committee, and it was headed by Justice V.S. Malimath, the former Chief Justice of Kerala and Karnataka. The Malimath Committee submitted its Report in 2003 with 158 recommendations, but unfortunately, they never seemed to have seen the light of the day. This Committee was of the opinion that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
Looking at all the above contentions, it will be safe to assert that there is a dire need to bring about reformations in the criminal justice system, the recommendations of which will be discussed in the upcoming paragraphs.
Key differences in criminal and civil laws
Criminal laws mainly focus on the conduct of an individual that is offensive to the public, society at large, or the law of the land. Examples of criminal laws include theft, drunken driving, murder, assault, etc.
Whereas, civil law has its primary focus on the behaviour of an individual, or say, an organisation, which can inflict injury or harm on any private person or individual. Examples of civil law include defamation, whether libel or slander; breach of contract; negligence causing death or harm to any private party or an individual, etc.
A tabular representation of the difference between criminal and civil law
Below is a tabular representation of the difference between criminal and civil law-
|Pointers||Criminal law||Civil law|
|Deals with||Criminal law deals with offences that are perpetrated against society at large.||Civil law is a general law that deals with issues that are on an individual or organisational level.|
|Objective||Criminal law penalises the convicts, safeguards the citizens and makes sure that law and order are followed.||The main object of civil law is to safeguard the rights of a person or an organisation. It makes sure that the wrongs committed by an individual are corrected and that the victim is negated for such wrongdoing.|
|Goal||The role of criminal litigation is to punish the defendant.||The role of civil litigation is to compensate the plaintiff for the injury/damage caused.|
|Punishment||The punishment for committing a criminal offence would be dependent on the gravity of the crime thus committed. Thus, the punishment can range from fines to detention or both, at times.||In civil law, there is a settlement of disputes between individuals or organisations by way of compensation. Further, there is no grave punishment like that of criminal law being provided for civil matters.|
|Filing of petition||In the case of criminal law, the government of India files a petition. Further, a petition cannot be filed directly in a court; rather the party has to approach the police first and then the crime needs to be investigated, only then a case can be filed.||In the case of civil law, the affected party or organisation files a petition. The case can be filed in a court or tribunal depending on the damages.|
|Passing a verdict||In criminal cases, the court can levy fines, deliver punishments like detention, or release the defendant.||In civil cases, the court can only pass a ruling to make up for the injury/damage to the affected party.|
|Status of defendant||In criminal cases, the defendant is either held to be guilty or not guilty by the court.||In civil cases, the defendant is either considered liable or not liable for the damages.|
|Examples||Criminal law mostly deals with grave offences such as murder, rape, robbery, etc.||Civil law mainly deals with matters relating to property or housing, money, divorce, custody of a child in the event of a divorce, etc.|
Now that we know the difference between civil and criminal laws, let’s dive deep into the nitty-gritty of criminal law.
Significant components of crime as stated in Indian criminal laws
It is important to understand what and when an offence will become a crime to understand the criminal laws, so let’s have a look at the significant components of crime as stated under criminal laws.
Any activity that is against or punishable by the law can be said to be a crime. According to Blackstone, “crime is an act committed or omitted in violation of a public law either forbidding or commanding it.” Criminal liability in India is set up on the maxim ‘actus non facit reum, nisi mens sit rea”, meaning the act itself does not consist of guilt unless it is committed with a guilty mind. An integral point must be noted that this maxim is considered to be the basic principle of the whole criminal law. This maxim also gives out the two most crucial elements of a crime, namely:
- actus reus and
- mens rea.
In the famous case of Fowler vs. Padget (1798), Lord Kenyon made a comment that “the intent and act must both concur to constitute a crime”. Now let us have a look at the essential elements that constitute a crime.
Human being/ individual
The first element states that the wrong must be committed by a human being. Any wrongful act committed by an animal is not covered under criminal laws. Thus, the individual accused of committing a wrong should have a body, be under a legal obligation to act in a specific manner, and must be fit to be awarded a suitable penalty.
A point must be taken into consideration that, as per Section 11 of the Indian Penal Code, the word ‘person’ includes “any company or association or body of persons, whether incorporated or not.” Thus, the above definition includes a natural person, an artificial person (a company, association, or a body of individuals), and a legal person (such as an idol).
A guilty mind, i.e., the mens rea, is one of the most crucial ingredients of crime. There is no distinct definition of mens rea under the IPC or any other criminal law in India, but the same has been included in the following manner:
- Provisions relating to the ‘state of mind’ necessary for committing a specific offence have been added in distinct sections of the IPC by using terms like intentionally, knowingly, voluntarily, etc.
- The concept of mens rea is put into the provisions relating to the ‘General Exceptions’ under Chapter IV of the IPC. For instance, a juvenile aged 7 years is absolutely immune to any wrong he/she commits as per Section 82 of the IPC. Further, under Section 80 and Section 81 of the IPC, a person causing an accident while performing a lawful activity or doing it with the utmost necessity to prevent a wrong or further offence will have immunity from being liable to be guilty as there is no mens rea.
Mens rea is of the following degrees:
- Reason to believe (defined under Section 26 of the IPC), and
- Negligence (defined under Section 52 of the IPC)
Another essential ingredient of a crime is actus reus, i.e., the act committed or omitted by a person which is forbidden by law, like homicide (killing of human beings), rape, theft, sedition, etc. Irrespective of the pain or harm the event has caused, it won’t be considered to be actus reus unless it is restricted by law.
Interesting fact: Prof. Kenny was the first writer to use the term ‘actus reus’ and he defined it as “such a result of human conduct as the law seeks to prevent.”
The subsequent element of a crime is the harm or injury or damage induced to the victim and is defined under Section 44 of the IPC as any harm or injury inflicted on an individual illegally in “body, mind, reputation or property.”
Thus, looking at the above definition, it can be deduced that harm or injury can be caused to-
- an individual (homicide, rape, etc.);
- Property (robbery, theft, mischief, etc.);
- Mind (cheating);
- Reputation (defamation).
Further, a person is liable for the direct cause of his actions and not for any indirect cause of his actions. In simple words, a person is responsible for only the natural consequences of his actions under this Section.
As stated above, for an offence to have been committed, it has to be inhibited by the legislation or the existing legal system, unless said otherwise. It is a known rule of criminal law that no offence can be penalised retrospectively if the said act did not constitute an offence at the time it was executed.
An act or omission has to be punishable under the penal system. Such a punishment can vary from capital punishment to imprisonment and/or fine. Further, it is vital that the offender is not vexed twice for the same offence, i.e., he/she is not being subjected to double punishment for the same offence.
Crime will forever have a detrimental effect on society, be it social, personal, mental, or physical.
It is quite a complex subject to study, as an activity that might be considered to be a crime at a certain location may not be an offence elsewhere. For instance, drinking and gambling may not be considered offence when committed in a club. Such a varying description has been characterised by William Taft as ‘blue laws’.
Nature of Criminal Law
While discussing criminal law a few questions on its nature as to ‘Are there any general elements or elements that define a crime?’ or ‘How is a crime defined?’ may arise. The simplest answer to these questions is that crime is whatever the law asserts to be a criminal offence and anything which is penalised with a punishment.
However, the shortcoming of such an approach is that all criminal convictions do not give rise to a fine or punishment. So, instead of penalising the defendant, a judge may, in a few cases, simply warn him/her to not repeat the criminal act.
Professor Henry M. Hart, Jr. defines crime as “conduct which, if… shown to have taken place” will result in the “formal and solemn pronouncement of the moral condemnation of the community.” The foremost point of this definition is that a crime is subject to formal denunciation by a judge or jury representing the individuals in the court, which discerns a crime from acts most individuals find offensive but are not subject to prosecution and formal penalty.
So say, for instance, an individual can be criticised for cheating on his/her spouse, but the general solution to this issue lies with the parties to the marriage.
Basic elements of Criminal Law
According to Prof. Paranjee, an effective criminal law must have the following four elements:
This implies that infringement of rules enacted by the state will be regarded as a crime.
It means that the provisions of the statutes must be precise, unambiguously adjudging the activity as a crime.
The laws should be applied without any prejudice on the basis of caste, creed, race, sex, etc., thus the laws must be applied to all equally across the nation.
The dread of being penalised can be instilled in the minds of the people living in a society with the aid of penal sanctions, thus discouraging them from committing a wrong.
