Tag: crimeinindia

Introduction

Through the judicial system or legal framework, the law is tasked with punishing those who facilitate the commission of a crime and those who commit the crime. The entire process involves several procedures, from filing a complaint to passing a judgement in a court of law. Each of these procedures involves a myriad of theories and principles to be kept in mind. When the issue of initiating criminal charges is brought to the forefront, identifying the culprits is one of the first elements to be dealt with. Assigning responsibility or liability for the crime is vital, as it can make or break the case outcome. However, complications may arise in identifying those directly involved in the case and those who may have been involved in the case indirectly. For this reason, legislatures worldwide must apply various theories of culpability in their criminal laws. This reduces ambiguity and assists the police and prosecution ensure convictions for serious crimes. Below, the various theories of culpability, i.e., liability, that are applied in India’s criminal justice system are explained.

Theories of culpability

It is easier to understand the theory of culpability if one considers the following: Usually, people are charged for the crimes they choose to commit. In the theories of culpability, people are charged with crimes others commit. Given that India has primarily based its laws around the Common law, it is necessary to begin by familiarizing ourselves with the principles of Common law regarding culpability. In the complicity doctrine, more than one individual shall be responsible for the crime. These individuals may have been involved before and after the crime. The conduct of all the individuals results in the crime, and they shall be charged accordingly. The first-degree perpetrator is charged first. Only after this can the accomplices be brought under trial.

Four parties in a crime were recognised by Common law¹:

1. The actual perpetrators of the crime (first degree) – those who were directly involved in the commission of the offence
2. The aiders and the abettors (second degree) – those who assisted in the commission of the crime by indirect means
3. The aiders and the abettors (those involved before the fact) – the individuals who facilitated or planned for the offence prior to the commission of the crime
4. The aiders and the abettors (those involved after the fact) – the individuals who assisted the perpetrators after the crime was committed

To better understand the same, an illustration can be referred to. The murder of ‘E’ is planned by ‘A’ and ‘B’. ‘A’ kills ‘E’ by using a gun given by ‘C’, who was aware of the intentions of ‘A’. After the murder, ‘A’ seeks the help of ‘D’ to hide the murder weapon and for assistance in evading the police officers.

In this illustration:

1. ‘A’ is the actual perpetrator of the crime of murder (first-degree)
2. ‘B’ is the co-conspirator (second-degree)  
3. ‘C’ is the abettor before the crime, who supplied ‘A’ with a gun
4. ‘D’ is the abettor after the crime, who helped ‘A’ by concealing his location from the police and hiding the murder weapon.

When aiders or abettors are prosecuted under this doctrine, there is a need for the intention to commit a crime.

A closely related theory of culpability is the theory of vicarious liability. In vicarious liability, two parties exist – the principal and the agent. The agent acts on behalf of the principal. Thus, when the agent (the perpetrator) commits a crime, the principal is also liable for the same, as the agent performs the actions instructed by the principal. However, in criminal law, the principal is not responsible for any independent act the agent does.² In criminal law, this principle is mainly used based on public policy, i.e. in matters where subordinates commit crimes and the higher-ranking officers are punished.

In the theory of derivative complicity, the liability of an abettor or aider stems from the perpetrator’s crimes. For instance – if the perpetrator merely attempts a crime, the abettor will be charged for the attempt. However, if the perpetrator fails at the attempt to commit a crime, then the abettor will not be charged for anything.

Professor Glanville Williams, in his textbook³ has shared his thoughts on derivative liability, summarised as follows: ‘The offence of invitation is said to be committed when one person enables another to commit a crime, whether as a perpetrator or as an abettor, and whether the incited person commits the crime.’

Essentially, derivative liability is a mechanism to make liable a person who incites or assists another to commit a crime. This is irrespective of whether the actus reus or mens rea elements are completely satisfied by the abettors/co-conspirators. The liability of the abettors is essentially derived from the perpetrator’s liability. However, this theory does not make clear the degree to which the abettors can be made liable – whether to the same degree as the perpetrators or a lesser degree.⁴

However, in the judgement of R v. Jogee⁵, the Supreme Court of the United Kingdom has held that the derivative liability, when applied, shall require substantial assistance or encouragement on the part of the abettor. The intention is vital to this theory. There are several levels to the derivative liability theory.⁶ The first is where the abettor has the same level of liability as the perpetrator. This is the equivalence theory.

The agency theory is derived from the civil law rule of agency. So, the effect of an agent’s actions is extended or attributed to their principal. Therefore, the principal derives his liability from the actions of the agent. This theory is not widely used as there are considerable differences between civil and criminal law.

The other theory is called the association theory. By associating an abettor with the perpetrator’s actions, the abettor is liable. It is based on mere participation. This is slightly different from the theory of derivative complicity/liability discussed, as it does not include the incitation element.

Another vital doctrine relating to derivative liability is the natural & probable consequences doctrine. Here, if a perpetrator commits another crime (apart from the abetted/conspired crime) which was a natural consequence of the abetted/conspired crime, then the abettors or conspirators would also be liable for the second crime.⁷

The other side of criminal law that uses culpability theories is Corporate Criminal law. Most legal scenarios involving companies are in administrative or civil law. When white-collar crimes are committed, multiple companies evade punishment as they are legal entities. It was nearly impossible to prosecute legal entities due to the difficult task of determining mens rea and actus reus. Companies could pay the penalty and continue their business with no other consequences. Thus, it is crucial to understand the derivative liability theories that currently govern India’s corporate criminal law system.

Indian corporate criminal law is based on two models of culpability.

1. Derivative model – In this, the liability of an organisation or a legal entity is derived from the actions and decisions of those who control the organisation. In company law, there is a well-known saying – the Board of Directors or the Management are the company’s brains, whereas the company is merely the body that does the brain’s bidding. Without the directions or orders of the management, the company cannot carry out any actions. Thus, it is because of the management that corporate crimes take place.

The derivative liability model is further divided into vicarious liability (discussed above) and the identification doctrine. In the identification doctrine, the key individuals of the company are identified.⁸ These key individuals act on behalf of the corporation, thereby making vital decisions for the company.

• Organizational model⁹ – The entire company is considered while determining liability, not just the key persons of management. It is well known that the two essential elements necessary for any criminal offence are mens rea and actus reus. However, with a company being a legal person, the requirement of mens rea is impossible to satisfy. So in this model, the environment created by the company for the commission of the crime or the existing environment that facilitated the company’s crime is looked into. The environment that existed or was created may benefit the company in many ways.

In India, the courts apply a combination of both models of liability.

The Indian Penal Code, 1860 and culpability

1) Based on the doctrine of complicity, the provisions of the IPC from Sections 34 to 38 were drafted, drawing from the fact of common intention.

Section 34 concerns act done by multiple people with a common intention. This includes criminal acts, and all the individuals shall be liable as if they carried out all the acts in furtherance of that common intention.

Section 35 entails derivative responsibility in the context of a criminal act carried out by several persons with criminal knowledge as if an individual did the acts.

Under section 37, if an offence is carried out, and for the commission of that offence, multiple acts were committed, anyone who cooperates for any of those acts shall be said to have committed the offence.

Section 38 provides some clarity as to the charges by stating that several persons who are engaged in committing a crime may be guilty of different offences because of the crime.

2. Abetment sections under Chapter 5 (Sections 107 to 120) are based on derivative responsibility.

Abetment is a request, a command or an urging made by one person to another or among multiple people for the commission of a crime. It includes incitement, inducing statements, commands, encouragements, enticement, requests or even advice given.

Under the IPC, instigation, criminal conspiracy or intentional aiding are the three ways a crime can be abetted. Active complicity is essential for abetment at any point in time before the offence is committed. Abetment is a separate offence, provided that the object of the primary action is an offence.

Under Section 107 (Abetment of a thing), the first kind is instigating a person to any other person to carry out an act. The second kind is a person co-conspires for a crime by an illegal act or an illegal omission. The third kind is if the person intentionally aids another in a crime by any act or an illegal omission. 

Section 109 provides for the punishment of abetment where there is no express provision for its punishment. In such cases, the punishment for the offence will be extended to the abettor. The punishment of the offence extends to the abettor if they have a different intention than the perpetrator (Section 110).

Under Section 119, a public servant who intends to facilitate or knows that his act shall facilitate an offence that he must prevent (as per his duty as a public servant) does so for an offence that is committed; the public servant shall be punished with the term of the offence which is ½ the most extended term of imprisonment or fine or both. If the offence is not committed, the term of imprisonment shall be ¼ of the longest term, a fine, or both. If the offence is punishable by death or life imprisonment, the public servant shall be imprisoned for up to ten years.

There is some ambiguity regarding conspiracy and abetment by conspiracy. Abetment by conspiracy [Section 107(2)] requires an overt act or an illegal omission that is done following the conspiracy. An abettor may only be convicted if the charges against the other conspirators have succeeded. In Section 120A (Criminal conspiracy), a mere agreement is enough to commit a crime. The section has a broader scope than Section 107(2). Section 120A is an independent charge, whereas Section 107(2) is a charge in addition to another offence.

3. Section 120-A of the IPC also draws from the same principle of complicity.

Conspiracy is an agreement made to complete an unlawful objective by unlawful methods. There is no need for a written agreement.¹⁰ Per Section 120A, conspiracy is explained as an illegal act or an act which is not illegal by any illegal methods agreed to be done by two or more people. For conspired acts that are punishable with death, life imprisonment or rigorous imprisonment, the punishment is that of abetment of the offence. For other conspired crimes, the punishment is imprisonment for six months or more, a fine or both. For conspiracies, there must be a meeting of the minds, and an intention between the co-conspirators, post which the crime is committed, an attempt is made, or pre-planned actions are made to attempt the offence eventually.

4. Section 154 of the IPC is based on vicarious liability.

Under Section 154, if an unlawful assembly or riot takes place on land, the owner or occupier of that land is liable for the same and punishable if the owner/occupier/agent/manager does not report the same to the nearest police station at the earliest and does not use lawful means to disperse the crowd or suppress the riot.

5. Section 111 of the IPC relates to the natural & probable consequences doctrine.

The liability of an abettor when they abet one act but carry out another is discussed. In this case, the abettor is liable for the act committed as if he was directly involved in its abetment. The act done must be a probable consequence of the abetment.

Cases by the Indian Courts

• Kartar Singh v. State of Punjab¹¹ – Supreme Court of India

When a question arose regarding the derivative liability based on abetment in TADA, 1987, it held that mens rea is not necessary for abetment charges if mens rea is not essential in the substantive offence. However, concerning the provision solely concerning abetment, the court held that it means the association or the communication with one or more persons, with the knowledge that such person or persons shall engage in terrorist activities. Clarity was given to the abetment provision in the IPC.

• Sanju v. State of MP¹² – Supreme Court of India.

In this case, the husband told the wife to ‘go and die’. The wife killed herself a few days later, and the question was whether the husband had a derivative liability or abetment to her death. It was held that there is no derivative liability as the phrase ‘go and die’ does not amount to abetment. There is a requirement of mens rea, which was not satisfied. Additionally, the suicide took place two days after the fight, so there was no correlation between the fight and the wife’s death. It can be inferred from the judgement that, when it comes to abetment, there is a vital requirement of mens rea, and mere statements do not amount to incitement of an action.

• Somasundaram v. State¹³ – Supreme Court of India

In this case, the apex court held that abetment is a substantive offence, and its punishment is circumstantial. The abettor cannot escape punishment even if the perpetrator is not criminally liable for the act that led to the commission of the offence.

Concerning Corporate Criminal Liability, the following cases are of relevance:

• Standard Chartered Bank v. Directorate of Enforcement¹⁴ – Supreme Court of India

It was held that no company could have a blanket immunity against prosecution of serious offences just because the punishment includes mandatory imprisonment. This case was crucial for laying the foundation for future corporate criminal cases with derivative liability.

• Iridium India Telecom Limited v. Motorola Incorporated¹⁵ – Supreme Court of India

In this landmark judgement, the hon’ble Supreme Court attributed mens rea to the companies themselves. Iridium was a company charged with criminal conspiracy in the case at hand. The question arose about how a corporation can be charged with criminal conspiracy. The court held that a company might also be convicted for statutory offences that require mens rea, as is the case with individuals in society. When an offence is committed by a person in charge of the company’s affairs, the company can be held criminally liable for the same. The degree of control of such persons must also be assessed to attribute the criminal responsibility of the company.  This case changed the narrative of the company’s escaping liability, citing the lack of mens rea. It involved the management of derivative liability.

• Sunil Bharti Mittal v. CBI¹⁶ – Supreme Court of India

This case was regarding the 2G spectrum scam. Certain board members of the companies in question were designated as the ‘coordinating mind and will’ of the companies, so these individuals were issued a summons. This meant that the criminal acts of the companies were attributed to the top management. Thus, derivative responsibility was applied, and the criminal liability of the management was attributed even without any conclusive finding that the management was guilty. Summons was issued merely on the derived liability principle based on the company’s criminal liability. Derivative liability was explicitly applied by the court in this case, thereby passing a landmark judgement on the matter.

