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Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
Criminology is the study of crime as a fact about society rather than as a set of rules, and it asks three questions the law itself never asks: what crime is, why it happens, and what should be done about it.
In the wording a student can write in an exam: criminology is the body of knowledge regarding crime as a social phenomenon, and it includes within its scope the processes of making laws, of breaking laws, and of reacting towards the breaking of laws.
Why this paper exists at all
A law student spends most of a degree learning rules. The Sanhita says that a person who does this is punishable with that. The procedure code says how the trial runs. Nothing in either tells you why a young man in a Mumbai chawl steals a phone, why a chartered accountant signs a false certificate, or why the same conduct is a crime in one decade and not in the next.
Criminology is the subject that asks those questions. It sits behind the criminal law rather than inside it. When Parliament decides to make a new offence, when a judge decides between prison and probation, and when a police force decides where to put its officers, the reasoning they use is criminological reasoning whether or not anyone calls it that.
That is why the paper is set for a postgraduate lawyer rather than for a sociologist. You are being trained to notice that a rule has a purpose, that the purpose rests on a belief about human behaviour, and that the belief may be wrong.
What the University asks of you
The printed syllabus for this paper is seven lines long. Module I is "Concept of Crime. Criminal Law, Criminology as a Science," and "Criminology From Ancient to Modern thought". Module II is "Multiple Factor theory" and "Causes of Crimes". Module III is "Privileged Class Deviance and Indian Legal order" and "Professional Deviance of Lawyers, Teachers, Judges, Journalists, Doctors, Technocrats, etc." Module IV is a single line, "Response of Indian Legal Order".
Read those seven lines and you have the shape of the paper. The first module defines the field and traces its history. The second asks why crime happens. The third looks at crime committed by the powerful, which is the part of the subject MU cares most about. The fourth asks what Indian law has actually done about it.
The problem with defining crime
Every textbook opens with a definition of crime and every textbook then admits that the definition does not work. That is not laziness. It is the honest state of the subject, and understanding why is the first piece of criminological thinking you will do.
What This Paper Is About, and What a Crime Is
Try the obvious definition. A crime is an act forbidden by law and punishable by the State. This is the formal or legal definition, and it is exact. Anything the Sanhita punishes is a crime; anything it does not is not. A court can apply it. A police officer can apply it.
But notice what it cannot do. It cannot tell you whether something ought to be a crime. It cannot explain why adultery was an offence in India until 2018 and is not now, although nothing about the conduct changed. It cannot explain why a factory owner whose negligence kills forty workers is often dealt with under a licensing statute while a man who kills one person in a fight is tried for culpable homicide.
The formal definition, in other words, is a description of the law's output. It is not a description of the thing the law is trying to catch.
The sociological answer, and its own problem
So the sociologists tried the other direction. A crime is conduct that seriously offends the collective conscience of a society, or, in a more modern form, conduct that causes serious social harm.
That definition explains the changes the formal one cannot. Adultery stopped being an offence because Indian society stopped agreeing that it was the State's business. It also lets a criminologist criticise the law: if a factory owner's negligence causes more harm than a street robbery, a definition based on harm says the law has got its priorities wrong.
But it has its own defect, and it is a serious one. Whose conscience? Which society? India in 2026 does not have one collective conscience about drinking, about caste, about what a woman may wear or whom she may marry. A definition that rests on general agreement fails exactly where the interesting cases are.
Where this book stands
The honest position, and the one to write in an exam, is that crime has no single definition because the word does two different jobs. As a lawyer's word it means what the statute says. As a criminologist's word it means socially harmful conduct that a society has decided to control through punishment.
The two overlap heavily and they are not the same. Most of what the Sanhita punishes is socially harmful. Some socially harmful conduct is not punished at all, and that gap is what the third module of this paper is about. Some punished conduct harms nobody in particular, and that gap is what decriminalisation is about.
Hold both definitions and say which one you are using. A student who insists that only one is correct has misunderstood the question.
A worked example
Ramesh Patil runs a small chemical unit in Dombivli. To save money he pipes untreated effluent into a nullah at night. Over two years the water in three neighbouring wells becomes unfit to drink and a number of residents fall ill, although nobody can prove which illness came from which well.
What This Paper Is About, and What a Crime Is
On the formal definition, ask what statute Ramesh has broken. Discharging a pollutant beyond prescribed standards is punishable under the environmental legislation. If a prosecution is launched and proved, this is a crime; if the pollution control board issues a direction and Ramesh complies, there may be no crime at all, because no court has been asked to punish anybody.
On the sociological definition, ask what harm has been caused. Three wells and an unknown number of illnesses is a larger harm than most of what the criminal courts of Dombivli handle in a month. On this definition the conduct is criminal in substance whatever the pollution board decides.
And now notice the third question, which is the criminological one. Why does the legal system treat Ramesh differently from a man who poisons one well deliberately? Not because the harm is smaller. Because the conduct is diffuse, the victims are unorganised, the proof is technical, and the offender is respectable. That observation is the whole of Module III of this paper, and you have just made it from a definition.
What "crime" does not mean
It does not mean the same as sin. Sin is an offence against a religious or moral order and its sanction is not imposed by the State. Many sins are not crimes, and some crimes, such as a technical breach of a licensing rule, involve no moral fault at all.
It does not mean the same as anti-social behaviour. Rudeness, dishonesty in private dealings and cruelty within a family may be deeply anti-social and may still not be punishable. The criminal law is a narrow and expensive instrument and a society uses it for a fraction of the conduct it dislikes.
And it does not mean the same as "what the police record". Recorded crime is the crime that was noticed, reported, believed and written down. The gap between crime committed and crime recorded is large and is dealt with separately in this book.
Quick revision
Criminology is the study of crime as a social phenomenon: law-making, law-breaking and the reaction to law-breaking.
The formal or legal definition: crime is an act forbidden by law and punishable by the State. Exact, but it cannot say what ought to be criminal.
The sociological definition: crime is seriously harmful conduct that offends the collective conscience. Explanatory, but there is no single conscience to appeal to.
Both are correct for their own purpose. Say which one you are using.
Crime is not sin, not all anti-social behaviour, and not the same as recorded crime.
The seven printed topics of this paper: concept of crime and criminology as a science; criminology from ancient to modern thought; multiple factor theory; causes of crimes; privileged class deviance; professional deviance; response of the Indian legal order.
What This Paper Is About, and What a Crime Is
Test yourself
1. Give the formal definition of crime and state its principal weakness. An act or omission forbidden by law and made punishable by the State. Its weakness is that it is purely descriptive: it tells you what the law has criminalised but gives no standard by which to judge whether the law was right to do so, so it cannot explain or criticise any change in the law.
2. Why can a definition based on the collective conscience not be applied mechanically? Because a modern society has no single collective conscience. On drinking, on sexual conduct, on caste practices and on speech, Indian opinion is divided, so the definition gives no answer exactly where the disputed cases lie.
3. A company sells a cough syrup contaminated during manufacture and several children die. Is this a crime? Answer on both definitions. On the formal definition, only if a statute makes it punishable and a prosecution is brought; the drugs legislation and the culpable homicide provisions are both candidates, and the answer turns on proof of knowledge or negligence. On the sociological definition it is plainly criminal: the harm is grave and the conduct is one no society would tolerate. The difference between the two answers is itself the subject matter of this paper.
Crime as a Legal Wrong: The Elements of an Offence
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
A crime, looked at as a lawyer looks at it, is a guilty act done with a guilty mind by a person the law holds responsible, in circumstances where the law provides a punishment.
In the wording a student can write in an exam: an offence requires a human act or omission (actus reus), a guilty state of mind (mens rea), a prohibition by law, and a punishment; and the maxim is actus non facit reum nisi mens sit rea, an act does not make a person guilty unless the mind is also guilty.
Why the elements matter to a criminologist
This looks like pure criminal law and it belongs in a criminology paper for a precise reason. Every element is a filter. Conduct passes through it or it does not, and a great deal of harmful behaviour never becomes crime because it fails one of the filters rather than because anyone decided it was harmless.
The mental element in particular is the reason the third module of this paper exists. A factory that poisons a river rarely has anyone who intended to poison it, so the harm falls out of the criminal law at the mental element and reappears, if at all, as a regulatory penalty.
The Sanhita's own definition
The Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code 1860 with effect from 1 July 2024, defines an offence in section 2(24). The word "offence" means a thing made punishable by this Sanhita, subject to the exceptions the sub-clauses set out for particular Chapters, where the word carries a wider meaning covering things punishable under any law for the time being in force.
Notice how circular that is. An offence is what the Sanhita punishes. The statute does not attempt a definition of crime in the sense the last chapter was looking for, and it does not need one. That is exactly the difference between the lawyer's question and the criminologist's.
Element one: a human act or omission
The first requirement is conduct. The law does not punish a state of mind on its own, and it does not punish being a certain kind of person.
Actus reus means the guilty act. It is a Latin phrase and it covers three things together: the conduct itself, the circumstances in which the conduct takes place, and, where the offence requires one, the result. In a theft the conduct is the moving of property, the circumstance is that the property belongs to another and is taken without consent, and there is no separate result. In a murder the conduct is the blow, and the result, death, is part of the actus reus.
Crime as a Legal Wrong: The Elements of an Offence
An omission counts only where the law imposes a duty to act. A stranger who watches a child drown commits no offence by walking away. A lifeguard employed to watch that pool does, because the employment creates the duty. This is why an omission case always begins by identifying the duty rather than the failure.
The act must also be voluntary. Conduct during a fit, a reflex, or while asleep is not the accused's act at all in the sense the law requires.
Element two: the guilty mind
Mens rea means the guilty mind. English law states it as a general requirement; Indian law does not, and this catches students out.
The Sanhita, like the Penal Code before it, writes the required mental state into each offence rather than laying down a general rule. So the words to look for are in the definition of the particular offence: "intentionally", "knowingly", "dishonestly", "fraudulently", "voluntarily", "rashly", "negligently", "with intent to", "having reason to believe". Each is a different mental state and each has been the subject of its own case law.
There are four broad levels, and they descend in gravity.
Intention. The accused meant to bring about the result. This is the highest and it is what the gravest offences require.
Knowledge. The accused did not necessarily want the result but knew it was likely to follow. Much of the law of homicide turns on the line between this and intention.
Recklessness or rashness. The accused took an unjustified risk, conscious that a risk existed.
Negligence. The accused fell below the standard of care a reasonable person would have observed, whether or not the accused adverted to the risk at all.
Strict liability offences require no mental element as to one or more parts of the actus reus. They are common in regulatory statutes: food adulteration, drugs, weights and measures, environmental discharge. They exist because proving the mental state of a company would otherwise make enforcement impossible, and they matter to this paper because they are the form in which the law usually reaches the powerful. Their price is that a person can be convicted without moral fault.
Element three: a person the law holds responsible
Not everyone who does the act with the mind is answerable, and the Sanhita says so in the general exceptions.
Section 20: nothing is an offence which is done by a child under seven years of age. This is absolute. It is called doli incapax, incapable of crime, and no evidence of understanding can displace it.
Section 21: nothing is an offence which is done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Here the incapacity is a presumption that can be rebutted, and note the words "on that occasion": maturity is judged act by act, not once and for all.
Crime as a Legal Wrong: The Elements of an Offence
Section 22: nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The test is cognitive. A person who knows exactly what he is doing and knows it is wrong is not excused however disordered he is, which is a point of standing criticism dealt with later in this book.
Section 23: the same formula for involuntary intoxication, where the thing that intoxicated the accused was administered without his knowledge or against his will.
Element four: prohibition and punishment
The last element is the one that separates crime from every other kind of wrong. Somewhere there must be a provision of law that forbids the conduct and attaches a punishment to it, and the punishment must be one the State inflicts.
This is the element that makes the formal definition circular, and it is also the element that makes the criminal law an instrument of policy. Parliament decides what goes on the list. That decision is a criminological decision dressed as a legislative one.
A worked example
Sunita Kadam, aged eleven, takes a bottle of kerosene from a neighbour's kitchen and pours it on a stray dog, which is badly burned. Her uncle Dattatray, aged forty, watched her do it and said nothing.
Sunita's position. The act and the mental state are both present. But she is above seven and under twelve, so section 21 applies and the prosecution must prove that she had attained sufficient maturity of understanding to judge the nature and consequences of her conduct on that occasion. Evidence that she hid the bottle afterwards would tend to establish that maturity; evidence that she thought the kerosene was water would defeat it. If the presumption is not rebutted, there is no offence at all.
Dattatray's position. He did nothing. To convict him of an offence by omission there must be a legal duty to act, and no general duty to prevent cruelty by a bystander exists. If, however, he was the child's guardian at the time, the analysis changes, because the law recognises a duty in a person who has charge of a child. Notice that the argument turns entirely on the duty and not at all on whether we think he behaved badly.
And the criminological point. The harm is the same in both branches. Whether it becomes a crime depends on age, on maturity and on the existence of a duty, none of which has anything to do with the injury to the dog. That is the filter at work.
Crime as a Legal Wrong: The Elements of an Offence
What beginners get wrong
Mens rea is not motive. Motive is the reason a person acted; intention is the aim with which the act was done. A man who steals bread to feed his child has an excellent motive and a complete intention to steal. Motive goes to sentence and to proof; it is not an element.
Mens rea is not a single thing. There is no general Indian requirement of "a guilty mind". There is the particular mental state named in the particular section, and an answer that says "mens rea was present" without naming which one has not done the work.
A general exception is not a defence in the loose sense. Section 20 does not mean the child is excused; it means no offence has been committed at all.
Quick revision
Actus non facit reum nisi mens sit rea: an act does not make a person guilty unless the mind is guilty.
Four elements: a human act or omission, the required mental state, a responsible person, and a law that prohibits and punishes.
Actus reus covers conduct, circumstances and, where required, result. An omission counts only where there is a legal duty.
Indian law puts mens rea in each section: intentionally, knowingly, dishonestly, fraudulently, voluntarily, rashly, negligently.
Four levels: intention, knowledge, recklessness or rashness, negligence. Strict liability dispenses with the mental element and is the usual form of regulatory crime.
Sanhita section 2(24): "offence" means a thing made punishable by this Sanhita.
Sections 20 to 23: child under seven; child of seven to twelve without sufficient maturity on that occasion; unsoundness of mind making the accused incapable of knowing the nature of the act or that it is wrong or contrary to law; involuntary intoxication.
Test yourself
1. State the four elements of a crime. A human act or omission; the mental state the particular offence requires; a person whom the law holds capable of responsibility; and a legal provision prohibiting the conduct and prescribing a punishment inflicted by the State.
2. How does Indian law state the requirement of a guilty mind, and why does that matter? It does not state it generally. Each offence names its own mental element in its own words, so the correct question is never "was there mens rea" but "was there the intention, knowledge, dishonesty or rashness that this section requires". It matters because an answer pitched at the general level cannot resolve any real problem.
Crime as a Legal Wrong: The Elements of an Offence
3. A twelve-year-old and a six-year-old together break a shop window. Discuss. The six-year-old commits no offence at all: section 20 of the Sanhita is absolute for a child under seven. The twelve-year-old is outside section 21 altogether, which covers only a child above seven and under twelve, so ordinary principles apply and the ordinary elements must be proved, subject to the separate scheme of the juvenile justice legislation governing how such a child is dealt with.
4. Why does strict liability matter to a criminology paper? Because it is the form in which the criminal law usually reaches corporate and regulatory wrongdoing. Where a mental element cannot be proved against an organisation, the legislature drops it. The gain is enforceability; the cost is conviction without moral fault, and the pattern of which harms get the strict liability treatment is itself a criminological question.
Crime, Tort, Breach of Contract, Sin and Immorality
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
A crime is a wrong the State punishes, a tort is a wrong the injured person sues for, a breach of contract is a failure to keep a promise the parties made themselves, and a sin is a wrong against a moral or religious order that no court enforces.
In the wording a student can write in an exam: the distinguishing mark of a crime is that the proceeding is brought by the State, in the public interest, and ends in punishment; the distinguishing mark of a civil wrong is that the proceeding is brought by the injured party, for his own benefit, and ends in compensation.
Why the distinctions are worth drawing
Students treat this as a list to memorise. It is worth more than that. Each boundary is a decision a society has made about which of its problems are public and which are private, and those decisions move.
Sexual harassment at a workplace was a private matter, then a civil wrong, then a criminal offence. Environmental damage was a nuisance to be sued upon, then a regulatory penalty, then an offence. Watching the boundary move is watching criminalisation happen, and that is the criminological content of what otherwise looks like a table.
Crime and tort
A tort is a civil wrong, independent of contract, for which the remedy is an action for unliquidated damages, meaning damages the court fixes rather than a sum agreed in advance.
Crime
Tort
Who proceeds
The State, through a prosecutor
The injured person
In whose interest
The public
The claimant's own
Outcome
Punishment: imprisonment, fine, forfeiture
Compensation, and sometimes an injunction
Standard of proof
Beyond reasonable doubt
On the balance of probabilities
Can the injured person forgive it away
Only where the offence is compoundable
Yes, at any time
Who benefits from a fine or an award
The State takes the fine
The claimant takes the damages
The same conduct is often both. A man who strikes another commits the offence of voluntarily causing hurt and the tort of battery. The two proceedings are independent and either may succeed where the other fails, because the standards of proof differ.
The overlap is not complete in either direction. Most regulatory offences give no cause of action to anybody. Most torts, such as negligently damaging a neighbour's wall, are no crime at all.
Crime and breach of contract
A contract is an agreement enforceable by law. Its obligations are created by the parties themselves and bind only them, which is what lawyers mean by saying they are obligations in personam.
The obligations of the criminal law are the opposite. They are imposed by the State on everybody, they cannot be contracted out of, and the parties cannot agree to a different rule. Two people cannot validly agree that one may assault the other for a fee.
Crime, Tort, Breach of Contract, Sin and Immorality
That said, the same facts can produce both. A builder who takes an advance intending from the outset never to build has broken his contract and has also committed cheating, because the dishonest intention existed at the time of the promise. Where the intention to perform was genuine and the performance later failed, the matter stays civil. This distinction, between a promise broken and a promise never meant, is the whole of the difference between a commercial dispute and a criminal case, and it is heavily litigated.
Crime and sin
A sin is conduct condemned by a religious or moral code. Its sanction is spiritual, or social, and no court applies it.
Historically the two were not separated. Medieval European law and classical Indian law both treated offences against the divine order as matters for temporal punishment, and the demonological explanations dealt with elsewhere in this book grew out of that identification. The separation is modern and it is incomplete.
Three propositions hold today.
Many sins are not crimes. Ingratitude, lying to a friend, and covetousness are wrongs no legal system punishes.
Many crimes are not sins. Parking on the wrong side of a road, filing a return late, or exceeding a permitted noise level involve no moral fault at all.
The overlap is large and it is what most people think of as crime. Killing, stealing and deceiving are condemned by every moral code and punished by every legal system.
Crime and immorality: the Hart and Devlin debate
The interesting version of the question is not whether crime and sin differ but whether the State is entitled to punish conduct merely because it is thought immoral, where nobody is harmed.
The argument for. A society is held together by a shared morality, so conduct that attacks that morality threatens the society itself, and the State may protect itself. On this view there is no area of private morality into which the law may never enter, and the test of what to punish is the disgust of the reasonable member of the public.
The argument against. The only purpose for which power may rightly be exercised over any member of a civilised community against his will is to prevent harm to others. A person's own good is not a sufficient warrant. Shared morality changes, disgust is a poor guide, and using the criminal law to enforce it inflicts real suffering on identifiable people for a speculative gain.
Where Indian law stands. It has moved. The decriminalisation of consensual same-sex conduct and the striking down of the adultery offence both rest on the reasoning that the criminal law may not be used to enforce a majority's moral view where no harm is shown, and both are worked in the chapter on decriminalisation. Against that, obscenity, gambling and, in several States, the sale of liquor and of beef remain offences, so the older position is not gone.
Crime, Tort, Breach of Contract, Sin and Immorality
Write the debate, not a side. The examiner is testing whether you can state both positions and locate Indian law between them.
A worked example
Anil Deshmukh, a chartered accountant, is engaged by Meera Joshi to file her returns. He takes his fee, files nothing, and forges an acknowledgement so that she believes the return was filed. She is later penalised by the tax authorities.
Contract. Anil promised a service and did not render it. Meera can sue for the fee and for the penalty she has suffered as damages flowing from the breach. She must prove the contract, the breach and the loss, on the balance of probabilities.
Tort. Anil owed her a duty of care as a professional. Filing nothing falls below the standard of a reasonably competent chartered accountant, so the tort of professional negligence is available on the same facts.