Purpose of Criminal Law
As discussed above, civil law deals with the interests of individuals. On the other hand, criminal law deals with the interests of society at large. The main purpose of criminal law is to safeguard the interests of the people and to help maintain social order and stability.
The basic purpose of criminal law can be defined as follows:
To protect, serve and limit the actions of individuals
Laws serve multiple purposes in the criminal justice system. However, the main goal of criminal law is to protect, serve, and safeguard human actions and to help guide the behaviour of humans.
In the modern era, there are three choices to make when it comes to handling criminals, namely:
- Capital punishment,
- Private action, and
- Executive control.
A point must be noted that, even though both private action and executive control are beneficial in terms of expenses and speed, they present huge dangers that prohibit their usage unless in extraordinary circumstances.
To punish the offender
The second purpose of criminal law is to penalise the wrongdoer. Punishing the wrongdoer is the most crucial purpose of criminal law as it dissuades them from repeating the crime again while also making the offender pay for the crime committed. Retribution does not mean imposing physical punishment or imprisonment on the culprit, but it may also mean things like rehabilitation and financial retribution, inter alia.
To protect society from criminals
The last purpose of criminal law is to keep society safe from wrongdoers. Criminal law is a medium through which the community safeguards itself from those who pose a risk to it. Such a motive is usually attained via passing verdicts or judgements; these are meant to act as a way of impeding the criminals from committing the same offence again later.
Criminal law has numerous purposes, but it depends on the perspective of people or how they see it. A few of them are enacted to distinguish offenders from the community, rehabilitate the culprit, and penalise the offender. Nonetheless, the two main functions of criminal law are as follows:
- To create an interpretation of right and wrong in society, and
- To punish the lawbreakers.
General objectives of Criminal Laws
According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”. The general objectives of criminal laws include-
Protecting individuals and property
For the survival of any society, a feeling of security and safety is one of the key aspects, which is why maintaining peace and order in the community becomes essential. Safety in society includes personal safety (also referred to as safety of life and liberty) and the safety of property. In order to ensure safety, it is important that an efficacious panel system that is capable enough to deal with the violators of the law has been created. Doing so will also enable the general public to live in peace and with no fear of injury to their life, limb, or property, for that matter. Therefore, the primary objective of criminal law is to safeguard the public by maintaining law and order in society.
Prevention/deterrence of criminal behaviour
One of the major reasons for deduction in criminal behaviour is the criminal laws demonstrating a sufficient deterrence in anti-social behaviour. Deterrence can be referred to as a danger, difficulty, or situation that prevents a person from committing a wrong.
The presumption inherent in criminal law is that individuals would be reluctant to commit a crime or may not even commit a crime considering the brutality of the penalty thus inflicted upon the commission of such an act. Consequently, if enough people fear punishment, the rate of criminal activity will decline.
Punishing a criminal act
It is a common understanding that all the crimes committed in society cannot be penalised and not every criminal activity can be averted from happening. Thus, an inescapable level of crime will unquestionably exist in society. Hence, criminal activities are penalised for the sake of punishment. So, say, a criminal steals something without prior payment or inflicts an injury on an individual without proper cause for doing so, the criminal law will make the offender or perpetrator pay for it by depriving him/her of his/her liberty for a time period.
Rehabilitating a criminal
Once a criminal is punished, they will serve their sentence behind bars. However, this is not where the criminal justice system ends; our government has created several programmes to enlighten and train criminals in legitimate occupations and practical skills like weaving, stitching, construction activities, etc. Hence, upon being released, they do not have a reason to return to a life of crime and also have the means to earn their livelihood.
Types of punishments under Criminal Law
Jeremy Bentham, one of the leading pioneers in shaping the criminal justice system, stated that “punishment itself was an evil, but a necessary evil,” so let’s have a look at some of the necessary-evil punishments.
A note must be taken that, under Section 53 of the IPC, there are 5 types of punishments mentioned, each of which is discussed in depth below, namely:
- Imprisonment for life;
- Imprisonment, which has two descriptions, namely:
- Rigorous imprisonment, that is, with hard labour, and
- Simple imprisonment;
- Forfeiture of property,
Capital punishment / death penalty
The punishment of death is also referred to as capital punishment. Under this punishment, a culprit is hanged to death.
Such a type of punishment needs authorization from the government and a verdict passed by the court and is delivered only in the rarest of rare cases. It is the highest form of punishment awarded under the IPC and has always been a subject of debate. Contentions are made both in favour of and against the retention of capital sentences as a form of punishment.
Provisions under the Indian Penal Code for the death penalty
The death penalty can be provided for offences under the following sections of the IPC:
- Section 121 (Waging, or making an attempt to wage a war, or assisting in the waging of a war, against the Government of India),
- Section 132 ( Abetment of mutiny),
- Section 194 (Giving or fabricating false evidence),
- Section 302 (Penalty for murder),
- Section 303 (Penalty for murder by life convict),
- Section 305 (Abetment of suicide of a child or a lunatic)
- Section 307 (Attempt to murder),
- Section 364A (Abduction),
- Section 376E (Punishment for repeat offenders),
- Section 396 (Dacoity with murder), inter alia.
However, it is not mandatory for the court to impose the death penalty in these sections.
Lawsuits in India where the death penalty was held feeble
Jagmohan Singh vs. State of Uttar Pradesh (1972)
In this case, it was held that the death penalty is unconstitutional and thus invalid as a penalty. The Hon’ble Supreme Court asserted that depriving someone of their life is constitutionally licit only when it is done in accordance with the procedure established by law.
State of U.P. vs. M.K. Anthony (1985)
In this shocking case, the accused was held guilty of killing his ailing wife and his two children as he was incapable of providing funds for her operation and did not have anyone to support him in taking care of the children after their mother.
Here, the Apex Court, while passing an amusing verdict, stated that since the offence committed was not perpetrated under any lust, feeling of vengeance or gain but out of sheer poverty, a punishment involving life imprisonment would be apt and not capital punishment.
Bachan Singh vs. State of Punjab (1980)
The Supreme Court, in this very famous case, was faced with the dilemma of whether the death penalty, imposed for some offences under the IPC, is constitutionally valid or not.
By a four-to-one majority verdict, the Supreme Court reached a verdict that the death penalty is valid and does not constitute an “unreasonable, cruel, or unusual punishment”. However, the Court ruled that the death penalty must be imposed only for “special reasons” and in the “rarest of rare cases.” Thus, only if the cases fall under this theory, may capital punishment be imposed. However, the court did not emphasise the crimes that fall under this category in this case.
Nonetheless, the courts have from time-to-time affirmed that cases like honour killings, assassinations, genocide, brutal murder, etc., fall under the definition of ‘rarest of the rare cases’.
Interesting fact: The phrase ‘hang to death’ was replaced by ‘hang until death’ after subsequent amendments in the criminal laws for capital punishment. There is an astonishing story behind this, wherein Jawaharlal Nehru, an eminent lawyer, brilliantly played with the words of the law while protecting his client, who was charged with blowing up a British officer’s horse carriage. Here, the magistrate ordered that the person be hanged in public, and on the day of execution, as soon as he was hung, Nehru sent men to hold on to his legs and save him. When the matter was taken to the court, he contended that the magistrate had written “hang him” and that the man was being hanged, but the sentence did not say “hang him until death.” Thus, following the principle of double jeopardy, the defendant could not be hanged again and his life was rescued.
Imprisonment means snatching away an individual’s freedom and putting him behind bars. There are 3 types of imprisonment under the IPC, which are as follows:
Under life imprisonment, an offender who is held guilty of committing an offence has to remain in prison until death occurs, or until he is pardoned, or for a fixed period of time.
In ordinary words, imprisonment for life refers to imprisonment for the whole of the remaining term of the offender’s natural life. According to Section 57 of the IPC, the period for life imprisonment is 20 years for the purpose of calculation. A point must be noted that imprisonment for life can never be simple imprisonment; it is always rigorous imprisonment.
Interesting fact: According to Section 433(b) of the Criminal Procedure Code and Section 55 of the IPC, the government has the power to ameliorate or suspend the sentence of imprisonment for life to imprisonment for a term of not more than 14 years. However, life imprisonment cannot be less than 14 years.
