Introduction
“Injustice anywhere is a threat to justice everywhere” – Martin Luther King, Jr.
The theory of crime and justice is as old as time itself. Crime can be defined as “an act that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceedings.[1]” On the other hand, Justice can be defined as “A moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs.[2]”
Practically speaking, crime is ubiquitous; be it in offices, public places, schools colleges, even at households in the form of domestic violence. Of late, crime can even take place virtually in the form of Cyber Crimes. Not only this, crimes even occur in the vast skies in the form of airplane hijacking and in the mighty oceans in the form of pirate attacks. So, one facet of crime becomes apparent, that is crimes are omnipresent and spread terror in the realms of land, sea and sky.
Crime is a public wrong. This is because when a criminal strikes, it causes terror and apprehension not only in the mind of the victim, but also in the minds of the people of the society. It spreads a feeling of danger and insecurity in the minds of the members of the society. Hence, at all the times it becomes necessary to tackle such situation wisely and tactfully as the interest of the society as a whole is intertwined with the welfare of the victim of the crime. A bad precedence can have very serious after effects.
Numerous crimes occur on a daily basis. Most likely, many are taking place right now in the nooks and corners of this colossal planet. It is like a wildfire which only spreads but never ends. It is an epidemic which only increases with time and gets fine tuned by technological progress. With times, criminals are adopting more sophisticated and innovative techniques to accomplish their criminal pursuits. Due to this raison d’être, the ambit of criminal law have become so mammoth that constant research and improvement have become a prerequisite towards the quest of extinguishing crimes in the society. Alas, regardless of whatever is done, it may not be possible to completely wipe out crime from the face of the Earth, but with more awareness and vigilance in our justice system, we can hope to see a society with fewer crimes and lesser apprehensions in the minds of the populace.
According to the Crime in India, 2016 Report of The National Crime Records Bureau (NCRB), the capital of the nation, New Delhi has the highest recorded cognizable crime rate of 974.9 per 1000 people and the state of Uttar Pradesh has the highest occurrence of crime recorded on the basis of percentage of share[3]. This present crime rate is indeed shocking but if the trend is carefully analysed, it can be noted that perpetration of crime has only increased with passing time. This piece of information not only adds a colour of despair but also a quintessence of dread to the picture of the society in which we trod and dwell in.
Hence, it is, indeed, the need of the hour to curb such horrendously growing trends of crime in the society. For this, a strong and clear-cut system of law and order is required. We require balanced thinking judges, truly competent advocates, proficient bureaucrats and above all legally aware and rights-conscious citizens. Each and everyone must have the concrete idea of what is right and what is wrong apart from the extent to which one should tolerate. The old and youth alike should be counselled to remain vigilant so that they can not only save themselves but can also save others from these monsters who perpetrate such gruesome crimes.
I. HISTORY OF CRIMINAL LAW IN INDIA
Stabilisation of societal peace and harmony has been a matter of immense difficulty since time immemorial. The insight on justice and legal system in Vedic Era, India, is quite unlike that of the views of the Anglo Saxon society as it gave more Weightage and magnitude to duties of persons rather than rights of persons. A meticulous legal work on Civil and Criminal wrongs can be obtained from Smritis like Manu Smriti, Code of Yagnavalkya and commentaries or digests (Tikas) by Narada, Brihaspati, Vyasa and Katyayana.
In Dharmashastras, it is stated that administration of justice was a vital duty of the King who was viewed as the Fountain of Justice or a sentinel of Dharma. He had the supreme power and authority to punish the offenders and uphold the law of the land[4]. Dharmashastras did not have a foundation of procedural laws but was mainly based on substantive law. Customs also had a major role in the administration of justice in ancient India[5].
According to the Manu Smriti, civil and criminal wrong has been portrayed under certain themes like defamation, assault, robbery, theft and trespass. There was no concept of personal retribution in Criminal Justice system of Ancient India[6]. Manu in Manu Smriti has talked about eighteen different forms of ‘hurt’ (criminal wrongs) which he detached from crime against property (civil wrongs).
Arthashastra written by Chanakya also known as Kautilya includes various types of criminal wrongs of his era. The Hindu Kings of that period and those who came later, followed similar laws with little additions and omissions as and when required. This was the period in ancient India when Hindu Law in the form of Smritis, Shrutis, Shastras and Tikas were in use. This practice went on till the advent of Mughal Emperors in India. Thereafter, India faced a paradigm shift in the mode and methods of Justice System i.e., The Hindu Justice System that was prevalent so far slowly gave way to the dawn of the Mughal Justice System in India. This marks the Medieval Period of Justice system in India.