Crime. Forging the acknowledgement is a separate matter altogether. Making a false document with intent to cause damage or injury is forgery, and using it as genuine is a further offence. Here the State prosecutes, Meera is a witness rather than a party, and the outcome is punishment rather than money.
Sin, and professional deviance. Nothing in the criminal proceeding addresses the breach of professional trust as such. That is dealt with, if at all, by the disciplinary machinery of his professional body, and the pattern is the subject of the chapter on technocrats and the wider Module III.
What beginners get wrong
The difference is not the seriousness of the harm. A negligently caused industrial disaster may cause a thousand times the harm of a pickpocketing and still be handled as a civil and regulatory matter. The difference is who proceeds and to what end.
Compounding is not the same as compromise in a civil suit. A civil claim can always be settled. A criminal case can be compounded only where the statute says so, and for the gravest offences it cannot be compounded at all.
A crime is not "a tort against the public". That formula is neat and it hides the point. The State prosecutes because the legislature has decided the conduct is a public matter, not because a member of the public has suffered a particular loss.
Quick revision
Crime: State prosecutes, public interest, punishment, proof beyond reasonable doubt, compoundable only if the statute allows.
Tort: injured party sues, own interest, unliquidated damages, balance of probabilities, always compromisable.
Contract: obligation created by the parties, binding only on them; a promise never intended to be kept can also be cheating.
Sin: religious or moral wrong with no legal sanction. Many sins are not crimes; many crimes are not sins.
Hart and Devlin: may the State punish immorality without harm? Devlin says a shared morality holds society together; Mill and Hart say only harm to others justifies coercion.
Indian law has moved towards the harm principle on sexual offences and away from it on obscenity and liquor.
Crime, Tort, Breach of Contract, Sin and Immorality
Test yourself
1. Distinguish crime from tort on four grounds. The party who proceeds, the interest served, the outcome, and the standard of proof. The State prosecutes in the public interest for punishment on proof beyond reasonable doubt; the injured party sues in his own interest for compensation on the balance of probabilities.
2. When does a broken promise become a crime? When the promisor never intended to perform at the time the promise was made, so that the inducement was dishonest from the start. That is cheating. A genuine intention that later fails leaves the matter in contract.
3. State the Hart and Devlin positions in two sentences each, and place Indian law. Devlin: a society is entitled to preserve the shared morality that holds it together, so conduct that offends that morality may be punished even without harm to an identifiable person. Hart, following Mill: coercion is justified only to prevent harm to others, and enforcing a majority's morality inflicts certain suffering for a speculative benefit. Indian law now leans to the harm principle in the sexual offences decriminalised since 2018, while retaining older morals offences in the law of obscenity, gambling and, in some States, liquor.
Crime as a Public Wrong, and Why the State Prosecutes
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
A crime is treated as a wrong against the whole community rather than against the person who suffered it, which is why the case is brought by the State and why the victim is a witness rather than a party.
In the wording a student can write in an exam: crimes are wrongs whose sanction is punitive and in no way remissible by any private person, but is remissible by the Crown alone if remissible at all; the proceeding is titled as the State against the accused, and the injured person appears as the complainant or as a prosecution witness.
Why the law took the wrong away from the victim
For most of recorded history it did not. Early legal systems, Indian and European alike, treated killing and wounding as matters between families, settled by compensation. The wergild of Germanic law and the composition payments of early Indian practice are both systems in which the wrongdoer paid the victim's kin.
Three things changed that, and all three are still the justification.
The blood feud is worse than the crime. Private vengeance escalates. A killing avenged produces a killing to be avenged, and a society that leaves punishment to families ends up with continuing violence rather than a single wrong.
Compensation cannot be paid by the poor. A system of private settlement means that a rich offender buys his way out and a poor one does not. Taking the matter over lets the State apply the same rule to both, at least in principle.
Some harms have no identifiable victim. Treason, perjury, counterfeiting, bribery of a public servant and pollution of a river harm the community rather than any one person. If only the injured could prosecute, these would go unpunished, and it is no accident that they are among the oldest offences everywhere.
What follows in Indian procedure
The Bharatiya Nagarik Suraksha Sanhita 2023, which replaced the Code of Criminal Procedure 1973 on 1 July 2024, carries the consequences through.
The State investigates. An officer in charge of a police station is bound to record information about a cognizable offence and may investigate without any order of a Magistrate. The victim's wish is not the trigger and, in a cognizable case, the victim's change of heart does not stop the investigation.
The State prosecutes. The prosecution is conducted by a Public Prosecutor. The victim does not choose the counsel, does not settle the case, and cannot withdraw it. The Sanhita allows the victim to engage an advocate to assist the prosecution, which is an improvement on the older position, but the assistance is subject to the Public Prosecutor's control.
The State may withdraw. A Public Prosecutor may, with the consent of the court, withdraw from the prosecution. The victim has no veto.
Crime as a Public Wrong, and Why the State Prosecutes
Compounding is limited. Where an offence is compoundable, the person injured may compound it, sometimes with the permission of the court. Where it is not, no agreement between the parties ends the case.
The fine goes to the State. A fine is a punishment payable to the State. Compensation to the victim is a separate power, and its history is the subject of the chapter on compensating the victim.
The price the victim pays
This is the point the paper wants you to see, because it is what victimology grew out of.
The victim of a crime in India gives a statement, waits, is summoned, is cross-examined, and goes home. She has no right to be consulted on charge, on plea, or on withdrawal. If the accused is acquitted she historically had no right of appeal at all. She receives nothing unless a court separately orders compensation, and for most of the life of the Code that power was almost never used.
So the very move that civilised the criminal law, taking the wrong away from the victim, produced the modern complaint that the criminal justice system has forgotten the person it exists to protect. The reforms of the last two decades, the statutory definition of victim, the proviso giving a right of appeal, the victim compensation schemes and the duty to consider compensation in every case, are all attempts to put something back without returning to private vengeance.
A worked example
Farida Shaikh is assaulted by her neighbour Kishore Rane in a dispute over a parking space. She goes to the police station and an information is recorded. Two weeks later the two families settle their differences and Farida wants the matter dropped.
If the offence is voluntarily causing hurt, it is compoundable by the person to whom the hurt is caused, so Farida can compound it, and in some cases the permission of the court is required. The case ends and the effect is an acquittal.
If the injury is grievous and caused by a dangerous weapon, the position changes. The offence is not compoundable, so the settlement is legally irrelevant. The State prosecutes whether Farida wishes it or not, and she may be treated as a hostile witness if she resiles from her statement.
Where does that leave her? She may be summoned repeatedly, may lose wages, and may face pressure from a neighbour she still lives beside. She has no control over any of it. If Kishore is convicted and fined, the fine goes to the State, and she receives money only if the court, in the exercise of the power dealt with later in this book, orders compensation and records reasons.
Crime as a Public Wrong, and Why the State Prosecutes
And the justification. Read the second branch again from the community's side. If serious injury could be bought off by a neighbour with more money or more local influence, the protection of the criminal law would be available only to those who cannot be leaned on. That is precisely the situation the public wrong idea exists to prevent.
What beginners get wrong
"The State prosecutes" does not mean private complaints are impossible. A Magistrate may take cognizance on a complaint made by a private person, and for a small class of offences a complaint by the person aggrieved is the only route. The case is still the State's once it is under way.
Compounding is not the same as withdrawal. Compounding is done by the injured person where the statute allows. Withdrawal is done by the Public Prosecutor with the court's consent. They have different actors and different effects.
The victim being a witness is not an insult, it is a structure. The complaint is not that the system is rude to victims but that it gives them no standing, and the reforms attack the standing rather than the manners.
Quick revision
A crime is treated as a wrong against the community, so the State prosecutes and the sanction is punitive and not remissible by any private person.
Three reasons the State took the wrong over: private vengeance escalates; private settlement favours the rich; some harms have no identifiable victim.
Consequences in Indian procedure: police investigate a cognizable offence without the victim's leave; a Public Prosecutor conducts the case; the prosecutor may withdraw with the court's consent; compounding is only where the statute permits; a fine goes to the State.
The cost is the victim's exclusion, and modern victim-oriented reform is an attempt to correct it without restoring private vengeance.
Test yourself
1. Give three reasons why the criminal wrong was taken away from the victim. Private vengeance escalates into feud; settlement between the parties allows a wealthy offender to buy immunity while a poor one is punished; and offences such as perjury, counterfeiting and bribery injure the community rather than any identifiable person, so nobody would have standing to prosecute them.
2. What is the practical difference between a compoundable and a non-compoundable offence for the person injured? For a compoundable offence, the injured person may compound, with the court's permission where the statute so requires, and the compounding has the effect of an acquittal. For a non-compoundable offence, the injured person's forgiveness has no legal effect at all and the prosecution continues.
3. How does the public wrong idea create the problem victimology addresses? By vesting the wrong in the community, the law makes the injured person a witness with no standing: no say in charge, plea or withdrawal, historically no right of appeal against acquittal, and no automatic entitlement to compensation. Victimology is the study of that exclusion and of the measures designed to reduce it.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminal law is the body of rules that defines which conduct the State will punish, fixes the conditions of responsibility, and prescribes the punishment.
In the wording a student can write in an exam: criminal law comprises the substantive law, which says what is an offence and what punishment it carries, and the procedural or adjective law, which says how an accused is investigated, tried and sentenced; and the two together, with the law of evidence, make up the criminal justice system's rule book.
What the criminal law is for
Ask a criminal lawyer what criminal law is for and you will be given the theories of punishment. Ask a criminologist and you will be given something wider, because punishment is only one of the things the criminal law does. The functions of criminal law are six, and the theories of punishment account for only four of them.
It declares. The first function is to state publicly that certain conduct is unacceptable. This works even when nobody is prosecuted. The offence of dowry death changed what people say about dowry long before it changed how many prosecutions succeeded.
It deters. The threat of punishment is meant to make the conduct unattractive. This is the classical premise and it is examined at length in the chapter on Beccaria.
It incapacitates. A person in prison cannot commit offences outside it.
It reforms, or is supposed to. The reformative theory holds that the sentence should be designed to return the offender to society able to live within the law, and Indian sentencing law formally adopts it.
It retributes. The offender deserves punishment proportionate to the wrong, and the community's sense of justice requires it. Modern retributivism is about desert and limits rather than revenge: it says the punishment must not exceed what is deserved.
And it channels. A function easy to miss. By taking the wrong over, the criminal law replaces private vengeance with an orderly process. That is why the criminal law exists in every society including those with no theory of punishment at all.
The two models of the criminal process
The most useful single idea in this part of the paper is that every criminal justice system is a compromise between two models, and that every controversy about it is a dispute about which model should prevail.
The crime control model treats the repression of criminal conduct as the most important function of the process. It values speed, finality and efficiency. It presumes that the police and the prosecution screen out the innocent early, so that a person who reaches trial is probably guilty. Its image is an assembly line.
The due process model treats the process as an obstacle course. Each stage exists to test the case, and the primary value is not efficiency but the prevention of official error and official oppression. It insists on the presumption of innocence as a rule about how the State must proceed rather than a prediction about who is guilty.
Criminal Law: What It Is and What It Does
Every argument in Indian criminal justice can be located on this axis. Preventive detention, anticipatory bail, confessions to police officers, default bail, the burden of proof under special statutes, the pace of trials: each is a fight about how far the assembly line may be allowed to run.
Sources of Indian criminal law
The general penal statute. The Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code 1860.
Special and local laws. A very large body: the anti-corruption statute, the narcotics statute, the arms and explosives statutes, the food, drugs and environmental statutes, the State's own police and prohibition Acts. Most criminal work in India today is under special laws rather than the general code.
The Constitution. Article 20 forbids retrospective offences, double jeopardy and compelled self-incrimination. Article 21 supplies the guarantee of a fair procedure and, through it, most of the modern rules on arrest, custody and speedy trial. Article 22 governs arrest and detention.
Judicial decisions. The Supreme Court's interpretation of an offence is part of the law of that offence, and where the Court issues directions to fill a legislative gap those directions bind until Parliament legislates.
Not custom. Unlike personal law, criminal law in India admits no source outside the enacted text and its interpretation. A practice sanctioned by a community is no answer to a charge.
Its two limits
It cannot reach what it cannot prove. The rules of evidence are part of the criminal law's design, and conduct that is hard to prove is functionally not criminal however clearly it is prohibited. This is the central insight of the chapter on why white collar crime is hard to prove.
It is expensive and blunt. Every prosecution consumes police time, court time and prison capacity, all of which are finite. A society that criminalises too much finds that it enforces nothing, and the argument for decriminalisation is often an argument about capacity rather than about morals.
A worked example
The State of Maharashtra is considering making it an offence to ride a two-wheeler without a helmet, punishable with imprisonment up to three months.
What functions would the offence serve? Declaration, certainly: it announces that riding bare-headed is unacceptable. Deterrence, if the risk of being stopped is real. Incapacitation and reform, hardly at all: nobody is a career helmet offender.
Which model is being served? Crime control. The offence is designed for volume enforcement at the roadside, and its efficiency depends on the officer's decision being effectively final.
Criminal Law: What It Is and What It Does
What are the due process objections? A power to arrest for a minor offence is a power to harass, and where discretion is wide it is exercised unevenly. The answer the law usually reaches is to keep the prohibition and remove the imprisonment, leaving a compoundable fine, which is what has in fact happened with most traffic offences.
And the criminological question. Would the same money spent on road engineering and on subsidised helmets prevent more head injuries than the prosecutions will? If the answer is yes, the criminal law is the wrong instrument even though the conduct is genuinely harmful. That question is not a legal question, and asking it is what this subject trains you to do.
What beginners get wrong
Criminal law is not the same as criminology. The law is a set of rules; criminology is the study of the behaviour the rules address and of the rules themselves as a social fact. The relationship is dealt with in its own chapter.
"Substantive and procedural" is not a small distinction. An accused acquitted because the search was unlawful has not been found innocent of the conduct. Confusing the two produces the common complaint that criminals get off on technicalities, which is a due process argument being made by someone who has not noticed it.
The theories of punishment are not alternatives to be chosen between. A single sentence usually serves several at once, and Indian sentencing practice mixes them openly.
Quick revision
Criminal law: substantive law defining offences and punishments, procedural law governing investigation and trial, with the law of evidence.
The functions of criminal law: declaration, deterrence, incapacitation, reform, retribution, and the channelling of private vengeance into public process.
Two models: crime control values repression, speed and finality; due process values the testing of the case and the prevention of official error.
Sources: the Sanhita, special and local laws, the Constitution in Articles 20, 21 and 22, and judicial decisions. Not custom.
Limits: what cannot be proved is not effectively criminal; and enforcement capacity is finite, which is the practical argument for decriminalisation.
Test yourself
1. Distinguish substantive from procedural criminal law and give an example of each. Substantive law defines the offence and its punishment, for example the provision creating the offence of theft. Procedural law regulates how the State proceeds, for example the requirement that information about a cognizable offence be recorded and the rules governing arrest, bail and trial.
2. Explain the crime control and due process models and give one Indian controversy that turns on the choice between them. The crime control model values the efficient repression of crime and treats the process as an assembly line whose early stages screen out the innocent. The due process model treats the process as an obstacle course designed to test the State's case and prevent official error. The admissibility of confessions made to police officers, and the reversal of that rule in some special statutes, is a direct fight between the two.
Criminal Law: What It Is and What It Does
3. Why does a criminologist say that unprovable conduct is not really criminal? Because the practical content of the criminal law is what the system can establish in court. A prohibition that cannot be proved produces no convictions, exerts no deterrent pressure and leaves the conduct undisturbed, so its existence on the statute book is symbolic. This is why the difficulty of proving white collar crime is treated as a defining characteristic of it rather than as an accident.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
On 1 July 2024 the Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872 were replaced by three new statutes, and the numbering of nearly every provision in Indian criminal law changed.
In the wording a student can write in an exam: the Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code, the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure, and the Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act, all three coming into force on 1 July 2024.
Why this chapter is in a criminology paper
Two reasons, and the second is the important one.
The practical reason. MU's printed syllabus for this paper dates from the circular of 2016-17 and speaks of the Indian Penal Code. Every commercially available note on the paper does the same. A student who cites the old section numbers in an answer written in 2026 is citing repealed law, and an examiner who is a practising lawyer will notice.
The criminological reason. A wholesale replacement of a country's criminal law is a rare event and it is a criminological event. What was added, what was dropped, and what was left untouched is a direct statement of what the legislature in 2023 thought crime was. Reading the changes is a way of reading official criminology.
What the three statutes are
The Bharatiya Nyaya Sanhita 2023. The general penal law. It runs to 358 sections against the Penal Code's 511, largely because offences that had been spread across many sections were consolidated and a number of provisions were omitted.
The Bharatiya Nagarik Suraksha Sanhita 2023. The code of criminal procedure. It runs to 531 sections against the 1973 Code's 484.
The Bharatiya Sakshya Adhiniyam 2023. The law of evidence, at 170 sections against the 1872 Act's 167.
Each contains a repeal and savings provision preserving anything done under the old law, so a prosecution begun before 1 July 2024 continues under the old statutes. For years to come, therefore, both bodies of law are live: the old for pending matters and the new for offences committed after the appointed day.
What changed, and what a criminologist notices
New offences that reflect a changed view of harm. Organised crime and petty organised crime are now offences in the general penal law rather than only in special State legislation. Terrorist acts appear in the general code. Mob lynching is dealt with as an aggravated form of murder committed by a group on specified grounds. Snatching is separately provided for. Sexual intercourse obtained by deceitful means or on a false promise of marriage is an offence in its own right.
Old offences removed. Sedition in its former shape is gone, replaced by an offence framed around acts endangering the sovereignty, unity and integrity of India. The offence of attempt to commit suicide is not carried forward, consistently with the mental healthcare legislation. The adultery and same-sex conduct provisions, already struck down by the Supreme Court, are simply absent.
India's Criminal Law After 1 July 2024
A shift in sentencing. Community service appears as a punishment for the first time in the general penal law, for a small number of minor offences. This is a genuine novelty in Indian sentencing and it sits with the reformative theory.
Procedure aimed at delay. The procedure code now fixes outer time limits for a number of steps: framing of charge, pronouncement of judgment after conclusion of arguments, and decision on discharge applications. Trial in absentia of a proclaimed offender is provided for. Videography of search and seizure and of statements in certain offences is mandatory. Whether time limits addressed to courts will work is a live question, and the chapter on speedy trial deals with the earlier judicial attempt to do the same thing.
Forensics. Visits by a forensic team are mandatory for offences punishable with seven years or more, which is the largest institutional bet the new codes make and is dealt with in the companion paper on forensic science.
The concordance a student needs
The provisions this book relies on, old and new. Learn the new numbers and know the old ones, because the case law is all under the old.
Subject
Old provision
New provision
Meaning of "offence"
Penal Code section 40
Sanhita section 2(24)
Act of a child under seven
Penal Code section 82
Sanhita section 20
Child of seven to twelve, immature
Penal Code section 83
Sanhita section 21
Act of a person of unsound mind
Penal Code section 84
Sanhita section 22
Involuntary intoxication
Penal Code section 85
Sanhita section 23
Information in cognizable cases
Criminal Procedure Code section 154
Nagarik Suraksha Sanhita section 173
Cognizance by a Magistrate
Criminal Procedure Code section 190
Nagarik Suraksha Sanhita section 210
Compounding of offences
Criminal Procedure Code section 320
Nagarik Suraksha Sanhita section 359
Withdrawal from prosecution
Criminal Procedure Code section 321
Nagarik Suraksha Sanhita section 360
Order to pay compensation
Criminal Procedure Code section 357
Nagarik Suraksha Sanhita section 395
Victim compensation scheme
Criminal Procedure Code section 357A
Nagarik Suraksha Sanhita section 396
A worked example
Vikram Sawant is charged with an offence of causing grievous hurt said to have been committed on 12 March 2024. His co-accused Prashant is charged with a similar offence committed on 3 September 2024.
Vikram's case is governed by the old law. The offence was committed before the appointed day, so the Indian Penal Code supplies the definition and the punishment, and the repeal and savings provision preserves it. The procedure, however, follows the new code for steps taken after 1 July 2024, subject to the savings for proceedings already pending.
India's Criminal Law After 1 July 2024
Prashant's case is governed throughout by the new law. The Sanhita defines the offence and fixes the punishment, and the new procedure applies from the start.
What a student should take from this. The two men did the same thing six months apart and their cases are governed by different statutes with different numbering, and in some instances different punishments. For the next several years an answer that does not say which law applies to which period has not answered the question.
What beginners get wrong
The Sanhita is not a translation of the Penal Code. Much is carried across in substance, and a great deal is renumbered, but there are real changes of content and treating the two as identical will produce wrong answers on organised crime, on sedition, on community service and on the time limits.