Simple imprisonment and rigorous imprisonment
Under Section 53 of the IPC, there are two types of imprisonment- simple and rigorous. Further, according to Section 60 of the IPC, the competent court has the option of deciding the nature of sentencing. It can be of various types, like:
- Wholly or partly rigorous; or
- Wholly or partly simple; or
- Any term to be rigorous and the rest simple.
In simple imprisonment, an offender who is held guilty of committing crimes such as wrongful restraint or defamation is kept behind bars without any hard labour; thus, only light duties are to be performed by them.
In rigorous imprisonment, an offender is put behind bars and has to mandatorily perform hard labour duties like agriculture, carpentry, digging the earth, breaking stones, etc.
Rigorous imprisonment is compulsory for the following two sections of the IPC:
- Section 60 (Giving or fabricating false evidence with intent to procure conviction of capital offence).
- Section 449 (House-trespass in order to commit an offence punishable with death).
Forfeiture or confiscation of property
Forfeiture indicates the loss of property of the wrongdoer, meaning the state seizes or takes into possession the property (which can be movable or immovable) of an offender. Such a punishment is often used for offences involving the breach of traffic and revenue laws.
Forfeiture of property as punishment is proffered for the following two sections of the IPC:
- Section 126 (committing depredation on territories of Power at peace with the Government of India), and
- Section 127 (Receiving property taken by war or depredation mentioned in Sections 125 and 126).
This type of punishment is considered appropriate for minor offences and crimes related to property.
The punishment of a fine, in addition to serving the purpose of deterrence, also serves three other purposes, namely:
- It may help to support the prisoners.
- It can generate expenses for prosecuting the prisoners.
- It may be used to remunerate the agonised party.
Such a punishment is very beneficial for offenders who are not hardened criminals, but care must be taken that there is no excess fee levied upon the offenders, and it should not go to the extent that the person has to almost forfeit their property to pay the amount.
The court may impose a fine along with imprisonment or as an alternative to imprisonment. It generally is as per the discretion of the court. As per Section 64 of the IPC, a court may impose imprisonment if the wrongdoer fails to furnish a fine.
Solitary confinement refers to keeping the inmate isolated and away from any sort of communication or contact with the outside world. In order to avert the perils associated with this kind of punishment, Sections 73 and 74 lay down the limitations beyond which solitary confinement cannot be imposed under Indian penal law.
The term period for solitary confinement under the aforementioned sections is as follows:
- Solitary confinement shall not exceed one month if the term of imprisonment is less than or up to six months.
- Solitary confinement shall not exceed two months if the term of imprisonment is more than six months but less than one year.
- Solitary confinement shall not exceed three months if the term of imprisonment is more than one year.
Moreover, the total period of solitary confinement will not go beyond three months in any circumstances. It cannot go beyond fourteen days at a time with intervals of fourteen days in between or seven days at a time with seven days intervals in-between, in cases where the substantive sentence exceeds three months’ imprisonment.
In Charles Sobraj vs. Superintendent, Tihar Jail (1978), the Hon’ble Supreme Court made an observation that solitary confinement is the harsh isolation of a prisoner from the community of fellow prisoners and should be imposed only by following a just procedure and in exceptional cases.
Another method of punishment is deportation, which is also known as transportation, banishment, or ‘Kaalapani’, and involves the elimination of incorrigible or dangerous offenders by transporting them to distant places, thus removing them from their community.
This form of punishment was abolished in England a long time ago and has now been abolished in India as well.
Corporal punishment was a very common form of punishment until the 18th century. It includes the following:
The dictionary meaning of the word ‘flogging’ is ‘to whip or beat with a strap on a stick as a punishment’. The primary motive of this kind of punishment is deterrence.
In India, under the Whipping Act, 1864, whipping was identified as being one of the methods of punishment. It was later replaced by a similar Act in 1919, which was ultimately abolished in 1955, considering its inhumane nature.
Mutilation is another type of corporal punishment wherein the offender’s body parts are cut off as an effective measure of deterrence and to prevent crime in the community. An example of mutilation may include the chopping off of hands in cases of theft. Another example may be the private parts of a sex offender being cut off. In India, it was quite prevalent during the Hindu period.
Branding, which is recognised to be one of the cruellest forms of punishment, involves the marking of a criminal’s forehead for identification and public disgust. An example of branding would include the marking of an offender’s head with the letter ‘t’ for theft. In India, such a mode of punishment was prevalent during the Mughal period.
Chaining was yet another form of punishment wherein the hands and legs of the culprits would be chained together with iron rods. This form of punishment is now occasionally used in the current prison system.
An indeterminate punishment is another type of punishment which involves the sentence of imprisonment not being set. Thus, the time period is left to be decided at the time of granting the award, so, if the accused shows improvement, the sentence may be brought to an end.
Punishment like stoning is quite brutal and merciless in nature. It was in practice in the medieval period and in Islamic countries like Pakistan and Saudi Arabia for sex offenders.
Cancellation of licences
This is yet another form of punishment wherein the licence holder’s licence is suspended and/or cancelled in cases of violation. For instance, a driver’s licence is suspended or revoked in the event the driver is found guilty of drunk driving. Another example could be the revocation of a manufacturer’s licence if it is in violation of the Environment (Protection) Act, 1986.
Theories of punishment under Criminal Law
There are eight major theories of punishment. They are as follows:
Deterrent theory of punishment
The primary motive of deterrent punishment is to portray the object of the futility of crime, thereby teaching a lesson to others. Thus, deterrence acts on the motive of the wrongdoer, whether actual or potential. The main idea behind deterrent punishment is the prevention of crime by inflicting an exemplary sentence on the wrongdoer. By doing so, the state seeks to threaten the members of the community and thus prevent them from committing any crime. Furthermore, such an act also issues a warning to other offenders and potential lawbreakers.
In Phul Singh vs. State of Haryana (1980), a young philanderer (a person who has several sexual partners- usually a male having several women as sexual partners) was held guilty of raping a 24-year-old girl who lived next door. The Sessions Court passed a sentence of 4 years of rigorous imprisonment and the High Court upheld the same. However, when this matter reached the Supreme Court, the sentence was reduced to 2 years of rigorous imprisonment as the abuser was not a habitual offender and had no ferocious antecedents. The Supreme Court made an observation that “the incriminating company of lifers and others for long may be counterproductive, and in this perspective, we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years.”
Preventive theory of punishment
If the deterrent theory aims at putting an end to crime by creating fear in the minds of the people, the preventive theory aims at preventing the crime by disabling the criminal or lawbreaker. For instance, by giving the death penalty to a criminal or by putting him behind bars or by suspending the driving licence of a lawbreaker, the preventive theory prevents the repetition of the act thus committed.
The preventive mode of punishment is effective in the following manner:
- By creating the fear of punishment in all potential lawbreakers;
- By incapacitating the wrongdoer by instantly engaging in a crime; and
- By transforming the wrongdoer through a process of reformation and re-education so that the crime is not repeated again.
Reformative theory of punishment
As per the reformative theory, a crime is committed as a result of the clash between the character and intent of the culprit. An individual may commit a crime either because the temptation of the intent is intenser or because the constraint imposed by character is weaker. The reformative theory has its main focus on strengthening the character of the wrongdoer in order to fend them off from falling prey to their own enticements. This theory assesses punishment to be curative or to perform the role of medicine as, according to this theory, crime is like a disease. Further, this theory upholds that ‘you cannot cure by killing’.
Several reformists are of the view that since a culprit stays in prison to be re-educated and re-shape his personality into a new mould and to be transformed into a law-abiding citizen, prisons must be turned into comfortable dwelling houses. However, in a country like India, wherein there are millions of people living below the poverty line, such an act may act as a motivation to commit wrongs.
Looking at the situations of prisons across India, Justice Krishna Iyer, in the case of Ramesh Kaushik vs. Superintendent, Central Jail (1980), opened his judgement with the following poignant question:
“Is a prison term in Tihar jail a postgraduate course in crime?”
In yet another case [Sunil Batra (II) vs. Delhi Administration (1980)], Justice Krishna Iyer, in his verdict, stated:
“The rule of law meets with its Waterloo when the state’s minions become law-breakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders.”
The aforementioned judgement deals extensively with the shocking conditions prevailing in Indian prisons and has several recommendations for prison reforms.