Conclusion and Suggestions

Thus, as seen above, there are multiple theories of culpability, of which derivative responsibility theory has a broad scope of application in Indian criminal law. It drives home the idea that no one should encourage/incite/assist the commission of crimes, and those who do so can be punishable by law, despite not being perpetrators.

The following are certain suggestions regarding the theories and laws discussed above.

• Civil agency rules must not be applied to criminal laws as there is a distinct difference between civil and criminal law.
• There needs to be more clarity concerning the IPC provisions on abetment. While there is an express provision for abetment by aiding with a fault element, there is no express indication towards other forms than aiding, such as instigation. To clarify this, inserting a proviso that the fault element shall include knowledge or intention can be made. Therefore, innocents who unknowingly abetted a crime without knowledge or intention can be protected from prosecution.
• Another section with a broad scope for misuse is Section 120A. Here, any agreement intending to breach a contract or commit a tort, followed by an action regarding the agreement, can be punishable by law. This would extend to petty crimes and civil offences as well. The scope for charging people under this section is broad and results in an unnecessarily large number of convictions. The derivative liability is not needed for such petty offences. The Law Commission recommended¹⁷ in 1971 to limit this section to crimes that were punishable with minimum 2-year imprisonment.

References

1. K N Chandrasekharan Pillai, General Principles of Criminal Law, Chapter 4 (Eastern Book Company, 2^nd edition, 2011)
2. Id.
3. Glanville Williams, Textbook of Criminal Law, Chapter 19 (Steven & Sons, 2^nd edition, 1983)
4. Bo Wang, Participation in Crimes: An End to Derivative Complicity Liability?, Page 4 (Law Press, 2018)
5. R v. Jogee, (2016) UKSC 8 (United Kingdom)
6. Supra note 3, at 21 – 24.
7. Sanjana Nayak, The Innocent Abettor – A Comprehensive Study of Section 111 of the Indian Penal Code, 1860, 3, INT’l MGMT. & HUMAN., 927, 928 (2020)
8. Rohit Dhingra & Shruti Kakkad, Corporate Criminal Liability: An Emerging Issue, 4 (2), International Journal of Law Management & Humanities, 1003, 1012 (2021)
9. Id. at 1013
10. Supra note 1
11. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India)
12. Sanju v. State of MP, (2002) 5 SCC 371 (India)
13. Somasundaram v. State, (2020) 7 SCC 722 (India)
14. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
15. Iridium India Telecom Limited v. Motorola Incorporated, (2011) 1 SCC 74 (India)
16. Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 (India)
17. Law Commission of India, Forty-Second Report – Indian Penal Code, Ministry of Law – Government of India, 355 (Jun. 1971) https://criminallawreforms.in/reports/lcireports/42nd%20Report%20on%20the%20Indian%20Penal%20Code.pdf

This article is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.

Introduction

Recording events during a nation’s history is crucial in analyzing the circumstances and enforcing appropriate legislation. It enables lawmakers to grasp the current needs of society, based on which they can draft applicable laws and rules. Crime is a result of a complex combination of many volatile variables. By using the sciences of criminology and sociology, it is possible to understand what motivates criminals and what increases the occurrence of crime. When combined with statistics, one can understand the frequency of crime and learn how to decrease its occurrences.

Statistics reports have been published by multiple countries for decades, with recent data analyses involving technological advancements for accuracy and ease of analysing. In India, the NCRB publishes yearly statistics crime reports. However, completing such a statistics report is not a single organisation’s job; it requires the involvement and cooperation of the police personnel, courts, state and district data collection organisations and the contribution of NGOs and other groups involved in rehabilitating victims of violent crimes.

About the National Crime Records Bureau

The National Crime Records Bureau, or NCRB, was set up as a result of multiple organizations being run on a trial-and-error basis until a final organization that was fit for the needs of our nation was obtained. In 1977, the National Police Commission recommended a better data organization system. In 1978, a Committee on Crime Records was established, which reviewed the existing crime records and recommended the police force with specific changes. Following this, a task force was set up in 1985 by the Ministry of Home Affairs to set up a national bureau for crime records. Thus, in January 1986, the NCRB was set up with its headquarters in New Delhi.

Crime Report 2021

As with every year since 1986, the NCRB has released the Crime in India 2021 report of Statistics spread over three detailed volumes. The reports can be accessed from the NCRB website.¹ The NCRB also contains crime reports compiled since 1953 in its archives; these reports are free for public view. When an overview² of crime over the decades has been taken, for the past 40 years (1981 to 2021) it can be noted that crime has steadily increased. In 1981, the crime incidence was 13,85,757, with a crime rate of 200.8. In 2021, the crime incidence was 36,63,360, with a crime rate of 268. However, one must not judge the values with haste, as the crime incidences correspond to the country’s population, which has also steadily increased over the past 40 years. A positive is that the charge sheeting rate has also increased through the years, progressing from 61.3 in 1981 to 72.3 in 2021.

Summary of crimes in India

The significant crimes in India are listed. The incidences of murder have stayed the same since 2020, with the value for 2021 being 29,272.³  5Kidnapping & Abduction has increased from 84,805 in 2020 to 1,01,707 in 2021. Human trafficking, rape and POCSO crimes have also increased in the past year. Concerning the 2021 Crime Report, this analysis will focus on the state-wise statistical information published on the major crimes in India.

1. Violent crimes:

Violent crimes in India include murder, grievous hurt, dowry death, rape, kidnapping and Abduction, to list a few. The violent crimes in India are typically grouped into crimes that affect the body (murder, culpable homicide not amounting to murder, attempt to murder, kidnapping & Abduction), crimes that affect the property (dacoity, robbery), crimes that affect public safety (riot, arson), and crimes that affect women (rape, attempt to commit rape).

The top five states with the highest number of cases of violent crimes are Uttar Pradesh (52,502), West Bengal (47,904), Bihar (43,780), Maharashtra (43,755) and Assam (26,933).⁴ Compared to 2020, Uttar Pradesh still leads the country in violent crimes, with the cases increasing marginally. Though West Bengal’s cases decreased compared to the previous year (50,029 cases in 2020), it did not compare to the drastic drop in cases in Bihar (51,116 cases in 2020), thereby making West Bengal the 2^nd highest in violent crimes in India. In the Union Territories, Delhi showed 11,793 cases in 2021, followed by Jammu & Kashmir with 3,072 cases. Both countries showed a rise of approximately a thousand cases since the last year.

2. Murder:

Murder is the worst possible violent crime that can take place. It very literally disrupts the laws of nature. Uttar Pradesh recorded the highest number of murders in India, with 3,717 cases. Bihar follows it at 2,799, Maharashtra at 2,330 and Madhya Pradesh at 2,034.⁵ The following is a breakdown of the motives⁶:

1. Gain – Jharkhand ranked highest with 480 murder cases for gain
2. Personal Vendetta – Bihar with 591 cases
3. Dowry – Odisha with 275 cases
4. Witchcraft – Chhattisgarh with 20 cases
5. Child or Human sacrifice – Kerala with 2 cases
6. Communal violence – Madhya Pradesh with 3 cases
7. Class Conflict – Bihar with 60 cases
8. Casteism – Tamil Nadu and Madhya Pradesh with 9 cases each
9. Love affairs – Uttar Pradesh with 334 cases
10. Disputes (including property, family, money, water and petty disputes) – Bihar with 1081 cases.

In UTs, Delhi reported 459 cases, followed by Jammu & Kashmir with 136 cases. Notably, Puducherry’s cases dropped from 39 in 2020 to 19 in 2021, whereas Andaman & Nicobar Islands cases rose from 5 in 2020 to 16 in 2021. The primary motive was a personal vendetta, with Delhi recording 90 cases for the same.

3. Kidnapping and Abduction:

Kidnapping and Abduction occur across all age groups, genders and social caste groups. However, the most affected are women and children. In 2021, 34,027 adult victims were kidnapped across all the Indian states. Adults aged 18 to 30 show the highest number of kidnapping incidents, with 22,656 cases recorded. The male-to-female ratio of adults kidnapped in the age group 18 to 30 years is 3361:19,294, which shows that for every male kidnapped, approximately six adult females are kidnapped all over the country.

Regarding the kidnapping of children, a total of 789 kids below six years, 3,519 kids below 6 & 12 years, 22,986 kids between 12 & 16 years, and 35,633 kids between 16 & 18 years were recorded. In all of these statistics, the proportion of kidnapped female children is higher than that of kidnapped male children. For example, in the age group 16 to 18 years, the proportion is 3,932 to 3,1701. That is, for every male child that is kidnapped, approximately eight female children are kidnapped.

Uttar Pradesh has recorded the highest number of kidnappings, with 14,554 cases, followed by Maharashtra with 10,502 cases and Bihar with 10,198 cases. Delhi reported 5527 kidnapping cases, followed by Jammu & Kashmir at 1013. Nationwide, 1,04,149 people were kidnapped, of which 35,135 were adults and 69,014 were children. The motive for kidnapping children was unclear; however, 37,897 cases were “deemed kidnapped”, 23,019 were “missing deemed kidnapped”, and 12,931 were for marriage purposes. The motive for adults was primarily marriage (10,541 cases), followed by deemed kidnapped (7,373) and elopement (5,634). The total number of children recovered alive was 67,608, and the total number of adults recovered alive was 31,252.

4. Crimes against women:

Crimes against women gained more attention after the Nirbhaya gang rape in 2012. It is expected that more attention will be given to protecting women; however, it can be seen from the statistics that the cases increase year after year. In 2021, Uttar Pradesh recorded a shocking 56,083 cases, followed by Rajasthan at 40,738 cases, Maharashtra at 39,526 cases, West Bengal at 35,884 cases and Odisha at 31,352 cases. Of these, 48 incidents in Uttar Pradesh were murder with rape cases. Dowry deaths (Section 304B of the Indian Penal Code) amounted to 2222 in UP and 1000 in Bihar, whereas Rajasthan has the highest number of rape cases, with 6,337 incidents in 2021.

Cruelty by husband and his relatives (Section 498A of the Indian Penal Code)  was another common crime, with 19,952 cases in West Bengal, 18,375 cases in Uttar Pradesh and 16,949 cases in Rajasthan.⁷ A total of 3,40,731 cases were registered under the IPC in all the states. Compared to the 56,083 cases in UP, only 10,133 were disposed of by the Police. In Delhi, 14,277 cases were recorded, approximately 4000 cases more than 2020’s statistic. Jammu & Kashmir ranked second with 3,937 cases. The highest number of rape cases was in Delhi, with 1250 cases registered. The total number of IPC cases for crimes against women in UTs was 16,940.

All over India, a total of 4,28,278 cases were recorded, of which 31,677 were rape cases, 75,369 were kidnappings, and 89,200 were assaults on women with the intent to outrage their modesty. With 3,57,671 cases registered under the IPC, only 30,861 cases were disposed of by the Police. A total of 1,324 cases of rape were recorded against the Scheduled Tribes. Against Scheduled Castes, it was 3,870 cases.

5. Crimes against children:

Crimes against children have seen a significant rise in cases. In 2021, Madhya Pradesh recorded the highest number of child-related incidents, with 19,173 cases, Maharashtra with 17,621 cases and Uttar Pradesh with 16,838. All three states have shown an increase since 2020. The POCSO (Protection of Children from Sexual Offences) Act, 2012 registered 51,863 cases for 2021, whereas the Child Labour (Prohibition & Regulation) Act registered 595 cases.

In the UTs, Delhi showed an increase of nearly 2000 cases since 2020, reaching 7,118 cases at the end of 2021.⁸ Jammu & Kashmir recorded 845 cases, a 200-case increase since 2020. The total cases in India were 1,49,404, with 1279 murder cases, 337 cases of abetment of suicide of a child (Section 305 of the Indian Penal Code), 79 cases of infanticide (Section 315 of the Indian Penal Code), 121 cases of foeticide (Sections 315 and 316 of the Indian Penal Code), 3,369 cases of simple hurt and 368 cases of grievous hurt.

A total of 90,679 cases against perpetrators of crimes against children were recorded under the IPC, and 53,874 cases under the POCSO Act. The Child Labour (Prohibition & Regulation) Act registered 613 cases nationwide.

6. Crimes against Scheduled Castes:

Scheduled castes are highly marginalized in today’s society and have been so for decades. The cases of crimes against scheduled castes are only growing, with no signs of decline. In 2021, Uttar Pradesh recorded a shocking 13,146 cases, followed by Rajasthan with 7,524 and Madhya Pradesh with 7,214 cases.⁹ Delhi’s cases against scheduled castes doubled since 2020, with 2021 recording 136 cases. This was followed by Jammu & Kashmir with 13 cases and Puducherry with 7 cases.