Old case law is not dead. Where a provision has been carried across in substantially the same words, the decisions on the old provision continue to govern its meaning. Where the words have changed, they do not. Working out which is which is now part of every criminal lawyer's job.
1 July 2024 is the appointed day, not the date of enactment. All three statutes received assent on 25 December 2023 and were brought into force by notification on 1 July 2024. Confusing assent with commencement is the commonest error in this area and the chapter on the Whistle Blowers Protection Act shows what happens when the two are far apart.
Quick revision
Bharatiya Nyaya Sanhita 2023, 358 sections, replaced the Indian Penal Code 1860.
Bharatiya Nagarik Suraksha Sanhita 2023, 531 sections, replaced the Code of Criminal Procedure 1973.
Bharatiya Sakshya Adhiniyam 2023, 170 sections, replaced the Indian Evidence Act 1872.
Assent 25 December 2023; in force 1 July 2024; savings preserve pending proceedings, so both bodies of law are live.
Added: organised crime, petty organised crime, terrorist act, mob lynching as aggravated murder, snatching, community service as a punishment.
Removed: sedition in its old form, attempt to suicide, adultery and same-sex conduct provisions.
Procedure: outer time limits for charge and judgment, trial in absentia of a proclaimed offender, mandatory videography, mandatory forensic visits for offences carrying seven years or more.
Test yourself
1. Name the three new statutes, what each replaced, and the date they came into force. The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860; the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure 1973; the Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872. All three came into force on 1 July 2024.
India's Criminal Law After 1 July 2024
2. Why is the replacement of the codes a criminological event and not only a legal one? Because what a legislature adds to and removes from its general penal law is a statement of what it believes crime to be. Bringing organised crime and terrorism into the general code, adding mob lynching and snatching, and removing sedition in its old form and the offence of attempting suicide, together describe an official view of which harms now matter and which no longer justify punishment.
3. Two offences are committed a fortnight either side of 1 July 2024. Which law applies to each? The offence committed before the appointed day is defined and punished by the old statutes, preserved by the repeal and savings provisions; the offence committed after it is governed by the Sanhitas throughout. Procedural steps taken after the appointed day generally follow the new procedure, subject to the savings for pending proceedings.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminology is the scientific study of crime, of the criminal, and of the way society reacts to both.
In the wording a student can write in an exam: the word criminology was coined in the late nineteenth century from the Latin crimen, meaning accusation or offence, and the Greek logia, meaning study, and it names the body of knowledge regarding crime as a social phenomenon.
Where the word came from
The Italian jurist Raffaele Garofalo, one of the three figures of the Positive School, published a work titled Criminologia in 1885, and that is the first use of the word in its modern sense. The French anthropologist Paul Topinard is credited with using the equivalent French term at about the same time, and the two are usually named together.
The date matters. It tells you that criminology as a named discipline is barely more than a century and a half old, although speculation about why people offend is as old as writing. What was new in the 1880s was the claim that the question could be studied by the methods of science rather than settled by philosophy or theology, and that claim is the subject of the chapter asking whether criminology is a science.
The three things criminology studies
Sutherland's formulation is the one every Indian textbook uses and it is worth memorising in his own structure. Criminology includes within its scope three processes:
The making of laws. Why is this conduct criminal and that conduct not? Who decides, and in whose interest? This is the sociology of law, and it is what makes the third module of this paper possible.
The breaking of laws. Why do people offend? This is criminal etiology, the study of causation, and it is the largest and oldest part of the subject.
The reaction towards the breaking of laws. What does society do about it, through police, courts, prisons and everything else? This is penology in the wide sense, and it is what the fourth module of this paper covers.
Say those three in that order in any answer that asks what criminology is. They are the discipline's own map of itself.
Criminology and the words around it
Students meet five words in the first week and use them interchangeably. They are not interchangeable.
Criminology is the study of crime, criminals and society's reaction. It is the genus.
Criminal etiology is the study of the causes of crime. It is one branch.
Penology is the study of punishment and of the treatment of offenders, including prisons, probation and parole.
Victimology is the study of the victim, of the victim's relationship to the offender, and of the victim's place in the system. It is the newest branch, and MU examines it directly.
Criminology: The Word and Its Subject Matter
Criminalistics, sometimes called forensic science, is the application of the physical sciences to the detection of crime: fingerprints, ballistics, toxicology, biological traces. It is not the same as criminology and it is a separate paper on this group.
Who does criminology
The discipline has no single parent, which is both its strength and the basis of the complaint that it is not a science.
Lawyers brought the definitions and the concern with responsibility. Sociologists brought the study of groups, neighbourhoods and social structure, and they have dominated the field since the 1920s. Psychologists and psychiatrists brought the study of personality and disorder. Statisticians brought the measurement of rates, and the Cartographic School is their contribution. Economists brought the analysis of crime as a choice under incentives. Anthropologists and biologists brought the physical study of the offender, which is where Lombroso came from.
An Indian student should add one more. Administrators and commissions of inquiry have produced a great deal of what is known about crime in India, because academic criminology here is thin and the official report is often the only systematic study of a subject that exists.
A worked example
Suppose you are asked to study the rise in cheating cases involving digital payments in Mumbai. Where do the three parts of the definition take you?
The making of laws. Which provisions apply, when were they enacted, and what was the occasion? The offences of cheating and of dishonest inducement are old; the provisions on computer resources and identity theft are recent. Asking why the newer ones were added, and who pressed for them, is studying law-making.
The breaking of laws. Who commits these frauds, from where, with what organisation, and what makes a person a suitable target? This is etiology, and modern criminology would reach for routine activity theory, which is dealt with in its own chapter.
The reaction. How many complaints are registered, how many investigated, how many charge-sheeted, how many tried, how many convicted, and how long does each stage take? This is the study of the reaction, and it is usually where an Indian study finds its most striking numbers.
Notice what a purely legal study would have covered. Only the first, and only its output. The other two are what this subject adds.
What beginners get wrong
Criminology is not the study of criminal law. Criminal law is one of its objects of study, not its content.
Criminology is not detection. The identification of an offender is criminalistics or investigation. Criminology asks why there was an offender to identify.
Criminology is not penology, and penology is not prison administration. Penology is the study of the response; running a prison is a job.
Criminology: The Word and Its Subject Matter
Quick revision
The word criminology comes from the Latin crimen and the Greek logia; Garofalo used it as the title of a book in 1885 and Topinard used the French equivalent at about the same time.
Sutherland's three processes: the making of laws, the breaking of laws, and the reaction towards the breaking of laws.
Branches: criminal etiology, the study of causes; penology, the study of punishment and treatment; victimology, the study of the victim.
Criminalistics or forensic science is the application of the physical sciences to detection and is a different subject.
Criminology is interdisciplinary: law, sociology, psychology, statistics, economics, biology, and in India the official commission of inquiry.
Test yourself
1. Who coined the term and when? Raffaele Garofalo, an Italian jurist of the Positive School, used Criminologia as the title of a work published in 1885; the French anthropologist Paul Topinard is credited with the equivalent French term at about the same date.
2. State Sutherland's three processes and say which module of this paper each corresponds to. The making of laws, which is Module III's concern with whose conduct gets criminalised; the breaking of laws, which is Module II on causes; and the reaction towards the breaking of laws, which is Module IV on the response of the Indian legal order.
3. Distinguish criminology from criminalistics. Criminology studies crime as a social phenomenon: why laws are made, why they are broken, and how society reacts. Criminalistics, or forensic science, applies the physical and biological sciences to the detection of a particular crime and the identification of a particular offender. One asks why offending happens; the other asks who did this.
The Scope, Divisions and Objectives of Criminology
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
The scope of criminology is everything about crime that is not the rule itself: how the rule came to exist, why it is broken, who breaks it, who suffers, and what is done in response.
In the wording a student can write in an exam: the scope of criminology covers criminal etiology, penology, victimology and the sociology of criminal law, and its objectives are to explain criminal behaviour, to measure it accurately, to evaluate the measures taken against it, and to inform criminal policy.
The divisions of criminology
There is no single agreed classification and an examiner does not expect one. The following is the division most Indian writers use and it maps onto the paper.
Criminal etiology. The study of the causes of crime. It is the largest division and it occupies the whole of Module II of this paper. It divides again by discipline: biological, psychological, sociological and economic explanations.
Criminal sociology, or the sociology of criminal law. The study of criminal law and of the criminal justice system as social institutions. Why is a given act criminalised? Whose behaviour is policed and whose is not? Module III is a study in criminal sociology, because privileged class deviance is defined precisely by the mismatch between harm done and law applied.
Penology. The study of the punishment and treatment of offenders: theories of punishment, sentencing, prisons, probation, parole and after-care. It is a separate paper on this group and it appears here in Module IV.
Victimology. The study of the victim: who is victimised and why, the relationship between victim and offender, the treatment of the victim by the system, and the compensation of the victim. It is the newest division and MU has asked for it six times.
Criminal statistics. The measurement of crime and of the system's output. It is not a separate subject so much as the tool the others depend on, and its limits are dealt with in the chapter on the dark figure.
Criminal policy. The application of what the other divisions find to the design of laws and institutions. It is where criminology stops describing and starts advising, and it is the point at which the discipline is at its most exposed.
The objectives
Ask what the subject is for. Five answers, and they build on each other.
To describe accurately. Before anything can be explained it has to be measured. How much crime, of what kinds, where, committed by whom, against whom, and moving in which direction. This is unglamorous and it is where most criminology fails in India, because the data are poor.
To explain. To move from a correlation to an account of why the correlation exists. This is the ambition of every school of thought in Module I and the difficulty of it is the subject of Module II.
The Scope, Divisions and Objectives of Criminology
To predict. If an explanation is good, it should say what will happen when conditions change. Prediction in criminology is weak, and the honest position is that the discipline predicts aggregate rates better than it predicts individuals.
To evaluate. Does a measure work? Does a longer sentence deter? Does probation reduce reoffending more than prison? Does a police reform change anything? This is the most useful thing criminology does and it is the least done.
To inform policy. To put the answers before those who make the law and run the system, so that a decision to criminalise, to punish more severely, or to build a prison rests on something.
The scope, negatively defined
It helps to say what criminology does not cover, because a scope question is often answered by a list that is too generous.
It is not the whole of the law of crimes. The interpretation of a section, the ingredients of an offence and the rules of evidence are criminal law.
It is not investigation or forensic science. The identification of the offender in a given case is criminalistics.
It is not the administration of prisons. The study of imprisonment is penology; the running of a jail is administration.
And it is not moral philosophy. Criminology can tell you what the effects of a punishment are. It cannot, by itself, tell you that the punishment is deserved. The retributive argument is a moral argument, and criminologists who forget that overreach.
A worked example
The Government of Maharashtra proposes to raise the maximum sentence for snatching from three years to seven, on the ground that snatching in Mumbai has risen.
Describe. Has it risen? Against what baseline, and is the rise in incidents or in reporting? If a helpline was publicised last year, reported snatching will rise without any change in behaviour. A criminologist asks this first and it very often ends the discussion.
Explain. If the rise is real, why? Routine activity theory would ask whether the supply of suitable targets has changed, and the answer in a city where everyone now carries a phone worth a month's wages is that it has, enormously.
Predict and evaluate. Will a longer maximum sentence reduce snatching? The classical premise says yes, but the research finding, repeated across many countries, is that certainty and swiftness of detection deter far more than severity of sentence. Snatching has a low detection rate, so raising the maximum changes the expected cost to the offender very little.
Advise. The criminological advice is that money spent on street lighting, on visible patrolling in the identified hot spots, and on making stolen handsets unusable will do more than the amendment. The advice may well be rejected, and noticing why it is rejected, because the amendment is cheap and visible while the alternatives are expensive and slow, is itself criminology.
The Scope, Divisions and Objectives of Criminology
What beginners get wrong
"Scope" is not a list of everything crime touches. An answer that says criminology covers law, sociology, psychology, medicine, statistics and economics has described the subject's borrowings, not its scope. Scope is the set of questions it asks.
The objectives are not one objective repeated. Describing, explaining, predicting, evaluating and advising are different activities with different standards of success, and the discipline is much better at the first two than at the last three.
Criminal policy is not the same as criminal law. Policy is the choice; law is the instrument.
Quick revision
Divisions of criminology: criminal etiology, criminal sociology or the sociology of criminal law, penology, victimology, criminal statistics and criminal policy.
The scope of criminology is the study of law-making, law-breaking and the reaction to law-breaking; it excludes doctrinal criminal law, forensic detection, prison administration and moral philosophy.
Objectives: describe accurately, explain, predict, evaluate the measures taken, and inform criminal policy.
Criminology predicts aggregate rates better than it predicts individuals, and evaluation is the most useful and least practised of its activities.
Test yourself
1. Set out the divisions of criminology. Criminal etiology, the study of causes; criminal sociology or the sociology of criminal law, which studies criminalisation and the justice system as institutions; penology, the study of punishment and the treatment of offenders; victimology, the study of the victim; criminal statistics, the measurement of crime; and criminal policy, the application of all of these to the design of law and institutions.
2. State the objectives of criminology in order. To describe crime accurately, to explain it, to predict it, to evaluate the measures taken against it, and to inform criminal policy. Each depends on the one before, which is why poor measurement disables everything downstream of it.
3. Give one question that is within the scope of criminology and one that is outside it, on the same facts. On a corporate fraud: why frauds of this kind are prosecuted less often than thefts of far smaller sums is a criminological question about criminalisation and enforcement. Whether the particular accused had the dishonest intention the section requires is a question of criminal law and of evidence, and criminology has nothing to say about it.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminology uses scientific methods and has produced genuine findings, but it cannot deliver the exact, universal and predictive laws of a natural science, so it is best described as a social science rather than an exact one.
In the wording a student can write in an exam: criminology is a science in the sense that it applies systematic observation, measurement, hypothesis and verification to its subject matter; it is not an exact science, because its subject matter is human conduct, its object of study is defined by law rather than by nature, controlled experiment is largely impossible, and its generalisations are statistical tendencies rather than universal laws.
First, what makes something a science
An answer to this question is only as good as its test, and most answers do not state one. State it first and the rest of the answer writes itself.
A discipline is a science if it has:
A defined subject matter that can be identified independently of the observer.
Systematic observation and measurement, so that different observers studying the same thing get the same result.
Generalisations, laws or theories that go beyond the particular case.
Verification: the generalisations can be tested against evidence and can fail.
Prediction: from a known state of affairs the theory says what will follow.
Objectivity: the finding does not depend on the values of the person who found it.
Now apply the six.
The case that criminology is a science
It has a defined subject matter. Crime, criminals, victims and the reaction of society. There is something out there to study.
It observes systematically. Criminology has real methods: crime statistics, victimisation surveys, self-report studies, cohort studies following a birth group over decades, case histories, participant observation, and controlled comparison of treated and untreated groups.
It generalises, and its generalisations hold. Some findings recur in every country in which they have been looked for. Offending peaks in late adolescence and declines with age. Men offend far more than women, and the gap is widest for violence. A small proportion of offenders commits a large proportion of offences. Certainty of detection deters more than severity of punishment. These are not opinions.
It verifies, and its theories fail. Lombroso's claim that criminals are a distinct physical type was tested by Goring against a large control group and did not survive. That is exactly what is supposed to happen to a scientific claim, and the fact that it happened is evidence for the discipline's scientific character rather than against it.
It predicts in the aggregate. Criminology can say with confidence what will happen to a city's burglary rate if the proportion of households left empty during the day rises. It could not have told you that a particular family would be burgled.
Is Criminology a Science?
And it has been useful. Actuarial risk instruments, situational prevention, and the design of policing around hot spots are all applications that were tested and that worked.
The case that it is not
Its subject matter is defined by law, not by nature. Chemistry studies a substance that is what it is regardless of what any legislature says. Criminology studies a category whose contents change when Parliament votes. Adultery was in the category until 2018 and is not now, and nothing about the behaviour changed. A science whose object of study is redefined by an outside authority is in an odd position.
Controlled experiment is mostly impossible. You cannot randomly assign one group of children to a broken home and another to an intact one. Criminology therefore works with natural variation and statistical control, and correlation is much harder to convert into causation.
Its data are poor and systematically biased. Recorded crime is a record of what was noticed, reported, believed and written down. The gap between that and crime committed is the dark figure, and it is not random: it is largest exactly where this paper's third module concentrates, in the crimes of the powerful.
Its generalisations are tendencies, not laws. Poverty is associated with some kinds of offending, and most poor people never offend. No proposition in criminology holds in the way that a physical law holds.
Prediction of individuals is weak. The prediction of dangerousness has been studied for decades and remains poor enough that using it to justify detention is contested.
Objectivity is hard. Whether a phenomenon is described as a labour dispute or as public disorder, whether a payment is a facilitation fee or a bribe, and whether a killing is communal violence or a law and order problem are all classification decisions carrying values.
The answer
Say this, and say it as a conclusion rather than as a hedge.
Criminology is a social science. It is scientific in method: it observes systematically, generalises, tests and revises. It is not an exact science, because its object is defined by law, its experiments are natural rather than controlled, its data are incomplete in a patterned way, and its findings are probabilistic.
That is not a defect peculiar to criminology. It is the position of economics, of sociology and of most of medicine outside the laboratory. Nobody says epidemiology is not a science because it cannot say which smoker will get cancer. The right question is not whether criminology reaches the standard of physics but whether it produces reliable knowledge that could not be had by unaided common sense, and it plainly does.
Is Criminology a Science?
A worked example
A newspaper reports that eighty per cent of prisoners in a Maharashtra jail are from poor households and concludes that poverty causes crime.
A scientific criminology takes that apart in four moves.
The sample is of convicted prisoners, not of offenders. The wealthy who offend are less often reported, less often arrested, better defended, more often bailed and more often acquitted. The prison population is the output of a filter, not a sample of offending.
There is no control group. What proportion of the general population of the same districts is poor? If it is also eighty per cent, the figure shows nothing at all.
Correlation is not cause. Poverty travels with low education, poor housing, unstable employment, weak schooling and heavier policing. Any of those could carry the effect.
And the crimes of the rich are missing from the denominator. Tax evasion, fraud and adulteration are absent from the jail because they are absent from the prosecution.
That is the discipline working. Four objections, each testable, none available to common sense. Whether or not you call it a science, that is what it does.
What beginners get wrong
Do not answer with a definition of science alone. The question is comparative and needs both sides.
Do not say "criminology is not a science because it deals with human beings". So do economics, psychology and medicine.
Do not confuse criminology with forensic science. Forensic science genuinely is an applied natural science, and a student who defends criminology by pointing to fingerprint analysis has answered a different question.
Do not treat the answer as a yes or a no. The examiner's word is usually "critically evaluate", and a flat answer either way loses the marks that are in the qualification.
Quick revision
Test a discipline against six criteria: defined subject matter, systematic observation, generalisation, verification, prediction, objectivity.
For: real methods; findings that recur everywhere, such as the age-crime curve, the sex difference, the concentration of offending in a few offenders, and the superiority of certainty over severity in deterrence; theories that have been tested and have failed, such as Lombroso's.
Against: the subject matter is defined by law and changes when the law changes; controlled experiment is impossible; the data carry a patterned dark figure; generalisations are tendencies; individual prediction is weak; classification carries values.
Conclusion: criminology is a social science, scientific in method but not exact, and it stands where economics, sociology and epidemiology stand.
Test yourself
1. State the criteria by which the question should be judged. Whether the discipline has a defined subject matter, systematic observation and measurement, generalisations that go beyond the case, verification against evidence, predictive power, and objectivity independent of the observer's values.
Is Criminology a Science?
2. Give two findings of criminology that could not be had by common sense. That severity of punishment deters much less than the certainty and swiftness of detection, which is contrary to the intuition on which most penal legislation is built; and that a small minority of offenders accounts for a large majority of offences, which redirects policy from general deterrence towards the identification of that minority.
3. Why does the fact that Lombroso's theory was disproved support rather than undermine the scientific claim? Because falsifiability is a mark of a scientific proposition. Lombroso made a claim about a measurable physical difference; Goring measured it against a control group and found no such difference; the claim was abandoned. A body of thought in which no proposition can fail is not science, and criminology's propositions plainly can.
Criminology and Criminal Law: How Each Uses the Other
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminal law tells criminology what to study, and criminology tells criminal law whether what it is doing works.
In the wording a student can write in an exam: the relationship between criminology and criminal law is one of mutual dependence: the criminal law supplies the definition of the subject matter, and criminology supplies the empirical foundation on which decisions to criminalise, to punish and to reform must rest.
Criminal law supplies the subject matter
Criminology studies crime, and crime is what the criminal law says it is. That single fact settles most of the relationship.