Retribution theory of punishment
While other theories of punishment consider punishment as a means to some other end, the retributive theory views it as an end in itself. It regards it as absolutely lawful that evil should be returned for evil, and an individual should be dealt with in the way he/she deals with others. To put it in other words, an ‘eye for an eye’ and ‘a tooth for a tooth’ are assessed to be the rule of natural justice.
Unfortunately, this theory does not pay heed to the rationales of crimes, nor does it strike at the expulsion of the causes. Further, it also disregards the fact that two wrongs cannot really make a right. Moreover, this theory appears to disregard that if vengeance is the spirit of punishment, violence will be a way of prison life. This is why the primary intent of true punishment should be to take the place of justice for injustice, to make the law-breaker restore or compensate the victim, and by such restoration and repentance, the spirit of the sufferer be assuaged.
Expiatory/ compensatory theory of punishment
The proponents of this theory of punishment assert that the main motive of delivering a penalty is self-realisation, so, if the wrongdoer, after committing a crime, acknowledges his sin, then he must be pardoned. To put it simply, compensation is provided to the sufferer for the damage caused by the accused. In this manner, the wrongdoer is made to realise the identical suffering they have caused to the sufferer.
Incapacitation theory of punishment
Incapacitation means ‘being deprived of strength or power’. This theory incapacitates the criminals so that they cannot further commit an offence. A sense of fear also grows in their minds as well as that of the future generations before they commit any crimes in the foreseeable future, thus discouraging them.
Utilitarian theory of punishment
This type of punishment is considered to be one of the most brutal punishments, and it applies to dissuasion techniques for averting criminals from committing an offence. Such punishments include crippling or disablement, inter alia, and the effect of such a theory could be positive or negative.
Multiple approach theory of punishment
In cases where a single theory fails to meet the aim or object, a blend of two theories is the choice. Thus, the court should take a judicious approach while choosing the theories of punishment.
Hierarchy of Criminal Courts in India as stated in criminal statutes
The Indian criminal courts are formed in such a manner that any aggressive party can seek justice from them. Disgruntled citizens can also appeal to the higher courts in case they feel the lower courts have not provided justice in a manner that is just. The hierarchy of criminal courts in India is as follows:
The Supreme Court of India
The Supreme Court of India was established under Article 124 of Part V, Chapter IV of the Indian Constitution. It is the highest Court in the country and is situated in New Delhi, the capital of India.
The High Courts of India
The second level of the hierarchy is the high courts. They are the highest authorities in a state’s judicial system. They are governed by Article 141 of the Indian Constitution and are bound by the verdicts passed by the Supreme Court.
Subordinate/ lower courts
Apart from the Supreme Court, the high courts, and the other courts established by any statute, the following courts must exist in each and every state, as per the Criminal Procedure Code:
A) Metropolitan Courts,
B) Sessions Court,
C) Chief Metropolitan Magistrate,
D) First Class Metropolitan Magistrate,
E) District Courts,
F) Sessions Court,
G) First Class Judicial Magistrate,
H) Second Class Judicial Magistrate, and
I) Executive Magistrate.
Stages of crime as discussed in Indian Criminal Law
Whenever a crime is committed, there is a proper strategy or stages behind it. In the case of every crime, first there is an intention to commit a wrong, followed by the preparation to commit it, thus constituting the second stage. Thirdly, there is an attempt to commit the wrong, followed by the fourth and last stage, i.e., accomplishment. Each stage is discussed in brief below.
Intention is the first stage of committing a crime and is oftentimes regarded as the mental or psychological stage. At this stage, the offender decides his intent and the manner in which he would proceed towards committing the crime. The person cannot be penalised at this stage as mere intention or having a mental concept to commit a wrong would not constitute an offence.
Preparation for committing a crime is the second stage of the crime, and it consists of organising the essential resources for performing the criminal act. Mere intention or preparation are not punishable as in several cases it becomes difficult or at times impossible for the prosecution that the preparations in question are for the commission of the specific crime.
An attempt is a straightforward move towards the commission of a crime after the preparation of an agenda. As per the law, an individual is guilty of attempting to commit a wrong even if the facts are such that carrying out the offence seems to be impossible.
The last and final stage of committing an offence is the successful completion of the act, so, if the person succeeds in committing a crime, he/she will be culpable of the whole offence. Moreover, if he/she fails to commit the crime, he/she will be guilty of his attempt.
An example of accomplishment may include the following:
A fires a bullet at B with the motive of killing him. In such a case, if B is dead, A will be held guilty of committing the offence of murder, whereas, if B is injured, it will be a case of an attempt to murder.
Important elements of criminal offences under Indian criminal laws
FIR (First Information Report)
An FIR is a written document which is filed by the police to report a criminal offence to be investigated by the authorities. An individual can file an FIR by visiting a police station in the locality where the crime took place.
Under Section 154 of the Cr.P.C., the law gives a preference of choosing to provide information either orally or in writing.
A bail refers to the temporary discharge of an accused in criminal cases, wherein the trial is pending and the court is yet to reach an inference. The laws relating to Brazil and bail bonds are discussed under Section 436-450 of the Cr.P.C.
There are three types of bail, namely:
- Regular bail,
- Interim bail, and
- Anticipatory bail.
Evidence establishes facts. It is used in trials to establish the validity or invalidity of certain facts. For example, the evidence of a bloody fingerprint would aid in speculating the fact that the individual was present at the scene of the crime.
There are four types of evidence, namely:
- Real evidence,
- Demonstrative evidence,
- Documentary evidence, and
- Testimonial evidence.
Depending on the nature and gravity of the offence, they can be categorized as follows:
- Cognizable and non-cognizable offences.
- Bailable and non-bailable offences.
- Compoundable and non-compoundable offences.
Cognizable and non-cognizable offences
A cognizable offence is an offence in which the police can arrest an accused without a warrant and can carry out an enquiry without seeking prior approval from the court. Under Section 154 of the Criminal Procedure Court, a police officer has to lodge an FIR in cases of cognizable offences, and he can also conduct an investigation before filing the FIR.
Examples of cognizable offences
Some of the examples of a cognizable offence are as follows:
- Waging or attempting to wage war, or abetting the waging of war against the government of India,
- Dowry death,
- Criminal breach of trust,
- Unnatural offences, etc.
A non-cognizable offence is an offence wherein a police officer cannot arrest the accused without a warrant, nor can he start an enquiry without seeking approval from the court.
Examples of non-cognizable offences
Some of the examples of non-cognizable offences include:
- Public nuisance, etc.
Bailable and non-bailable offences
Bailable offences are those crimes which are not very serious in nature. In such cases, the police have the right to grant bail, which is one of the rights of an arrested person. Herein the accused must be released on the execution of a ‘bail bond’ with or without providing any sureties.
As per Section 50 of the CrPC, a police officer must apprise the arrested person that he/she has the right to be released on bail in cases of a bailable offence. Further, as per Section 436 of the CrPC, when an accused is arrested for a non-bailable offence without a warrant, then that person must be released on bail. The bail amount can be fixed at the discretion of the officer of the court.
Examples of non-cognizable offences
Some examples of bailable offences include:
- Actively participating and being a member of an unlawful activity,
- Rioting, armed with a lethal weapon,
- Giving a false statement in matters of an election,
- Selling any food or drink even after having knowledge of it being dangerous or poisonous, etc.
Non-bailable offences are grave offences where bail is a privilege and it can only be approved by the court. On being arrested and taken into custody for an offence which is of a serious or non-bailable nature, the offender cannot ask to be released on bail as his/her right.
Examples of non-cognizable offences
Some examples of bailable offences as listed under the Indian Penal Code include:
- Murder under Section 302;
- Dowry death under Section 304B;
- Attempt to murder under Section 307;
- Voluntarily causing grievous hurt under Section 326;
- Kidnapping under Section 363;
- Rape under Section 376, inter alia.
Compoundable and non-compoundable offences
A compoundable offence is an offence wherein the person filing the complaint, i.e., the victim, agrees to reach a settlement and get the charges dropped against the accused. Nonetheless, such a settlement has to have occurred with bona fide intent and not for any sort of consideration to which the complainant may be entitled to.
In India, compoundable offences are covered under Section 320 of the CrPC. They are of two distinct types discussed in the tables under Section 320, namely:
- Compounding offences where the permission of the court is not required
There are several offences where the permission of the court is not needed to take back the case or reach a settlement outside the court. Examples include:
- Causing hurt,
- Criminal trespass, etc.
