Author: Tanya Agarwal, Research Associate
The earliest reference to the word ‘crime’ puts the date in the fourteenth century. It conveyed to the mind something disreputable or wicked ((Sir Federick Pollock, F.W. Maitland, et.al The History of English law before the time of Edward I [2nd edn. Cambridge University Press 1911] 465)). Scholars, in different time periods have made efforts to define the term ‘crime’, focussing on one or the other dimension of a prohibited act.
Sir William Blackstone’s modified definition of crime reflects that crimes are breaches of those laws which injure the community ((Sir William Blackstone Commentaries on the Laws of England,[ 17th edn. University of Chicago Press 1830] 5. According to him, crime is a violation of the ‘public’ rights and duties due to whole community considered as a community)). Like, Blackstone Romans also designated crimes as delicta publica i.e. public wrongs ((K.D. Gaur, Criminal Law: Cases and Materials [3rd edn , Butterworths 1999] pp 4-10)). This aspect is true of many crimes, but not all. There may be certain actions of individuals that are injurious to the community but are not necessarily crimes ((Ibid)).
The relation between crime and immoral or antisocial acts is very limited ((Garofalo, Barone Raffaele an eminent criminologist in his work, defines crime in terms of immoral and anti-social acts)). It is true that immoral acts like murder, theft, rape are considered as traditional crimes. However, immoral acts like ingratitude, hard-heartedness have never been crimes because criminal law is an impracticable tool to correct such behaviour. Moreover, there are many acts like traffic offences, offences relating to black marketeering that are prohibited not because of their immoral nature but due to other factors ((Id at 3)).
The sociological concept of crime has also failed to explain a number of criminal behaviours. When legislature enacts that a particular act shall become or cease to be a crime, the social reaction to the act essentially remains the same ((Ibid)). For instance, though dowry is a crime, there is hardly any change in the attitude of the people perhaps it is more in practice today than before as is evident from the number of dowry deaths and cases of bride burning reported each year ((According to statistics recently released by the National Crime Records Bureau, 8391 dowry death cases were reported across India in 2010)). Thus, it can be said that crime is not necessarily a ‘public’, ‘moral’, or ‘social’ wrong.
The legalistic definition of crime, which has been the pillar of conventional thought in criminology, argues, “Only those are criminals who have been adjudicated as such by the courts ((Tappan Paul. 2001. “Who is the Criminal?” In Stuart Henry, Mark Lanier, et.al. (eds.) What is Crime? [New York: Rowman and Littlefield Publishers, Inc. 2001] pp. 27–36.)).” This definition has been criticized by a few scholars for being restrictive and overtly formalistic in its approach ((Legalistic definition of crime and an alternative view available at: http://www.ius.bg.ac.rs/Anali/Annals%202006/Annals%202006%20078-086.pdf (Last Visited 13 July, 2013 11:00).)). In the seventies, Schwendinger & Schwendinger ((Schwendinger and Schwendinger In Stuart Henry, Mark Lanier, et.al. (eds.) What is Crime? [New York: Rowman and Littlefield Publishers, Inc. 2001] 88. According to them, any person, social system, or social relationship that denied or abrogated basic rights are criminal.” Basic rights are distinguished by the right to racial, sexual, and economic equality.” They are “basic” because “there is so much at stake in their fulfilment.” Further, “individuals who deny these rights to others are criminal,” and “likewise, social relationships and social systems which regularly cause the abrogation of these rights are also criminal.”))defined crime as a breach of basic human rights and had laid a foundation stone for many alternative definitions of the crime. From this perspective, the state can be seen as a perpetrator of crime, rather than simply the authority that defines crime. For instance, Nazi Germany of the 1930s where the human rights of certain population was attacked with the support and legal apparatus of the state ((Ibid)).
Stewart Henry and Dragan Milovanovic gave a “constitutive definition” of crime, according to which there are two types of crime, depending on whether the injured person loses certain qualities important for its present status (reduction crimes) or is prevented from achieving desired position in the society repression crimes) ((Stuart Henry, Mark Lanier, et.al. (eds.) What is Crime? [New York: Rowman and Littlefield Publishers, Inc. 2001].)). This definition of the crime enables to broaden the scope of criminology to all actions which injure somebody else, where ‘injury’ is understood in the broadest sense ((Id at 10)).
Reflection of ‘Crime’ As a Dynamic Concept
The lawful act of yesterday becomes today by the affixing of a signature to a piece of paper, a crime; and by a similar process the crime of today may become the virtue of tomorrow.
An attempt to analyze the content of crime by professors and scholars beginning with Blackstone ((Id at 2))down to Kenny ((Kenny’s Outlines of Criminal law, JW Cecil Turner (ed) [18th edn, Cambridge 1962] 1))in modern times has proved to be futile because of the ‘changing’ nature of crime. The concept of crime varies not only according to the culture, social values, beliefs, customs, traditions and religious attitudes of a particular group and society but also according to the ideology of ruling social and political power. In fact criminal offences are the creation of criminal and penal policy adopted from time to time by a state ((Russell Crime, JW Cecil Turner (ed) [12th edn. Stevens & Sons, London] 18)).