An atrociously high number of 50,900 cases were recorded all over India. Of these cases, simple hurt was the majority, with 15,485 cases. Criminal intimidation (Section 506 of the Indian Penal Code) cases tallied up to 5,130, and grievous hurt (Sections 325 and 326 of the Indian Penal Code) cases were 1,286. A total of 45,610 cases were recorded under the SC/ST (Prevention of Atrocities) Act when it was read with the Indian Penal Code, 1860.

7. Crimes against Scheduled Tribes:

The nation has struggled with crimes against scheduled tribes since the pre-independence days. There has been no significant improvement in the number of incidents of crimes against scheduled tribes over the past two years. Madhya Pradesh recorded 2,627 cases (compared to its 2020 value of 2,401 cases), followed closely by Rajasthan at 2,121 cases and Odisha at 676 cases. A total of 199 recorded murders (Section 302 of the IPC) were reported, and 2,357 incidences of Simple hurt were recorded.

In the UTs, Delhi recorded 5 cases, with an increase of 4 cases since 2020, followed by Daman & Diu and Andaman & Nicobar Islands at 3 cases each. There were no cases of murder, grievous hurt or assault on women to outrage her modesty, but there was 1 case of simple hurt. Nationwide, there were 8,802 crimes against STs, of which 8,475 cases were recorded under the SC/ST (Prevention of Atrocities) Act when read with the Indian Penal Code.¹⁰ Criminal intimidation (Section 506 of the Indian Penal Code) cases tallied to 817.

8. Cyber Crimes:

Cybercrimes have been drastically increasing ever since the technology boom. With the accelerated growth of technological services, there has been an accelerated growth of cybercrimes as well. In 2021, the state of Telangana had 10,303 reported cases of cybercrime, followed by Uttar Pradesh with 8,829 cases and Karnataka with 8,136 cases. It is a drastic increase for Telangana, whose cases have doubled since 2020. A total of 19,751 computer-related offences under the Information Technology Act were recorded across all the states.

Delhi recorded 356 cases, double its previous statistics of 168 cases in 2020. All over India, 52,974 cases were reported in 2021, a slight increase from the previous year. A total of 27,427 cases were recorded under the Information Technology Act 2000. For the motives of cybercrime, it was found that the most common motive was fraud, with 32,230 cases, followed by sexual exploitation (4,555) and extortion (2,883).¹¹

9. Human Trafficking:

Human trafficking in India does not have large numbers, but crime still exists. In 2021, Telangana reported 347 cases, whereas Maharashtra reported 320, Assam reported 203, Kerala reported 201, and Andhra Pradesh reported 168. Compared to 2020, the number of human trafficking cases in these states has nearly doubled.¹² A total of 2,436 victims were underaged or minors, and 3,557 victims had attained the majority. A shocking number of children have been reported to be victims of human trafficking. Out of the total reported cases of 5,993, a whopping 5,681 cases have been successfully closed, with their victims rescued.

In UTs, Delhi showed 92 cases, compared to 53 in the previous year, showing nearly a 2x increase. Across India, 6,106 victims were Indians, 38 were Sri Lankan, 26 were Bangladeshi, and eight were Nepalese. The most general reasons for human trafficking were reported as forced labour, sexual exploitation for prostitution, domestic servitude and forced marriage.

Inferences drawn from the report

An apparent result from the above statistics is that the crime rates in India in 2021, as with every year before that, have consistently increased. However, the increase in the charge sheeting rate may denote that more crimes are being reported and more action is being taken after thorough investigations. An improvement in procedural efficiency may be a reason for the same.

India’s increasingly misogynistic culture significantly contributes to the increase in certain crimes. For example, more women and girls are kidnapped in kidnapping cases than men. When analyzed with the motives for kidnapping – marriage and elopement, it is clear that in many instances, women and girls are forced to do the bidding of the men in their lives/community. Dowry death and love affairs are also highly-ranking motives for murder, according to the 2021 crime report. Cruelty by husbands and relatives also had an extremely high number of cases, with 1,36,234 cases in 2021, approximately 31.8% of total crimes against women.

The report also mentioned that the Police had disposed of only 18% of registered cases in UP. This means that 82% of the cases are under investigation for a period exceeding a year. With such slow investigation and crime resolution rates, more and more women might be discouraged from reporting their crimes or waiting through the long investigation time to secure justice.

It is to be noted that India does have a robust system for the safety of women through its women-specific legislation, which is the Dowry Prohibition Act of 1961, the Protection of Women from Domestic Violence Act 2005, the Sexual Harassment of Women at Workplace Act, 2013 to name a few. To reduce infanticide and foeticide in female children, the Ministry of Women and Child Development actively promotes the Beti Bachao Beti Padhao scheme. UJJAWALA is a comprehensive framework to prevent trafficking and help rescue, rehabilitate, and reintegrate trafficking victims.¹³

Cyber crimes have also increased drastically since the Covid-19 pandemic and the technological era. The prevalence of smartphones in almost every urban and suburban household has expanded the scope of crime against residents of India. With the common motive of fraud, it is clear that it is extremely easy for scammers and perpetrators to quickly and efficiently scam innocents and steal their identities for money. However, it is essential to note that the Indian government strictly monitors cyberspace through the IT Act and its Rules. For example, Section 72A of the Information Technology Act 2000 protects the data of the public and corporates by penalizing those that disclose the personal data of others without consent. This penalty includes imprisonment of up to three years with a fine of five lakh Rupees or both. KYC, or Know Your Customer policy, was also introduced by the Reserve Bank of India to reduce cyber fraud and ensure proper authentication. 

When it comes to human trafficking, the rate of successfully disposing of cases is high, as the Police can retrieve 94.7% of all victims of trafficking cases. As with the crimes against women, human trafficking also seems to have misogynistic influences, as some of the highest motives include sexual exploitation for prostitution, domestic servitude and forced marriage. The Ministry of Home Affairs has funded anti-Human Trafficking units, and they actively investigate and record human trafficking cases in all the Indian states and union territories. Section 370 of the IPC prosecutes those accused of human trafficking.

Conclusion

A country like India is bound to have high incidences of crime due to the high rate of population. However, that is no excuse for the country’s constantly growing crime rate. Despite enforcing strict legislation regarding criminal activities, the crime rate is increasing. Reasons for the same might be procedural lapses, lack of enforcement of the laws in rural settings, and issues in the society and community that result in crimes against the poor and innocent.

Nevertheless, credit must be given where credit is due. The Indian Police and Central Investigation departments work day and night to ensure a certain sense of security for the country. Some aspects of crime cannot be controlled, so a crime-free society can never indeed be. India must strive to keep the crime rate from constantly increasing every year and must work towards reducing the crime rate.

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References

1. National Crime Records Bureau, Crime in India, Government of India (Aug. 28, 2022) https://ncrb.gov.in/en/crime-india
2. National Crime Records Bureau, Crime in India 2021, Ministry of Home Affairs, Volume 1 Page 211 (Aug. 29, 2022) https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%201.pdf 
3. Ibid, at Volume 1 page xi
4. Supra note 2, at Volume 1, page 157
5. Supra note 2, at Volume 1, page 163
6. Supra note 2, at Volume 1, page 164
7. Supra note 2, at Volume 1, page 213
8. National Crime Records Bureau, Crime in India 2021, Ministry of Home Affairs, Volume 3 Page 1016 (Aug. 29, 2022) https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%203.pdf
9. National Crime Records Bureau, Crime in India 2021, Ministry of Home Affairs, Volume 2 Page 537 (Aug. 29, 2022) https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%202.pdf
10. Ibid.
11. Supra note 9.
12. Supra note 9.
13. Women Empowerment Schemes, Ministry of Women & Child Development (Jan. 25, 2023) https://wcd.nic.in/schemes-listing/2405

This article is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.

Introduction and Historical Evolution

Offences, in general, and crimes, in particular, are characterized into various subgroups (under different chapters) by the Indian Penal Code, 1860, based on the nature of the offence, such as offences affecting the human body, offences against property, offences affecting public health and safety, and so on. Moreover, persons from varied backgrounds can commit an offence, such as a poor person, middle-class employee, lower-incomed or working class, and a top-most and affluent professional. Therefore, for classifying offences based on the person committing them, scholars have suggested unique names, including the pertinent category of White-Collar Crimes committed by, as the name suggests, handsomely paid and high-classed businessmen being in the top-most ranks of their occupation or companies. It was way back in 1939 when an American Criminologist, Edwin Sutherland, coined this unique term to draw a completely new profile of offences, as crimes are usually committed, at that time, by indigent persons in want of satisfying their hunger due to lack of earning power. Later scholars like Marshall Clinard, Paul Tappan, and Frank Hartung, among others, gave a well-structured definition to these crimes as offences committed by a person, which can either be an artificial person (firm) or agents of the firm acting on its behalf, which is specifically in high-profiled and social status, having the wide-ranging power of management over the business’s affairs of the company.

The first white-collar crime in the modern world was reported in 15^th century England in the famous Carriers Case, where the agent of a wool business attempted to steal the wool consignment while in transit. However, these classes of crimes are not new to India and date back to the ancient kingdoms. This fact is evident from the texts of Manu Smriti and also from Kautilya Arthashatsra, wherein strict punishments were prescribed for offences such as indulging in counterfeited currency, fraud, cheating, improper weights and measures for attaining unlawful gain, etc.

Forms of White-Collar Crimes and Indian laws

White-Collar Crimes are no specific offence but a class among many, which mainly concern economic offences committed in multiple forms, which inter alia include public corruption, money laundering, tax evasion, banking frauds, insider trading, antitrust violations, computer and internet fraud, environmental law violations, government fraud, bribery, counterfeiting, trade secret theft. The aim behind these offences is to secure unlawful gain from either a lawful or unlawful transaction. Similarly, there is no particular enactment dealing with all the white-collar crime in one place, but, multiple laws in India deal with multiple of these offences. The principal enactment for any offence in India- The Indian Penal Code, under numerous chapters and section, define and penalize various white-collar crimes. A list of all the white-collar crimes under the penal code includes:

1. Chapter IX- Offences by or relating to Public Servants u/s 167 to 171, including, among others, a public servant framing an incorrect document with intent to cause injury, unlawful engaging in trade, buying or bidding property, personating s servant
2. Chapter XII- Offences relating to Coin and Government Stamps, included u/s 230 to 254. It includes offences ranging from making, selling, importing or exporting, and possessing counterfeit coins.
3. Chapter XIII- Offences relating to weights and measures included u/s 264 to 267.
4. Chapter XVII- Offences against property- much of this category of offences can be considered white-collar crimes as they mainly involve attaining unlawful gain. These include more specific offences such as-
5. Extortion, u/s 383 to 389- Involving intentional inflicting of fear of any injury to dishonestly induce the person so put in fear to deliver to any other person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
6. Criminal Breach of Trust u/s 405 to 409- Dishonestly misappropriating property for his/her own use or using it in any other manner which is forbidden by law or any specific contract. More specifically, this offence deals with unlawful actions by an employer in breach of his employees’ rights and by professionals like bankers, brokers, and agents.
7. Cheating u/s 415 to 420- Is the most common and obvious element to constitute a white-collar crime as it inculcates the core element of dishonest and unlawful gain.
8. Chapter XVIII- Offences relating to documents and property marks u/s 463 to 477A. This class of offences ultimately involves forgery in multiple forms, such as record forgery of a Court or public register, valuable security or a will, forgery for cheating, for harming reputation, and so on.
9. Criminal Intimidation u/s 503- Threatening a person, living or dead, to cause injury to a person, reputation, or property, with the criminal intent to enable that person to do any act that he is not legally entitled to do.

Apart from IPC, multiple specific legislations also inculcate provisions dealing with white-collar crimes, which include:

1. Public officials are the most debatable and highly criticized for their involvement in white-collar crimes, being the most influential authorities in India. As a result, to combat this specific class of offenders, section 13 of the Prevention of Corruption Act 1988 punishes criminal misconduct by a public servant that involves habitual acceptance of gratification from third parties, including businessmen, misappropriation or conversion of public property entrusted to them for management as their property.
2. Indulgence in criminal activities per se does not constitute a white-collar crime. However, the occurrence of crimes on a large scale, that too for a specific purpose of conducting a racket or operating an illegal business line, having possession and being part of such illegal trade, amounts to money laundering. Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) describes multiple forms to constitute money laundering, such as concealment, possession, acquisition, use, projecting as untainted property, or claiming as untainted property, of proceeds from unlawful activities.
3. The growth of telecom services and the accessibility of computer gadgets has resulted in the tremendous growth of IT services usage for diverse purposes, including essential usages like e-commerce. This further led to the growth of computer fraud, termed Cyber Crime. Chapter XI of the Information Technology Act 2000 deals with various computer-based crimes, including sections 65 to 78.
4. A typical outcome after the commission of a white-collar crime is evading the offender to a foreign land to escape the process of law in India. This not only results unable to prosecute or at least try the person with Indian laws but also the loss of crores of money to a foreign land. This trend is simply evident from the fact that white-collar crimes are committed by already wealthy and professional persons who have already secured travel visas and possess huge money and connections in a foreign land to flee away easily. To prevent this outcome, the Indian parliament recently enacted the Fugitive Economic Offences Act 2018.
5. Tax evasion is the most widely known and practised form of white-collar crime not only within India but also across the world. Offenders within this category constitute the highest bracket of taxpayers, being in the highest ranks of businesses, thereby rendering it a white-collar crime. The income Tax Act 1961 is the apex legislation in India governing tax-related issues. Therefore, chapter XXII of the act specifically deals with the provisions on tax evasion, prescribing punishments and penalties for numerous offences such as incorrect reporting of income u/s 270A, concealment of income u/s 271, and not collecting tax directly at source (u/s 271C). Chapter XXII deals with further offences and prosecution, including section 276C- wilful attempt to evade tax, falsification of accounts (u/s 277A), abatement of false returns (u/s 278), and various others.
6. Further statutes dealing with similar economic offences include-
7. Section 138- Dishonour of cheque for insufficiency, or otherwise of funds in the account- of the Negotiable Instruments Act 1881.
8. Section 3 of the Prohibition of Benami Property Transactions Act, 1988.
9. Section 12A- Prohibition of manipulative and deceptive devices, insider trading, and substantial acquisition of securities or control- of the Securities and Exchange Board of India Act, 1992.
10. Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015.
11. Section 132(5) of the Central Goods and Services Tax Act, 2017.
12. Chapter IV of the Foreign Exchange Management Act 1999.