The Mohammedan law was mainly based on the ideals and principles of holy Quran. As Mughal Rule started gaining dominance in India, it was observed that certain provisions proved to be insufficient to fulfil the necessities of such a large territory with diverse members of community. Hence certain amendments were made in the form of Sunna – ‘Rules of Conduct’. The general principles of Muslim Criminal Law were laid down in the Hidaya and the case laws were compiled in a collection called Fatwa-i-alamgiri[7].
The Muslim Law of Crimes failed to prevail as it had an appalling system of bias against Hindus in the aspect of Law of Evidence and punishment. Hence, justice was not fair and impartial. In Mohammedan Law, there were five varied forms of punishment that is to say Kisa (Retaliation or Doctrine of Revenge), Biddut or Diya (Blood-money), Tazir (Discretionary punishment), Hadd (Limit prescribed by law) and Siyasat (Authority of the Emperor).
Kisa was mainly based on theory of revenge that is to say, an eye for an eye, a tooth for a tooth and a limb for a limb. Biddut or Diya which is Blood-money is basically monetary compensation that the accused will have to pay to the victim or victim’s party for the crime commited by him. Tazir is the punishment that was given at the discretionary power of the Emperor[8]. Hadd was a form of punishment that was given according to the limit that was prescribed by the Mohammedan Criminal Law. Finally, Siyasat was a type of exemplary punishment that was given by the Emperor in order to maintain law and order for the purpose of ensuring public welfare and tranquillity.
Thereafter, began the era of British reign in India. These British rulers started following the existing Muslim laws of India with recurrent amendments and repeals so as to make it suitable with their perception of Justice, Equity and Good Conscience. They were also cautious with these changes so that it was apposite for the sentiments of the natives. They never touched the family laws and Hindus as well as Muslims were allowed to follow their own family and personal laws. This is one of the reasons behind the long tenure of power and supremacy of the British Raj in India. This process of ongoing measured changes in the Mohammedan Law led to the subsequent enactment of The Indian Penal Code in 1860.
The procedure of codification of The Law of Crimes started with the Charter of 1833. This was mainly done as the huge array of different laws rampant in India caused a lot of hardship and ambiguity to the Indians belonging to different parts of India. So, a need was felt for a uniform system of criminal law for entire India so as to wipe out such uncertainty and vagueness of interpretation of law. Hence, the First Law Commission was set up which took up the task of codification of criminal law and this finally gave rise to the enactment of the Indian Penal Code in 1860. Subsequently, the Indian Penal Code came into force w.e.f. 1st January, 1862.
II. CRIMINOLOGY IN MODERN INDIA
“Actus Non Facit Reum, Nisi Mens Sit Rea- The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrong doing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility – Salmond[9]”
The modern Criminal Law is based on certain fundamental principles:-
1) There has to be an act or omission (Actus Reus)
2) This act or omission should have been done with criminal intent (Mens Rea)
3) This act or omission should be prohibited and punishable by existing law.
When we talk about criminal law in modern India, there are certain aspects that are sources of great concern, debate and critical analysis. There are many facets of modern Law of Crimes that are not only ambiguous but also are sources of great legal tension. Modern lifestyles and modernity of thoughts across the globe have forced our lawmakers to modify certain aspects of law which were once upon seen with a different perspective. Such areas are Laws regarding Euthanasia, Adultery, Marital Rape and LGBTQ Community. There are also certain crimes that are age old like Rape, Revenge Porn, Law on Insanity & Intoxication, Environmental Crimes, Death Penalty and Rarest of Rare cases, Offences Relating to Religion, Honour Killing, Domestic Violence and Sexual Harassment at Workplace to name a few.
This essay will mainly focus on the debatable areas of law i.e. Law of Euthanasia, Adultery, Marital Rape and regarding The LGBTQ Community.
i) Euthanasia – ‘Right or Wrong’
“To save a man’s life against his will is the same as killing him – Horace”
It is believed that life is the most precious gift of God. But, what use is life when one cannot walk, cannot talk, cannot move, cannot feel and worse cannot even take one’s own life. Such is the pitiable condition of a person who is termed as a patient in the Permanent Vegetative State (PVS) by the medical practitioners. This person’s condition can never change for the better but can only advance for the worse. What is the use of living such a life? This fate of these doomed persons call for Euthanasia or ‘Mercy Killing’.