- Compounding offences where the permission of the court is required
There are several offences where the permission of the court is not needed to take back the case or reach a settlement outside the court. Examples include:
- Criminal breach of trust,
- Voluntarily causing grievous hurt,
- Assaulting a woman with the motive of outraging her modesty, etc.
Non-compoundable offences are those which cannot be compounded, meaning such offences cannot be settled outside the court nor can they be taken back as the nature of the offence is grave, the injured party as well as society are affected by such an act, and the accused must not be allowed to walk free. Further, the state, i.e., the police files the case; thus, the question of the complainant reaching a settlement does not exist.
All those offences which are not covered under Section 320 of the CrPC are non-compoundable offences. Examples include:
- Causing hurt by dangerous weapons or means voluntarily,
- Wrongfully confining a person for more than 3 days,
- Assault or criminal force on a woman with the motive of outraging her modesty, etc.
Types of criminal offences
Crimes can be classified according to their heinousness. There are several acts across the globe that are deemed to be criminal offences. However, these acts can be classified into five major categories, namely:
Criminal offence against a person
Crimes against a person or an individual are those that cause physical or mental harm to another person and can be classified into two categories, namely:
- Forms of homicide, and
- Violent crimes.
In times when the severity of crimes is so acute that it causes death, the person may be charged with any of the types of homicides, including:
- first – degree murder,
- Voluntary manslaughter, or
- Vehicular homicide.
Contrarily, violent crimes that are also grave include:
- Assault and battery,
- Child abuse,
- Domestic abuse,
- Rape and statutory rape.
Criminal offence against property
Usually, crime against property includes the interference with the property of another person. Even though such crimes are mostly committed against the property of another party, it may also lead to physical or mental harm or both to a person. Some instances of property crimes are:
- Theft crimes include burglary, larceny, robbery, auto theft, and shoplifting.
- Robbery, etc.
Statutory criminal offences
Statutory crimes are those offences that are considered a crime by way of statute, and they often overlap with the other types of crimes. Three notable types of statutory crimes include:
- Alcohol related crimes,
- Drug crimes, and
- Financial/white collar crimes.
These types of crimes are usually restricted by special statutes like those relating to the use of drugs, banned substances (like heroin, marijuana, etc.), or financial offences. It is done so for the community in the hope that individuals will avoid committing such wrongs.
Further, under statutory criminal offences, there exist alcohol related crimes, namely:
- Driving under the influence,
- Minors owning alcohol,
- Drinking in public places,
- Providing alcohol to minors,
- Refusing to perform a field sobriety test,
- Refusing to perform a breathalyser or provide a blood sample, etc.
Moreover, traffic offences are also covered under this law, some of them include:
- Driving on a suspended or revoked licence,
- Driving without a licence,
- Hit-and-run mishaps,
- Driving in a reckless/negligent manner, etc.
Inchoate criminal offences
Inchoate crimes are those crimes that were initiated but not completed. Such an offence helps in committing another offence. In addition, for such acts to be regarded as criminal offences, the individual must take active or substantial steps towards the completion of the crime in order to be held guilty. The punishment for committing such an offence can be severe to the same degree that the underlying crime should be punished, whereas in other cases the punishment might be less severe. Some instances of inchoate criminal offences are:
- Attempting, etc.
Financial and other criminal offences
Finally, financial crimes are those offences that involve deception or fraud for economic gain. They are carried out by acts such as fraud, deception, inter alia. These are oftentimes indicated as white collar crimes and include criminal offences such as:
- Fraud (Section 420 of the IPC),
- Blackmail (Section 383 and Section 503 of the IPC),
- Embezzlement (Section 403 of the IPC),
- Money laundering (Prevention of Money Laundering Act, 2002),
- Tax evasion (Section 276C of the Income Tax Act, 1995),
- Cyber crimes (Section 378 read with Section 22, Sections 424, 425, 426, 463, 465, 468 of the IPC, along with Section 411 of the IPC which is similar to 66B of the IT Act, Section 66C and 66D of the Information Technology Act, 2000, inter alia), etc.
Types of criminal laws in India
There are some crimes that are regarded as offences in rem, i.e., against society in general, wherein the state acts as the prosecution in court. Such offences are usually criminal offences, and they fall under the Concurrent List.
Top 3 criminal laws in India
The top 3 laws that govern criminal law in India, inter alia, are the IPC (IPC) of 1860, the Criminal Procedure Code (CPC) of 1974 and the Indian Evidence Act, 1872. Let’s have a brief look at each of them.
The Indian Penal Code, 1860
The Indian Penal Code (IPC) is the main document that majorly governs the criminal acts and the penalties an offender must be charged with. The primary object of ratifying such a Code is to provide a general, all-around, exhaustive Penal Code for all the offences in India.
The Indian Penal Code is applicable to the whole of India. The penalties for committing a wrong are extended within India as well as outside India, but they must be tried within India. The IPC is also applicable to offences which are committed at any place outside India by an individual on any ship or aircraft registered in India, wherever it may be, thus having an extra-territorial authority. The reason being, it is based on the proposition that every nation has the right to take charge to control and rule in its own jurisdiction.
Several crimes, such as murder, kidnapping, theft, etc., are covered under the IPC.
Drawbacks of the IPC
The main drawbacks of the IPC are as follows:
Colonial ideas still exist in the Code. It is based on the colonial attitude of Britishers to rule India. For instance, Section 375 of the IPC that discusses rape needs a gender-neutral definition. Presently, this Section does not include men, eunuchs, hijras, or boys as victims of rape and only considers women as victims of rape.
Prejudicial towards women
There are several laws that encourage patriarchal attitudes and are prejudicial towards women. Most of the criminal laws in India are based on the male perspective. For instance, Section 125 of the CrPC states that a husband is supposed to maintain his wife, children and parents in case they are not able to maintain themselves, thus proving that men are superior to the rest. The concept of gender equality must be kept in mind before passing any such laws.
Misuse of sedition law
Sedition laws are oftentimes misused rather than utilised by the state. It is defined under Section 124A of the IPC and was originally inserted by the Britishers in 1898 to control any revolt against them and to suppress the freedom movements. But now, this Section is used incorrectly against individuals who control the government. A recent example of misuse of sedition law can be the arrest of Disha Ravi in 2021 in connection with a toolkit on the farmer protests. She was later granted bail by the trial court in Delhi.
No proper definitions of several activities and a dire need to redefine others
Several offences, like tech crimes, cyber crimes, and sexual offences, need to be clarified. For instance, marital rape is still not recognised as an offence under any legislation explicitly. One positive instance of this could be the decriminalisation of Section 377, which criminalised homosexuality and was based on the Victorian regime.
Under the present IPC, there is a risk of unreasonable police interference, also known as policing, this will in turn lead to harassment of people. For instance, as per Section 294 of the IPC, the act of causing annoyance to the public by performing any obscene activity in public places is punishable. However, there is no proper definition of the word ‘obscene’, and thus, the police often use it to their unfair advantage.
Punishments based on judges’ discretion
There are several provisions, say mob lynching, wherein the maximum punishment, sentence, or fine is not mentioned. Thus, the punishment becomes discretionary for the judge to deliver and may differ as per the events or situations.
No place for reformation or community service
The punishments provided under Chapter III of the IPC are quite conservative and archaic, and only provisions for punishments and fines are enacted underneath it. In this century, there is a dire need for the reformation of such laws. For instance, under Chapter III community service or reformation of criminals in different ways apart from fines and punishments could be inculcated.
The Criminal Procedure Code, 1974
The Criminal Procedure Code (CrPC) is a procedural law that talks about how police machinery is to function as far as the enquiry and process are to be adhered to by courts at the time of enquiry/investigation or trial. When the Code of Criminal Procedure came into effect in 1973, the Code of Criminal Procedure, 1908, was already in existence. There are 37 chapters, 484 sections, 56 forms, and two schedules in the existing Criminal Procedure Code of 1973. The CrPC has several offences categorised under it, such as bailable, non-bailable, cognizable, and non-cognizable offences. Each of them is discussed above in brief.
A point must be taken into consideration that if significant law (IPC) is the most important element to safeguard society, a critical method to attain and execute substantial law is procedural law.
The procedural treatment for distinct offences varies. Several steps, like filing an FIR, gathering evidence, and starting an enquiry, are all discussed in the CrPC.