Impact on Society and other areas

The diversified and elaborated laws on white-collar crimes themselves depict the gravity and need to tackle such crimes. This is specially to combat the negative consequences the country as a whole must face. The consequences are primarily economic and gradually turn into societal externalities that include-

1. Loss of Government revenue:

The most basic and well-known outcome of the commission of a white-collar crime is the loss of a hefty amount that is otherwise under the government’s exchequer. Though there is no specific finding on the total accumulated loss of revenue to the Indian government due to these crimes, the numbers of a few biggest scams in India, including the Satyam Computers Scam (2008) worth ₹14,000 crores, Saradha chit fund case (2013) worth ₹ 20,000 crores, 2G spectrum scam (2007) worth ₹176,000 crores, Commonwealth games scam (2010) worth ₹35,000 crores, Telgi Scam (2003) worth ₹20,000 crores, Harshad Mehta Securities Scam (1992) worth ₹5000 crores, goes on to show how many lakh crores of rupees have got diverted from the government treasury which otherwise needs to get diverted to the welfare of the poor. Furthermore, reports by government authorities show that India lost over ₹100 crores every day over the past five years in the form of bank frauds and scams, though the value of such crimes came down to ₹648 crores in FY 2021-22 from as high as ₹61229 crores in 2016¹. In FY 2021, the Directorate General of GST Intelligence (DGGI) reported 22,300 instances of fake GST identification numbers, reporting frauds worth ₹55,575 cr, and arrested around 700 persons, which included 20 CA/CS professionals².

2. Increased Costs- leading to depletion of savings:

White-collar crimes always involve default of payment to the victims, be it the widely known case with banks and financial institutions, or to the government in case of tax evasion, or any regulatory authority such as SEBI in case of securities transactions. When such a large-scale default involving a tremendous sum of money (which exceeds the SGDP of numerous smaller states) occurs, the victims who are to receive their lawful money fall short of their requirements to continue their operations. In such situations, the only alternative is to raise the prices of those products or services. Such situations are especially prevalent in cases of default to financial and insurance companies wherein, to compensate for the default, a rise of lending interest rates, insurance premium rates, and banking service charges is inevitable. Even in case, the victim is directly the government, in case of tax evasion and FERA violations, a future tax rate rise becomes inevitable. All this adds undue negative externality in the form of increased costs to the future and existing law-abiding customers, further leading to a gradual reduction of their savings.³

3. Bankruptcy and Unemployment:

Offenders in these crimes, as the definition itself, states, is one among or only a group of top-most ranked professional of a large company. Due to the infringement of law by this small group of offenders, the entire reputation of the company tarnishes⁴, and once prosecuted, especially when that particular offender(s) holds a majority share in the company, liquidation or bankruptcy forms the inevitable outcome. When the entire company collapses or gets merged or acquired by another existing company, all the employees who are dependent on the company’s operations need to lose their jobs in the lay-off process, leading to unemployment⁵, which is already a significant problem for the densely populated Indian economy.

4. Ruing families due to economic hardships:

As pointed out earlier, it is primarily the poor and middle class who depend on the white-collar offenders, either by being employees of the bankrupt company or being a trustworthy follower of the offender, viz., usually the case with scams pertaining to Ponzi scheme investments and securities transactions. In such cases, while the offender cheats and passes off with the proceeds of the crime, innocent victims not just lose their hard-earned savings but also may get falsely implicated in the case, unknowingly, by further fraudulent acts of the offender. When these innocent and middle-class victims in these forms get negatively impacted, this impact is not just restricted to economic terms but to their personal sphere by ruining their family lives due to the adverse economic impact of losing jobs, repayment of credits, and depletion of savings.⁶

Conclusion

It is a very positive sign for a developing country like ours to witness the growth of digital literacy, increased institutional financial access, Indian businessmen securing ranks as Asia’s richest person or securing top 10 positions and the everyday rise in the direct and direct tax collections. Nevertheless, at the same time, there is a rise in the commission of white-collar crimes, not by professionals or industrialists, but by the leaders and rulers of the country and states. The very identification of a white-collar crime is in itself a tedious task. However, the presence of solid investigative agencies like the Central Bureau of Investigation (CBI), Enforcement Directorate (ED), and Income Tax department, among others, provide India with a solid framework to combat such crimes. Even the Indian courts have laid down explicit norms that clever tax planning and availing tax exemptions to reduce tax liability is very much legal as long as the legal framework is not overcome.⁷ But the recent incidents over the years have raised doubts about the independence of these agencies and being a caged parrot in the hands of the ruling party⁸. All this discussion, therefore, follows the simple logic that earning money is not one’s ambition in life but to earn money within the legal framework. Especially to white-collar job holders who already earn handsomely and enjoy due respect in Society by earning within the legal framework, one must curtain their greed and stay away from unhealthy and unlawful competition over peer professionals, thereby avoiding white-collar crimes commission and living as a respectable citizen of the nation by discharging primary duties such as proper and correct payment of taxes. Here lies the goodness to everyone, the white-collar professional, middle-class, and every citizen of the nation, and the nation itself, as a whole.

References

1. Chetan Kumar, India loses Rs 100 crore to banking fraud every day, The Times of India (Mar 29, 2022, 09:48 IST), https://timesofindia.indiatimes.com/business/india-business/india-loses-rs-100-crore-to-banking-fraud-every-day/articleshow/90509071.cms
2. Press Trust of India, GST evasion of Rs 55,575 crore detected in last two years, 719 persons arrested, The Economic Times (Nov 10, 2022, 11:16 AM IST), https://economictimes.indiatimes.com/news/india/gst-evasion-of-rs-55575-crore-detected-in-last-2-years-719-persons-arrested/articleshow/95418723.cms?from=mdr
3. Wayne Waweru, Impact of White-Collar Crime on Society, Acadmia.edu (2019), https://www.academia.edu/40135705/IMPACT_OF_WHITE_COLLAR_CRIME_ON_SOCIETY
4. Indian National Bar Association, White-Collar Crime Survey 2019, https://www.indianbarassociation.org/wp-content/uploads/2020/01/White-Collar-Crime-Survey-2019.pdf
5. Fredericks KA, McComas RE, Weatherby GA. White collar crime: recidivism, deterrence, and social impact. Forensic Res Criminol Int J, Jan 2016 at 6.
6. Supra Note 4.
7. CIT v. A. Raman and Co., [1968] 67 ITR 11 (SC); Union of India v. Azadi Bachao Andolan, (2003) 263 ITR 706 (SC).
8. Comments made by the Supreme Court of India in the Coalgate Case- Manohar Lal Sharma v. Principal Secy., (2014) 2 SCC 532.

This article is written by Mokshith Venkata Shiva Bhyri, a 2nd-Year Law Student (BA., LLB [Hons]) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.

When discussing the idea of plea bargaining, the adage “Justice delayed is justice denied” has the utmost weight. Although the quantity of court cases pending is astounding, people have come to accept it as routine. Because individuals have begun to accept this as their fate, these startling statistics are no longer shocking. Since the start of criminal law, the idea of a plea agreement has not existed. Indian legal experts and jurists took this situation into account when incorporating this idea into Indian criminal law. It is an agreement between the accused and the prosecution, as the name suggests. This idea has been adopted by the criminal justice systems of many nations.

What does Plea Bargaining mean?

Plea bargaining is a pre-trial agreement in which the accused offers to plead guilty in exchange for the prosecution making specific concessions. In exchange for the prosecution dropping more serious accusations, the defendant enters a plea agreement to a lower offense. It is not possible for all crimes; for example, one cannot use a plea deal after committing a serious crime or a crime that carries a death sentence or a life sentence.

History of Plea Bargaining

The jury system did not feel the necessity for plea bargaining because the defendants were not represented by counsel. Later, in 1960, when legal representation was permitted, plea bargaining became necessary. Although the history of American law contains the earliest indications of the concept of plea bargaining. Since the late 19th century, this idea has been in use. Judges encouraged confessions by engaging in this bartering.

India’s Plea Bargaining

Plea Bargaining is not a concept that emerged from the Indian legal system. It is a recent improvement in the Indian Criminal Justice System (ICJS). It was incorporated into the Indian Criminal Justice System after a load of pending cases on the judiciary was taken into account.

The Criminal Procedure Code and Plea Bargaining

Sections 265A through 265L of Chapter XXIA of the Criminal Procedure Code deal with plea bargaining. It was a part of the Criminal Law (Amendment) Act of 2005. It allows plea discussions in certain situations:

• When the acts are not committed against women or children under the age of 14.
• when the maximum sentence is seven years in prison, and
• when the offenses have no impact on the nation’s socioeconomic situation.

The first suggestions for “plea bargaining” in the Indian Criminal Justice System were made in the Law Commission’s 154th Report. Plea Bargaining was described as an alternate strategy that ought to be used to address the massive backlog of criminal cases in Indian courts.

The NDA administration then constituted a committee to address the issue of the growing number of criminal cases, which was headed by Justice V. S. Malimath, a former Chief Justice of the Karnataka and Kerala High Courts. The Malimath Committee recommended that India put the plea bargaining system into place. According to the committee, it will facilitate a quicker resolution of criminal cases and lessen the burden on the legal system. The Malimath Committee also emphasized the effectiveness of the US system to highlight the importance of plea negotiations.

As a result, the draught Criminal Law (Amendment) Bill, 2003 was presented to the legislature, and on July 5, 2006, it finally passed and was put into effect across India. It aimed to change the Indian Penal Code.

(i) witnessed becoming antagonistic

(ii) Plea-bargaining

(iii) Combining Section 498A of the IPC (Husband or relative of the husband of a woman subjecting her to cruelty) with another offense; and

(iv) Scientific expert testimony in cases involving phony money notes.

Finally, it brought the idea of plea bargaining to India by introducing Chapter XXIA Sections 265A to 265L. The following provisions were added by it:-

Anyone charged with a crime that is not punishable by death, life in prison, or a sentence of more than seven years has the option of entering into a plea agreement, according to Section 265-A (Application of Chapter). Violations may be reported to the Central Government, under Section 265 A (2) of the Code.

The violations that affect the nation’s socioeconomic position are listed in Central Government Notification No. SO1042 (II) dated 11/7/2006.

Article 265-B (Application for Plea Bargaining)

1. Anyone who has been charged with a crime is eligible to apply for a plea agreement in cases that are still in progress.
2. Brief information regarding the case must be included in the accused’s application for plea negotiations, which they must submit. It includes the offenses to which the case relates and must be submitted along with an affidavit signed by the accused stating that he has voluntarily applied, a plea agreement outlining the nature and severity of the punishment prescribed by law for the offense, and a statement stating that the accused has never before been found guilty of the same offense.
3. The concerned public prosecutor, the case’s investigating officer, the case’s victim, and the accused will then receive notice from the court of the date set for the plea negotiation.
4. When the parties attend, the court will interview the accused in secret without the other parties to the case present to ensure that the applicant has applied freely.
5. Article 265-C (Guidelines for Mutually satisfactory disposition) outlines the steps the court must take to reach a mutually acceptable resolution. In a case brought based on a police report, the court must notify the public prosecutor involved, the case’s investigating officer, the victim, and the accused to attend a meeting to discuss how best to resolve the case. The Court must notify both the accused and the case’s victim in a complaint case.
6. Article 265-D (Report of the mutually satisfactory disposition) This clause discusses the creation and submission of a report on a mutually satisfactory resolution.