It follows that criminology cannot define its own field. When the law changes, the field changes. Every study of "crime rates" in India before 2018 that included adultery prosecutions was studying a category that no longer exists. When organised crime became an offence in the general penal law in 2024, a body of conduct moved from one classification to another without anybody behaving differently.
It follows too that comparison across countries is treacherous. A comparison of the homicide rates of two States is worth something because the definitions are close. A comparison of their corruption rates is worth much less, because what is recorded depends on what is prohibited, what is reported and what is investigated.
Some criminologists have tried to escape this by defining crime independently, as socially harmful conduct or as a violation of human rights, so that a criminologist could study conduct the law ignores. The attempt is the origin of radical criminology, and it is dealt with in that chapter. The price is that the discipline then loses the one boundary anybody agrees on.
Criminology supplies the foundations
Now the other direction, and this is where the marks are.
On what to criminalise. A legislature deciding whether to make something an offence needs to know how often the conduct occurs, what harm it causes, whether the harm can be reduced by other means, and whether a prohibition can be enforced at all. Every one of those is a criminological question. A prohibition that cannot be enforced does not reduce the conduct; it creates a black market and a bribe.
On how much to punish. The classical premise built into most penal statutes is that a heavier sentence deters more. The criminological finding is that certainty and swiftness of detection do far more work than severity. A legislature that raises a maximum sentence instead of improving detection is acting on a belief criminology has tested and found weak.
On the general exceptions. The law of insanity is a legal rule resting on a psychiatric premise. The cognitive test in the Sanhita excuses a person incapable of knowing the nature of the act or that it is wrong, and psychiatry has said for a century that the disorders that most impair control often leave knowledge intact. That is a criminological criticism of a doctrine and it is the standing one.
Criminology and Criminal Law: How Each Uses the Other
On sentencing. When a court chooses between imprisonment and probation, it is predicting behaviour. When the Supreme Court requires the State to place psychiatric evaluation, jail conduct and social history before the sentencing court, it is requiring criminology to be produced in evidence.
On the design of the system. Whether to have jury trial, whether to allow plea bargaining, whether to fix time limits for trials, whether to allow trial in absentia: each is a question about what the institution will actually do, not about what the rule says.
Where they part company
Criminal law is normative; criminology is empirical. The law says what ought to happen. Criminology says what does happen. A criminologist who says the law ought to be changed has stepped outside the discipline, and should say so.
Criminal law is individual; criminology is aggregate. A trial decides whether this accused did this act. Criminology asks why people like this accused do acts like this. A judge who reasons from the aggregate to the individual is punishing a man for what his group does, which is the standing objection to preventive detention and to actuarial risk assessment.
Criminal law needs certainty; criminology has none to give. The law must decide today on the evidence available. Criminology's answers are probabilistic and provisional. That mismatch is real and it is why courts are cautious about criminological evidence.
A worked example
Parliament is considering whether to make the possession of small quantities of a narcotic drug for personal use punishable with imprisonment, or whether to treat it as a matter for compulsory treatment.
The criminal law question is what the elements should be, what the punishment should be, who bears the burden of proving the quantity, and how the offence relates to the trafficking offences. It is a drafting question and it has a right answer once policy is settled.
The criminological questions come first. How many users are there, and how do we know? Does imprisonment of users reduce use? What happens to a user's employment, family and later offending after a sentence? What is the effect on the market of removing users rather than suppliers? Does compulsory treatment work, and at what relapse rate?
Notice which way the influence runs at each stage. Criminology tells the legislature what the options will do. The legislature chooses, on values criminology cannot supply. The criminal law then executes the choice precisely. And afterwards criminology comes back and evaluates whether the chosen option did what was expected, which is the loop the whole relationship exists to close.
Criminology and Criminal Law: How Each Uses the Other
And notice what happens if the loop is not closed. The offence stays on the statute book, the prisons fill, and nobody ever measures whether use fell. That is the ordinary condition of Indian criminal legislation and it is the practical grievance of Indian criminology.
What beginners get wrong
They are not the same subject with different names. A student who answers a criminology question with the ingredients of an offence has misread it.
Criminology is not "the theory" and criminal law "the practice". Both are practical. Criminology's practical output is evaluation, and it is at least as useful to a policymaker as doctrine is to a judge.
Criminology does not decide what is criminal. It informs the decision. The decision belongs to the legislature and rests on values.
Quick revision
Criminal law defines the subject matter of criminology; when the law changes, the field changes, which makes comparison across time and across countries difficult.
Criminology supplies the empirical foundation for criminalisation, for the level of punishment, for the general exceptions, for sentencing and for institutional design.
The key finding the law most often ignores: certainty and swiftness of detection deter more than severity of sentence.
They part company on three axes: normative against empirical; individual against aggregate; certainty against probability.
The relationship is a loop: criminology informs, the legislature chooses on values, the law executes, criminology evaluates. Indian practice usually omits the last step.
Test yourself
1. Why can criminology not define its own subject matter, and what follows? Because crime is what the criminal law says it is, so the boundaries of the field are set outside the discipline. It follows that the field changes when the law changes, that historical comparison is unreliable, and that comparison between jurisdictions is unreliable wherever definitions or enforcement differ.
2. Give one example of criminology correcting a premise built into the criminal law. The premise that heavier punishment deters more. The research finding, repeated across jurisdictions, is that the probability and speed of detection do far more deterrent work than the size of the sentence, so an amendment that raises a maximum without improving detection is unlikely to change behaviour.
3. On what does criminology have nothing to say? On whether a punishment is deserved. Desert is a moral question. Criminology can establish what a punishment costs and what effects it produces; it cannot establish that an offender ought to suffer, and a criminologist who claims otherwise has left the discipline.
Criminology, Penology, Criminal Policy and Criminal Justice
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminology studies crime, penology studies what is done to the offender afterwards, criminal policy is the choosing between the options, and criminal justice is the machinery that carries the choice out.
In the wording a student can write in an exam: penology is the branch of criminology concerned with the punishment and treatment of offenders; criminal policy is the deliberate selection of means for the prevention and control of crime; and the criminal justice system is the set of agencies, police, prosecution, courts, prisons and correctional services, through which those means operate.
The four, separated
Criminology is the widest. It studies the making of laws, the breaking of laws, and the reaction to law-breaking. Everything below is inside it or downstream of it.
Penology takes over at conviction. Its questions are: why punish at all; what forms of punishment exist; how much; who decides; what happens inside a prison; what alternatives to prison there are; what happens on release. The theories of punishment, the sentencing process, probation, parole, remission and after-care are all penology. On this group of subjects it is a whole paper of its own, Penology: Treatment of Offenders.
Criminal policy is the point of decision. Given that criminology says a certain thing about the causes of a problem and penology says a certain thing about what punishments do, what should the State actually do? Note the word "should". Policy involves values, budgets and politics, and criminology cannot settle it.
Criminal justice, or the criminal justice system, is the machinery. In India it has four components: the police, who receive information and investigate; the prosecution, who conduct the case; the courts, who try and sentence; and the correctional services, prisons and probation, who carry out the sentence. A fifth is now usually added, the victim and witness services, and its weakness in India is the subject of the victimology chapters.
Why the distinction earns its place
Because most bad arguments about crime confuse two of the four.
Confusing criminology with policy produces the claim that a research finding settles a political question. Criminology can show that the death penalty does not deter more than life imprisonment; it cannot show that it is wrong.
Confusing policy with the system produces the belief that announcing a law is doing something. India has excellent statutes on corruption, on whistle blowers, on victim compensation and on police reform. The chapters in Module IV are largely about the gap between the policy and the machinery.
Confusing penology with prison administration produces the belief that a prison problem is solved by building a prison.
And confusing the system with justice produces the assumption that the four agencies share an aim. They do not. The police are measured on detection, the prosecution on conviction, the courts on disposal, and the prisons on containment. Each can succeed while the system as a whole fails, and understanding that is worth more than any definition on this page.
Criminology, Penology, Criminal Policy and Criminal Justice
A table
Asks
Output
Example question
Criminology
Why is this criminal, why is it done, what happens in response
Knowledge
Why do frauds get prosecuted less often than thefts of far smaller sums
Penology
What should be done to the offender
Knowledge about sanctions
Does probation reduce reoffending more than a short prison term
Criminal policy
What shall we do
A decision
Shall we raise the sentence, improve detection, or decriminalise
Criminal justice
Who does it and how
Cases processed
Who registers, who investigates, who prosecutes, who tries, who confines
A worked example
The Maharashtra Government asks for advice on rising conviction delays in corruption cases.
The criminological contribution. Measure it. How many cases, at what stage, delayed by what: sanction, investigation, charge, evidence, adjournment. Which of these accounts for most of the time? The answer, in every Indian study, is that a small number of causes account for most of the delay, and identifying which is the whole value of the exercise.
The penological contribution. If a case takes eleven years, what is the sentence worth when it finally comes? Deterrence depends on a connection between act and consequence that eleven years destroys, and a suspended sentence at the end of it is nearer to no sanction than to a punishment.
The policy decision. More special judges, or fewer sanction requirements, or a time limit, or a plea bargaining route, or all four. This choice is not derivable from the research. It costs money and it takes political capital, and somebody has to make it.
The criminal justice reality. Suppose more special courts are sanctioned. Will there be prosecutors to staff them, and are the investigating officers still in post? A court without a prosecutor disposes of nothing. This is where Indian reforms usually die, and it is why the fourth column of the table above is not an afterthought.
Quick revision
Criminology: the study of law-making, law-breaking and the reaction to law-breaking. The widest term.
Penology: the branch dealing with punishment and the treatment of offenders. Theories of punishment, sentencing, prisons, probation, parole, after-care.
Criminal policy: the deliberate choice of means for the prevention and control of crime. Involves values and money, and criminology cannot settle it.
Criminal justice system: police, prosecution, courts, correctional services, and now victim and witness services.
The four agencies of the system have different success measures, so each can succeed while the system fails.
Criminology, Penology, Criminal Policy and Criminal Justice
Test yourself
1. Distinguish penology from criminal policy. Penology is a branch of knowledge: it studies what punishments and treatments are and what they achieve. Criminal policy is a choice: given that knowledge, it decides what the State shall do, on grounds that include values and cost which no research finding can supply.
2. Name the components of the criminal justice system and say why their aims differ. Police, prosecution, courts and correctional services, with victim and witness services now added. Their aims differ because each is measured on its own output, detection, conviction, disposal and containment respectively, so each can meet its own target while the system as a whole fails to prevent or to redress crime.
3. "The law has been passed, so the problem is solved." What is wrong with that? It confuses policy with the machinery that must implement it. A statute changes what may be done; whether anything is done depends on staffing, budget, procedure and incentives in four separate agencies. The Indian statutes on corruption, whistle blowers, victim compensation and police reform are all examples where the policy exists and the machinery does not.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Crime is the conduct, criminal law is the rule that forbids it, and criminology is the study of both.
In the wording a student can write in an exam: crime, criminal law and criminology stand as fact, norm and study: crime is the human conduct society has chosen to prohibit, criminal law is the body of rules that effects the prohibition and prescribes the sanction, and criminology is the systematic study of the conduct, of the rules and of the response.
The three-way table
Crime
Criminal law
Criminology
What it is
A social fact: conduct prohibited and punished
A normative system: rules
A body of knowledge: a social science
Nature
Descriptive, an event
Prescriptive, tells what ought to be done
Explanatory, tells why things are as they are
Its question
What happened
What is the rule, and is it satisfied
Why does this happen, and what works
Who deals with it
Everyone: offender, victim, community
Legislature, police, prosecutor, judge
Researcher, policymaker
Changes when
Behaviour or the law changes
The legislature or a court changes it
The evidence changes
Certainty
It either happened or it did not
Certain by design: the rule must be applied today
Provisional and probabilistic
Boundary set by
The criminal law
The legislature, within the Constitution
The criminal law, borrowed
The relations between the three
Crime and criminal law. The law creates the category. Conduct is not crime until a rule makes it so, and it stops being crime when the rule goes. This is why the concept of crime cannot be settled without the law and why the sociological definition dealt with in the opening chapter is always in tension with the formal one.
Criminal law and criminology. The law supplies criminology's subject matter; criminology supplies the law's factual premises and evaluates its results. Their relationship has its own chapter.
Crime and criminology. Criminology studies crime, but not only crime. It also studies deviance that is not criminal, offenders who are never prosecuted, victims who never complain, and laws that were never enforced. The gap between crime and what criminology studies is exactly the space in which Module III of this paper operates.
A worked example
Suresh Bhosale, a licensed food processor, knowingly uses an industrial dye in a sweetmeat. Forty people fall ill. He is prosecuted, and after four years the case ends in acquittal because the sample was not sent to the laboratory within the prescribed time.
As crime. The conduct occurred. Forty people were harmed. On any sociological definition this is criminal conduct and the acquittal does not change the fact.
As criminal law. The question is entirely different. Which provision applies? Were its ingredients proved? Was the procedure for taking, sealing and dispatching the sample followed? It was not, so the prosecution fails. The law has produced the correct legal answer on the material before it, and there is nothing improper about the acquittal.
Crime, Criminal Law and Criminology Distinguished
As criminology. Three questions, none of which the trial asked. First, why is adulteration of this kind prosecuted through a technical statute with demanding procedural conditions while a street assault is not? Second, what proportion of adulteration is ever detected, and what does that do to the deterrent effect of the prohibition? Third, what would actually reduce adulteration: prosecution, licensing, testing at the point of sale, or making the trade in the dye itself difficult?
And the point of the exercise. All three accounts are true at once. A student who says "he committed a crime but was acquitted" is speaking the sociologist's language; a student who says "no crime was proved" is speaking the lawyer's. Both are right, and being able to say which language you are in is what the question is testing.
What beginners get wrong
"Crime is a fact and criminal law is the rule" is not the whole answer. The fact is constituted by the rule. Say both: crime is a social fact whose boundaries are drawn by a normative system.
Criminology is not a third kind of rule. It prescribes nothing. Its output is knowledge, and any "ought" that follows comes from a value premise added by someone else.
Do not answer the three-way question with two definitions and a sentence. MU sets it as a full question worth twenty-five marks, and it wants the relations as well as the definitions.
Quick revision
Crime: the conduct. A social fact, but a fact whose boundaries the law draws.
Criminal law: the rule. Normative, prescriptive, certain by design, and changeable by the legislature.
Criminology: the study. Empirical, explanatory, probabilistic, and dependent on the law for its boundaries.
Relations: the law creates the category of crime; criminology studies both and evaluates the law; criminology also studies deviance the law never touches, which is where Module III lives.
On one set of facts all three accounts can be true at once, and naming which one you are giving is half the answer.
Test yourself
1. Distinguish the three on four grounds. Nature: crime is a fact, criminal law is a norm, criminology is a body of knowledge. Question asked: what happened, what is the rule, why does it happen. Certainty: an event either occurred or not, a rule must be applied with certainty today, a finding is probabilistic. Boundary: crime's boundary is set by the criminal law, the law's by the legislature within the Constitution, and criminology borrows the law's.
2. Can conduct be criminal in the criminological sense and not in the legal sense? Give an example. Yes. Conduct that causes grave social harm may be outside the criminal law altogether, or prohibited in terms so demanding that no prosecution succeeds. Large scale adulteration prosecuted under a procedurally exacting statute, and industrial pollution dealt with by licensing rather than prosecution, are the standard Indian examples.
Crime, Criminal Law and Criminology Distinguished
3. Why does criminology study more than crime? Because its subject is the making of laws, the breaking of laws and the reaction to law-breaking. That includes deviance that was never criminalised, offending that is never reported, offenders who are never prosecuted and laws that are never enforced, and the difference between those and recorded crime is where the study of privileged class deviance begins.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Development does not raise or lower crime so much as change its shape: it reduces some kinds of offending, creates entirely new kinds, and moves crime from the person to the transaction.
In the wording a student can write in an exam: the relationship between development and crime is not a simple correlation; economic and technological development alters opportunity structures, social controls and the definition of criminality itself, so that changing crime patterns follow development rather than crime rates simply rising or falling with it.
The four mechanisms
Do not answer this question with a list of new crimes. Answer it with the mechanisms, then illustrate.
Development multiplies opportunities. Every new form of wealth is a new thing to steal and every new transaction is a new thing to falsify. A society in which nobody had a bank account had no bank fraud. A society in which everybody carries a device worth a month's wages has snatching on a scale it did not have before.
Development weakens informal control. In a village a person is known, watched and answerable to kin and caste. Migration to a city removes all three. The classical account of urban crime, which the Chicago School turned into a theory, rests on this: crime rises where informal control is weakest, and development destroys informal control faster than it builds formal control to replace it.
Development raises expectations faster than it satisfies them. This is Merton's argument, dealt with in its own chapter. A developing society tells everybody that success is available and gives the means of reaching it to a few, and the gap is filled by innovation, some of it criminal. It explains why crime often rises during rapid growth rather than during stagnation.
Development changes what is criminal. Complexity requires regulation, and regulation creates offences. Company law, securities law, tax law, environmental law, food safety law, data protection law: none of these existed in an agrarian economy, and each of them creates a category of offender who did not previously exist.
What actually changes
From violence to acquisition. Across countries, development is associated with a fall in interpersonal violence and a rise in property and economic offending. India's own recorded pattern shows the same shape.
From the person to the transaction. The characteristic offence of an undeveloped economy is committed face to face. The characteristic offence of a developed one is committed through a document, an account or a network, at a distance, often across borders, and often against a victim who does not know for months.
From the individual to the organisation. As firms grow, so does the offending that firms do. Corporate fraud, cartel behaviour, environmental discharge and the adulteration of mass-produced goods have no counterpart in a household economy.
Development and the Changing Patterns of Crime
From local to transnational. Narcotics, trafficking in persons, money laundering and cyber fraud all operate across jurisdictions, which multiplies the difficulty of investigation and creates the need for the mutual assistance machinery.
And the dark figure grows. This is the point most answers miss. The offences that development produces are exactly the ones hardest to notice, hardest to attribute and hardest to prove. So a developed economy's recorded crime understates its crime by more than an undeveloped one's does, and comparisons across time are correspondingly unsafe.
The Indian illustration
Urbanisation. Mumbai, Delhi and Bengaluru grew by absorbing migrants faster than housing, policing or employment could be provided, and the criminological consequence is the one the Chicago School would predict: the highest rates in the zones of transition where population turnover is greatest and no settled community exists.
Liberalisation. The opening of the economy from 1991 multiplied the number and size of financial transactions, and the offences that followed, securities frauds, bank frauds, the scandals that produced the leading cases in Module III, were the direct product of a larger and faster financial system.
Digital payments. The move from cash to instant transfer removed the physical constraint on theft. Cheating that once required presence now requires only a number, and the victim may be a thousand kilometres from the offender.
Regulation as criminalisation. Environmental discharge, food adulteration, and now the handling of personal data are all offences that exist because the economy became capable of the harm.
And the counter-example. Development also removes offences. As the economy formalised, some traditional forms of predation declined, and legislative decriminalisation has removed others, so the arrow does not run only one way.
A worked example
Compare a district in 1985 and the same district in 2025.
In 1985 the recorded crime is dominated by hurt, theft of livestock and standing crops, house-breaking, and disputes over land. The offender and the victim usually know each other. Detection depends on local knowledge. Almost nothing crosses the district boundary.
In 2025 the same district records fewer cattle thefts and more of the following: cheating through digital payment applications with the offender in another State; motor vehicle theft feeding an interstate market; narcotics offences; offences under environmental and food safety statutes against local units; and online offences against women. Detection now depends on records held by companies rather than on local knowledge.
Has crime risen? The recorded figure may have risen or fallen, and the figure is not the point. What has changed is that the district's police force, trained and equipped for the 1985 pattern, is now facing a pattern that requires technical evidence, cooperation from private companies and coordination across States.
Development and the Changing Patterns of Crime
That mismatch is the criminological finding. Development changes crime faster than it changes the institutions that respond to crime, and the lag is where the harm sits.
What beginners get wrong
"Development causes crime" is not the answer, and neither is the opposite. The relationship is about composition, not level. Say so at the start.
A rise in recorded crime is not necessarily a rise in crime. Development brings literacy, telephones, online reporting and better record-keeping, all of which raise recorded crime by raising reporting. This is the single commonest error in this area.
Do not confuse development with modernity as a moral matter. The claim that development brings crime because it erodes values is a value judgment wearing the clothes of a finding. The defensible version is the mechanism about informal control, and it should be stated as that.
Quick revision
Development changes the composition of crime rather than simply its level.
