By Shreeyam Jain & Aishwarya Shree, CNLU Patna
Law was there when people used to live in tiny family groups taking everything that they needed. It was the Sacred Law. There was no law for property except that everything must be shared. There was no law for money because they didn’t have any. There was no law for houses, cars, grog, petrol or drugs—they didn’t have any except for bush tobacco which was shared like everything else they had.
The only way to punish was physically, by beating or killing the law breaker. They couldn’t be fined, as they had no money or wealth to take. They couldn’t be locked up, as there were no jails. Everybody knew what they had to do to make sure that everybody survived. Everybody was taught to fight as defend oneself and family. We had no army, no police, and no courts.
Everybody knew how to use a weapon; women and men both learned to fight and knew they would have to do that sometime. They also believed that our Law Man can make magic, they can heal the sick but they can also make people sick and die by magic. That is what all people believed. People kept peace by fear of violence and magic.
Now we live in a world ruled by the new law that is not sacred, that doesn’t accept that magic exists. Now we are all equal citizens with human rights. Now we have property, houses, cars, grog, drugs, and pornography. The old Law worked really well in the old days but it was not about human rights. It was about unconditional loyalty to kin, to family and following the sacred Law. It was about capital and physical punishment. There were wise old people who tried to make sure that there was justice. But they are all dying now. There is nothing in the old Law that helped in dealing with grog and drugs. But we still respect our ancestors and we still want to keep our culture.
The youth is caught in the middle, they are still part of the old Law but they live in a world run by the new law. Lawyers are only interested in the rights of the “clients” be it the perpetrator himself. They will do whatever they can to make sure that murderers and rapists and child abusers are protected from the new law. They will only advocate acknowledging traditional law when they think it will work better for their clients, the perpetrators. But they don’t know how the old Law worked.
They never worry about the victims who have had their basic human rights ignored and trampled on by members of their own communities, their own families. Our problem is that on one hand, we want to keep our culture. We want to respect our ancestors and their Law but we also want to be equal citizens and we want human rights. We can’t do that without changing our Law.
The last few decades have witnessed major advances in scientific knowledge, legendary scholarly debates and pivotal contributions to research, policy, and practice. Criminology is a dynamic and evolving field of study. Criminology, derived from Latin word crīmen meaning “accusation”; and Greek word -λογίαn meaning -logia, is the scientific study of the nature, extent, causes, and control of criminal behavior in both the individual and in society.[i]Criminology is an interdisciplinary field in the behavioral sciences, drawing especially upon the research of sociologists (particularly in the sociology of deviance), psychologists and psychiatrists, social anthropologists as well as on writings in law.
HISTORY OF CRIMINOLOGY
Criminology developed in the late 18th century, when various movements, imbued with humanitarianism, questioned the cruelty, arbitrariness, and inefficiency of the criminal justice and prison systems. During this period reformers such as Cesare Beccaria in Italy and Sir Samuel Romilly, John Howard, and Jeremy Bentham in England, all representing the so-called classical school of criminology, sought penological and legal reform rather than criminological knowledge.
Their principal aims were to mitigate legal penalties, to compel judges to observe the principle of nullapoena sine lege (Latin: “due process of law”), to reduce the application of capital punishment, and to humanize penal institutions. They were moderately successful, but, in their desire to make criminal justice more “just,” they tried to construct rather abstract and artificial equations between crimes and penalties, ignoring the personal characteristics and needs of the individual criminal defendant. Moreover, the object of punishment was primarily retribution and secondarily deterrence, with reformation lagging far behind.[ii]
In the early 19th century the first annual national crime statistics were published in France. Adolphe Quetelet (1796–1874), a Belgian mathematician, statistician, and sociologist who was among the first to analyze these statistics, found considerable regularity in them (e.g., in the number of people accused of crimes each year, the number convicted, the ratio of men to women, and the distribution of offenders by age).
From these patterns, he concluded that “there must be an order to those things which…are reproduced with astonishing constancy, and always in the same way.” Later, Quetelet argued that criminal behavior was the result of society’s structure, maintaining that society “prepares the crime, and the guilty are only the instruments by which it is executed.”