Here, two scenarios could occur, namely

1. If a suitable resolution to the issue has been reached in a conference held by section 265-C, the court is required to prepare a report detailing that resolution. It needs to be signed by everyone who attended the meeting, including the court’s presiding officer.
2. The Court shall record such observation and continue by the provisions of this Code from the stage the application under sub-section (1) of section 265-B has been filed in such matter, if no such disposition has been reached.
   • When a suitable resolution to the case is reached, the method to be followed is prescribed in Section 265-E (Disposal of the Case). The Court must hear from the parties regarding the severity of the punishment or the accused’s eligibility for release on probation for good behavior or after admonition after the proceedings under Section 265-D have been completed and a report has been prepared and signed by the presiding officer of the Court and parties present. The accused may be sentenced to prison or released on probation under the terms of Section 360 of the Code, the Probation of Offenders Act of 1958, or any other applicable legislative laws. When sentencing the accused, the Court may, at its discretion, impose the minimum punishment prescribed by law for the offenses committed by the accused or, in the absence of such a provision, impose a sentence equal to one-fourth of the punishment specified for the offense.
   • The Court’s Pronouncement of Judgment in Terms of Mutually Satisfactory Disposition is discussed in Section 265-F (Judgment of the Court).
   • No appeal may be made against such a verdict, according to Section 265-G (Finality of Judgment), although a Special Leave Petition (under Article 136) or a writ petition (under Article 226 or 227) may be submitted.
   • The powers of the court during plea negotiations are covered in Section 265-H (Power of the Court in Plea Bargaining). These powers include those related to bail, criminal offense trials, and other aspects of how a case is resolved in this court under the Criminal Procedure Code.
   • According to Section 265-I (The accused’s term of detention shall be set off against the sentence of imprisonment), the accused’s period of detention shall be set off against the sentence of imprisonment imposed under this chapter by Section 428 of the Criminal Procedure Code.
   • The declarations or facts provided by the accused in a section 265-B application may only be utilized for the purposes listed in the chapter, according to section 265-K (Statement of the Accused to be Used).
   • This chapter will not apply to any juvenile or child as specified in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, according to Section 265-L (Non-application of the Chapter).

Kinds of Plea Negotiations

Plea bargaining typically comes in three forms, specifically:

• Sentence Negotiating: The primary goal of this form of negotiating is to obtain a lighter sentence. In a sentencing deal, the offender agrees to admit guilt to the charged offense in exchange for a lenient punishment.
• Charge negotiating: This type of plea bargaining takes place to get less serious charges. This is the most typical type of plea agreement used in criminal cases. In this case, the defendant consents to admit guilt to a lower charge in exchange for the dismissal of more serious accusations. For instance, pleading guilty to manslaughter in exchange for dismissing the murder charges
• Fact bargaining: Due to allegations that it violates the criminal justice system, this is typically not used in court. It happens when a defendant consents to admit certain facts to exclude other facts from the evidence.

Plea Negotiations and Court Decisions

• The Hon’ble Supreme Court attacked plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra and claimed that it interferes with society’s interests.
• The Supreme Court declared that plea bargaining is against public policy in the cases Kasambhai v. State of Gujarat and Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr. Additionally, it regretted the magistrate accepting the accused’s plea agreement. Additionally, the Hon’ble Court called this idea a particularly despicable practice. The Court further declared plea bargaining to be illegal and unconstitutional conduct that tends to promote corruption and collusion while tainting the pure source of justice.
• In Thippaswamy v. the State of Karnataka, the Court ruled that it would be against Article 21 of the Constitution to pressure or coerce an accused into entering a guilty plea under a promise or assurance.
• In addition, the Court said that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can if he so desires, defend himself against the charge and if he is found guilty, a proper sentence can be passed against him.”
• The Supreme Court derided the idea of plea bargaining and declared the practice to be illegal and unconstitutional in the State of Uttar Pradesh vs. Chandrika. Here, the Honorable Court held that the plea negotiating process could not be used as a foundation for concluding criminal matters. A merit-based decision must be made in the case. In support of this, the court ruled that if the accused admits guilt, he must receive the proper punishment stipulated by law.
• In the case of State of Gujarat v. Natwar Harchandji Thakor, the court recognized the value of plea negotiations and stated that not every “plea of guilty” is considered to be a component of the legal procedure in a criminal trial should be interpreted as a “plea bargaining” per se. It is a legal issue that must be resolved on a case-by-case basis. The court stated that the entire purpose of the law is to give easy, inexpensive, and quick justice by resolving conflicts, taking into account the dynamic character of law and society.

Reasons to oppose plea negotiations in India

• Mechanism adopted voluntarily

According to the legal clause governing plea bargaining, it is a voluntary process that is only considered when the accused chooses it voluntarily. However, the legislation is mute on the issue of whether or not the settlement achieved is at odds with the goals of the justice system.

• Participation of Police

Critics also criticized the police’s involvement in plea negotiations. Because police in India are notorious for torturing prisoners, The idea of plea bargaining is more likely to make things worse in this instance.

• Corruption

Additionally, the victims’ role in the plea negotiation process is undervalued. The victim’s position in this procedure would encourage corruption, which would ultimately negate the goal of the action.

• A Separate judicial body

The Plea-Bargaining provisions do not establish a separate court authority to review plea-bargaining applications. This is one of the most obvious arguments against it. The court’s in-camera questioning of the accused may cause public skepticism and mistrust of the plea-bargaining process. Any court judgment denying an application that is not kept confidential may result in bias against the applicant.

Justifications for plea negotiations in India

• Quickly Removing Cases

Because there is no chance of losing the case outright at trial, plea negotiations are advantageous for both the prosecution and the defense. Since both parties have bargaining power, it makes it easier for attorneys to represent their clients. Long-running disagreements can be settled in this way, and the court won’t have to deal with a backlog of case files. Plea bargaining also helps the courts save limited resources for the cases that need them.

• Less serious infractions on a person’s record

In a nation like India, society is essential. A person finds it extremely challenging to survive once they are stigmatized by society. Ostracism frequently follows stigmatization. Plea bargaining in this situation enables a defendant to enter a guilty or no contest plea in exchange for a decrease in the number of charges or the severity of the offenses. As a result, less serious violations are listed on an accused person’s official court records. This may work in the accused’s favor if he is ultimately found guilty.

• It keeps quiet about it

Plea bargaining is also a useful tool for preventing exposure because the longer the case drags on, the more attention the accuser receives. Plea bargaining thereby prevents such publicity by hastening the resolution of the case. renowned and common People whose livelihood depends on their standing in the community and those who wish to avoid unwarranted shame. When compared to news of a trial, the news of the plea itself may be public, but it only persists for a brief period.

• A painless strategy

India is renowned for its protracted legal dispute. Many court cases drag on for 8 to 10 years, which hurts both sides. In certain cases, the accused was sentenced to longer time in prison than the maximum allowed by law. Such incidents demonstrate a serious violation of their human rights. A person can enter a guilty plea through plea negotiating without retaining legal counsel. However, if they waited to go to trial, they would have to look for and engage a lawyer, as well as invest time in working with the attorney to prepare for trial and pay the attorney. The idea of a plea bargain protects these people’s interests by sparing them the difficulties they experience when the case is still pending.

How to manage plea negotiations?

There is no exact science or quantitative technique to become adept at plea bargaining. Experience is the only way to become an expert, and the only way to gain experience is to do the thing. One needs to be skilled at negotiating and communicating to become a master of plea bargaining. Plea Bargaining ultimately comes down to negotiating. How well you negotiate on your client’s behalf is key. The better outcomes you get for your client, the better bargainer you are. Knowing the facts and the pertinent laws is necessary to handle plea negotiations. Your ability to persuade people is one way that you stand out. Every case in the legal field presents a fresh opportunity to learn because cases are unique in and of themselves. You will get more skilled at plea negotiating as you negotiate more cases. In addition to these abilities, the ability to reason logically and analytically is particularly important for plea bargaining because it is exceedingly difficult to refute a claim supported by solid reasoning. As a result, having a combination of all these abilities makes you an expert at plea negotiations.

Conclusion

Plea bargaining is not altogether a foreign concept in India. It was acknowledged when India received its constitution in 1950. The Indian Constitution’s Article 20(3) forbids self-incrimination. People claim that plea bargaining violates the aforementioned article. However, as time went on and the burden on the courts increased, the Indian court realized the importance of plea bargaining for the country’s judicial system. It can be difficult to embrace change at first, but society and our legal system both need to develop. Everything has benefits and drawbacks, and both must be considered in order to draw a wise judgment. In any event, it would not be fair to reject anything solely because of its drawbacks. It is inappropriate to expect the notion of plea bargaining to be perfect in India because it is still in its infancy. Only conversation, argument, and debate can make it better.

References

1. Encyclopedia Britannica．[Online][Cited: 21 September 2022．]https://www.britannica.com/topic/plea-bargaining．
2. Plea Bargaining in Indian Legal System．[Online][Cited: 21 September 2022．]http://www.legalservicesindia.com/article/1836/Plea-Bargaining-in-Indian-Legal-System.html．
3. Tripaksha Litigation．[Online][Cited: 21 September 2022．]https://tripakshalitigation.com/concept-of-plea-bargaining/．
4. Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929
5. Kasambhai v. State of Gujarat (1980) AIR 854
6. Thippaswamy v. the State of Karnataka, [1983] 1 SCC 194
7. State of Uttar Pradesh vs. Chandrika 2000 Cr.L.J. 384(386).
8. State of Gujarat v. Natwar Harchandji Thakor (2005) 1 GLR 708

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

When we speak of a gang, a picture of a group of people is painted in our minds, who terrorize a certain region with illegal and violent behaviour. The term gang has been defined under Section 2(b) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 as follows:

“a group of persons, who acting either singly or collectively, by violence or threat or show of violence, or intimidation, or coercion, or otherwise, with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage of himself of any other person, indulge in anti-social activities.”

How Do Organized Crimes Work?

Almost any gang crime is committed with the purpose of boosting one’s wealth. It can be acquired in a number of ways, including via drugs, gambling, and illegal tax avoidance. The gangs often begin through one criminal who draws a few supporters after taking up crime. He is successful in generating funds via his chosen method, i.e., modus operandi, whether it is dealing with contrabands, illegal sale and distribution of goods, or another type of illicit activity. He can bribe the local law enforcement officials, often the police station and customs and excise officers in his region once he has identified himself in that operating area, which is initially relatively limited. This allows him to purchase security for him and his goons. Once this point is achieved, the neighborhood’s other minor offenders congregate around him and take shelter under his watchful protection, either by becoming regular members of his gang or by paying regular protection money while maintaining their anonymity.

But since not all police officers can be bought or are dishonest, they now must find means to subdue these cops if they are to live. Only the powerful politicians have the ability to sway the police or persuade them to take no action. They are the gangs’ primary targets, as a result, who try to win over the politicians either by funding their elections or terrorizing the voters into voting for a certain politician only. This way, they firm their roots even deeper into the society by indirectly controlling the politicians.

 The judiciary, which is the last resort for law-abiding citizens, does not provide a good impression of organized crime. The organized gangs and unlawfully abundant crowd is still growing every day. It is safe to estimate that the combined annual revenue of all organized gangs of criminals in India is currently at least Rs. 50,000 crores. Dawood Ibrahim, a crime boss who has become the most wanted in India, has a net worth of $6.7 Billion as of 2022. The mafia can buy just about anyone when they have this kind of money at their disposal, i.e., deep pockets and no dearth of money. There are several cases of top-level parliamentarians that have close ties to the Mafia and are kept in their positions. To sum up, the Dons, the lawmakers, the police, the customs, the income, and partially the legal executive make up the Indian Mafia of today. They have impressively infiltrated each of these offices, at least generously enough to have the option of invalidating any attempts to enforce the law and ensuring the Mafia’s success.

Types Of Gang/Organized Crimes

1. Drug abuse and trafficking– This is the most significant organized crime that exists in the nation today and is global in scope. India generates a sizable amount of legalized opium, some of which also appear in various forms on the black market. The five main drugs used in the illegal drug trade in India are opium, methaqualone, cannabis, heroin, and hashish. Although not uncommon, LSD, amphetamine, and cocaine seizures do occur sometimes.
2. Money Laundering & Hawala – Money laundering is the process of turning illegally obtained funds into funds that appear to be legal so they may be incorporated into the regular economy and offenders may utilize it freely without worrying about being caught. Money laundering worldwide often comes from drug-related criminal proceeds. Additionally, combining this illegally obtained money with tax-evaded revenue to conceal its source involves breaking exchange restrictions and committing acts of tax evasion.
3. Kidnapping for Ransom– Ransom kidnapping is a highly organized kind of crime that takes place mostly in large metropolitan cities. Due to the enormous cash incentives compared to the effort and risk required, many local and interstate gangs are actively engaging in this.
4. Smuggling– This is another serious economic offense that involves covert actions that result in unreported commerce. With an almost 7,500 km long shoreline and open borders with Bhutan and Nepal, India is vulnerable to extensive smuggling of illegal goods and other products.
5. Prostitution– The underworld is closely connected with brothels and call girl rackets, making plenty of money through this activity. They provide young girls for the above-said purposes to various parts of the country, transporting them to and from the city to reduce the probability of them being freed.
6. Contract Killings – Using an experienced gang to kill someone in exchange for money is the approach used in contract killings.