Four mechanisms: it multiplies opportunities; it weakens informal social control faster than formal control replaces it; it raises expectations faster than it satisfies them; and it creates new regulatory offences.
The shifts: from violence to acquisition, from the person to the transaction, from the individual to the organisation, from local to transnational.
The dark figure grows with development, so comparisons across time understate the change.
Indian illustrations: urban migration and the zones of highest turnover; liberalisation and the financial scandals; digital payment fraud; environmental, food safety and data protection offences.
A rise in recorded crime may be a rise in reporting, and development raises reporting.
Test yourself
1. State the four mechanisms by which development changes crime. It multiplies criminal opportunities as it multiplies wealth and transactions; it weakens informal social control through migration and anonymity faster than formal control is built; it raises aspirations faster than legitimate means of satisfying them, producing Merton's strain; and it creates new categories of offence through the regulation that complexity requires.
2. Why is a rise in recorded crime in a developing district weak evidence of a rise in offending? Because development independently raises reporting. Literacy, telephones, online complaint systems, better police record-keeping, awareness campaigns and the reduction of stigma all increase the proportion of offences that reach a register, so the recorded figure can rise while offending is flat or falling.
3. Give three ways in which the characteristic offence of a developed economy differs from that of an undeveloped one. It is acquisitive rather than violent; it is committed through a transaction or a document at a distance rather than face to face, so offender and victim are strangers; and it is frequently committed by or on behalf of an organisation rather than by an individual, which makes both the mental element and the identification of the offender far harder to establish.
Measuring Crime: Official Statistics and the Dark Figure
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Recorded crime is not crime; it is the small and unevenly selected part of crime that was noticed, reported, believed and written down, and the part that never gets recorded is called the dark figure.
In the wording a student can write in an exam: the dark figure of crime is the volume of criminal conduct that is committed but never appears in official records, and it is not randomly distributed: it is largest for offences where the victim does not know she is a victim, where the offender is respectable, and where reporting carries a cost.
How a crime becomes a statistic
Five things must all happen. Each is a filter and each removes a share.
Somebody must perceive that an offence occurred. A customer overcharged through a rigged weighing scale, an investor whose fund manager has churned his portfolio, and a patient given an unnecessary operation may never know.
Somebody must be willing to report it. Reporting costs time, may cost employment, may cost reputation, and in sexual offences and caste offences may cost safety.
The police must record it. In India this is the decisive filter and it is dealt with fully in the chapter on police deviance in registration.
It must be classified as an offence, and as which offence. Two housebreakings on one night may be recorded as one incident, and a serious offence may be recorded as a lesser one.
It must survive aggregation. National figures are compiled from State returns compiled from district returns, and the commonest convention counts only the most serious offence in an incident, so lesser offences vanish.
What the sources are, and what each misses
Police records. In India, the National Crime Records Bureau publishes annual compilations from State police returns. They are the only continuous national series and they are indispensable. They measure police activity as much as crime: a drive against a particular offence raises its figures without any change in behaviour, and a station under pressure to show a low figure can lower them without any change either.
Court and prison statistics. These are further downstream and therefore further from crime. Prison figures in particular measure the output of the whole system: who was caught, charged, denied bail, convicted and not released. Using them as a picture of offending is the error taken apart in the chapter on whether criminology is a science.
Victimisation surveys. Ask a sample of households what has happened to them, whether or not they reported it. This is the standard corrective in other countries and it reaches much of the dark figure for ordinary property and violent crime. India has no continuous national victimisation survey, which is a serious gap.
Measuring Crime: Official Statistics and the Dark Figure
Self-report studies. Ask people, usually under guarantees of anonymity, what they have done. Useful for juvenile and drug offending; unreliable for serious crime.
Regulatory and audit data. For the offences of the powerful, the useful sources are not police records at all: they are the reports of the Comptroller and Auditor General, of regulators, of the food and drug authorities and of commissions of inquiry. This is one reason Module IV of this paper is largely about bodies that are not part of the criminal justice system.
Why the dark figure is patterned, not random
This is the paragraph that connects this chapter to the rest of the paper.
Where the victim does not know. Adulteration, a rigged tender, a false certificate, a diverted subsidy and a mis-sold policy leave a victim who feels nothing at the time.
Where the victim is diffuse. If a company evades a crore of tax, the loss falls on everybody and on nobody in particular, and no individual has the incentive to pursue it.
Where the offender is respectable. A complaint against a doctor, a lawyer, a police officer or a company is harder to make, more likely to be disbelieved, and more likely to be deflected into an internal process.
Where reporting is costly. Sexual offences, offences within a family, and offences by an employer.
And where the police prefer not to record. Registration lowers the station's detection rate if the case is unlikely to be solved, and the incentive to avoid recording is well documented.
Put those together and you get the finding that governs Module III: the dark figure is largest exactly for the offences committed by those with power, so official statistics systematically understate privileged class deviance and overstate ordinary crime.
A worked example
A district records 400 thefts and 2 cases of criminal breach of trust in a year. A student concludes that theft is 200 times as common as breach of trust in that district.
Filter one. A theft victim knows immediately. A person defrauded by an agent may discover it years later or never.
Filter two. A theft is reported because an insurance claim or a lost document requires it. A breach of trust by a known professional is often taken to a family settlement or a professional body instead.
Filter three. Registration of a theft is routine. Registration of a breach of trust invites an argument that the matter is civil, and that argument is frequently accepted at the station.
Filter four. Where a scheme involves fifty investors, it may be recorded as one case.
The honest conclusion. The figures show that theft is reported and recorded 200 times as often as criminal breach of trust. They do not show that it is committed 200 times as often, and the correction is in an unknown but certainly large direction.
Measuring Crime: Official Statistics and the Dark Figure
What beginners get wrong
"Crime rate" needs a denominator and a definition. Per lakh of population, of what offences, recorded by whom, on what counting rule.
A fall in recorded crime is not proof of success, and a rise is not proof of failure. Both are consistent with a change in reporting or in recording practice, and a police force rewarded for low figures will produce low figures.
The dark figure is not an argument for ignoring statistics. It is an argument for knowing which direction the error runs. Recorded crime is a reliable guide to serious violence, where reporting is high, and an unreliable guide to fraud, corruption and offences within families.
Quick revision
Five filters between crime and crime statistics: perception, reporting, recording, classification and aggregation.
The dark figure is crime committed but never recorded, and it is patterned rather than random.
Sources: police records, court and prison figures, victimisation surveys, self-report studies, and regulatory and audit data. India has no continuous national victimisation survey.
Prison figures measure the output of the whole system, not offending.
The dark figure is largest where the victim does not know, where the loss is diffuse, where the offender is respectable, where reporting is costly, and where the police prefer not to record. That is exactly the profile of privileged class deviance.
Recorded crime is a fair guide to serious violence and a poor one to fraud, corruption and offences within families.
Test yourself
1. What is the dark figure, and why does it matter that it is not random? It is the volume of crime committed but never recorded. It matters that it is patterned because a random error would leave comparisons between offence types valid; a patterned one does not. Since the figure is largest for the offences of the powerful, official statistics systematically understate those offences relative to ordinary crime, which distorts both public perception and the allocation of enforcement.
2. Name the five filters between an offence and its appearance in a statistic. Perception by someone that an offence occurred; willingness to report; recording by the police; classification as an offence and as which offence; and survival through aggregation, where a counting rule that records only the most serious offence in an incident removes the rest.
3. Why are prison statistics a poor measure of offending? Because they are the output of every earlier filter combined: who was noticed, reported, recorded, arrested, refused bail, charged, convicted and not released. Each stage selects, and the selection favours the poor and the unrepresented, so the prison population describes the operation of the system rather than the distribution of offending.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
Criminalisation is the decision to bring conduct within the criminal law, and decriminalisation is the decision to take it out; both are policy choices, and neither follows from the harmfulness of the conduct alone.
In the wording a student can write in an exam: criminalisation is the process by which conduct previously lawful, or dealt with by other branches of law, is made an offence; decriminalisation is the reverse, and it may be complete, where the conduct becomes lawful, or partial, where the conduct remains prohibited but the sanction ceases to be criminal.
The tests for criminalising
A legislature ought to satisfy itself of five things. In practice it rarely works through them, and an answer that sets them out and then measures a real statute against them is doing exactly what a postgraduate paper wants.
Harm. Does the conduct cause, or seriously risk, harm to others? This is the threshold, and on the harm principle it is also the ceiling.
Seriousness. Is the harm serious enough to justify the machinery of the criminal law, which is expensive, slow and stigmatising?
Necessity. Would a lesser instrument do? Licensing, taxation, civil liability, regulation, disclosure requirements and administrative penalties are all cheaper and often more effective, and a criminal prohibition should be the last resort. This is what continental writers call the principle of the criminal law as ultima ratio.
Enforceability. Can the prohibition be detected, investigated and proved? An unenforceable offence does not reduce the conduct. It creates selective enforcement, and selective enforcement is a licence for extortion.
Fair labelling and proportionality. Does the offence describe what the offender actually did, and is the punishment proportionate to it?
Why conduct gets criminalised in practice
The tests describe what ought to happen. Criminology describes what does.
Moral entrepreneurs. A campaign by a group with a strong interest in the question can produce an offence out of proportion to the harm. The label comes from labelling theory and it is dealt with in that chapter.
Symbolic legislation. An offence created to demonstrate concern, with no expectation that it will be enforced. It is cheap, it is visible, and it is common.
Crisis. A single shocking incident produces a statute drafted quickly, and the resulting offence is often wider than the harm that provoked it.
Regulation. As the State takes on new functions it creates new duties, and the enforcement clause at the end of a regulatory statute makes an offence almost as an afterthought. Most Indian offences today were created this way.
Decriminalisation
The reverse process, and it takes four forms. Distinguish them.
Complete decriminalisation. The conduct becomes lawful and no sanction attaches. India's removal of the offences relating to consensual same-sex conduct and to adultery are of this kind, and both are worked in Module IV.
Criminalisation and Decriminalisation
Depenalisation. The conduct remains an offence but the punishment is reduced or imprisonment is removed. The move of many company law and traffic defaults to a monetary penalty is depenalisation, not decriminalisation.
Diversion. The conduct remains an offence but a class of offenders is routed away from the criminal process, into treatment, probation or a settlement mechanism. Compounding, plea bargaining and the juvenile justice system all divert.
De facto decriminalisation. The offence stays on the statute book and is simply not enforced. This is the least satisfactory form, because the prohibition remains available for selective use.
Arguments for decriminalising
The conduct causes no harm to others. The harm principle argument, and it is the strongest one where it applies.
The prohibition causes more harm than the conduct. The criminalisation of drug use is the standard example: it drives users away from treatment, creates a criminal market and produces a class of people with convictions and no employment.
The prohibition cannot be enforced. Selective enforcement invites extortion, which is a direct connection between this chapter and Module III.
The system has no capacity. Every prosecution for a trivial offence displaces a prosecution for a serious one, and Indian courts are the standing illustration of what happens when this is ignored.
A worked example
A State is considering whether to keep the offence of begging, punishable with detention in a certified institution.
Harm. Whom does begging harm? Aggressive begging may cause alarm; the ordinary case harms nobody.
Necessity. If the aim is to reduce destitution, the instruments are shelter, income support and de-addiction. If the aim is to protect the public from harassment, a narrower offence of persistent aggressive solicitation would do.
Enforceability, and who is caught. The offence catches the visible and the unprotected. Nobody is prosecuted for begging in an office.
Fair labelling. The offence punishes a status, poverty, rather than an act, and punishing status is exactly what the criminal law is not supposed to do.
The conclusion. Complete decriminalisation of simple begging, with a narrow offence retained for coercive solicitation, and the resources moved to the welfare instruments. Note that this conclusion follows from the criminological analysis and not from sympathy, and that is how it should be written.
What beginners get wrong
Decriminalisation is not approval. Removing a criminal sanction says the criminal law is the wrong tool, not that the conduct is desirable. Confusing the two is the commonest objection to every decriminalisation proposal.
Depenalisation is not decriminalisation. If the conduct is still an offence, it is still an offence.
Criminalisation is not free. Every new offence consumes police, court and prison capacity that already does not exist. A legislature that adds offences without adding capacity has decriminalised something else by accident.
Criminalisation and Decriminalisation
Quick revision
Criminalisation: bringing conduct into the criminal law. Tests: harm, seriousness, necessity or ultima ratio, enforceability, fair labelling and proportionality.
In practice offences are created by moral entrepreneurs, by symbolic legislation, by crisis, and as the enforcement clause of a regulatory statute.
Decriminalisation takes four forms: complete decriminalisation, depenalisation, diversion, and de facto non-enforcement.
Arguments for decriminalising: no harm to others; the prohibition causes more harm than the conduct; it cannot be enforced and so invites selective enforcement and extortion; and system capacity is finite.
Decriminalisation is not approval, and an unenforced prohibition is worse than none because it remains available for selective use.
Test yourself
1. State the five tests a legislature should apply before creating an offence. Harm to others; seriousness sufficient to justify the criminal machinery; necessity, in that no lesser instrument such as regulation, licensing, civil liability or an administrative penalty would suffice; enforceability, since an undetectable offence produces selective enforcement rather than compliance; and fair labelling with a proportionate punishment.
2. Distinguish decriminalisation from depenalisation and from diversion. Complete decriminalisation removes the prohibition, so the conduct becomes lawful. Depenalisation keeps the prohibition but reduces the sanction, typically by removing imprisonment. Diversion keeps both but routes a class of offender away from the criminal process into treatment, probation or settlement.
3. Why is an unenforceable offence worse than no offence at all? Because it produces enforcement that is necessarily selective, and selection is made on grounds of visibility, powerlessness and the officer's own interest. That converts the prohibition into a source of extortion and into a means of pressure against particular individuals, while leaving the underlying conduct undisturbed.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
Victimology is the study of the victim of crime: who is victimised and why, what the relationship between victim and offender is, how the criminal justice system treats the victim, and what the victim is owed.
In the wording a student can write in an exam: victimology is the branch of criminology that studies the victim of crime, the victim-offender relationship, the process of victimisation, and the response of the legal system to the victim; the term is credited to Benjamin Mendelsohn, and Hans von Hentig's work of 1948 is the foundation of the field.
Why it exists
The criminal law took the wrong away from the victim for good reasons, set out in the chapter on crime as a public wrong. The consequence was that for a century and a half the person who suffered the offence was legally invisible: a witness with no standing, no right to be heard, no right to compensation and no right to appeal.
Victimology grew out of the recognition that this was a defect and not a design. It became an organised field after the Second World War, and it entered international law with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, which is the instrument every answer should name.
The classical concerns: victim precipitation and typology
The founders asked a question that has aged badly and still has to be understood: does the victim contribute to the offence?
Von Hentig classified victims by the characteristics that made them likely targets: the young, the female, the old, the mentally defective, immigrants, minorities, the depressed, the acquisitive, the wanton, the lonesome and heartbroken, the tormentor, and the blocked or fighting victim. His point was that victimisation is not random and that some positions in society attract it.
Mendelsohn classified by degree of blameworthiness, from the completely innocent victim, through the victim with minor guilt, the victim as guilty as the offender, the victim more guilty than the offender, to the most guilty victim, who is the aggressor killed in self-defence.
Wolfgang studied homicides and used the term victim precipitation for cases in which the victim was the first to use force.
And here is the necessary warning. These typologies slide easily into blaming the victim, and in sexual offences that slide has done immense harm. The modern position is that identifying risk factors is useful for prevention and worthless as a measure of desert. A person who leaves a door unlocked has done something that raises risk and nothing that reduces the burglar's responsibility. Say this expressly; an examiner is looking for it.
Victimology: The Discipline
The modern concerns
Victimisation surveys. Asking people what has happened to them rather than counting what was reported. This is victimology's largest single contribution to knowledge, because it is the only reliable route to the dark figure.
Repeat victimisation. A small proportion of people and premises suffer a large proportion of offences, and the best single predictor of being victimised is having been victimised recently. This finding transformed crime prevention: protecting past victims is far more efficient than protecting the population at large.
Secondary victimisation. The harm the system itself inflicts: repeated statements, long waits, hostile cross-examination, exposure of identity, delay measured in years, and the loss of wages that attendance costs. In sexual offences it has been studied enough to be called a second assault.
Victim rights. Information, participation, protection, and reparation. These are the four heads used in the United Nations Declaration and they are the correct framework for the Indian chapter that follows.
Restorative justice. Bringing victim and offender together, where both consent, so that the offender confronts the harm and the victim is heard. It is dealt with in Module IV.
Kinds of victim
Primary victim. The person against whom the offence was committed.
Secondary victim. Family and dependants, who suffer loss without being the target. The compensation provisions in Indian law reach them expressly through the definition that includes the guardian and legal heir.
Tertiary victim. The wider community, which bears fear, avoidance behaviour and the cost of protection.
Victims of abuse of power. The category the United Nations Declaration added, covering harm caused by acts that are not yet criminal but violate international human rights norms. This is where victimology meets Module III of this paper, because the victims of privileged class deviance usually fall here.
A worked example
Shalini Gokhale, a shopkeeper in Thane, is robbed at knifepoint at closing time. The offender is arrested and convicted after three years.
As a primary victim she suffers the loss of the day's takings, an injury to her wrist, and a fear of closing alone that changes her working hours permanently.
Secondary victims include her husband, who gives up a shift to accompany her, and her supplier, who loses her custom while the shop shuts.
Secondary victimisation is what the three years do. She attends court on eleven dates, of which nine are adjourned. Her identity and address are read out in open court. She is cross-examined for two hours on why she did not resist.
Repeat victimisation is the finding that should have prevented all this. Her shop had been robbed once before, eighteen months earlier. On the evidence about repeat victimisation, that made it one of the highest risk premises in the locality, and a police force organised around that finding would have visited, advised on the door and the till, and increased passing patrols. Nothing of the sort happened, because the earlier case was closed as undetected and the file went nowhere.
Victimology: The Discipline
And the response. She receives nothing unless the court, under the compensation provision dealt with in the next two chapters, applies its mind and orders it.
What beginners get wrong
Victimology is not the same as victim compensation. Compensation is one part of the response; the discipline covers who is victimised, why, and what the process does to them.
Victim precipitation is not a defence and not a moral judgment. It is a description of the sequence of events in some offences and it has been badly misused.
The victim is not a party to the criminal case. Indian law has given the victim particular rights; it has not made the victim a prosecutor.
Quick revision
Victimology: the study of the victim of crime, the victim-offender relationship, victimisation, and the system's response.
Mendelsohn is credited with the term; von Hentig's 1948 work founded the field; Wolfgang's homicide study introduced victim precipitation.
Von Hentig classified by vulnerability; Mendelsohn by degree of blameworthiness.
The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, is the governing international instrument and adds victims of abuse of power.
Modern concerns: victimisation surveys, repeat victimisation, secondary victimisation by the system itself, victim rights of information, participation, protection and reparation, and restorative justice.
Kinds: primary, secondary, tertiary, and victims of abuse of power.
Risk factors are for prevention, never for desert.
Test yourself
1. Define victimology and name its founders. Victimology is the branch of criminology that studies the victim of crime, the relationship between victim and offender, the process of victimisation and the legal system's response to it. Benjamin Mendelsohn is credited with the term and Hans von Hentig's work of 1948 founded the field; Marvin Wolfgang's study of homicide introduced the idea of victim precipitation.
2. What is repeat victimisation and why does it matter to policing? It is the finding that a small proportion of people and premises suffer a large proportion of offences and that recent victimisation is the best single predictor of further victimisation. It matters because it identifies, at no cost, the small set of targets where protective effort will do the most good, which is far more efficient than spreading prevention evenly.
3. What is secondary victimisation, and give three Indian examples. It is harm inflicted on the victim by the criminal justice process itself rather than by the offence. Examples: repeated attendance at court on dates that are adjourned, with the loss of wages that entails; hostile and intrusive cross-examination, particularly in sexual offences; and the disclosure of the victim's identity and address in open court.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
❧
In one line
The victim is now defined by statute, must be informed of the progress of the investigation, must be heard before the prosecution is withdrawn, and has a right of appeal against an acquittal, but is still not a party to the case.
In the wording a student can write in an exam: section 2(1)(y) of the Bharatiya Nagarik Suraksha Sanhita 2023 defines a "victim" as a person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim.
The statutory definition
Read the definition carefully, because three things in it are examinable.
It turns on loss or injury, not on being the person against whom the offence was directed. A person who suffers loss by reason of the act is a victim whether or not the offence names him.
It includes the guardian or legal heir. So in a homicide the family are victims in their own right, which is what makes the right of appeal against acquittal useful at all.
It says nothing about a complaint. A victim is a victim whether or not she reported anything.