In the landmark Indian case on Euthanasia, Aruna Ramchandra Shanbaug vs Union Of India & Ors[10] on 7 March, 2011, a case of frantic plea of a sixty three year old Nurse to die with dignity and peace as she had to spend more than half of her life in a Permanent Vegetative State (PVS) at the same hospital which was her workplace and the place of her ultimate doom as this was the place where she was brutally raped. It was this King Edward Memorial Hospital, Mumbai where a young, lively nurse ended up as a lifelong, lifeless victim.
In the year 2009, a journalist, Pinky Virani moved the Supreme Court with a plea to let Aruna Shaunbaug die with peace and dignity. She wanted the Epitome of Justice to award this helpless soul who could neither see, nor hear, neither move nor talk the permission to leave this Earth with dignity and tranquillity by ‘Euthanasia’.
Thus, 9th March, 2018 became a day of great historic significance as the Supreme Court of India passed a verdict declaring ‘Passive Euthanasia’ (withdrawal of life supporting systems) for patients suffering in a Permanent Vegetative State (PVS) to be legal and valid in India.
ii) Adultery – ‘Forbidden Pleasure’
According to section 497 of the Indian Penal Code, 1860, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor[11]”.
In Joseph Shine v. Union of India[12], a man named Joseph Shine who is a 41 year old businessman based in Italy filed a criminal writ petition in Supreme Court of India[13] to strike down the law regarding adultery as given under section 497 of The Indian Penal Code, 1860. He contended that not punishing a woman for adultery as an abettor not only is against Right to Equality Under article 14 of Constitution of India but also portrays women as an object or property of men.
Therefore, the Apex Court stroke down the 158 year old law making this a landmark decision in India’s legal history. Justice Deepak Mishra, the then Chief Justice of India stated that adultery can be ground for issues like divorce which are civil in nature but henceforth will not be considered as a criminal offence. Therefore, adultery was decriminalised by the Supreme Court Judgment of September 27, 2018.
iii) Marital Rape – ‘Was Consent Taken’
It is an archaic Indian notion that once a girl is married, it is her duty to serve her husband physically, mentally, emotionally and sexually. The perception is such that it believes that the husband has complete right over his wife just like a person has over his property. So, if the wife disagrees to cooperate with the husband’s whims and fancies, then it can be considered as a ‘great’ infringement of the husband’s so called right.
According to section 375 of The Indian Penal Code, 1860, a man is said to commit the offence of rape if he has sexual intercourse with a woman without consent. Hence, for the offence of rape to be committed, ‘consent’ is considered as a vital element.
But when a married couple is in question, people may not consider a sexual intercourse as rape due to the same age old perception that the wife is a property of the husband. But we live in the 21st Century. We should give this conception a second thought. We should learn to give due importance to the woman’s opinion which may vary due to her heath and emotional conditions prevalent at that moment.We should learn to question – ‘Was Consent Taken?’
First and foremost, every individual has an absolute right over one’s own body. It should be understood that when a woman tells ‘NO’ it means ‘NO’. Whenever, without her consent she is forced to have sex with her husband, it should be construed as ‘Marital Rape’. Sadly enough, there is no provision regarding marital rape and its punishment as of now in India. But as times are changing and our perceptions are experiencing a paradigm shift, the existence of this provision has now become really imperative. This provision is of utmost importance to wipe out the notion of the world which objectifies women. It is a matter of great shame for any civilisation, any nation. Hence, there is truly a need for the inclusion of this provision in the Indian Penal Code to endow womenfolk the respect which they rightfully deserve and not be treated as legal slaves.
iv) LGBTQ Community – ‘Our life, our Choice’
According to sec 377 of the Indian Penal Code, 1860, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life] or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine[14].”
Navtej Singh Johar v. Union of India[15] is a path breaking decision by the Apex Court of India. In this case, the five-judge Constitution Bench consisting of the then Chief Justice of India (CJI) Dipak Mishra and Justices Indu Malhotra, AM Khanwilkar, RF Nariman and DY Chandrachud gave a unanimous decision wherein they declared the decriminalisation of sec 377 of The Indian Penal Code, 1860. “Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community… LGBT community possesses same equality as other citizens,” said CJI Dipak Mishra[16].
So, with this path breaking, landmark judgment, The LGBTQ Community shall live with ‘Pride’ and dignity just like other fellow citizens. This was a much awaited judgment. This judgment showcases the broadness of thought and the flexibility of the Indian Judiciary System. Gone are the archaic, rigid days. Today is the day of change, the day of a fresh new beginning. Hence, this judgment is a matter of great pride for the entire Nation.