Whereas Quetelet focused on the characteristics of societies and attempted to explain their resulting crime rates, the Italian medical doctor Cesare Lombroso (1836–1909) studied individual criminals in order to determine why they committed crimes. Some of his investigations led him to conclude that people with certain cranial, skeletal, and neurological malformations were “born criminal” because they were biological throwbacks to an earlier evolutionary stage.
Highly controversial at the time he presented it; his theory was ultimately rejected by social scientists. Lombroso also contended that there were multiple causes of crime and that most offenders were not born criminal but instead was shaped by their environment. The research of both Quetelet and Lombroso emphasized the search for the causes of crime—a focus that criminology has retained.
CRIME AND CRIMINOLOGY
Criminology is the scientific study of the nonlegal aspects of crime and delinquency, including its causes, correction, and prevention, from the viewpoints of such diverse disciplines as anthropology, biology, psychology and psychiatry, economics, sociology, and statistics.
A normative definition views crime as deviant behavior that violates prevailing norms –cultural standards prescribing how humans ought to behave normally. This approach considers the complex realities surrounding the concept of crime and seeks to understand how changing social, political, psychological, and economic conditions may affect changing definitions of crime and the form of the legal, law enforcement, and penal responses made by society.
Viewed from a legal perspective, the term crime refers to individual criminal actions (e.g., a burglary) and the societal response to those actions (e.g., a sentence of three years in prison). By comparison, the field of criminology incorporates and examines broader knowledge about crime and criminals. For example, criminologists have attempted to understand why some people are more or less likely to engage in criminal or delinquent behavior.
Durkheim’s views on crime were a departure from conventional notions. Durkheim rejected the definition of the crime, which would constitute the common sense of any society, that crimes are acts that are harmful to society. He pointed to the enormous variations between societies in the acts, which have been regarded as criminal in order to rebut the claim that conceptions of crime are rooted in the social evil represented by particular actions.[iii] The only attribute applicable to crimes, in general, is that they are socially prescribed and punished.
‘The only common characteristic of all crimes is that they consist… in acts universally disapproved of by members of each society… crime shocks sentiments, which, for a given social system, are found in all healthy consciences. ‘Crime,’ argues Durkheim, ‘is a universal feature of all societies. This is because crime serves a vital social function. Through the punishment of offenders, the moral boundaries of a community are clearly marked out, and attachment to them is reinforced.
“The purpose of punishment is not deterrence, rehabilitation nor retribution. Punishment strengthens social solidarity through the reaffirmation of moral commitment among the conforming population who witness the suffering of the offender.”
The cause of crime is one of the major research areas in criminology. By the twenty-first century, criminologists looked to a wide range of factors to explain why a person would commit crimes. There are certain factors in our societies, cultures (family values), system (educational, political, law-enforcement…), economy, and so on that endorse the potential of criminal activities of an individual.
Usually, a combination of these factors is behind a person who commits a crime. Reasons for committing a crime include greed, anger, jealousy, revenge, or pride. Some people decide to commit a crime and carefully plan everything in advance to increase gain and decrease risk. These people are making choices about their behavior; some even consider a life of crime better than a regular job—believing crime brings in greater rewards, admiration, and excitement—at least until they are caught. Others get an adrenaline rush when successfully carrying out a dangerous crime. Others commit crimes on impulse, out of rage or fear.
What causes a specific individual to break a taboo, a social sanction, or a law has ever been an enigma to society.[iv] Crime, as well as immorality, is the backwash of a culture. As Professor Frank Tannenbaum has eloquently expressed it:
“Crime is eternal – as eternal as a society. So far as we know, human fallibility has manifested itself in all types and forms of human organization. Everywhere some human beings have fallen outside the pattern of permitted conduct. It is best to face the fact that crime cannot be abolished except in a non-existent utopia. Weakness, anger, greed, jealousy – some form of human aberration – has come to the surface everywhere, and human sanctions have vainly beaten against the irrational, the misguided, impulsive, and ill-conditioned.