The definition entered Indian law by the amendment of 2008 to the Code of Criminal Procedure 1973, and it is carried into the Sanhita in the same words. Before 2008 the Code did not define the victim at all.
What the victim can do
Have the information recorded, and get a free copy. Every information relating to a cognizable offence must be recorded, and information may now be given by electronic communication. The informant is entitled to a copy free of cost.
Be informed of the progress of the investigation. The Sanhita requires the police to inform the informant or the victim of the progress of the investigation, including by electronic communication, within ninety days. This is new and it is the single most practical change for a victim.
Be heard before the police close the case. Where the police report concludes that no case is made out, the informant must be given notice, and the Magistrate may take cognizance despite the report.
Be heard before withdrawal. A Public Prosecutor may withdraw from the prosecution only with the consent of the court, and the Sanhita requires that the victim be given an opportunity of being heard before permission is granted. That requirement is new.
Engage an advocate to assist the prosecution. The victim may engage an advocate of her choice to assist the prosecution, subject to the permission of the court.
Be treated, without a prior police report. All hospitals, public or private, must provide first aid or medical treatment free of cost to victims of specified offences, and must inform the police immediately.
The Victim in Indian Criminal Procedure
Appeal. The proviso to section 413 gives the victim a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and the appeal lies to the court to which an appeal ordinarily lies against an order of conviction of that court.
The right of appeal, worked
This is the provision most often examined, and it has a history.
The right was created by inserting a proviso to section 372 of the Code of Criminal Procedure 1973 in 2008. Before that a victim could not appeal against an acquittal at all; only the State could, and if the State chose not to, the matter ended. The Sanhita carries the same proviso into section 413.
Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka, AIR 2018 SC 5206, (2019) 2 SCC 752, decided on 12 October 2018.
Facts. The victim of an offence sought to appeal against an acquittal under the proviso. The question was whether that right stands on its own or whether the victim must also obtain leave to appeal, as a complainant must under the provision governing appeals against acquittal.
Held. The victim's right of appeal under the proviso is not taken away, but the provisions must be read together, so a victim appealing against an acquittal in the High Court is also required to apply for leave. The Court set the victim's interest against the accused's, observing that a victim may seek revenge and that our system does not permit a victim to conduct the prosecution, and concluded that the right of appeal vested in the victim cannot be larger than the right of the State.
Why it matters here. It is the clearest statement of the compromise Indian law has struck. The victim has been given a real remedy where none existed. She has not been made a prosecutor, and the safeguards that protect an acquitted accused apply to her appeal as they do to the State's.
What the victim still cannot do
Choose or instruct the prosecutor. The Public Prosecutor conducts the case, and the victim's advocate assists with the court's permission.
Decide the charge. Framing is a matter for the court on the material placed by the prosecution.
Stop the case. Unless the offence is compoundable, the victim's wishes are legally irrelevant.
Compel an investigation of her choice. She may seek directions from a Magistrate, but the manner of investigation is for the police.
A worked example
Nanda Pawar's husband dies in an assault. The accused is acquitted by the Sessions Court, which finds the eyewitness unreliable. The State does not appeal.
The Victim in Indian Criminal Procedure
Is she a victim? Yes. She is the legal heir of the person who suffered the injury, and the definition expressly includes a legal heir.
Can she appeal? Yes, under the proviso to section 413 of the Sanhita, and the appeal lies to the High Court, because that is the court to which an appeal against a conviction by a Sessions Court ordinarily lies.
Does she need leave? On the reasoning in the Kodagali case, yes: an appeal against acquittal to the High Court requires leave, and the victim's right cannot exceed the State's.
What if the acquittal had instead been a conviction for a lesser offence? The proviso covers that expressly, and it also covers an order imposing inadequate compensation, so all three of the grievances a victim typically has are within it.
And what could she not have done? She could not have prevented the Public Prosecutor from conducting the case as he thought fit, and she could not have compounded the offence, homicide being non-compoundable. Her remedy is at the end, not during.
What beginners get wrong
The victim is not a party. She has rights within a case conducted by the State.
The right of appeal is not new law waiting to be enacted. It has existed since 2008 and it is now in the Sanhita.
"Victim" is wider than "complainant" or "informant". A person may be a victim without having reported anything, and the informant may not be the victim at all.
Quick revision
Section 2(1)(y) of the Sanhita: a victim is a person who has suffered any loss or injury caused by reason of the act or omission of the accused, and includes the guardian or legal heir.
Rights: recording of information and a free copy; being informed of the progress of the investigation within ninety days; notice where the police report finds no case; an opportunity of being heard before withdrawal from prosecution; engaging an advocate to assist the prosecution with the court's permission; free first aid and treatment at any hospital.
Right of appeal: proviso to section 413 of the Sanhita, formerly the proviso to section 372 of the Code of Criminal Procedure, inserted in 2008, against acquittal, conviction for a lesser offence, or inadequate compensation.
The Kodagali case: the right is real but the victim must obtain leave where the State would have to, because the victim's right cannot be larger than the State's.
The victim still cannot choose the prosecutor, decide the charge, stop a non-compoundable case, or direct the investigation.
Test yourself
1. Give the statutory definition of victim and state two consequences of its wording. A person who has suffered any loss or injury caused by reason of the act or omission of the accused person, including the guardian or legal heir of such victim. It follows that the family of a deceased person are victims in their own right and can exercise the right of appeal, and that a person may be a victim without having made any complaint, since the definition turns on loss and not on reporting.
The Victim in Indian Criminal Procedure
2. State the victim's right of appeal and the limitation the Supreme Court placed on it. Under the proviso to section 413 of the Bharatiya Nagarik Suraksha Sanhita the victim may appeal against an acquittal, a conviction for a lesser offence, or an order imposing inadequate compensation, to the court to which an appeal ordinarily lies against a conviction by that court. In Mallikarjun Kodagali the Supreme Court held that where the appeal is against an acquittal in the High Court the victim must also seek leave, since the victim's right cannot be larger than the State's.
3. Name three things the victim still cannot do. Choose or instruct the prosecuting counsel, since the Public Prosecutor conducts the case and a victim's advocate merely assists with the court's permission; compound or otherwise terminate a non-compoundable offence; and direct the course of the police investigation.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
An Indian criminal court can order the offender to pay the victim, and separately can recommend payment from a State fund, and it must apply its mind to the first in every case.
In the wording a student can write in an exam: compensation to the victim flows from two sources: section 395 of the Bharatiya Nagarik Suraksha Sanhita, under which the court may order the convicted person to pay, and section 396, under which every State Government must prepare a victim compensation scheme funded by the State and administered by the Legal Services Authorities.
Route one: payment by the offender
Section 395 has two limbs and students conflate them.
Where a fine is imposed, the court may order the whole or any part of the fine recovered to be applied in four ways: in defraying the expenses properly incurred in the prosecution; in payment to any person of compensation for loss or injury caused by the offence, where the compensation is in the court's opinion recoverable in a civil court; where a person is convicted of causing death or abetting it, in compensating those entitled under the Fatal Accidents Act 1855; and where the offence includes theft, criminal misappropriation, criminal breach of trust, cheating or receiving stolen property, in compensating a bona fide purchaser who has to give the property up.
Where no fine forms part of the sentence, sub-section (3) allows the court to order the accused to pay such compensation as it specifies to the person who has suffered loss or injury. This is the important limb, because most serious sentences do not include a fine.
Three further points. The order may also be made by an appellate court, the High Court or a Court of Session in revision. Where a fine is imposed in an appealable case, payment waits until the appeal period has run. And any sum paid is taken into account in a later civil suit, so the victim is not compensated twice.
The duty to apply the mind
For most of the life of the corresponding provision in the 1973 Code, courts simply did not use it. Judgments ended with a sentence and said nothing about the victim.
Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, decided on 3 May 2013.
Facts. The appellant had been convicted of murder; on appeal the conviction was reduced to culpable homicide not amounting to murder. Neither the trial court nor the High Court had said anything at all about compensating the family of the deceased, and the question had simply not been considered anywhere in the proceedings.
Held. While the award or refusal of compensation in a particular case is within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case, and application of mind is best disclosed by recording reasons for awarding or refusing compensation. The capacity of the accused to pay is an important element and may require a summary enquiry, which can precede the order on sentence. The Court directed that a copy of the judgment be circulated to the High Courts for circulation among judges trying criminal cases and hearing criminal appeals.
Compensating the Victim
Why it matters here. It converts a discretion nobody exercised into a duty that shows on the face of every judgment. The court may still refuse, but it must now say why, and a refusal without reasons is appealable. This is the single most important decision in Indian victimology and it should be cited in any answer on the subject.
Route two: the State scheme
Payment by the offender fails in the cases where the victim needs it most: where the offender is not traced, where he is acquitted, and where he has nothing. Section 396 answers all three.
Every State Government, in coordination with the Central Government, must prepare a scheme for providing funds for compensation to the victim or the dependants who have suffered loss or injury as a result of the crime and who require rehabilitation.
The quantum is decided by the Legal Services Authority, District or State as the case may be, on a recommendation by the court.
The trial court may recommend compensation where it is satisfied at the conclusion of the trial that the compensation awarded under section 395 is not adequate for rehabilitation, or where the case ends in acquittal or discharge and the victim has to be rehabilitated.
And where the offender is not traced or identified but the victim is, the victim or the dependants may apply to the Authority for an award, which is the provision that reaches the untraced-offender case.
The two routes are therefore complementary: the first is compensatory and punitive at once and depends on a conviction and a solvent offender; the second is a welfare measure and depends on neither.
A worked example
Ravi Nadar, a delivery rider, is knocked down and robbed. He suffers a fracture, is off work for four months, and pays sixty thousand rupees in medical bills. The offender is arrested and convicted, and is a labourer with no assets.
Section 395(3) applies, because the sentence is imprisonment with no fine. The court must apply its mind to compensation and record reasons, following the Gaikwad case. It may hold a summary enquiry into the accused's capacity to pay, and on these facts it will find that capacity is close to nothing. An order for sixty thousand rupees against a man who cannot pay it helps nobody and converts into a default sentence.
Compensating the Victim
So the court should also act under section 396(3). It records that the compensation available under section 395 is not adequate for rehabilitation and recommends compensation under the State scheme. The District Legal Services Authority then fixes the quantum under the scheme.
And suppose instead the offender had never been traced. Section 395 is unavailable, because there is no conviction. Section 396(4) applies directly: the victim may apply to the Authority, which conducts an enquiry and makes an award.
Notice the structure. Three different failures, no offender, no conviction, no money, and the scheme is designed to meet all three, which is exactly what an offender-funded system cannot do.
What beginners get wrong
The fine is not the compensation. A fine is a punishment payable to the State. Compensation is a separate order in favour of the victim, and section 395(1)(b) merely allows part of a recovered fine to be applied to it.
Compensation is not damages. The criminal court makes a summary assessment; the civil court decides a claim on evidence. That is why any sum paid is set off in the later civil suit rather than barring it.
The Legal Services Authority does not decide whether to compensate on its own initiative in every case. Its jurisdiction is engaged by a recommendation from the court, or, where the offender is untraced, by an application from the victim.
Quick revision
Two routes: section 395, payment by the convicted offender; section 396, the State victim compensation scheme.
Section 395(1): where a fine is imposed, it may be applied to prosecution expenses, to compensation recoverable in a civil court, to those entitled under the Fatal Accidents Act 1855 in a death case, and to a bona fide purchaser of stolen property.
Section 395(3): where no fine is imposed, the court may order the accused to pay compensation to the person who suffered the loss.
Appellate courts and courts exercising revision may also order it; payment waits out the appeal period; any sum paid is set off in a later civil suit.
Ankush Shivaji Gaikwad: a mandatory duty to apply the mind in every criminal case, best shown by recording reasons, with a summary enquiry into capacity to pay.
Section 396: every State must have a scheme; the Legal Services Authority fixes the quantum on the court's recommendation; the court may recommend where section 395 compensation is inadequate or where the case ends in acquittal or discharge; and the victim may apply directly where the offender is untraced.
Compensating the Victim
Test yourself
1. Distinguish the two routes to compensation and say when each fails. Section 395 is compensation paid by the convicted offender, and it fails where there is no conviction, where the offender is untraced, or where he has no capacity to pay. Section 396 is a State-funded scheme administered by the Legal Services Authorities, and it is designed to meet exactly those three failures, being available on a court's recommendation after acquittal or discharge and on the victim's own application where the offender is not traced.
2. What did the Supreme Court decide in Ankush Shivaji Gaikwad? That although the award or refusal of compensation is discretionary in the individual case, the court is under a mandatory duty to apply its mind to the question in every criminal case, and that the application of mind is best disclosed by recording reasons. It added that the accused's capacity to pay is an important element and may need a summary enquiry preceding the order on sentence.
3. A court convicts and imposes imprisonment only, and says nothing about compensation. Is that judgment sound? No. Following Gaikwad, the absence of any consideration of compensation is a failure to discharge a mandatory duty, and the omission is itself a ground of challenge. The court was entitled to refuse compensation, but only after applying its mind and recording its reasons for doing so.
Syllabus topic 1, "Concept of Crime. Criminal Law, Criminology as a Science,"
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In one line
In law a criminal is simply a person convicted of an offence, and every wider meaning the word carries is a criminological classification rather than a legal one.
In the wording a student can write in an exam: who is a criminal has a narrow legal answer, a person found guilty of an offence by a competent court, and a wider sociological answer, a person whose conduct violates the criminal law whether or not it has been detected, and much of criminology's difficulty comes from the gap between the two.
The legal answer, and its consequences
A person is a criminal when convicted. Not when suspected, not when charged, not when arrested. The presumption of innocence is not a courtesy but a rule about how the State must proceed.
Three consequences follow and each matters later in this book.
The convicted population is not the offending population. It is what remains after detection, reporting, recording, arrest, charge, bail, trial and appeal have each removed a share, and each of those removes unevenly. A study of prisoners is a study of the filter.
Whole categories are excluded by rule. The Sanhita's general exceptions remove a child under seven absolutely, a child of seven to twelve who lacks sufficient maturity of understanding on that occasion, and a person who by reason of unsoundness of mind is incapable of knowing the nature of the act or that it is wrong or contrary to law. These people may have done the act; the law says no offence was committed.
And a corporation can be an offender. A company has no mind and cannot be imprisoned, and the law has had to build doctrines to reach it. The consequences are dealt with in the chapters on corporate fraud.
The criminological classifications
Criminology has produced a great many typologies of the offender. Four are worth knowing because they recur in this paper.
By persistence. The casual or occasional offender, who offends once under pressure or opportunity; the habitual offender, who offends repeatedly; and the professional offender, for whom crime is an occupation with skills, contacts and a career. The distinction drives sentencing, and the special provision for a habitual offender in the anti-corruption statute is one example of it.
By organisation. The lone offender; the group; and organised crime proper, which has structure, continuity and a division of labour, and which is now an offence in its own right in the general penal law.
By social position. The conventional offender, and the white collar offender, a person of respectability and high social status committing an offence in the course of his occupation. This is Sutherland's category and it is the foundation of Module III.
Who the Law Treats as a Criminal
By the offender's relation to the act. The situational offender, whose offending is a response to a particular set of circumstances; and the compulsive or pathological offender, whose offending expresses a disorder. The second is a small category and it is much overused in popular writing.
The trouble with the word
"Criminal" describes an act, not a person, and the language pretends otherwise. Calling someone a criminal implies a stable disposition, and the evidence does not support it for most offenders. Offending is concentrated in adolescence and early adulthood and most of those who offend stop, without treatment, as they acquire employment and family.
The label itself has effects. Labelling theory, dealt with in its own chapter, holds that being publicly identified as a criminal alters how a person is treated and how he sees himself, and can make further offending more likely rather than less.
And the category is unstable. A person convicted of an offence that is later abolished remains, on the register, a criminal. Thousands of people in India carry convictions for conduct that Parliament and the Supreme Court have since decided is not criminal at all.
A worked example
Four people are before four different courts on the same morning in Mumbai.
Amol, aged six, has taken a mobile phone from a shop counter. Section 20 of the Sanhita applies absolutely: nothing is an offence which is done by a child under seven years of age. There is no offence, no accused and no case.
Bhavesh, aged ten, has done the same thing. Section 21 applies: nothing is an offence which is done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. The prosecution must prove that maturity, and the juvenile justice legislation governs how he is dealt with even if it does.
Chhaya, aged thirty-four, has done the same thing during an acute psychotic episode. Section 22 asks whether, by reason of unsoundness of mind, she was incapable of knowing the nature of the act or that she was doing what was either wrong or contrary to law. Notice that the test is knowledge, not control: if she knew what she was doing and knew it was wrong, the section does not help her however ill she was.
Dhananjay, aged forty, is the finance director of a company that has issued a false certificate to obtain a loan of eleven crore rupees. He is on bail, represented by senior counsel, and his case is listed for the fourteenth time.
Now ask which of the four the word "criminal" naturally brings to mind. It is not Dhananjay, and the harm he has caused exceeds the other three put together by several orders of magnitude. That mismatch between the image and the harm is the observation the whole of Module III is built on, and it is why the definition of the offender is worth a chapter.
Who the Law Treats as a Criminal
What beginners get wrong
Arrest is not conviction. In India the distinction is blurred in public discussion and it is legally fundamental.
"Habitual offender" is a legal category as well as a description. Several statutes define it and attach consequences, and an answer should say which statute it is using.
A person acquitted is not "let off". He has not been proved guilty, which is the only question the trial asked.
Quick revision
Legally, a criminal is a person convicted by a competent court. Every wider use is criminological.
The convicted population is the output of a filter, not a sample of offenders.
Excluded by the Sanhita: a child under seven absolutely; a child of seven to twelve without sufficient maturity on that occasion; a person incapable by unsoundness of mind of knowing the nature of the act or that it is wrong or contrary to law.
Typologies: casual, habitual and professional; lone, group and organised; conventional and white collar; situational and compulsive.
Offending is concentrated in adolescence and most offenders desist; the label has its own effects; and the category changes when the law changes.
Test yourself
1. Why is a study of prisoners not a study of criminals? Because imprisonment is the end of a long selection process. Detection, reporting, recording, arrest, the grant or refusal of bail, the quality of defence, conviction and sentence each remove a share of offenders, and each removes unevenly by social position. The prison population therefore describes the operation of the system rather than the distribution of offending.
2. State the three general exceptions that exclude a person from criminal responsibility by status, in the Sanhita's own terms. Section 20: nothing is an offence which is done by a child under seven years of age. Section 21: nothing is an offence which is done by a child above seven and under twelve who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Section 22: nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
3. Give the four typologies of offender used in this paper. By persistence: casual, habitual, professional. By organisation: lone, group, organised. By social position: conventional and white collar. By relation to the act: situational and compulsive or pathological.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
For most of human history crime was explained as the work of evil spirits or as an offence against the gods, and the response was therefore purification, ordeal and sacrifice rather than investigation and proof.
In the wording a student can write in an exam: the demonological or supernatural explanation held that the criminal was possessed by evil forces or acting under demonic influence, so that guilt was ascertained by appeal to the supernatural through trial by ordeal, trial by battle and compurgation, and punishment served to expel the evil and appease the offended deity.
The explanation
The demonological theory is not one theory but a family, and it has three recurring elements.
Crime is caused by an external malign force. The offender is not so much wicked as occupied. This is a comfortable explanation for a community, because it locates the problem outside the ordinary run of human beings.
Crime offends a supernatural order, not only a human one. The killing pollutes the community and the pollution must be removed or misfortune will follow. That is why the response in such systems is so often purification.
And the supernatural can be asked who did it. If the gods are involved in the offence they can be consulted about the offender, and the procedures for consulting them are the ordeals.
How guilt was found
Trial by ordeal. The accused underwent a painful or dangerous test and the outcome was read as a divine verdict. Ordeal by fire required carrying or walking on a heated object; ordeal by water required immersion, with sinking or floating read as innocence or guilt according to the local convention; ordeal by poison and ordeal by the balance are recorded in Indian sources.
Trial by battle. The parties, or their champions, fought and the victor was taken to be right, on the premise that the deity would not let a false claim prevail.
Compurgation. The accused swore his innocence and produced a required number of oath-helpers to swear to the value of his oath. It is the ancestor of both the character witness and the surety.
None of these is an evidentiary procedure in the modern sense. They do not ask what happened. They ask for a sign.
Why it lasted, and why it went
It lasted because it worked as an institution even though it was false as an explanation. It produced a verdict in every case, it was accepted by the community, and it removed the need for investigation in societies that had no capacity to investigate. There is also a plausible argument that the ordeal functioned as a lie detector: a guilty person who believed in it would confess or settle rather than face it.