III. FUTURE OF CRIMES IN INDIA
Technology is a double edged weapon. We all enjoy the benefits of this scientific wonder but we forget the dark side of the same scientific marvel. Yes, with the advancement of technology, the criminals are becoming more innovative and in the process are ‘gifting’ us a huge plethora of crimes. These crimes are on a rapid increase now but in the near future they would surely wreck a great havoc if this continues. These are cyber crimes, financial frauds, space crimes, voyeurism & stalking, attack with biological weapons, crimes with nuclear technology and the horrid list continues. The main reason for increase in such type of crimes is basically the increase in the population of the educated-unemployed. Due to this joblessness, they undergo great mental, financial and emotional turmoil. Also, break-ups in relationships are a major contributing factor for increasing psychological disorders which in turn transform these so called victims of emotional wreckage into dreaded criminals. This essay will mainly focus on cyber crimes relating to cyber defamation.
With the advent of 21st century, we are now living in a so called “Smart” world which is totally covered with cyberspace. Yes, we thrive in this virtual era. We get up as our smart phone alarm rings. Then, we turn to our saviours ‘our phones’ to read the news. After this, we book a cab via an app and go to our workplaces. In the evening, our phones play melodies and we relax. When we want socialising, of course we have our smart phones with an uninterrupted internet connection. Then, finally we connect our phone to the charger and snooze off to sleep. This is the life of a typical 21st Centurion. So, definitely, we cannot ignore the space that cyberspace occupies in our lives. Parents allow their children to use internet from a very tender age. They think they are actually giving their young ones best opportunities but everything can get shattered within minutes if things take a wrong turn. Actually, nowadays, nobody can imagine a life without the ‘Virtual Reality’ and hence people without their knowledge have become easily reachable to the sharks, lurking in this virtual world behind their computers. Due to this over usage of internet, we are likely to become a victim of online harassment which might not sound dangerous until one goes through this trauma.
The internet made it really simple for anything defamatory to spread like forest fire within minutes. The intermediaries like Facebook, Instagram, Twitter etc., have made the task of these cyber criminals a piece of cake. Internet is the web which contains both the prey and the predator. Even if one person reads a defamatory statement against someone, it is known to be published. But sadly enough, this publication happens on the internet on a very large scale and within a very short span of time. The problem is really hard to cure as it is extremely difficult to identify the perpetrator. He can be anyone from any corner of this huge world. This phenomenal explosion of defamatory information can create great havoc in the lives of these victims. So, this is a topic of the reality and a problem of the hour. We need to be more tactful, smart and vigilant to combat with such crimes.
CONCLUSION
“Weakness is sin, weakness is death” – Swami Vivekananda. We must all fight our demons
within – our demons of weakness and show courage to raise our voices so that we
can bring these criminals in the wake of the society. If we can achieve this
feat, then the criminals can be exposed to the general public and their so called
image of innocence will eventually get destroyed revealing their true dark
faces. Therefore, time has come to stand united in order to punish these evil
souls. We must all work hand in hand to ensure that justice is delivered to the
deserving party and that the criminal faces his fate which is given by the
epitomes of Justice, our Courts. The same will cause a deterrent effect in the
minds of the criminals and hence will eventually lead to a decline in the crime
rates. This will in turn make our society a safer place to live in.
[1] OXFORD, DICTIONARY OF LAW (8th edn., Jonathan Law ed. Oxford 2015)
[2] Id.
[3] Statistics, National Crime Records Bureau, New Delhi (Oct 10, 2017) ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf (Last visited Aug 4, 2019)
[4] Dr. Pendse S.N. : Oaths and Ordeals in Dharmashastras, (1985) p. 5.
[5] Sengupta N.C. : Evolution of Ancient Indian Law, p. 47.
[6] Manu Smriti, Chapter VIII 241: digest prepared by Viramitrodaya and Vyavahara Mayukha
[7] Mittal J.K. : Indian Legal History (7th ed.) p. 20.
[8] Rankin G.C.: Background to Indian Law, p.166.
[9] Gandhi B.M.: Legal Language, Legal Writing & General English, p.991.
[10] Aruna Ramchandra Shanbaug v. Union of India & Ors., (2011) 1 SCALE 673
[11] THE INDIAN PENAL CODE, 1860, § 497.
[12] Joseph Shine v. Union of India – Writ Petition (Criminal) no. 194 of 2017
[13] Id.
[14] THE INDIAN PENAL CODE, 1860, § 377
[15] Navtej Singh Johar v. Union of India, W.P.(Crl.) No. 76 of 2016
[16]The Times of India http://timesofindia.indiatimes.com/articleshow/65695172.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last visited Aug 12, 2019)
This article is written by Madhuparna Ray.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.