“For reasons too subtle and too complex to understand, the ordinary pressures and expectancies that pattern the individual’s conduct into conformity break down in given instances. They have always done so: they always will. No way of drawing the scheme of the good life has yet been discovered which will fulfill the needs of all human beings at all times.”
Crime is, therefore, an ever-present condition, even as sickness, disease, and death. It is as perennial as spring and as recurrent as winter. The more complex society becomes, the more difficult it is for the individual and the more frequent the human failures. Multiplication of laws and of sanctions for their observance merely increases the evil. Habituation becomes more difficult in a complex society, and the inner strains grow more obvious.
Moreover, as society moves, its definitions and structures changes. As cultures change and the political environment shifts, societies may criminalize or decriminalize certain behaviors, which directly affect the statistical crime rates, influence the allocation of resources for the enforcement of laws, and (re-)influence the general public opinion.
The challenge also arises when the law tries to keep up with rapid technological developments. For e.g. one recurring issue arising from the global nature of the internet in which courts have jurisdiction over material on the internet, that is, which courts have the right and authority to hear a case and have the law of their nation apply to it and many such other issues.[v]
This era is seeing a lot of activities in the mobile ecosystem as new companies are coming up with new models of communication devices, mobile phones, and tablets. As more and more people move on to the mobile ecosystem, the use of mobile devices and content generated therefrom are likely to bring forth significant new challenges for cyber legal jurisprudence across the world.
A number of jurisdictions across the world do not have dedicated laws dealing with the use of communication devices and mobile platforms. As more and more people use mobile devices for output and input activities, there will be increased emphasis on meeting up with the legal challenges emerging with the use of mobility devices, more so in the context of mobile crimes, mobile data protection, and mobile privacy.
Already, social media is beginning to have its social and legal impact. As per one study, Facebook is responsible for one-third of the divorces that have been filed in recent times. As social media websites continue to become the fertile ground for targeting by all relevant lawyers, law enforcement agencies and intelligence agencies, social media continues to become the preferred repository of all data.
As such, social media crimes are increasing dramatically. Inappropriate increase in the use of social media thereby leads to various legal consequences for the users. The concept of privacy in the context of social media is going to be greatly undermined, despite efforts to the contrary made by some stakeholders. Cyber lawmakers across the world will have to face the unique challenge of how to effectively regulate the misuse of social media by vested interests and further how to provide an effective remedy to the victims of various criminal activities on social media.
There is likely to be an increase in litigations across the world, which has a connection, association, and nexus with the output of social media in one form or the other. Already, social media defamation litigations have started. Further, various matrimonial actions have started across the world which uses the output of social media. The coming years are further likely to see the enhancement of litigations across the world as far as the use of the output of social media, being data and information resident on social media networks, will be concerned. The aforesaid are some of the important Cyberlaw trends that are likely to emerge.
These are based on an analysis of the emerging jurisprudence in Cyberlaw up to date. Given the rapid pace of growth of technology, it is not possible to overrule any other new or major technological trend emerging which could have a direct impact on the growth of Cyberlaw.[vi]
The two main factors affecting social interaction are an increase in population density and advances in technology, most notably in the fields of communication and transportation. This is because population growth and technology advances increase social connectivity, leading to interactions that differ in quantity, intimacy, frequency, type, and content. This also results in changes of law, for e.g., earlier, there was no law of divorce .and other legislation according to social changes.[vii]
CRIMINOLOGY AS A SEPARATE BRANCH OF STUDY
Despite tremendous promise and considerable potential, Criminology as a subject in this country is in a state of avoidable neglect and apathy.[viii]Teaching of criminology at degree and post-degree level is not extensively available as there are only a very few institutions providing teaching, research or practices in criminology. The situation has resulted in many untoward outcomes. For instance, the academic openings and a broad network of academicians in criminology could not grow in India.
Criminology in India has not been able to foster a clear cut beneficiary base. Linkages between practice and profession in criminology are obscure and unexplored. On account of being mainly associated with their parent disciplines, the researchers who made commendable contributions to criminology remained indifferent to the development of criminology in India.