Social changes affect criminal law in many ways i.e. through developments in science, especially in biology and medicine; through changes in predominant moral and social philosophy; through changes in the structure of the society, especially in its transition from a rural self contained and relatively sparsely populated, to a highly urbanised and industrialised pattern ((Dr KI Vibhute, Criminal Law [ 10th edn. Lexis Nexis Butterworths Wadhwa Nagpur 2011] pp 7- 8.)). What is permissible in a free and affluent society may be pernicious vice in a conservative set up ((V.R. Krishna Iyer, Perspectives in Crminology law & Social Changes [Allied Publishers 1980] pp 7- 8)). What is an offence against property in a capitalist culture may be a lawful way of living in a socialist society ((Id at 3)).
The criminal offences dealing with the protection of life and liberty have essentially remained unchanged throughout the ages all over the world. With the shift from agricultural to industrialise society, the nature of offences against property has undergone profound changes. The original crime of theft has gradually widened to include embezzlement and fraudulent conversion, so as to protect the owners of commercial property against those entrusted with its handling ((Id at 18)). The growth of commercial and financial transactions has made the offence of fraud ((Satyam case known for Corporate Accounting Fraud in the history of corporate frauds in India))increasingly important in modern commercial society.
In the 1940s, for example, Edward Sutherland introduced the concept of “white-collar crime” to draw attention to crimes committed by the business and professional people in course of their occupations, thereby challenging the common perception that crime was committed primarily by those in the lower class ((Clive Coleman, Clive Norris, et. al Introducing Criminology[ 1st edn. Lawman India Pvt. Ltd. 2003] 8)). Besides, the transformation in the type of modern privately owned assets has made it necessary to widen the concept of property from a physical thing to a variety of other assets such as electricity, shareholders claims, copyrights, patents, intellectual proprietary and the like ((Id at 18)).
Sutherland and Cressey produced a list to illustrate the variety of acts which had been defined as crimes at some point, which included ‘printing of a book, professing the medical doctrine of circulation of the blood, driving the reins, selling coins to foreigners, having gold in the house, buying goods on the way to market or in the market for the purpose of selling them at a higher price, writing a cheque for less than a dollar ((Id at 23)).
In Indian context ‘sati’ i.e. burning of a married woman on the funeral pyre of her deceased husband, was for a long time considered to be a virtue in our own country, but now it is a crime under Commission of Sati (Prevention) Act, 1987. Similarly, polygamy was not a crime until it was made so by the Hindu Marriage Act, 1955 ((Hindu Marriage act, 1955 ss. 5, 17. A man is liable for conviction for bigamy under section 494 Indian Penal Code)). This Act, it may be stated, does not apply to Mohammedans or Christians. But Christians are forbidden to practise polygamy under their law of marriage, while Mohammedans are yet immune from punishment for polygamy. Untouchability was not a crime earlier, is now an offence under Section 3 of Protection of Civil Rights Act, 1955.
Abortions that were a crime a few years ago are now legal under section 3 of Medical Termination Pregnancy Act, 1971. Similarly, homosexuality ((Wolfenden Committee, Report on Homosexual Offences and Prostitution (1957) proposed to decriminalize homosexuality and prostitution))which is not a crime in a few western nations has been recently decriminalized by the Delhi High Court ((Naz Foundation v. Government of NCT of Delhi and Others (2010CriLJ94).)). Suicide, which was crime in England until the Suicide Act, 1961, became lawful in India from early 1994 to 1996 ((A Division Bench of the Supreme Court in P. Rathinam v. Union of India (AIR 1994 SC 1844) held that the right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life, and therefore, section 309 violates Article 21. This decision was, however, subsequently overruled in Gian Kaur v. State of Punjab (AIR 1996 SC 946) by a Constitution Bench of the Supreme Court, holding that Article 21 cannot be construed to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that section 309 is violative of Article 21)). However Law Commission of India in its 210th report recommended humanization and decriminalization of attempt to suicide encompassed in section 309 of Indian Penal Code.
Some states in India took up State Lotteries as a revenue earning measure, which was prohibited earlier because of its gambling nature, have again banned because of public pressure and its ill-effect on society ((K.D. Gaur Criminal law & Criminology [1st edn. Deep and Deep Pvt. Publications Limited 2002] 32)). In a recent case of Bilmendu de V. Union Of India ((AIR 2001 Cal. 30))the telecast of most popular serial ‘Kaun Banega Crorepati’ was questioned on the ground of its being ‘gambling’ Calcutta High Court dismissing the petition held that it involves the skill and knowledge of the contestants and hence it does not amount to gambling.
Defining crime is a task which has so far not been satisfactorily accomplished by any writer ((Id at 17)). Even Indian Penal Code does not define ‘crime’ to provide flexibility and allow the society to set its own guidelines as the situation demands. ‘The domain of criminal jurisprudence’, observed by Lord Atkin ‘can only be ascertained by examining what acts at any particular period are declared by the state to be crimes, and the only common nature they will be found to possess is that they are prohibited by the state and that those who commit them are punished.’ Thus, the ultimate decision of what constitutes crime lies in the hands of the state. Unfortunately, there are no set rules or guidelines which the state should follow before criminalisation of a human conduct. The criteria for creation of new offences by a state stipulated by Lord Williams of Mostyn, Minister of state at the Home Office, UK in 1999, is not followed in practice.