Indian Laws Relating To Gang Crimes

In some shape or form, criminal organizations have usually existed in India. However, due to several socioeconomic, political, scientific, and technological advancements, it has taken on its most aggressive form in contemporary times. Although it does affect rural India, it is mostly an urban problem. Criminal conspiracy is defined under Indian Penal Code Section 120A while Section 120B outlines the penalties for criminal conspiracy.

While these two form the basis, the IPC also defines Dacoity u/s 391 as five or more people conjointly committing or attempting to commit robbery. According to Section 395 of the Code, this offense is punished by life imprisonment or rigorous 10-year imprisonment. Other offenses in the code include:

1. Section 399, which imposes penalties for planning to commit dacoity
2. Section 402 of the law specifies the penalty for gathering with the intention to commit dacoity.
3. The act of belonging to a “gang” of people who are linked with the goal of often committing dacoity is punishable under Section 400.
4. The law that punishes kidnapping for ransom, etc., is Section 364-A.

There are certain special laws as well, which have been explained below:

National Security Act (1980)

The Act grants the right of detention to the federal, state, or other officials who have the power to do so in order to prevent someone from causing harm. As a result, it enables the state to detain a person. Typically, a detention warrant is issued for a period of one year. This procedure has been put in place to make sure the person doesn’t act in a way that jeopardizes national security, endangers the military, or harms ties with other countries. This order must be approved by a board that is presided over by a High Court Judge. Since this is an advisory board, it must operate in a manner that takes into account the rights of the individual along with the interests of the nation. Terrorists and gangsters who are worried about leaving the country frequently utilize this Act. No hearing is held during the executive action of detention mandated by the order.

The Narcotic Drugs and Psychotropic Substances Act (1985)

This Act mainly strives to curb the trade of illegal narcotics and intoxicants which pose a serious risk to the well-being and health of the society. As a result, this Act gives provisions that permit the detention of those who deal in these goods for business. The Act gives the Central Government, the State Government, or any other officer authorized by the government the right to hold a person in order to stop him from hurting anyone by issuing an order. This incarceration is typically for a year, but in some circumstances, it may be increased to two years.

The Terrorist and Disruptive Activities (Prevention) Act (1987) 

This Act was used by the police because it contains a wide definition of what constitutes a terrorist act and can be readily used to prosecute crimes committed by organized gangs.   The following are some benefits that the Act gives the police while dealing with gang-related acts:

1. Gang crimes are considered terrorist acts under the Terrorist and Disruptive Activities (Prevention) Act.
2. A police officer with an SP’s rank might be notified of an offender’s confession.
3. Investigation continues after 180 days without a charge being filed, while the accused is still in jail.
4. No bail is granted before the public prosecutor is heard, and even after the hearing, the court determines that no case has been made out.

Certain other such laws include:

1. Public Gambling Act, 1867
2. Immoral Traffic (Prevention) Act, 1956
3. Customs Act, 1962
4. Foreign Exchange Regulation Act, 1973, etc.

Conclusion And Suggestions

The conclusion might be drawn that even though gang crimes have substantially grown in India, the Government has been making efforts to lessen them by putting in place a variety of sensible policies. Nobody is a criminal by birth; people become criminals as a result of their surroundings. Many turns to dubious methods of generating money because they lack education, and resources, are unemployed or are in poverty. As long as there are financial gaps, economic hardship, and lawlessness, society will continue to support gangs and gangsters.

The states must establish an institutionalized coordination framework among themselves to monitor gang crimes. Furthermore, it is clear that it is up to the legal systems to decide whether they want to administer justice themselves or follow the rules of proof and hand it off to the common person. So, although being a challenging task, combating organized crime should be shared by all areas of government.

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References

1. Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Sec. 2, cl. b.
2. Meenakshi Rathore, Gangs and Special Laws Dealing with Gang Crimes in India, 14Ignited Minds Journals 1094 – 1099 (2017).
3. Jyoshna Dighe, Organized Crime In India, Legal Service India, http://www.legalservicesindia.com/article/1290/Organized-Crime-In-India.html.
4. Ruchika Jha, Gangs and The Special Laws dealing with Gangs Crimes, Law Times Journal (Mar. 14, 2020) https://lawtimesjournal.in/gangs-and-the-special-laws-dealing-with-gangs-crimes/#:~:text=The%20Central%20Government%20has%20passed,Prevention)%20Act%2C%201956%20etc.

This article has been written by Ayesha Adyasha, a final year law student at Alliance School of Law, Alliance University, Bangalore.

Theory of Broken Windows 

Article 38 of the Constitution of India makes provisions for making India a welfare state. The social and economic development of the country is the basic function of the welfare state. The social structure and economy will collapse if the crime rate is not checked. Hence, the welfare state becomes a dream far from reality. For this reason, state officials must significantly reduce, if not eradicate, crime. The theory of broken windows first gained popularity in a 1982 article by James Q. Wilson and Geoge L. Kelling that was published in the Atlantic Monthly. It implies that having visible signs of criminal activity, antisocial behavior, and general disorder makes cities more likely to have serious crimes and other types of criminal activity.

In some areas, the police started conducting foot patrols, and it was examined five years later. The analysis showed that this program did not lower crime rates, but the population living in the areas that are patrolled on foot compared to places where there was no such foot patrol, felt safer. This effect occurred owing to the preservation of public order in these specific locations. Most social psychologists and law enforcement officials agreed that if one window in a building is broken and not fixed, the rest will soon follow. This can happen in both wealthy and underdeveloped areas. While some neighbourhoods are home to committed window breakers. While there are window lovers in other neighbourhoods, it is not necessarily common for window breaking to occur on a large scale. Instead, one broken window that is not fixed sends the message that no one is concerned, making it easy to break more windows.

Preventive detention 

This measure is used by the police throughout the whole world to curb crime. The major function of the police is to decrease crime. When the police have a suspicion about any person who can become a threat to public order or maintenance or is working against the law of the land, then police use this measure to prevent him from disrupting the law and order and hence the window which might have been broken if the power of preventive detention may have not used is still in its place. 

This power of arrest for preventive detention is often misused by a police officer and is a major concern concerning corruption in the police. One of the main causes of police corruption, according to the National Police Commission’s Third Report on the quality of arrests made by the Indian Police, is the ability to make arrests.  According to the report, 43.2% of the money spent on maintaining jails was attributable to unjustified police action, and generally speaking, close to 60% of arrests were either unnecessary or unjustified. The following was noted by the said Commission on page 31 of its Third Report-

“From the perspective of crime prevention, it is obvious that a significant portion of the arrests were related to very minor prosecutions, and as a result, they cannot be viewed as being particularly necessary. Unnecessary expenses for the upkeep of the detained individuals and are still in custody have been incurred. It was estimated that during the aforementioned period, only those prisoners whose arrest ultimately wasn’t necessary accounted for 43.2% of the costs in the associated jails.” 

The prosecution has the utmost duty, along with the defence counsel and Judge or Magistrate that no crime shall go unpunished and, at the same time, no innocent shall be punished.  

In both measures, if anything goes against the law, then crime rate is to be increased. 

For illustration– 

1. If A has committed an offence and is tried for that offence, but the prosecution did not prove the guilt of the accused beyond reasonable doubt, then the accused has found a loophole to commit a crime that goes unpunished, and hence a general view occurs in his mind to commit further crime. 

This illustration has the support of a Supreme Court Judgment in Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, in which it was noted that- Some criminals are sentenced harshly, while others are sentenced differently for virtually the same crime, and a disturbingly substantial number of criminals go unpunished, encouraging the criminal and, in the end, undermining justice by undermining the system’s legitimacy.  

Madhya Pradesh High Court in Miss x (victim) vs. Santosh Sharma and others noted the effect of the environment on the crime rate. The High court described in paragraph 33 of this judgment that in a society where trappings of ignorance, feud pattern of society, and poor sex ratio make the life of female worse when she experiences such street harassment as it is a threat of real sexual violation that women experience while going to school, college or job.  

In para 34 of the said judgment, the High Court emphasized that crime and order are strongly interrelated and the investigation, prosecution, and adjudication shall be aware of the theory of broken windows, which influences police, law enforcement, and courts to target minor disorders to reduce the occurrence of more serious crimes.  

In para 44 of the mentioned judgment, M.P. High court makes it clear that Investigation, prosecution, and adjudication shall re-synchronize and connect the theory of broken windows with the prevalent theory of Marginal Deterrence to address the growing threat of crimes against women and, if possible consider strict enforcement of law and order over minor offences, particularly those that may lead to major and heinous crimes. 

Support of the theory 

Crime prevails more in areas where the police seldom visit, while an area regularly patrolled by the police becomes a center of administration with almost no crime committed by any person. When it is analyzed that there are certain areas where the crime rate is significantly higher, frequent patrols by the police will help to curb the offence. Education also plays an important role in decreasing crime rate in such areas as the theory suggests, that where the environment of a particular area affects crime rate, developing that area in terms of socially habitable fabric will decrease crime rate. 

The fundamental right to practice a profession is not an exception to this theory. The courts rightly observed the effect of the environment on the crime rate. The below-mentioned cases in this segment will make this point clear. 

The State of Bombay vs. R.M.D. Chamarbaugwala  – This Court stated in this case that gambling could not be promoted to the nature of trade, commerce, or intercourse and be made the subject of a fundamental right guaranteed by Article 19(1)(g). Likewise, in this scenario, dance bars have a detrimental effect on families, women, and adolescents, and have increased crime rates in addition to the trafficking and exploitation of women. 

Khoday Distilleries Ltd. and Others vs. State of Karnataka and Others –   The Court stated that trafficking in women, slaves, or counterfeit currency, as well as showing or publishing sexually explicit or obscene books and films are not fundamental rights since such practices are nasty and destructive.  The following observations were relied on:

“The reasonable interpretation of the phrase “the right to practice any profession or carry on any occupation, trade, or business” is “the right to practice any line of work or carry on any profession, trade, or business that can be legitimately practiced in a progressive society and is not repugnant to the generally accepted moral standards of that society.”   

Children, where there is lawlessness, grow up contrary to law. If education is provided along with community policing and economic and social aid by the state will inculcate law-abiding citizens in the area. The important fact on which the theory of broken windows is based is that if a window is broken and it is not repaired, then soon all the neighboring windows to that window will get broken, and slowly all the windows of the building will get broken and that building will collapse. Similarly, the theory is applicable in society. If a crime goes unpunished or an area is concerned with minor offences & no cognizance is made of that offence, then the minor crimes will take the form of a major and serious crime within a limited time. Lawlessness will prevail and the rule of law will lose its roots. 

The members of the society have to report the offence that happened in their presence or that they know has happened along with any evidence and testimony as required by the court as this will help to repair that window that was broken by the criminal. The motive behind the theory of broken windows is to recognize the effect of the environment on crime rate. Certainly, it affects crime rate. The provisions for habitual offenders come into this category along with history sheeters. 

Criticism of the theory 

The theory is criticized on the ground that it did not reduce crime rate but only fools society that crime is curbed on the false ground of community policing. The original article and proposer of such theory also accounted explanation for such analysis that areas, where community policing was done, were less prone to the offences. 

The second criticism is that if an offender is punished for minor crimes and convicted and sent to jail, he will be released as a criminal to commit major crimes, since now he has a connection in jails with criminals having serious crimes on their names. This statement is practical and is not an assumption. This theory also lose its effect on the example that if a child is punished for minor faults, he becomes either-  

1. Frightened to confess what he had committed, or 
2. used to such punishment and has no effect of it on his mind. 

In both the cases, the child has become ready to commit serious mistakes. This is also one of the reasons why it is necessary to hear the prosecution and defense on the sentence to the accused after trial and conviction is done by taking into account the contention of the defense and prosecution. There are a plethora of articles in which poverty is called a reason for the increasing crime rate. This may be true to an extent but one should know that poverty does not make serious criminals like dacoity, murder, rapes, waging war, sedition etc; but only theft of certain articles of food and clothing when required. This statement is not to be taken as supporting minor crimes. But when poverty is coupled with no education or education against the morals of society, the chances of major crimes become immense. So what is required is the right type of education in the poverty-ridden areas. 

Way ahead 

This is true that environment and crime rate are directly proportional with some exceptions. So when the environment of the society is progressive with economic and social justice, definitely major crimes be reduced, if not minor crimes. There is no straight jacket formula to reduce crime rate but improving the environment of the society will definitely help the citizens to move ahead in their life without doing any crime. 

The Article on the theory of Broken Windows also gave an example in which a man buy two cars and kept one of them in a grey area of society while the other in a progressive area of society. After a week, the car in the grey area was totally aimed at ruins while the car in the other area was untouched. The man then hammered the car in the progressive society and soon the habitants and the passerby came to attack that car which was hammered. 