The Indian Evidence Act, 1872
The Indian Evidence Act came into force on 1st September 1872, and applies to the whole of India as per Section 1 of the same. It has regulations and allied issues that regulate the admissibility of evidence in the Indian courts. Presently, it consists of 167 sections distributed across 11 chapters.
Interesting fact : Previously, the Act was applicable to the whole of India except for the State of Jammu and Kashmir, but after the Jammu and Kashmir Reorganisation Act, 2019, the words “except the State of Jammu and Kashmir” were deleted.
Applicability of the Act
To what proceedings does the Act-
|Apply (S. 1)||Not apply (S. 1)|
|This Act is applicable to all the proceedings before any court, including a court-martial (except those specified in the second column).||The Act is not applicable to-i. Affidavits submitted before any court or officer, orii. Proceedings before an arbitrator, oriii. Proceedings before a court-martial convened under –The Army Act, 1950; orThe Naval (Discipline) Act, 1957; orThe Indian Navy (Discipline) Act, 1934; or The Air Force Act, 1950.|
Types of evidence under the Indian Evidence Act
Several types of evidence are discussed under this Act, namely:
- Oral evidence
- Documentary evidence
- Primary evidence
- Secondary evidence
- Real evidence
- Hearsay evidence
- Judicial evidence
- Non-judicial evidence
- Direct evidence
- Indirect/circumstantial evidence
More information on the same can be obtained here.
Other criminal laws in India
The Criminal Law Amendment Act, 2013
The Criminal Law Amendment Act, 2013 was passed after the Nirbhaya case (discussed below), wherein a female student was gang raped in 2012. This Act modified several Acts, especially the ones mentioned above, i.e., the IPC, the CrPC, and the Indian Evidence Act.
This Act recognized and incorporated several offences in the IPC, including:
- Acid attack (Section 326A and Section 326B),
- Sexual harassment (Section 354A),
- Voyeurism (Section 354C),
- Attempt to disrobe a woman (Section 354B),
- Stalking (Section 354D), and
- Sexual assault which causes death or injury causing a person to be in a persistent vegetative state (Section 376A).
Furthermore, the Act amended the already existing acts to make them more stringent. One of the most important amendments could be the addition and broadening of the definition of rape under Section 375 to include acts other than penetration. Additionally, Section 375 was substituted with Sections 370 and 370A. This Act was further amended in 2018.
The Narcotics Drugs and Psychotropic Act ( NDPS Act), 1985
The Narcotics Drugs and Psychotropic Act, 1985, also referred to as the NDPS Act, came into existence on November 14th, 1985. It has gone through amendments thrice. Until 1985, there were no distinct laws related to narcotics. The NDPS Act attempts to forbid producing, manufacturing, cultivating, possessing, purchasing, selling, transporting, storing, and/or consuming any narcotic or psychotropic substance across India.
The NDPS Act has been amended thrice in 1989, 2001, and 2014.
The Prevention of Corruption Act (PCA Act), 1988
The Prevention of Corruption Act, 1988 was enacted to curb corruption and malpractices in government agencies and public sector businesses in India. This Act consists of 5 chapters, which are spread across 31 sections. The original 1988 Act had a limited success rate in curtailing corruption and prosecuting and punishing public officers or servants involved in such corrupt activity, which is why the Act has been amended twice, once in 2013 and the second time in 2018.
Under the PCA Act, the Central Government has the authority to appoint judges and try the following cases:
- Those offences are punishable as per this Act.
- A conspiracy to commit or a shot at committing an offence that is specified under the provisions of this Act.
The Prevention of Food Adulteration Act (PFA Act), 1954
Both houses passed the Prevention of Food Adulteration Bill, which received the assent of the President on September 29th, 1954. It came into force on 1st June 1955 as the Prevention of Food Adulteration Act (PFA Act), 1954.
The main objective of the Act is as follows:
- To make laws for the prevention of food adulteration.
- To safeguard the public from any toxic, lethal and deleterious foodstuff.
- To put a stop to or seize the sale of substandard food.
- To protect the interests of consumers by banishing sharp practice/trickery.
The PFA Act has been amended thrice in 1964, 1976, and 1986.
Criminal laws enacted explicitly for women
The Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961, which came into existence on May 1st, 1961, was an attempt to avert the offering and accepting of dowry. Along with this Act, several sections of the IPC were also amended to provide for the guarding of female victims of such a heinous crime. This Act is applicable to all individuals of all religions throughout India.
The penal provisions under the Act for committing such a crime are as follows:
- Section 3
Under Section 3 of the Act, if any person gives or takes or abets the giving of dowry, he/she is liable for a punishment which shall be not less than 5 years of imprisonment and a fine of not less than fifteen thousand rupees or the amount of the dowry, whichever is more.
- Section 4
Under Section 4 of the Act, if any person makes a demand for dowry, whether directly or indirectly, from the parents or other relatives or any guardian of a bride or bridegroom, he/she shall be punishable by imprisonment for a term not less than six months, but which may extend to two years, along with a fine which may extend to ten thousand rupees.
The Commission of Sati (Prevention) Act, 1987
The cruel and immoral practice of Sati (burning alive the widow with her deceased husband) was quite prevalent in the period from 1680 to 1830.
The Commission of Sati (Prevention) Act, 1987 came into existence in 1987 after the Rajasthan State Government enacted the Rajasthan Sati Prevention Ordinance, 1987. There was an uproar throughout the country considering the act of sati being performed on Rupkunvar from Deorala village.
Interesting fact: The aforementioned Rupkunvar case was the last known case of sati in India. She was an 18-year-old widow who was burnt alive on the pyre of her deceased husband, and this action shook the nation and thus paved the way for new legislation for the abolition of such inhumane practices.
The Indecent Representation of Women (Prohibition) Act, 1987
There were and still are several sections under the IPC like-
- Section 292 and Section 292A (selling, hiring, distributing, etc. any obscene material);
- Section 294 (performing obscene acts or playing illicit songs in public),
existing to prohibit indecent representation of women, but these laws were not fruitful, which is why women’s organisations made several protests and representations to pass an ordinance to curb this evil. Eventually, Parliament passed the Indecent Representation of Women (Prohibition) Act, 1987, which became effective on October 2nd, 1987. This Act is applicable to each and every Indian state except for Jammu and Kashmir.
As per this Act, if any individual is found to harass any woman with an indecent representation in the form of books, photographs, paintings, films, pamphlets, packages, etc., he/she will be punished by a minimum of 2 years’ imprisonment.
The Protection of Women from Domestic Violence Act (PWDVA), 2005
The Protection of Women from Domestic Violence Act, 2005, also known as the PWDVA Act, was passed in 2005 and was implemented in October 2006. This Act throws light on the definition of domestic violence as stated under Section 3 of the Act, encompassing the following types of abuse:
- Physical abuse,
- Sexual abuse,
- Verbal and emotional abuse, and
- Economic abuse.
It also expands the definition of domestic relationships by including mothers, wives, sisters-in-law, daughters, and daughters-in-law. The main object of the Act is to secure women from any sort of domestic violence.
The Immoral Traffic (Prevention) Act, 1956
Prior to independence, there were certain states that had distinct acts to avert human trafficking. However, they were not sufficient enough, which is why there was a dire need to pass a law in accordance with the same.
Thus, the Suppression of Immoral Traffic in Women and Girls Act, 1956, commonly known as the SITA Act, was passed. This Act was amended in 1986. The title of it has now changed and it is called the Immoral Traffic (Prevention) Act, 1956, which became effective on August 20th, 1986.
Criminal laws enacted explicitly for children
There is no crime committed unless the intention or motive behind doing so is referred to as guilty, meaning the act does not by itself make the man guilty unless his intention was. But as far as a child is concerned, he is totally exempted from criminal liability under penal laws depending upon his age and the gravity of his understanding for committing such an act. For instance, under the IPC, no child commits an offence under the age of 7 years. The following offences deal with crimes committed by a child under the IPC:
It states that nothing is an offence committed by a child whose age is under seven years.
It states that nothing is an offence committed by a child whose age is above seven years but below twelve years and who does not have the maturity to reckon the outcome of the act thus committed.
Interesting fact: There is a Latin maxim called “doli incapax” meaning ‘incapable of doing any harm/wrong’ or ‘incapable of committing a crime’. It is a presumption that a child is not capable of committing an offence and the aforementioned sections are based on the same principle.