Ancient Explanations of Crime: The Demonological
It went for three reasons. The Church withdrew its participation in the ordeals in the early thirteenth century, which removed their authority in Europe. The rise of centralised royal justice created courts with the capacity to hear witnesses. And the intellectual shift of the Enlightenment made supernatural causation an unacceptable explanation for anything.
That third reason is what makes this chapter necessary. The Classical School, which is the beginning of criminology proper, was a direct attack on a criminal justice system that was still arbitrary, secret and cruel, and whose intellectual foundation was that the offender was wicked in a metaphysical sense. Beccaria's premise, that a person offends because he calculates, is only revolutionary against this background.
The traces it leaves
Do not treat the demonological as safely dead. Three of its features survive.
Punishment as expiation. The idea that the offender must suffer to restore a moral balance is retributive theory in modern dress and demonological thinking in its ancestry.
Purification of the community. Public shaming, and the demand for exemplary punishment after an outrage, do the same work the sacrifice did.
And the language of evil. Public and political discussion of grave crime still reaches for words that place the offender outside the human, and doing so has the same effect it always had: it makes explanation unnecessary.
A worked example
A village in the seventeenth century loses three children to an illness in one month. A woman living alone at the edge of the village is accused of causing it.
On the demonological account the question is not what she did but what she is. Evidence of an act is not required, because the mechanism is not physical. The procedure is an ordeal, and its outcome is a verdict.
Notice what is impossible on this account. There is no way to be acquitted by showing you were elsewhere, because the mechanism does not require presence. There is no way to challenge the finding, because it is divine. And there is no way for the community to be wrong, because the procedure is definitive by construction.
Now change one premise. Suppose illness is caused by contagion. Immediately the questions become empirical: where did the children go, whom did they meet, what did they drink. The woman's character becomes irrelevant and her whereabouts become central.
That single change is the birth of criminology. Once causation is treated as natural rather than supernatural, it can be investigated, and once it can be investigated the explanation can be wrong. Everything in the next twenty chapters follows from it.
Quick revision
The demonological or supernatural explanation: crime is caused by possession or by evil forces, and it offends a supernatural order that must be purified.
Procedures: trial by ordeal, by fire, water, poison and the balance; trial by battle; and compurgation by oath-helpers. None asks what happened; each asks for a sign.
It endured because it produced a verdict, needed no investigative capacity, and commanded belief.
It ended with the Church's withdrawal from the ordeals in the early thirteenth century, the growth of centralised royal courts, and the Enlightenment's rejection of supernatural causation.
Survivals: punishment as expiation, public shaming as purification, and the language of evil, which makes explanation unnecessary.
The Classical School is a reaction against this system, which is why the ancient material has to be understood before it.
Ancient Explanations of Crime: The Demonological
Test yourself
1. What is the demonological explanation of crime, and what procedures follow from it? That criminal conduct is caused by possession by evil spirits or by the influence of malign supernatural forces, and that it offends a supernatural as well as a human order. It follows that guilt is ascertained by consulting the supernatural, through trial by ordeal, trial by battle and compurgation, and that punishment serves to expel the evil and purify the community.
2. Why is it important to a criminology paper if it is false? Because criminology begins as a reaction to it. Only when causation is treated as natural rather than supernatural can it be investigated, and only then can an explanation be tested and found wrong. The Classical School's account of the offender as a calculating being is intelligible only as an answer to the demonological system that preceded it.
3. Name three modern survivals of demonological thinking. Punishment as expiation, in which suffering is required to restore a moral balance; the demand for exemplary punishment after a public outrage, which serves to purify the community; and the description of grave offenders as evil or as monsters, which places them outside the human and so removes the need to explain their conduct.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Ancient Indian thought explained wrongdoing as a departure from dharma, treated punishment as the king's foremost duty, and produced an unusually detailed penology many centuries before Europe did.
In the wording a student can write in an exam: in ancient India the regulation of conduct rested on dharma, the body of religious, moral and legal duty; the king's power of punishment was danda, described in the Manusmriti as the protector of all and as itself a form of dharma; and the Arthashastra attributed to Kautilya sets out a secular, administrative criminal law with graded punishments, an investigative apparatus and an early theory of deterrence.
Dharma and the sources
Dharma is the central concept and it has no English equivalent. It covers religious duty, moral obligation and legal rule at once, and different classes and stages of life carried different dharmas. Wrongdoing is a failure of dharma, and its consequences are simultaneously spiritual and worldly.
The sources are of two kinds and they read very differently.
The Dharmashastra literature, of which the Manusmriti is the best known, is prescriptive and religious. It states duties, offences and punishments, and it grades them by the caste of the offender and of the victim, which is its defining and most criticised feature.
The Arthashastra, attributed to Kautilya and associated with the Mauryan period, is administrative and secular. It reads like a manual for running a state: revenue, espionage, foreign policy, the courts, the police, and a long treatment of the detection and punishment of offences.
The difference matters. A student who describes ancient Indian criminal law only from the Dharmashastra will describe a caste-graded religious system; one who reads the Arthashastra as well will find torture-free interrogation rules, protection of the accused against false accusation, and punishment calibrated to the offence and to the offender's capacity.
Danda: the theory of punishment
Danda means the rod, and by extension the king's coercive power. The Dharmashastra's account of it is a full theory of punishment and it can be stated in four propositions.
Punishment is the king's foremost duty. Protection of the subject is the return the king makes for the taxes he takes, and punishment is the instrument of protection.
Punishment sustains the moral order. Without danda, the texts say, the stronger would consume the weaker as fish consume the smaller fish in water. This image, matsyanyaya or the law of the fishes, is the ancient Indian statement of the argument from anarchy.
Punishment must be proportionate and considered. The texts require the king to consider the nature of the offence, the time and place, the strength and learning of the offender, and to punish neither too lightly nor too severely, because both extremes destroy his authority.
Crime and Punishment in Ancient India
And punishment purifies. The offender who has borne his punishment is cleansed of the offence, an idea with practical consequences: it makes reintegration possible in a way that a purely retributive theory does not.
Kautilya's criminal administration
Four features are worth naming because they are genuinely early.
A graded scheme of punishment. Fines calibrated in detail to the offence and to the value involved; corporal punishment; mutilation; banishment; and death, with the texts distinguishing simple from aggravated forms.
An investigative apparatus. A network of spies and informers, rules on the inspection of the scene, and an early treatment of what would now be called circumstantial evidence, including the examination of wounds and of the position of a body to distinguish homicide from suicide.
Rules restraining the process. Limits on who may be tortured and on when, protection for the accused against false accusation, and penalties for a judge who decides wrongly or who delays. The existence of penalties against judges is remarkable at any date.
And a concern with white collar wrongdoing. The Arthashastra contains a famous catalogue of the ways in which a public servant may misappropriate revenue, and the observation that it is as difficult to detect an official taking the king's money as it is to know when a fish moving in water drinks it. This is the earliest statement in any legal literature of the theme of Module III of this paper, and an Indian answer on privileged class deviance is much stronger for citing it.
The criticism
Caste grading. The Dharmashastra's punishments differ by the caste of the offender and of the victim, and the gradation is severe. This is not a detail to be passed over politely: it is the central objection, and modern Indian constitutional law is founded on its rejection.
Cruelty. Mutilation and aggravated forms of death penalty are prescribed for offences that no modern system would treat so.
Uncertain application. How far the Dharmashastra texts describe what any court actually did, as opposed to what learned opinion held it should do, is genuinely uncertain, and the honest answer says so.
Say all three. A paper that recites the ancient material as a proud inheritance without the criticism is doing history badly, and an examiner marking a postgraduate script will notice.
A worked example
A merchant in a Mauryan city is found to have been supplying short measure over several years, and a revenue official is found to have taken a share to overlook it.
Under the scheme the Arthashastra sets out, both are punished, and the punishment of the official is the heavier of the two. The reasoning is that the officer has betrayed a trust and has used the king's own authority for private gain, so the offence attacks the administration itself.
Crime and Punishment in Ancient India
The detection problem is expressly acknowledged. The text's image about the fish drinking the water is precisely the modern point that the offences of officials are invisible in the ordinary course, and its answer, an apparatus of spies and periodic transfers of officials, is a recognisable ancestor of the vigilance machinery in Module IV.
And note what is absent. There is no idea that the merchant and the official should be treated alike because they did the same thing. The status of the offender aggravates rather than mitigates, which is the opposite of the modern complaint about privileged class deviance and is worth saying in an answer.
Quick revision
Dharma: religious, moral and legal duty combined; wrongdoing is a departure from it and carries both spiritual and worldly consequence.
Two source traditions: the Dharmashastra, prescriptive, religious and caste-graded, of which the Manusmriti is best known; and the Arthashastra, secular and administrative.
Danda, the king's power of punishment: his foremost duty, the guarantee against matsyanyaya or the law of the fishes, required to be proportionate and considered, and purifying in effect.
Kautilya: graded fines and punishments, an investigative apparatus of spies and scene inspection, restraints on process including penalties on judges, and an early catalogue of official misappropriation.
Criticism: caste-graded punishment, cruelty of the prescribed penalties, and uncertainty about how far the texts describe practice.
Test yourself
1. What is danda and what four propositions make up its theory? Danda is the king's coercive power of punishment. Punishment is his foremost duty and the return he makes for revenue; it sustains the moral order and prevents matsyanyaya, the law of the fishes in which the strong consume the weak; it must be proportionate and considered, weighing the offence, the time and place and the offender's condition; and it purifies the offender, making reintegration possible.
2. Distinguish the Dharmashastra and the Arthashastra as sources. The Dharmashastra literature is prescriptive and religious, stating duty and punishment, and it grades punishment by caste. The Arthashastra is a secular administrative manual, setting out a graded penal scheme, an investigative apparatus, restraints on the process including penalties on erring judges, and a detailed treatment of misappropriation by public servants.
3. Why is Kautilya's treatment of official misappropriation relevant to this paper? Because it is an early and explicit statement of the theme of Module III: that the wrongdoing of those in office is peculiarly hard to detect, being as invisible as a fish drinking water, and that a special apparatus is needed to reach it. The remedies it proposes, surveillance of officials and their periodic transfer, are recognisable ancestors of the modern vigilance machinery.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Greek philosophy produced the first non-supernatural accounts of wrongdoing, Roman law produced the first systematic criminal jurisprudence, and medieval Europe put both aside in favour of ordeal, torture and religious authority.
In the wording a student can write in an exam: Greek thought treated wrongdoing as ignorance or as disorder of the soul and produced the first reformative theory of punishment; Roman law supplied the distinction between public and private wrongs, the requirement of intention and the beginnings of a doctrine of attempt; and medieval European criminal justice was arbitrary, secret and cruel, which is the condition the Classical School was formed to attack.
Greek thought
Wrongdoing as ignorance. The Socratic position, reported by Plato, is that no one does wrong willingly: a person who truly knows the good will pursue it, so wrongdoing is a failure of knowledge. This is the first explanation of crime that does not appeal to spirits, and it produces a reformative conclusion, that the remedy is education.
Punishment as medicine. Plato treats punishment as a cure for a disordered soul rather than as revenge. The incurable are removed for the protection of the rest, which is incapacitation stated as such. In the Laws he distinguishes voluntary from involuntary wrongdoing and grades the response accordingly.
The environment and character. Aristotle looks to habituation and to the conditions in which character forms, and observes that poverty is a parent of revolution and crime. That single observation is quoted in almost every discussion of economic causes to this day.
And the beginnings of a distinction between law and justice. The Greek treatment of the natural and the conventional in law is the ancestor of every later argument that a law may be unjust, which is where radical criminology eventually comes from.
Roman law
The Roman contribution is legal rather than explanatory, and it is the foundation of the categories used in this book.
Public and private wrongs.Crimina publica, offences prosecuted in the public interest, distinguished from delicta privata, wrongs pursued by the injured person. This is the distinction between crime and tort that the opening chapters of this module used, and it is Roman.
Intention. Roman law required a wrongful intention for the graver offences and distinguished it from accident, which is the ancestor of mens rea.
Attempt, and the inchoate. The Romans began to punish conduct falling short of the completed wrong.
Standing courts and a professional process. The quaestiones perpetuae, permanent courts for particular classes of offence, and a body of writing about them, made criminal law a subject of learning for the first time.
And a graded system of punishment, which differed openly by social status, a feature medieval Europe inherited and the Classical School attacked.
Greek, Roman and Medieval European Thought
Medieval Europe
What followed the collapse of Roman administration is the state of affairs the founders of criminology were reacting against, and it should be described in its own terms rather than sneered at.
Supernatural proof. The ordeal and the trial by battle, described in the previous chapter, were the ordinary modes of proof until the Church withdrew from them in the early thirteenth century.
Inquisitorial procedure and torture. When the ordeals went, proof had to come from somewhere, and the Roman-canon law of proof that replaced them required either two eyewitnesses or a confession. Since two eyewitnesses are rare, the system turned to confession, and to torture as the means of obtaining it. This is the single most important fact about medieval criminal procedure: judicial torture was not a barbarity outside the law but a consequence of the law of proof.
Secrecy and arbitrariness. Proceedings were not public, the accusation was often not disclosed, and the judge combined the functions of investigator and adjudicator.
Punishment as spectacle. Execution and mutilation in public, elaborated in form according to the offence, on the theory that the display deterred and that the offence against the sovereign required a visible answer.
And status. The same offence carried different punishments according to the rank of the offender, openly and as a matter of law.
Why this is the necessary background
Read the five features above as a list of complaints and you have the Classical School's programme in advance.
Against secrecy, it demanded publicity. Against arbitrariness, it demanded that offences and punishments be fixed in advance by law. Against torture, it demanded its abolition and the presumption of innocence. Against spectacle, it demanded that punishment be certain and swift rather than severe. Against status, it demanded that the law be the same for all.
Every one of those is now a constitutional guarantee somewhere. In India they are Articles 20, 21 and 22 and the fair trial jurisprudence built on them. The Classical School is not a historical curiosity; it is the source of the rules an Indian criminal court applies every day.
A worked example
A man is accused in a fourteenth-century European court of stealing from a church.
Proof. There are no two eyewitnesses. The court therefore requires a confession, and the law of proof permits torture to obtain one where there is a half proof, such as one witness or strong circumstantial indication.
Consequence. The question before the court has moved from what happened to whether the accused will confess, and the two are only loosely connected. The innocent with a low tolerance for pain confess and the guilty with a high one do not.
Greek, Roman and Medieval European Thought
Punishment. The theft is aggravated because the property is the Church's, and the punishment is public and corporal.
Status. Had the accused been a cleric he would have been tried elsewhere altogether, under a different procedure and with a different range of punishments.
Now list what is wrong with this from a Classical point of view. The offence and punishment are not fixed in advance; the process is secret; the proof depends on pain; the punishment is severe rather than certain; and the applicable law depends on who the accused is. Beccaria's book is that list, written out.
Quick revision
Greek: wrongdoing as ignorance, so the remedy is education; punishment as medicine for a disordered soul, with removal of the incurable; Aristotle on habituation and on poverty as a parent of crime and revolution.
Roman: crimina publica against delicta privata, the ancestor of crime against tort; a requirement of wrongful intention; the beginnings of attempt; permanent courts; and punishment graded by social status.
Medieval: ordeal and battle until the Church withdrew in the early thirteenth century; a law of proof requiring two eyewitnesses or a confession, which produced judicial torture; secret and arbitrary procedure; punishment as public spectacle; and different punishment by rank.
The Classical School's programme is a point-by-point answer to that list, and its demands are now constitutional guarantees.
Test yourself
1. Why did the medieval law of proof produce judicial torture? Because when the ordeals were abandoned the Roman-canon law of proof that replaced them accepted only two eyewitnesses or a confession as full proof. Two eyewitnesses are rare, so the system depended on confession, and torture became the lawful means of obtaining one where a half proof existed. Torture was therefore a consequence of the rules of evidence rather than an aberration outside them.
2. Name three Roman contributions that this book relies on. The distinction between public wrongs prosecuted in the public interest and private wrongs pursued by the injured party, which underlies the modern distinction between crime and tort; the requirement of a wrongful intention, the ancestor of mens rea; and the punishment of attempts, the beginning of inchoate liability.
3. List the five features of medieval criminal justice that the Classical School attacked, with the reform each provoked. Secrecy, answered by publicity of trial; arbitrariness, answered by offences and punishments fixed in advance by law; torture, answered by its abolition and by the presumption of innocence; punishment as severe spectacle, answered by the demand that punishment be certain and swift rather than severe; and differential punishment by rank, answered by equality before the law.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Pre-Classical School is the name given to the body of thought before the middle of the eighteenth century, in which crime was explained by supernatural or theological causes and the criminal justice system was arbitrary, secret and savage.
In the wording a student can write in an exam: the Pre-Classical School, also called the demonological or supernatural school, dominated criminological thinking until the middle of the eighteenth century; it attributed criminal conduct to possession by evil spirits or to the influence of demons, treated the offender as beyond ordinary explanation, and relied on ordeal and torture rather than on evidence.
What the school held
Four propositions, and it is worth stating them as propositions because that is what makes them criticisable.
Crime is caused by supernatural agency. The offender acts under the influence of an evil spirit, or is possessed, or is the instrument of the devil. Human motive and social circumstance are irrelevant to the explanation.
The offender is therefore not a subject for study. If the cause is supernatural there is nothing to investigate about the person. This is the proposition that makes criminology impossible, and abandoning it is what allows the discipline to begin.
Guilt is ascertained by supernatural means. Ordeal, battle and compurgation, described in the chapter on demonological explanations.
Punishment expels the evil and appeases the offended order. Hence its public, physical and often ritual character, and hence the absence of any idea of proportion between offence and penalty in the modern sense.
Why it is called a school at all
A fair objection is that this is not a school of thought but the absence of one: it has no founder, no text and no method. The term is used in Indian textbooks and in MU's own question, so use it, but use it accurately.
The right way to describe it is as the state of thinking that the Classical School defined itself against. Its content is important because every Classical claim is a denial of one of the four propositions above. Where the Pre-Classical says the cause is supernatural, the Classical says the cause is a human calculation. Where the Pre-Classical says the offender cannot be studied, the Classical says he is an ordinary person exercising free will. Where the Pre-Classical uses the ordeal, the Classical demands proof. Where the Pre-Classical punishes to purify, the Classical punishes to deter.
The world it governed
Three features of the system, over and above the intellectual ones, and the July 2026 question expects them.
Arbitrariness. Offences were not defined in advance in any comprehensive way and judges had a wide discretion to declare conduct criminal and to fix the penalty. The same conduct produced different outcomes in different courts.
The Pre-Classical School
Inequality. Rank determined the court, the procedure and the punishment.
Savagery. Capital punishment for a very wide range of offences including minor thefts, corporal punishment, mutilation and public execution as a spectacle.
Together these produced a system that was cruel without being effective. Where the penalty for a small theft is death, juries acquit and prosecutors do not prosecute, so the certainty of any punishment falls even as its severity rises. That observation is the hinge on which the Classical School turns.
A worked example
Two men in 1730 are convicted of the same theft in two different jurisdictions.
The first is sentenced to death, because the statute in that place makes the offence capital and the judge exercises no discretion.
The second is discharged, because the prosecutor deliberately valued the goods at less than the sum that makes the offence capital, and the jury accepted the valuation.
What has happened? The severity of the penalty has produced its own evasion. Everybody in the system, the prosecutor, the jury and often the judge, works around a punishment they think excessive, and the result is that the offence is punished erratically or not at all.
And the criminological conclusion, which Beccaria drew, is that severity buys nothing. What deters is the near-certainty of a moderate punishment following swiftly upon the act. A student who can state that conclusion and show where it comes from has understood the entire transition from the Pre-Classical to the Classical School.
What beginners get wrong
Do not confuse the Pre-Classical School with the ancient world generally. Greek philosophy and the Arthashastra both contain naturalistic explanations. The Pre-Classical label describes the dominant European position in the medieval and early modern period, not everything that came before 1764.
Do not present it only as ignorance. It was a coherent system that produced verdicts, commanded belief and functioned for centuries. Understanding why it worked as an institution is more interesting than noting that it was false as a theory.
And do not skip it. MU has asked for the evolution "from the Pre-Classical School", so an answer that begins at Beccaria has begun one stage late.
Quick revision
The Pre-Classical or demonological school dominated until the middle of the eighteenth century.
Four propositions: crime is caused by supernatural agency; the offender is therefore not a subject for study; guilt is found by ordeal, battle and compurgation; punishment expels evil and appeases the offended order.
The system it governed was arbitrary, unequal by rank, and savage, with capital punishment for a very wide range of offences.
Severity produced evasion: prosecutors undervalued goods and juries acquitted, so certainty of punishment fell as severity rose.