This shows that the environment as well as policing affect the crime rate. For the car in the grey area was ruined for no reason. Secondly, the car in the other area waited for the first attack and when it found the first attack, it was then turned into ruins. If in the second area, patrolling by the police may have been done, then the fate of that car may have been changed and it might be protected. For the grey area, only policing will do nothing, firstly the state has to change the environment of that area. Make the citizens educated, provide them economic and social security, and then we can assume that policing will curb crime rate in the particular region. 

Conclusion 

Community policing is required to end the lawlessness in a developed society so that minor crimes do not turn into major crimes. But where the society itself is the source of crime, what would we expect coming out of it? Once the environment is changed from negative to positive, crimes are reduced. No person wants to be called a criminal. No criminal wants his child to become a criminal. Unless a positive environment is developed in such areas, the crime rate is hard to be checked. For reducing white-collar crimes, moral education is required to be given and this means whatever people earn should be through legal ways. 

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References

1. https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/
2. https://police.py.gov.in/Police%20Commission%20reports/3rd%20Police%20Commission%20report.pdf paragraph 22.23 
3. Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, (1994) 1 Crimes 319
4. Criminal Appeal No. 6326 of 2019
5. The State of Bombay vs. R.M.D. Chamarbaugwala, (1957) AIR(SC) 699
6. Khoday Distilleries Ltd. and Others vs. State of Karnataka and Others, (1995) 1 SCC 574  

This article is written by Somnath Sharma, a law graduate.

Introduction

The Hon’ble Supreme Court of India in its judgment Attorney General for India v. Satish and another put away the judgment of Bombay H.C. which held that skin-to-skin contact is an essential facet for a crime of sexual assault to be made out under the POCSO Act, 2012. The case emerged out of requests documented by the Attorney General of India, the NCW, and the State of Maharashtra against two decisions of the Bombay court, both composed by Justice Ganediwala. In this article, the writer will feature current realities, entries made, and the judgment given by the Supreme Court of India for this situation.

Background

A 12-year-old minor girl was brought away by a man to his back home under the guise to give guava and afterwards this very nearly 40 years of age man grabbed her, attempted to take off her garments, and limited her in a room. She began crying and yelling and fortunately, her mom acted the hero in time and her cry was heard by a couple of neighbors, who were sufficiently benevolent to affirm. On nineteenth January 2021, a woman judge of the Bombay H.C. gave a decision that, as there was no skin-to-skin contact there was no offense of  “sexual assault” under the POCSO Act, and this episode just sums up “Insulting Modesty of Woman” under the IPC.  Further, the term of detainment was decreased to 1 year from 3 years. Thus, following shock and fights all through the country, on 27th January 2021, this request for the Bombay H.C. was retained by the Supreme Court. Further, the Judge has been downgraded because of passing such silly orders, as the Supreme Court Collegium has removed suggestions to make the appointed authority super durable.

Interpretation By The Cout

The sole explanation given by the woman judge in diminishing the detainment terms to 1 year and holding the individual not blameworthy under the POCSO Act for Sexual Assault is because the appointed authority felt that the base discipline of 3 years under the POCSO Act is unbalanced for the detailed occurrence, and the episode explained above isn’t serious enough in that frame of mind to draw in 3 years of thorough detainment except if there are more serious episodes where there is skin to skin contact. It has additionally been investigated by the academicians that such a silly end to prohibit the above episode of youngster sexual offense as rape for the absence of skin to skin contact under the POCSO Act, can not be arrived at because of any law on the translation of rule nor by straightforward use of rationale. There is positively not a great reason to legitimize this decision.

Judiciary Response On Skin To Skin Contact

A total of 4 appeals were recorded under the steady gaze of the Supreme Court of India by the appellants – Attorney General for India, NCW, State of Maharashtra, and litigant – denounced accused against the judgment dated 19 January 2021 passed by Bombay H.C. holding that skin to skin contact is important to comprise an offense of rape under Section 7 of the POCSO Act. One more allure was recorded by the State of Maharashtra against the judgment of a similar seat dated 15 January 2021 wherein it was held that demonstrations of ‘holding the hands of the minor young lady’, or ‘opening the speed of gasp’ don’t comprise rape under the POCSO Act. The Hon’ble Supreme Court of India heard and discarded every one of the requests together. The translation of the arrangements of the POCSO Act as finished by the Bombay H.C. would devastatingly affect society at large. All the supposed demonstrations of the charge including taking the casualty to his home, eliminating salwar, squeezing bosoms and mouth were acts adding up to ‘sexual assault inside the significance of section 7 culpable with section 8 of the POCSO Act.

The understanding of the word ‘actual contact’, as signifying ‘skin-to-skin contact’ is a restricted understanding that nullifies the very point and object of the POCSO Act. There was no extension for use of the standard of ejusdem generis and it ought not to be applied where it would overcome the actual object of the statute. Section 7 incorporates two sections first, is a demonstration of ‘contacting with sexual purpose the vagina… ‘ and the second, relates to ‘some other demonstration with a sexual plan which includes actual contact without entrance’.

In this way, means the rea-the sexual goal of an individual is the most significant and material thing in the event of the offense of sexual assault. The terms ‘contact’ and ‘actual contact’ in section 7 have been utilized conversely by the legislature. In expressions of sections 29 and 30 of the POCSO Act, the court is expected to assume the sexual aim concerning the blamed and it is for him to demonstrate that he had no such aim or guilty mental state. The attack is supposed to be aggravated in nature. For example, sub-section (m) of section 9 states that whoever commits the offense of sexual assault on a child under 12 years is said to commit the offense of aggravated sexual assault. As mentioned under section 10 of the said act It accommodates discipline for aggravated sexual assault for example detainment of one or the other portrayal for a term which will not be under five years yet which might reach out to seven years, and fine.

Provisions Under POCSO Act

The central concern for the situation connects with the translation of section 7 of the POCSO Act. The Court saw that while deciphering a rule, such a development must be taken on which advances the object of the regulation and forestalls its conceivable maltreatment. The Court likewise saw that the POCSO Act was established to keep youngsters from rape, lewd behavior, and pornography. After breaking down the word reference significance of the words ‘contact’ and ‘actual contact’, the court communicated its concurrence with the accommodation of appellants that the two words have been utilized reciprocally in section 7 by the legislature. The Court concurred with the accommodation made for the sake of denouncing that articulation ‘sexual plan’ in section 7 can’t be bound to any foreordained construction and is an issue of reality to be chosen for each situation. The Court anyway dismissed the accommodation that actual contact in section 7 methods skin-to-skin contact.

Depending on the proverb ‘Ut Res Magis Valeat Quam Pereat’, the court saw that any limited translation which would overcome the object of an arrangement can’t be acknowledged. Deciphering the articulation ‘actual contact’ to imply ‘skin-to-skin contact’ would prompt a ridiculous translation that could never have been the goal of the governing body. Such translation would disappoint the actual object of the resolution and would be exceptionally unfavorable as the demonstrations of contacting the body of the youngster with gloves material or condoms wouldn’t add up to rape under section 7 regardless of whether they are committed with sexual aim. The court saw that it is a settled place that corrective resolutions must be understood rigorously yet it is similarly settled that conditions of a rule ought to be understood concerning the specific circumstance and different arrangements to make a predictable sanctioning of the entire rule connecting with the subject matter. The Court would not make a difference to the standard of lenity and saw that it is a settled recommendation of regulation that the legal equivocalness ought to be summoned if all else fails of translation.

Where the aim of the lawmaking body is clear, the courts can not make vagueness to overcome such a goal. The Court held that there is no vagueness or lack of definition in section 7 to summon the Standard of Lenity. for a term at the very least five years under section 10 of the POCSO Act. Justice Ravindra S. Bhatt in his agreeing judgment directed out the need to decipher the resolution with regards to the conditions that brought about its introduction to the world. In his judgment, the Hon’ble judge depended on the underhandedness rule of understanding of resolutions which gives that courts need to decipher the law in order to stifle the wickedness and advance the cure. He noticed that the judgment given by the Bombay Court will in general proceed with the naughtiness that the Parliament wished to avoid. He likewise noticed that in section 7 of the POCSO Act, the term ‘actual contact’ is of more extensive import than the word ‘contacting’ and isn’t restricted to contact. The articulation ‘some other demonstration’ including ‘actual contact’ may incorporate direct actual contact by the wrongdoer, with some other body a piece of the casualty with the exception of those referenced in the initial segment of section 7 and different demonstrations like the utilization of an item by the guilty party, drawing in actual contact with the person in question.

Indeed, even no contact by the wrongdoer might go under the domain of the saying “some other demonstration”. For instance for a situation where the casualty is constrained to contact oneself. To decide if contact or actual contact is made with sexual purpose, one needs to check out the encompassing conditions. For example, the idea of the relationship with the youngster, the length of contact, its intentionality, and whether there was a genuine non-sexual reason for the contact, spot and direct of the denounced when such leads are significant contemplations. Courts need to remember that sexual purpose isn’t characterized but is subject to the current realities of a case.

Judgment Pronounced By the Court

The Supreme Court of India put away the request passed by the Bombay Court on account of blaming the accused and reestablished the request for the Exceptional Court. The accused was sentenced for the offenses culpable under section 8 of the POCSO Act and sections 342, 354, and 363 of the Indian Penal Code. The accused was ordered to go through detainment for a considerable length of time and a fine of Rs.500/ – and in default thereof to go through basic detainment for one month for the offense under section 8 of the POCSO Act. As the accused was condemned for a significant offense under section 8 of the POCSO Act, no different sentence was forced upon him for different offenses under the Indian Penal Code. The accused was indicted for the offenses under section 354-A (1)(i) and 448 of the Indian Penal Code as and for the offenses under sections 8, 12, and 10 read with section 9(m) of the POCSO Act. The court guided him to go through detainment for a very long time for the offense under section 10 of the POCSO Act and to pay a fine of Rs. 25,000 and in default thereof to languish straightforward detainment for over a half year. No different sentence was forced upon him for different offenses under the Indian Penal Code and the POCSO Act.

Concluding Remarks

For this situation, the Supreme Court of India has given a milestone judgment by switching the questionable decisions passed by the Bombay H.C. which were vigorously scrutinized for being terrible in regulation. In any case, it is lamentable the Court in a nation would pass such a judgment that makes a joke of the law by totally dismissing the regulative history of the POCSO Act and the significant articles that the Demonstration tries to accomplish. To close, it is appropriate to refer to the accompanying perception made by Hon’ble Equity Ravindra S. Bhatt, “It is no important for any appointed authority’s obligation to strain the plain expressions of a resolution, to the point of being indistinguishable and to the mark of its obliteration, subsequently denying the call of the times that youngsters frantically need the confirmation of a regulation intended to safeguard their independence and respect, as POCSO does”.

References

• Attorney General For India v. Satish and another
• Satish v. State of Maharashtra
• Libnus v. State of Maharashtra
• Sneha Rao, ‘Restricting ‘Touch’ Or ‘Physical Contact’ Only To ‘Skin To Skin’ Contact Absurd : Supreme Court Reverses Bombay HC’s POCSO Judgment’, (18 November, 2021), https://www.livelaw.in/top-stories/pocso-skin-to-skin-judgment-supreme-court-bombay-high-court-attorney-general-185784.

This article is written by Saumya Tiwari, student of Graphic Era University, Dehradun.

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Introduction

It is crucial to understand both the terms, ‘crime’ and ‘society’ when we discuss crime and society. Because it is hard to comprehend crime without researching society as a whole, there is a relationship between criminology and sociology. The concept of deviation in society is where the idea of crime originates. Deviance entails defying a social convention and arousing hostility from others. Laws are standards that are established and upheld by the government. When deviation breaks the law, it is considered a crime.

What constitutes a crime?

A crime is any act, omission, or circumstance that is forbidden by law, which, if committed, results in legal action being taken by and on behalf of the state rather than a specific individual, and which, upon conviction, results in a punishment of some kind being meted out by state agents rather than the payment of compensation.

As a result of the aforementioned definitions, we can define crime as any morally or socially wrong deed committed by an individual or group of people against another person or the state that is against the law, and when convicted, punishment is meted out by the state rather than the specific offender. Crime can take many different forms, including crimes against people, crimes against property, organized crime, workplace crimes, political crimes, and corporate crimes.

For the same reason, many actions that are prohibited in one nation but permitted in another are legal in that nation. Alcohol drinking is one example, permitted everywhere but prohibited in Muslim nations. People’s perspectives on what constitutes a crime also alter as a result of cultural changes. As a result, there may be numerous causes of crime, which vary depending on the type of crime, the time and location where it occurs, and other factors. The criminalization and decriminalization of different phenomena is thus a continuous process.

Describing society

The Latin word “socious,” which means affiliation and friendship, is where the word “society” originates. Therefore, the definition of society is “a larger group of people who are connected.” Sociologists define society as a group of individuals who share a common environment, way of life, and culture. Individual and communal (shared) benefits can thus be distinguished, or in many situations found to overlap, insofar as a society is collaborative, it can enable its members to benefit in ways that would not otherwise be conceivable on an individual basis. In a dominating, bigger society, a group of people who share similar beliefs and norms might also be considered a society. A subculture is another name for something that is frequently used in criminology.