The other laws enacted only for children are as under:
The Juvenile Justice (Care and Protection) Act, 2000
The Juvenile Justice (Care and Protection) Act, 2000, which brought the country into alignment with the Child Rights Convention, 1989, was one of the most crucial pieces of legislation governing juvenile crime after India became independent.
Any individual under the age of 18 was considered a minor and was never tried as an adult. This was the law which caused fury amongst the Indian public in the infamous ‘Nirbhaya Devi gang rape case‘, an incident which distressed the whole country on December 16, 2012.
A note must be taken that the Juvenile Justice (Care and Protection) Act, 2000, is now replaced with the Juvenile Justice (Care and Protection) Act, 2015.
The Children Act, 1960
This Act was enacted for the care, protection, maintenance, welfare, training, education, and rehabilitation of neglected or delinquent children and for the trial of delinquents in the Union territories.
The Protection of Children from Sexual Offences (POCSO) Act, 2012
The Protection of Children from Sexual Offences Act, 2012, commonly known as the POCSO Act, was passed to provide robust legislation for shielding children from offences like-
- Sexual assault,
- Sexual harassment,
- Pornography, etc.,
while also cushioning children at every stage of the judicial process.
The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation, and speedy trial of offences through designated special courts. The Act makes abetment of child sexual abuse an offence.
General defences available for a criminal under criminal laws : an India perspective
In India, criminal laws have several punishments enlisted for wrongful activities. However, it is not always important that an individual is penalised for a crime. This is where the general defences come into being. So, under Chapter IV of the IPC, general exceptions, i.e., the exceptions wherein a person may be spared from the wrath of punishment, are discussed. The defences are as follows:
Mistake of fact
A, a soldier, opens fire on a mob by the order of his superior, in conformity with the commands of the law. In this case, A has not committed any offence.
Here, any act done by a judge acting judicially is no offence.
Any judge who sentences a prisoner to death, even if it is done wrongfully, will not be liable to be punished for having caused somebody’s death.
The third exception relates to acts committed by accident. It is discussed under Section 80 of the IPC. It provides that nothing is an offence which is done by accident or misfortune-
-without criminal intention or knowledge,
-in the doing of a lawful act,
(i) in a lawful manner,
(ii) by lawful means, and
(iii) with proper care and caution.
A is working with a hatchet (a small axe). The head of the hatchet flies off and a fatality is caused. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence under Section 80.
Absence of criminal intent
This exception, namely, absence of criminal intent, can be considered to be those acts which appear to be criminal offences but are committed without any criminal intent, which, obviously, must not be retaliated against. Thus, they are rightly exempted from the category of offences.
Under this head, seven acts are mentioned in Sections. 81 to 86 and 92 to 94. These are as below:
(a) Act done to avoid other harm (Section 81);
(b) Act of a child-
- under seven (Section 82),
- above seven and under twelve, but of immature understanding (Section 83).
(c) Act of an insane person (Section 84);
(d) Act of an intoxicated person (Sections 85-86);
(e) Bona fide act for another’s benefit (Section 92);
(f) Communication made in good faith (Section 93);
(g) Act done under compulsion or threat (Section 94).
Act done by consent
The definition of consent is stated under Section 90 of the IPC, which runs in negative terms and discusses what is not consent. Sections 87 to 91 state the laws as to how far an act done by consent will be forgiven by statutes.
The next general exception talks about acts that are of a trifle (trivial) nature. It is discussed under Section 95 of the IPC and it states that- nothing is an offence because-
- It causes, or
- Is intended to cause, or
- Is known to be likely to cause,
any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Rights of private defence
The law relating to private defence is discussed under Sections 96 to 106 of the IPC. This is one right that safeguards an individual and his/her property against the unlawful aggression of others. It is a right inherent in man, and is based on the cardinal principle that it is the first duty of man to help himself.
“This right of defence is absolutely necessary. The vigilance of the magistrates can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total of individual resistance. Take away this right and you become, in so doing, the accomplice of all bad men.” – BENTHAM.
To sum it all up, Section 96 asserts that nothing is a crime which is committed in the execution of the right of private defence.
Top 10 criminals in India
There are several masterminds and gangsters who have caused huge disasters in India. Below is the list of the top 10 most wanted criminals in India.
- Dawood Ibrahim Kaskar,
- Syed Salahuddin,
- Sajid Mir,
- Masood Azhar,
- Ilyas Kashmiri,
- Chhota Shakeel,
- Major Iqbal,
- Hafeez Muhammad Saeed,
- Anees Ibrahim,
- Zaki-Ur-Rehman Lakhvi
Top approaches to control crimes
Generally, it is held that those who break the laws are disobedient and are often recognised as culprits or criminals. However, such a generalised statement cannot be held to be accurate when there are great leaders like Mahatma Gandhi or Nelson Mandela who fought against the atrocities of the governments in India and South Africa and brought change in the community with their ideologies.
Crimes are a result of social conditions prevalent in society. Bob Roshier (1989) opined that people, in general, wish to commit a wrong when they have a feeling that they have been wronged, but due to a general belief of conformity and a number of considerations like loss of affection, status, finance, and security, they are persuaded to commit wrongs. He also believed that the fear of punishment or fine also restrains an individual from committing a wrong.
Theorists have pinpointed the following controlling agents of crime and the measures to omit such a crime thereof:
It is oftentimes noticed that children from failed families, broken homes, or those who have been brought up by a single parent will generally, but not always, display certain despicable behaviour. Studies conducted by Morash and Rucker demonstrated that even though it was single-parent families who had the highest number of deviancies, the same was applicable to decent households but those belonging to a group of lower income strata. In developed countries, the government, in order to impede the surging number of delinquents, suggested that such households must readily enable their children to be adopted by a respectable household to ensure the safety of their future.
The reward and punishment system in schools has been seen to have a great impact on the school-going youth. A student who fears being disparaged or belittled by fellow classmates would constantly remain in discipline.
As per the studies of Zingraff, it was inferred that schools do have an impact on motivating students to obey the legislation.
People in general, especially in a country like India, are God-fearing and the belief of being avenged or sent to hell after death has a deterrent consequence on the minds of individuals. Further, the religious writings, speeches, and behaviours of leaders also have a dominant impact on the people to a great extent.
For example, in Islam, the supporters are restricted from earning interest on money. This prevents the following supporters from acting in a way that might lead to financial fraud or even speculative acts that would lead to economic crime.
Engles, a renowned philosopher, once quoted that just like water will turn into steam after reaching a certain boiling point, an individual who is demoralised will also tend to become a criminal at some point of time. An observation has been made that there is an upsurge in crime rates, which has resulted in creating more impoverished conditions for the needy.
Police are deemed to be a formal agency for the eradication of crimes in society and they are entrusted with the task to detect, investigate and control crimes. A policeman is also authorised with the power to file a case against an individual if he suspects him to be guilty. This kind of power, which is made available to the police, makes them an efficacious, crime-controlling agent.
Penalties and punishments
Crimes are often controlled by punishing the offender via judicial machinery. Such a punishment instils fear in the minds of the offenders and further prevents them from committing a crime, along with creating a deterrent effect on the minds of potential criminal(s). Usually, offenders are fearful of punishment like capital punishment, imprisonment, or even a fine, which is why most offenders are fearful of the idea of committing a wrong.
Several social wrongs can be put to sleep, provided the authorities can control the execution of such activities. For example, a manufacturer who is held liable for disposing of toxic chemicals in the open can be controlled by holding up his manufacturing licence.
The need for reforms in Indian criminal laws
Recently, the Government of India has taken an initiative to amend criminal laws like the IPC, the CrPC, and the Indian Evidence Act. These laws were enacted during the British period, which more or less is still similar even in the 21st century, which is why there is a dire need for reforms in these age-old acts. The key reasons for bringing about a reformation in criminal law are as follows:
Based on colonial era
The criminal justice system is a replica of the British colonial jurisprudence, which was formulated with the perspective of ruling the nation and not serving the citizens.
The purpose of criminal laws is to secure the rights of the innocent and penalise evil, but at present, this system has become a tool of harassment for the common people.
Pendency of cases
According to the Economic Survey of 2018-19, there are around 3,500 crores of cases pending in the judicial system, especially in the district and subordinate courts, which directs us to the maxim “justice delayed is justice denied“.