The basic researches in criminology India leading to the development of theories explaining the major problems of criminality in this country have been almost nonexistent. Nor do the criminologists, in most cases, have been able to prescribe policies and programs oriented research findings. Criminology in India also lacked international focus and recognition. Combined together, criminology is largely perceived as a discipline with restricted avenues and limited vertical mobility in career advancement in India.
RESEARCH PRIORITIES: FUTURISTIC VISION
Research priorities in the academic discipline are relative and time specific. These need to be seen at two levels: one, at the international level to understand the trends and emphasis in research. This is significant from the standpoint of the academic growth of the subject in the international context. Second, the discipline ought to address the problems of contemporary nature with a possible contribution to policy and planning.
Going by this, it would be logical to suggest that the research priorities in criminology must be guided by the gaps in research suggested in the preceding section. Following areas are worth considering as priorities in criminological researches[ix].
- Basic research contributing to the indigenous understanding of major forms criminality.
- Evolving database and information based on non-government sources.
- Areas like victims of kidnapping, terrorism, organized crimes involving secondary victimization, restitution, restorative justice, system as victim, political criminology unraveling nexuses, vulnerability of political processes for criminalization, radical criminology, action criminology, pragmatic criminology, social tolerance of deviance, decriminalization, economics of crime and justice, impact of imprisonment, forensic psychology, Environmental criminology including crime profiling, GIS applications and crime mapping, situational crime prevention, alternatives to imprisonment, community sentence, continuum of criminal justice process, fear of crime, victimization survey, risk of victimization are in need of systematic research attention and form priorities in research in criminology in the times ahead.
- Focus on the strong implementation of existing laws so as to increase people’s faith in the law. The present law is adequate but what is required is an effective investigation, prosecution, and speedy trial. Fast track courts in all states are a necessity. Existing law provides for serious punishment. It is not always necessary that death sentence or severe punishment would act as a deterrent. The problem is not the law; the need is to change the societal mindset.
The attitude towards crime and criminals must be changed. Supreme Court advocate Krishan Mahajan is against any changes in the law. “Enhancement in penalty may mean that best evidence is gone. Rapists may increasingly tend to kill their victims to wipe out any evidence. Now at least, the victim can give her testimony, appear in court and identify the perpetrator of the crime and say what has happened.
Under the law, the best evidence is the victim herself. In case the victim is brutalized and dies, there is no hope of recording the statement of the key witness. That’s why the rapists will finish off the victim.” No law is good enough if it is not implemented properly. Howsoever strong the law is, the case is lost if the police do not conduct a proper investigation.
Investigation too must be done by the police properly, fairly and there must be a time limit fixed as the police sometimes takes a decade also to investigate any matter. If such long time periods are involved then the probability of tampering with evidence increases and justice is rarely given in such cases.
- India follows a punishment theory which is more Restitutive in form than Repressive. Restitutive laws require an offender to pay for the harm he did to whoever was affected by his crimes, or he is just asked to comply with the law. In Restitutive law, the punishment focuses on reforming the perpetrator and attacks the social status of that person so as to make him realize his guilt. A Repressive law system is one in which any lawbreaker is severely punished for their crimes.
But recent trends in the crime graph show an alarming increase in the rates of crimes in the country for the past few years. Such an increase is a clear depiction of the fact that the existing theory of crime prevention is not instrumental in controlling the crime graphs. Therefore there is a need to bring about a change in the existing theories of punishments.
- Criminology should also take into account the conditions of the criminals going back into society. When after completing his punishment, the criminal after due reformation is sent back into society. But due to his newly gained social status as a criminal, the person even after due payback for his actions is not allowed to gain back is earlier status. Moreover, he is not even allowed to be a part of that society anymore.
In short, the person losses his/her social life completely. Apart from this, there is the problem of employment. Nobody is ready to give employment to such a person no matter what his qualifications are. Criminology should study such matters and direct the Government to help such persons or make arrangements for their proper restitution so that the interest of those who are now remorseful and has properly paid for his deeds is not denied of a second chance.