Societal definition of crime

In essence, crime is defined via the prism of society. An act is not criminal until society declares it to be so, and if society deems an act to be in line with its values, then it is not a crime at all. The primary purpose of laws is to punish criminal behavior, and these laws are the outcome of society’s desire to put an end to such activities. To better grasp it, consider the fact that witchcraft was once regarded as a crime and subject to punishment. People at that period were extremely devout, believed in witchcraft or black magic, and believed that witches assisted the devil in his evil deeds. Witchcraft, thus, became a felony and a basis for prosecution of anyone suspected of practicing witchcraft. The definition of crime by society is crucial because it influences the creation of laws that will stop it from happening. In defining crime, society’s perspective on the specific act is crucial because, for instance, if society does not view giving bribes as a crime, they will not be recorded as such and no laws will be passed on them even though they are morally wrong.

Money as a reason for crime

Money is one of the most crucial components of everyone’s life in the modern era. The value of money extends beyond a person’s bank account balance and includes things like their social standing, value, and even morals. People, therefore, place a higher emphasis on money than on relationships and pleasure. They place more value on others’ opinions of them than their own. Even colleges and universities do not instruct students on how to lead happy and fulfilling lives; rather, they focus on teaching them how to increase their income, which subtly equates wealth with value. People who are in awe of students who study and choose careers in science rather than the arts since, traditionally, they have a better chance of making more money, would be an example. People who make less money feel unworthy as a result, and they are forced to engage in criminal activity to increase their income and improve their self-worth.

Variations in crime

Due to advancements in technology, crime has changed significantly over time along with societal change. People used to believe that crimes were primarily perpetrated by people from lower socioeconomic classes who were trying to get materialistic things and had little other options than to use illegal means to accomplish so. But rich individuals can commit crimes as well as poor people, and most of the time they can do it without leaving any evidence. Anyone can commit a crime, regardless of their social, political, or economic standing. It has been said that crime doesn’t go away; it just changes.

Do the crime figures include any errors?

The functionalism perspective is perhaps the least appreciated of the main paradigms or ways of looking at crime in sociological techniques. Everything has a function, according to functionalism. Sociologists such as Emile Durkheim postulated that since crimes happen in every culture, they must have a purpose otherwise they would not be widespread. Crime provides targets for societal moral outrage, maintaining society and fostering stronger solidarity.

Particularly Marxists contend that many crimes perpetrated by the wealthy are not recorded in crime statistics. The wealthy are less likely to be under investigation or to become suspects since they can more easily afford skilled lawyers who can clear their names or even bribe officials to stop the investigation altogether. Marxists would add that since the wealthy are the class that creates the laws, a large portion of the detrimental behavior that they do participate in is legal.

Crimes perpetrated by “middle class” people (as opposed to “blue collar” laborers) are referred to as “white-collar crime.” It is typically used to describe the crimes most associated with the middle class, such as fraud and tax evasion, rather than, for example, violent crimes that just so happened to have been committed by a middle-class person. Although theoretically, it could mean any crime committed by members of that class, it is typically used to describe the crimes most associated with the lower class.

Because many white-collar crimes are more difficult to identify, prosecutions are less likely. The crime is frequently perpetrated at a distance, possibly via computer, rather than face-to-face, and victims are frequently spread and remote (for example, there may be thousands of fraud victims who may never be aware that a crime has taken place).

Both victims and witnesses to crimes are less inclined to come forward because of these two factors. In the past, these crimes have been dealt with more leniently, and occasionally, white-collar criminals’ associates will assist in “brushing it under the carpet” to escape the unfavorable publicity. Therefore, thieves discover new and improved ways to accomplish a crime.

These days, cybercrime, often known as computer crime, is very common. The offense is perpetrated when someone uses a computer to carry out unlawful activities such as cyberpornography, fraud, infringement of intellectual property, identity theft, or invasion of privacy. With the development of technology, cybercrime, particularly over the Internet, has become more prevalent.

The advancement of technology has led to new criminal opportunities. Cybercrime typically involves an attack on data about people, businesses, or governments. Even though these attacks lack a physical component, they still affect a person’s or a company’s virtual body since, in the digital age, our virtual identities are vital components of daily life.

Consequences of crime

Most often, crime had a detrimental impact on society in terms of its economy, social structure, and political climate. The following are the consequences of crime on contemporary society: –

• Hinders societal development

Crime frequently impedes society’s development. For instance, the rise in crime rates forces the government to allocate resources to crime reduction rather than investing them in profitable areas. Building jails, buying tools to fight crime and paying those working in the criminal justice system all cost enormous sums of money. In this approach, crime prevention costs the government more, which slows down social advancement.

• It leads to the killing of people

In countries where crime rates are rising, there are more fatalities each year. Crime directly results in death through violence, such as the terrorist attack on the Pentagon and the World Trade Center on September 11, 2001, in the United States, which left about 2996 people dead and over 6000 injured.

• The expense of living in society rises as a result

The cost of living in society also rises as a result of crimes being committed there. This occurs in several ways, including the costs required by society to prevent crimes, investigate and punish criminal activity, and maintain those who have committed crimes behind bars. For instance, the criminal must be imprisoned after being charged. Criminals require pricey housing, clothing, and food.

Conclusion

The saying “money is the root of all evil” makes it obvious that crime is a combination of many various aspects of our lives, with money being the first and most significant factor. A person may commit various crimes to obtain money if there is a lack of funds and he cannot meet his needs. The need for retribution is a key motivator for criminal behavior. Both crime and society are a part of society, and their relationships are interdependent. Since society determines whether a particular act is considered criminal or not, crime is always committed in society. Crime is also more likely to occur where there is society because of social conflict and other factors.

References

1. Encyclopedia Britannica. [Online] August 22, 2022.
2. Rao, C N Shankar. 2019, Sociology, Karnataka: S. Chand Publishing, 2019.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

Introduction

India is a nation where traditions and customs are widely followed. The family’s dignity comes first and they expect to lead a very respectful life in society. There is a huge divide among the population in the country in the name of caste, religion, sex and locality. The prevailing social evils like casteism and discrimination on the grounds of religion, lead to honour killings. Honour killing is a murder performed on an individual either on an outsider or a family member to protect their dignity in society. To date, honour killings are still prevalent in India despite, the development which is happening in the country.

Recently, a Dalit man was killed in Hyderabad by his Muslim wife’s brother. The man was killed because the woman’s family didn’t accept the interfaith marriage. It was also stated by the woman that her brother tried to hang her when she stated that she wanted the marry Nagaraju who even was willing to change into a Muslim for her¹. Due to the deep-rooted traditional cultures present in India, honour killings are based on orthodox beliefs. India is considered to be a patriarchal society where women are seen as a commodity and not as equals to men. They see women as a representation of the family’s reputation. Their rights and choices aren’t given any preferences even when the constitution sees men and women equally.

Defining ‘Honour killing’

An individual is killed in ‘Honour killing’ if a family member or hired killer believes that the person has compromised their moral character and, as a result, tarnished the family’s reputation. Both the victims and the perpetrators of honour killings may be male or female, and the crime may be committed for a variety of criminal reasons. The victim or the offender may be the target of an honour killing in situations where there has been an evident sexual transgression.

Factors causing Honour Killings

The concept of Honour killing was present in India since ancient times. People have reported crimes against their relatives and described these executions as a demonstration carried out to preserve the family’s dignity. Honour killings have historically been committed primarily as sexual orientation-based crimes and have been used as a tool to maintain the dominance of men in society over women. This doesn’t mean that the man has been completely spared from this horror, though.

Illiteracy also is a reason for the honour killings as many of the people wouldn’t be open enough to understand the concepts like homosexuality and inter-caste or faith marriages. Many households aren’t comfortable accepting marriages with lower caste members and this is one of the major factors triggering the honour killings in India especially.

The presence of Khap panchayat is also a reason for the honour crime to be existent in India; also called caste courts. The Khap panchayat, an endogamous, gotra-centric clannish body, developed into a powerful institution in the area around Delhi during the Middle Ages in response to the tenuous state of law and order brought on by the recurrent incursions of foreign invaders into that region. It served two purposes: to protect its members and to mediate conflicts among them. However, the Khap panchayat is an unauthorized organization to declare that something is unethical because of their ideologies.

The case of Laxmi Kahhwaha v. The Rajasthan State² along with a PIL (Public Interest Litigation)had drawn the attention of the Rajasthan High Court. The court had observed that these unconstitutional self-styled panchayat systems have been imposing their authority on the weaker sections of the society, especially on women. It further observed, “These panchayats had no position whatsoever to pass social blacklists, or impose any fine on someone and ignore a person’s basic rights.”

Provisions present against the Honour Killings in India

Constitutional framework-

The offence of Honour killing is against the fundamental rights assured by the Constitution. It violates Article14, 15 (1) and (3), 17, 18, 19. It also violates Article 21 i.e., the Right to Protection of life and personal liberty which says that no person shall be deprived of his life or personal liberty except according to procedure established by law³ which cannot be infringed unless prescribed by the law which is fair, free and just as per the case of Maneka Gandhi v. Union of India⁴.

On the recommendation of the community panchayat, a 20-year-old woman in West Bengal was gang raped because she was dating a guy from a different group. The Supreme Court took suo moto cognizance of the case⁵. As part of Article 21 of the Indian Constitution, the Court reaffirmed that the State has a responsibility to uphold the right to choose one’s spouse.

Under Section 3 of the Indian Majority Act, 1875 any person who has attained 18 years of their age is considered to be a major⁶. However, the eligibility for marriage is 18 years for women and 21 years for men where they have the right to choose their partner and it was held in the case of Lata Singh v. State of U.P. & Anr.⁷ by the Division bench of the Supreme Court that the inter-caste marriages are valid according to the Hindu Marriage Act and it was also stated that if the parents had a problem in such marriage, they can cut the social relations with them but they don’t have any right to harm the couple. In the event of such violence, the court can institute criminal proceedings against them. The Supreme Court, in the petition by the NGO Shakti Vahini v. Union of India⁸ declared, “It is illegal for Khap panchayats to scuttle marriages between two consenting adults.”

Indian Penal Code 1860⁹ provisions-

Any individual found guilty of murder or culpable homicide that does not amount to murder is punished under Sections 299–304. The murder penalty consists of a fine, life in prison, or death. Culpable homicide that is not murder is punishable by a fine and life in prison or a maximum of 10 years in jail.

Section 307: Threatening to kill is punishable by up to 10 years in prison and a fine. If someone is hurt, the sentence may be increased to life in prison.

Section 308: Penalties for attempting to commit culpable homicide include up to three years in jail, a fine, or both. If it results in harm, the offender faces up to 7 years in prison, a fine, or both.

Criminalize anyone who participates in a criminal conspiracy under Sections 120A and 120B.

Sections 107 to 116: Punishes those who aid and abet killings, including culpable homicide.

Criminal acts committed by multiple people in service of a single goal are punishable under Sections 34 and 35.

Other provisions-

The Schedule Caste and Schedule Tribes Act, 1989, The Protection of Human rights Act 2006, The Protection of Women from Domestic Violence Act, 2005, Dowry Act, etc., are present to punish the offender, whoever commits the offence. Due to Casteism, there are many cases where the lower caste people have been tortured and killed for marrying a superior caste person.

Reforms Suggested

Prevention of Crimes in the Name of Honour and Tradition Bill 2010- According to a recent ruling by the Supreme Court, parents or Khap Panchayats cannot intervene in an adult couple’s decision to be married. The most recent decision confirms the Supreme Court’s 2010 directive to the central government to stop honour killing. There has been a proposal to amend IPC and remove the Khap panchayats.

Punishments and Penalties

The convict is awarded death penalty or imprisonment for life and a penalty more than Rs. 5 lakhs. In situations of grave injury, the punishment is 10 years in imprisonment and a fine of Rs 3 lakh, or 3-5 years in prison and a fine of up to 2 lakhs.

Conclusion

Honour killing is a barbaric practice which is still happening in a nation like India which has been developing at a very fast pace. Due to the deep-rooted social evils, the practice is ongoing in rural areas mostly. These types of killings occur due to the disapproval of marriage with the lower community or a caste person or when the sexuality of the persons differs or due to the loss of virginity prior to marriage, and the list goes on.

For same-sex marriages and inter-faith and cultural marriages, it is important to notice that many people in rural areas are uneducated and still have outdated ideologies as they don’t have proper exposure. However, it is important to understand that even though a person’s interest differs from their family, they do not have the authority or the right to take the law into their hands and kill them. Being in a democratic country, people have a right to choose the way they want to live. People have a right to choose their sexuality and their partner as it is their choice. Article 21 doesn’t just mean mere breathing, it is a right to live with dignity and peacefully. The choices opted by the persons regarding their priorities in life do not affect anybody and no one has a charge over a major’s life.

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Citations

This article is written by K. Mihira Chakravarthy, 1^st year, B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).