Massive undertrials hostages/detainees
India has a vast number of undertrial prisoners. As per prison statistics from the National Crime Record Bureau (NCRB) in 2015, around 67.2% of our total prison population consists of undertrial prisoners.
Corruption, huge workload, and accountability of police officers are some of the primary obstacles to the speedy and transparent delivery of justice.
Thus, looking at the above factors, one can safely say that the age-old criminal laws need to be revised at the earliest.
Framework of reform
The new reforms in criminal laws may look like this:
There can be several steps taken to safeguard the rights of victims, namely:
- Launching victim and witness protection schemes,
- Use of victim impact statements,
- Expanded participation of victims in criminal trials, etc.
Creating and revoking offences
An effective justice system must take new types of offences and the revocation of old offences into consideration.
For instance, criminal liability can be graded to discern the gravity of the offence committed and thus pass a judgement accordingly.
Streamlining IPC and CrPC
Offences must be classified in a way that they are beneficial for managing crime in the foreseeable future. For instance, modifications can be made in the IPC wherever several chapters are overfilled.
Curbing unprincipled criminalisation
There is a need to implement principles that provide a thorough reflection on the criminalisation of a particular act as a crime. Unprincipled criminalisation not only leads to the creation of new offences based on unscientific grounds but also causes a sense of arbitrariness in the criminal justice system.
Basic things to know while pursuing a career in Criminal Law
Whether it is initiating legal proceedings against lawbreakers, defending those accused of committing a crime, or engaging in any activity involving criminal laws, the laws related to crimes always play a pivotal role in our society and in the administration of justice.
No matter if you wish to become a criminal lawyer or enter into another area of practice, the journey to paving the way towards a successful career in law commences once an individual enters law school.
Mentioned below are a few things for a student and a lawyer to take note of to have a successful career in law related to crimes:
Top things a law student must note while studying criminal laws
As mentioned above, the journey to a successful career in law begins right when an aspiring lawyer enters law school. Below are some tips for a law student to follow for a triumphant career:
Most of the time, students have been exposed to facets of criminal law via books, television, and movies. In India, shows like ‘Crime Patrol’ and ‘Savdhaan India’ are some of the most infamous TV shows. Such shows can be helpful to some degree, but can often be deceiving. This is why, to gain a better understanding of the real-world practice of criminal law, a law student must do the following:
Join an internship program
Law students must always take advantage of internships, summer and winter programs to gain hands-on experience in the field of criminal law.
Visiting the college library
There is a saying that goes like “books are a man’s best friend“, and indeed, a law student can absorb knowledge straight from the books their libraries have a treasure of!
A law student can simply reach out to his/her law school alumni, seek professional help, and receive mentorship from individuals who are experts in this field via connections.
Top books to refer to for a law student
Usually, bare acts are the most preferred instrument for gaining legal knowledge in law schools. However, there are certain times when one needs an explanation or an in-depth analysis of a particular topic. Below is a list of books a law student can use to gain knowledge in the field of criminal law:
For the Criminal Procedure Code
- Code of Criminal Procedure, 1973 by Durga Das Basu.
- The Code of Criminal Procedure – As Amended By The Criminal Law (Amendment) Act, 2013 by Ratan Lal and Dhirajlal.
- The Code of Criminal Procedure by SC Sarkar, PC Sarkar and Sudipto Sarkar
For the Evidence Act
- Textbook on the Indian Evidence Act by KD Gaur.
- The Evidence Act by Dr. V. Nageshwara Rao.
- Indian Evidence Act by C. Jamnadas.
For the Indian Penal Code
- The Indian Penal Code by Ratan Lal and Dhirajlal.
- The Indian Penal Code by Ratan Lal and Dhirajlal (student edition).
- Indian Penal Code by RA Nelson.
Top things a lawyer must note while studying criminal laws
Charles Dickens once stated, “If there were no bad people, there would be no good lawyers,” and the statement is as true as it can be!
A criminal lawyer deals with the law of crimes, mostly to defend and represent an accused in a lawsuit, and sometimes the state.
Below are some tips for a lawyer to follow for a triumphant legal career:
Gain effective practical training
Criminal law is a fast-paced area of practice and thus needs proper practical training before he/she decides to work separately, i.e., without any seniors.
Be able to work under pressure
To become a flourishing criminal lawyer, it is essential that the lawyer is able to work under pressure and is able to think on his feet when in such circumstances.
Be able to act upon any given piece of information or evidence quickly
Criminal law needs a lot of research and evidence gathering; hence, one must be able to deal with information or evidence promptly.
Job opportunities for an individual studying criminal law
There are several job opportunities available to a criminal lawyer, namely:
- Government advocate,
- Government pleader,
- Criminal law practitioner,
- Lecturer, etc.
Top books to refer to for a criminal lawyer
Some of the best books on criminal law for beginners and law students are as follows:
- Get a Running Start: Your Comprehensive Guide to the First Year Curriculum, 1st Edition by David Gray, Donald Gifford, Mark Graber, William Richman, David Super, Michael Van Alstine.
- Investigative Criminal Procedure in Focus by Todd A. Berger.
- International and Transnational Criminal Law by David Luban (Author), Julie R. O’Sullivan, David P. Stewart, Neha Jain.
- The Decision-Making Network: An Introduction to Criminal Justice, 2nd Edition by Risdon N. Slate, Patrick R. Anderson, Lisa M. Carter.
- A Short & Happy Guide to Criminal Law (Short & Happy Guides) 2nd Edition by Joseph Kennedy.
- Siegel’s Criminal Law: Essay and Multiple-Choice Questions and Answers, 5th Edition by Brian N. Siegel, Lazar Emanuel, Steven Chanenson.
Top websites to refer to for anyone willing to build a career in Criminal Law
Below is a list of several websites and blogs for a law student or a lawyer or anyone who has an interest in gaining insights on law can refer to:
iPleaders, one of India’s largest blogs for anyone who has an interest in the field of law. An individual can write and submit posts for publication on any legal issue, share their legal insights, and ask for and receive answers on legal issues here.
LiveLaw is a website that covers news related to Indian legalities and legalisation, law firms, and law schools, inter alia. It also publishes opinions on the latest developments in the field of law.
Bar and Bench
Bar and Bench is a widespread news and analysis portal for the legal fraternity in India. It has several posts on news information, interviews, and columns covering a lot of legal spectrums.
Indian Kanoon is an Indian law search engine. It has been connected to all the courts and tribunals across India for delivering up-to-date judgements.
Their tagline incorporates “we are the industry leaders in legal research” and they are well-known for building authentic and reliable legal information.
Manupatra is one of the leading providers of Indian databases for online legal research. It is an amazing tool for legal research, especially for law students, legal professionals, etc.
As stated above, a country like India has numerous laws for the administration of justice under the criminal justice system. The criminal laws in India are quite intricately designed and are very sophisticated. Indian criminal laws have numerous laws surrounding distinct crimes and penalties. It also encompasses the procedures in which the trials in the cases should be conducted; the method of carrying out an investigation; and how to go ahead with the evidence discovered.
A strong criminal law framework is crucial for averting wrongdoers from committing a wrong and also for making the justice system uncomplicated, reasonable, and quick.
Frequently Asked Questions (FAQs)
How many types of criminal laws are currently present in India?
In India, laws are predominantly divided into three parts, namely:
- The Indian Penal Code, 1860;
- The Code of Criminal Procedure Code, 1973; and
- The Indian Evidence Act, 1872.
Apart from these major acts, there are several other minor acts, as discussed above.
Who drafted the Indian Penal Code and when?
The Indian Penal Code was drafted in 1860 on the suggestions of the First Law Commission of India, established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Thomas Babington Macaulay. It came into effect in the early British Raj period, around 1862.
What are the most recent amends to the criminal laws?
The Criminal Law (Amendment) Bill, 2018 is one of the latest amendments to criminal laws.
- Book on Criminology by Pritha Dave, C. Jamnadas & Co. (2021 edition)
- Book on The Indian Penal Code by N.H. Jhabvala, C. Jamnadas & Co. (2019 edition)
- Book on The Criminal Procedure Code by N.H. Jhabvala, C. Jamnadas & Co. (2021 edition)
- Book by LawSikho on criminal law for LL.M. entrance exam
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