- Apart from these, there are certain crimes in which the perpetrator is the society itself. For example, in Dowry cases, the society itself imbibes in the minds of the people that this is a ritual and is not a crime. So, if a person of that society asks for Dowry, it is because he does not consider it as a crime. Here, the whole society is at fault and not that particular person. Criminology should hence take into account these matters and decide on it that in such cases, who should be brought to trial and who should be punished.
- The number of judges in the Indian Judiciary should also be one of the research areas of Criminology. There is an urgent need to increase the strength of judges. Backlogging is a product of “Inadequate judge-population ratio” and lack of infrastructure.
Law Commission of India on 31st July, 1987 submitted its 120th report on “Manpower Planning in Judiciary” in which it compared India’s judge-population ratio vis-à-vis developed countries and found that the ratio in India is 10.5 judges per million people (lowest in the world) as compared to 41.6 per million people in Australia, 75.2 per million people in Canada, 50.9 per million people in United Kingdom and 107 per million people in United States of America (which was three times less populated than India in 1981 had 25,037 judges as compared to India’s total judge strength of 7,675 at that time).The Central (Government) has failed in its objective to extend the judge strength to 107 judges per million people by the year 2000 as recommended by the Law Commission of India. Even The Honorable Supreme Court of India in All India Judges Association &ors. V. Union of India &Ors.[x]observed that judge strength should be increased by 10 per million people every year for 5 years to meet at least the desired ratio of 50 to a million people. This observation too fell on the center’s deaf ears.
- Need is also to make the criminological literature produced in India available on the Internet.
- A look at the performance of criminology and concerned institutions abroad (viz., U.S., UK, Australia) can provide the needed insight in developing this subject in India as a vibrant discipline with amazing potential.
- To grow and sustain, teaching and research in criminology need to be made widely available like any other social science subject.
To develop and sustain Criminology as a discipline of learning and applications, there is a need to work on the gaps and problems identified in the research survey. The UGC, ICSSR and the Institutions already working in this area are required to display greater concern for this subject. The UGC can think of establishing centers for excellence in criminology. The matter can also be taken up with the Government agencies and organization for considering the subject in their recruitment process.
The UGC or Ministry of Human Resource Development can do the needful into this matter. The bodies like Indian Society of Criminology must act in this direction. The UGC and ICSSR may consider of greater and separate funds allocation for researchers in Criminology. The developing of standard syllabi in criminology may also be given attention to.
Criminology in India is surely coming of age. Quality and quantity of research in criminology has shown improvement. Criminology in India has grown to be a multidisciplinary subject in a true sense. Despite shortcomings found and expressed in the present Report, Criminology as a subject of learning and research has tremendous promise and potential for a country like India. If nurtured and developed in a correct way and direction, it can contribute to the larger objective of safe living and order in society.
Formatted on February 20th, 2019.
[i]Deflem, Mathieu (2006). Sociological Theory and Criminological Research: Views from Europe and the United States. Elsevier. pp. 279
[ii]Beccaria, Cesare (1764). Richard Davies, translator.ed. On Crimes and Punishments, and Other Writings.Cambridge University Press. pp. 64
[iii]Emile Durkheim, Foundations of the Classic Sociological Theory, in Scott Appelrouth; Laura DesforEdles (26 September 2007). Classical and contemporary sociological theory: text and readings. Pine Forge Press. pp. 101–102.
[iv]Harry Elmer Barner and Negley K. Teeters, New Horizons in Criminology 116-119 (3rd ed., 1959)
[viii]Shukla K.S. and Krishna K.P. (1981): ‘Teaching of Criminology in India: Status and Scope’, The Indian Journal of Social Work, Vol-XLII, No-3, Oct.
[ix]Srivastava S.P. (1995): ‘Expanding the Horizons of Indian CriminologyToward Identifying Critical Concerns and Commitments’, Indian Journal of Criminology, Vol.23, No. 1, PP.1-8.
[x]JT 2003 (3) SC 503