Every Classical claim is a denial of one of the four propositions, which is why the school must be stated before Beccaria.
The Pre-Classical School
Test yourself
1. State the four propositions of the Pre-Classical School. That crime is caused by supernatural agency, whether possession or demonic influence; that the offender is consequently not a subject for rational study; that guilt is ascertained by supernatural means, through ordeal, trial by battle and compurgation; and that punishment serves to expel the evil and appease the offended supernatural order, which explains its public and ritual character.
2. Why did the severity of pre-classical punishment reduce rather than increase its effect? Because everyone in the system evaded it. Prosecutors declined to prosecute, undervalued stolen goods to bring the offence below a capital threshold, and juries acquitted against the evidence, so the probability of any punishment at all fell. Beccaria's conclusion, that certainty and swiftness deter far more than severity, is drawn directly from this.
3. Why is it misleading to call the Pre-Classical body of thought a school? Because it has no founder, no defining text and no method, and its content is a set of assumptions rather than an argued position. It is best described as the state of thinking against which the Classical School defined itself, and its propositions matter chiefly because each Classical claim is a denial of one of them.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Classical School holds that a person offends because he chooses to, having weighed the pleasure of the offence against the pain of the punishment, so the law should fix offences and punishments in advance and make punishment certain, swift and just severe enough to outweigh the gain.
In the wording a student can write in an exam: the Classical School was founded by Cesare Beccaria with Dei Delitti e Delle Pene, On Crimes and Punishments, published in 1764; it rests on free will, on hedonism, and on the social contract, and it studies the offence rather than the offender.
Beccaria and his book
Cesare Bonesana, Marquis of Beccaria, was a young Milanese nobleman who published On Crimes and Punishments anonymously in 1764. It is a short book, it is polemical rather than academic, and it changed the criminal law of Europe within a generation. Its influence on the penal codes of France, of the Habsburg lands and of the American states is direct and documented, and through the English utilitarians it reaches Indian criminal law.
Its premise is the social contract. Individuals surrender the smallest possible portion of their liberty to the sovereign so that the rest may be enjoyed in security. The sum of those small portions is the right to punish, and it follows immediately that any punishment beyond what is necessary to preserve that security is not justice but an abuse.
The propositions
Learn these as a numbered list. They are what an answer is marked on.
Free will. Every person is a rational being who chooses his conduct. The offender is not different in kind from anyone else.
Hedonism. People pursue pleasure and avoid pain. An offence is committed because its expected pleasure exceeds its expected pain.
Punishment must therefore outweigh the gain, and no more. Punishment beyond that point is useless cruelty.
Certainty, swiftness, severity, in that order. The certainty of punishment, even a moderate one, deters more than the fear of a terrible punishment that may be escaped; and the closer the punishment follows the offence, the stronger the association between the two.
Offences and punishments must be fixed in advance by law. No judge may create an offence or vary a penalty; the judge's function is to determine whether the accused did the act, and the penalty follows.
Equality before the law. The same offence carries the same punishment whoever commits it.
Proportion. Punishments must be graded by the harm the offence does to society, not by the sinfulness or the intention of the offender.
Publicity and speed of trial, and the presumption of innocence: a man cannot be called guilty before the judge has passed sentence.
Abolition of torture. It punishes the innocent before conviction, it tests endurance rather than truth, and it makes the outcome depend on the strength of the accused rather than on the facts.
Abolition of the death penalty in almost all cases, on two grounds: the social contract cannot have transferred a right over life that no individual has over himself, and perpetual servitude is in any event a stronger deterrent because it is prolonged and visible.
Prevention is better than punishment. Clear laws, education, and rewards for virtue.
The Classical School: Beccaria
What follows from studying the offence and not the offender
This is the point that separates a good answer from a list.
Because the Classical School treats every person as an equally rational chooser, it has no interest in the offender's biography. Age, poverty, upbringing, mental state and provocation are all irrelevant, because the calculation is assumed to be the same for everybody. The penalty is attached to the act.
That is the School's greatest strength and its fatal weakness at once. Its strength is that it makes the law certain, equal and free of the arbitrary discretion the previous chapter described. Its weakness is that it produces obvious injustice in the cases where the assumption is false, and the Neo-Classical School exists to repair it.
Criticism
The rational calculator is a fiction. Much offending is impulsive, intoxicated, angry or desperate, and no calculation of any kind takes place.
It ignores capacity. A child of eight and an adult are not equally able to weigh consequences, and treating them alike is not equality.
It ignores causes. By assuming free will as a premise it excludes the entire question of why some people choose crime and others do not, which is the question the Positive School was formed to ask.
Its proportion is measured by harm alone. Two people who cause the same harm with wholly different states of mind are treated identically, which offends the ordinary sense of desert.
And in practice its rigidity broke down. Fixed penalties with no discretion produced results so harsh that juries refused to convict, which is the same evasion the Pre-Classical severity had produced.
A worked example
Two men each take a bicycle worth eight thousand rupees.
Bhaskar is twenty-six, employed, and takes it because he calculates that the chance of detection is low.
Chandu is thirteen, is illiterate, and takes it at the direction of an older man who has been feeding him.
On strict Classical principles the two are treated identically. The harm is the same, the offence is the same, the penalty is fixed by law, and the judge has no power to distinguish. Chandu's age and circumstances are simply not part of the enquiry.
The Classical School: Beccaria
Is that just? Nobody now thinks so, and that reaction is the origin of the Neo-Classical School. But notice what the Classical position buys. Neither man can be sentenced more heavily because he is poor, or because the judge dislikes him, or because the victim is influential. The gains of certainty and equality are real and they are the gains an Indian accused still relies on.
Now apply proposition four. If the chance of detection for bicycle theft in that locality is one in fifty, then no increase in the sentence will affect Bhaskar's calculation much, while a visible increase in the chance of being caught will affect it a great deal. That is Beccaria's central practical claim, it is testable, and modern research supports it.
Quick revision
Cesare Beccaria, On Crimes and Punishments, 1764. Premise: the social contract, under which each surrenders the smallest portion of liberty, so any punishment beyond necessity is an abuse.
Free will, hedonism, and the offence rather than the offender as the object of study.
Certainty, then swiftness, then severity. A moderate certain punishment deters more than a severe uncertain one.
Offences and punishments fixed in advance; no judicial discretion; equality before the law; proportion measured by harm to society.
Publicity, speedy trial, presumption of innocence, abolition of torture, abolition of the death penalty in almost all cases, and prevention preferred to punishment.
Criticism: the rational calculator is a fiction; capacity is ignored; causes are excluded by assumption; identical harm with different states of mind is treated alike; and rigid fixed penalties produced refusals to convict.
Test yourself
1. Set out the central propositions of the Classical School. That every person has free will and is a rational chooser; that people seek pleasure and avoid pain, so an offence is committed when its expected gain exceeds its expected cost; that punishment must therefore exceed the gain and go no further; that certainty and swiftness deter more than severity; that offences and punishments must be fixed in advance by law with no judicial discretion; that all are equal before the law; and that punishment is proportioned to the harm the offence does to society.
2. Why does the School study the offence rather than the offender, and what does that cost? Because it assumes every person calculates alike, so nothing about the individual can affect the analysis. The gain is certainty, equality and the elimination of arbitrary discretion. The cost is that age, capacity, mental state, provocation and circumstance are all excluded, which produces manifest injustice in exactly the cases where the assumption of equal rational capacity is false.
3. State Beccaria's argument against torture and against the death penalty. Torture punishes a man before he is convicted, and it measures endurance rather than truth, so the strong guilty man escapes while the weak innocent one confesses. The death penalty exceeds the sovereign's authority, because the social contract cannot have transferred a right over life that no individual holds over himself, and it is in any event less deterrent than perpetual servitude, whose effect is prolonged and continuously visible.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Bentham turned Beccaria's principles into an engineering problem: measure the pleasure of the offence, calculate the pain needed to outweigh it, and inflict exactly that much and no more.
In the wording a student can write in an exam: Jeremy Bentham founded utilitarianism on the principle that the object of all legislation is the greatest happiness of the greatest number; his felicific calculus measures pleasures and pains by intensity, duration, certainty, propinquity, fecundity, purity and extent; and his rules of punishment require that the mischief of the punishment always exceed the profit of the offence.
The principle
Bentham's starting point is a psychological claim and a moral one in the same sentence. Nature has placed mankind under the governance of two sovereign masters, pain and pleasure; they determine what we shall do and they point out what we ought to do. Conduct is right in proportion as it tends to produce happiness.
From this, punishment is a problem in arithmetic. Punishment is itself an evil, because it inflicts pain. It is justified only where it excludes some greater evil. It follows that punishment ought not to be inflicted where it is groundless, where there is no mischief to prevent; where it is inefficacious, where it cannot act on the will, as with an infant or a person who did not know the law was broken; where it is unprofitable, where the harm of the punishment exceeds the harm of the offence; or where it is needless, where the mischief can be prevented at a cheaper rate.
Those four categories are worth memorising. They are still the sharpest test available for asking whether a criminal prohibition is worth having, and they map exactly onto the tests for criminalisation set out earlier in this book.
The felicific calculus
Bentham's attempt to make the measurement precise. A pleasure or pain is valued by seven dimensions:
Intensity, how strong it is.
Duration, how long it lasts.
Certainty, how likely it is to follow.
Propinquity, how soon it follows.
Fecundity, its tendency to be followed by more of the same kind.
Purity, its tendency not to be followed by the opposite kind.
Extent, the number of persons affected.
Applied to punishment, dimensions three and four restate Beccaria's certainty and swiftness in a formal frame, and that is the connection an answer should make.
The rules of proportion
Bentham derived thirteen rules; four are enough for an examination.
The value of the punishment must not be less than what is sufficient to outweigh the profit of the offence. If it is, the offence is worth committing.
The greater the mischief of the offence, the greater the expense it is worth incurring by way of punishment.
Bentham and the Utilitarian Calculus
Where two offences come in competition, the punishment for the greater must be sufficient to induce a man to prefer the less. A famous and practical rule: if robbery and murder carry the same penalty, the robber has no reason to spare his victim.
The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules above.
The influence on Indian law
This is the paragraph that makes the chapter more than a European history lesson.
The Indian Penal Code 1860 was drafted by a commission under Thomas Babington Macaulay, who was a utilitarian and worked in close intellectual contact with Bentham's followers. Three features of the Code are directly Benthamite.
Codification itself. Bentham coined the word and campaigned for the replacement of judge-made law by a complete written code, so that every subject could know the law in advance. The Penal Code was the largest realisation of that programme anywhere in the world.
Definition and illustration. The Code defines each offence and then illustrates it, which is Bentham's method for making a law intelligible to those who must obey it.
Graded punishment. Offences are arranged with maxima that rise with the harm done, which is the second and third rules of proportion applied.
The Bharatiya Nyaya Sanhita 2023 carries all three features forward, so the structure an Indian student meets today is still recognisably the utilitarian one.
Criticism
Pleasure and pain cannot actually be measured. The calculus is a metaphor dressed as arithmetic, and no one has ever applied it numerically.
It permits punishing the innocent. If the aggregate happiness would be increased by convicting a person known to be innocent, the theory as stated supplies no objection. This is the standard and serious charge, and the usual reply, that a practice of convicting the innocent would in the long run reduce happiness, is a reply about rules rather than about acts.
It ignores desert. A theory that looks only forward to consequences cannot explain why a punishment should be limited by what the offender deserves.
And the panopticon. Bentham's design for a prison in which every inmate can be observed at all times without knowing when he is watched is his most famous practical proposal, and it has become the standard image of surveillance as a form of power. It shows the direction in which a purely utilitarian penology runs when nothing limits it.
A worked example
A city has a problem with ticketless travel on suburban trains. The fare is thirty rupees, the chance of being checked is one in forty, and the present penalty is a fine of five hundred rupees.
Bentham and the Utilitarian Calculus
Apply the first rule of proportion. The expected cost of travelling ticketless is one fortieth of five hundred, which is twelve rupees and fifty paise, against a saving of thirty. The punishment is less than sufficient to outweigh the profit, so on Bentham's analysis the offence is worth committing and the rational traveller commits it.
Two ways to fix it. Raise the penalty to above one thousand two hundred rupees, or raise the chance of being checked. Bentham's own preference, and Beccaria's, is the second, because certainty acts on the will more reliably than a distant possibility of a large fine, and because a very large fine on a poor traveller is unprofitable punishment in his sense: it does more harm than the offence.
Now apply the competition rule. Suppose the penalty for ticketless travel were the same as for assaulting a ticket examiner. A traveller caught without a ticket would then have nothing to lose by assaulting the examiner and running. The rule requires that the graver offence carry the heavier penalty precisely so that the offender is given a reason to stop at the lesser.
And apply the four categories. Is the punishment groundless? No, there is a real loss. Inefficacious? No. Unprofitable? A fine of five thousand rupees on a daily wage earner would be. Needless? Partly: automated fare gates prevent the mischief at a cheaper rate, and Bentham would prefer them to any penalty.
Quick revision
Jeremy Bentham: the greatest happiness of the greatest number; punishment is itself an evil and is justified only to exclude a greater evil.
Punishment must not be inflicted where it is groundless, inefficacious, unprofitable or needless.
The felicific calculus: intensity, duration, certainty, propinquity, fecundity, purity, extent.
Rules of proportion: punishment must outweigh the profit of the offence; greater mischief warrants greater expense; the graver of two competing offences must carry the heavier penalty so the offender prefers the lesser; and punishment must never exceed necessity.
Indian influence: codification, definition with illustrations, and graded maxima, all carried into the Sanhita.
Criticism: pleasure and pain are not measurable; the theory as stated permits punishing the innocent; it has no place for desert; and the panopticon shows where an unlimited utilitarian penology leads.
Test yourself
1. State Bentham's four cases in which punishment ought not to be inflicted. Where it is groundless, there being no mischief to prevent; where it is inefficacious, because it cannot act on the will, as with an infant or a person who could not have known; where it is unprofitable, because the pain of the punishment exceeds the harm of the offence; and where it is needless, because the mischief can be prevented at a cheaper rate by other means.
Bentham and the Utilitarian Calculus
2. What is the competition rule and why does it matter? That where two offences come into competition the punishment for the greater must be sufficient to induce the offender to prefer the lesser. It matters because a penal scheme that punishes robbery and murder alike gives the robber no reason to spare his victim, so the grading of maxima is not merely a matter of desert but a device for limiting harm.
3. Name three features of Indian penal legislation that are directly Benthamite. Codification itself, the replacement of judge-made criminal law by a complete written code knowable in advance; the technique of defining each offence and following the definition with illustrations; and the arrangement of offences with maximum punishments graded by the harm caused. All three survive in the Bharatiya Nyaya Sanhita 2023.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Classical School's great achievement, treating every offender as an identical rational chooser, is also the source of every objection to it, because people are not identical and much offending involves no choice worth the name.
In the wording a student can write in an exam: the criticism of the Classical School falls under five heads: the fiction of the rational calculator; the neglect of individual capacity; the exclusion of causes by assumption; proportion measured by harm alone; and the practical breakdown of fixed penalties administered without discretion.
The five criticisms
One: the rational calculator does not exist. The premise is that an offender weighs expected gain against expected pain. A great deal of offending is impulsive, committed in anger, under intoxication, or in a state of desperation, and no weighing occurs at all. Even where a calculation happens, the offender's information is poor: almost nobody knows the maximum sentence for what he is about to do, and almost everybody underestimates the chance of being caught. A theory built on a calculation that is not performed and could not be performed accurately explains less than it claims.
Two: it ignores capacity. Treating a child of nine, an adult of ordinary understanding and a person in a psychotic episode as equal choosers is formal equality producing substantive injustice. The Classical School has no room for the general exceptions that every modern penal code contains, and the fact that all of them do contain such exceptions is the measure of the objection.
Three: it excludes the question of causes. If free will is the premise, then asking why one person chooses crime and another does not is not merely unanswered but inadmissible. This is what the Positive School attacked, and it is the strongest objection intellectually, because a school that forbids the central question of the discipline cannot be the discipline's foundation.
Four: proportion by harm alone is too crude. Two people cause the same injury, one intending it and one by inadvertence. The Classical scheme punishes them alike because the harm is the measure. Every legal system has found that intolerable, which is why grading by mental state is universal.
Five: rigid fixed penalties broke down in practice. Where the judge has no discretion and the penalty is severe, the actors in the system evade it. Prosecutors decline to prosecute, witnesses do not come, and juries acquit against the evidence. Certainty, which the School valued above all, is destroyed by the very rigidity meant to secure it.
What survived
An answer that lists only the criticisms has misrepresented the subject. The Classical School's practical legacy is larger than that of any other school in this paper, and almost all of it is now constitutional.
The Classical School Criticised
Legality. No offence and no punishment except by law, and no retrospective offence. In India this is Article 20(1).
Certainty and publicity. Offences defined in advance, trials in open court.
Equality before the law. Article 14, and the abolition of punishment graded by rank.
Presumption of innocence and the abolition of torture. Articles 20(3), 21 and 22, and the exclusion of confessions made to police officers.
Proportionality. The requirement that a sentence bear a rational relation to the offence.
And the deterrence research programme. The claim that certainty and swiftness deter more than severity is Beccaria's, it is testable, and it has been tested many times with results that support him. It is arguably the best established finding in the whole of criminology, and it originates in the school this chapter is criticising.
A worked example
A State legislature responds to a series of acid attacks by prescribing a mandatory minimum of ten years with no judicial discretion.
The Classical case for the amendment. The penalty is fixed in advance, it is equal for all offenders, it is proportioned to a grave harm, and it removes the arbitrary discretion of the judge. Every one of these is a Classical virtue.
The five criticisms applied. Does an attacker in a rage calculate ten years against five? Almost certainly not, and the impulsive character of these offences is well documented. Does the fixed minimum accommodate the very different cases that will arise, including a person of borderline capacity or a minor participant who handed over a container? It does not. Does it address why these attacks happen, or the availability of the acid? It does not even ask. And what will the actors do when a case arises where ten years seems excessive? They will find a way around it, by charging a lesser offence or by acquitting, which is criticism five in operation.
The criminological advice. Regulate the retail sale of the acid, which raises the difficulty of the offence directly, and improve the speed and certainty of prosecution. That advice is itself Classical, drawn from Beccaria's own preference for prevention over punishment, and it shows that the School's better arguments survive its weaker ones.
Quick revision
Five criticisms: the rational calculator is a fiction; individual capacity is ignored; causes are excluded by the premise of free will; proportion by harm alone ignores the mental element; and rigid fixed penalties are evaded by the actors in the system, destroying the certainty they were meant to secure.
What survived: legality and non-retrospectivity; certainty and publicity; equality before the law; presumption of innocence and the abolition of torture; proportionality of sentence; and the empirically supported claim that certainty and swiftness deter more than severity.
The criticisms produced the Neo-Classical School, which is the Classical scheme with capacity and circumstance let back in.
The Classical School Criticised
Test yourself
1. Give the five criticisms of the Classical School. The rational calculating offender is a fiction, since much offending is impulsive or intoxicated and offenders' information about penalties and detection risk is poor; individual capacity is ignored, so children and the mentally disordered are treated as equal choosers; the premise of free will excludes the question of causes altogether; proportion measured by harm alone cannot distinguish intention from inadvertence; and fixed penalties without discretion are evaded by prosecutors, witnesses and juries, which destroys certainty.
2. Name four Classical principles that are now Indian constitutional guarantees. Legality and the bar on retrospective criminal law under Article 20(1); equality before the law under Article 14; the privilege against self-incrimination under Article 20(3), with the abolition of torture and the exclusion of confessions to police officers; and the fair, just and reasonable procedure required by Article 21, which carries publicity of trial and the presumption of innocence.
3. Why is criticism three the most serious intellectually? Because it goes to whether the school can found a discipline at all. If free will is assumed, the question why one person offends and another does not becomes inadmissible rather than merely unanswered, and that question is the central subject matter of criminology. A foundation that forbids the discipline's principal enquiry cannot be its foundation, which is why the Positive School displaced it.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Neo-Classical School kept the Classical framework of fixed offences and proportionate punishment but admitted that not everyone chooses equally, so it let capacity, circumstance and mitigation back into the law.
In the wording a student can write in an exam: the Neo-Classical School arose in the early nineteenth century as a modification of the Classical position; it accepted free will as the general rule but admitted exemptions and mitigations for children, the insane, and those acting under compulsion or provocation, and it restored judicial discretion in sentencing so that the punishment could fit the offender as well as the offence.
What it changed
Four modifications, and the fourth is the one students omit.
One: exemption for incapacity. Children below a fixed age and persons of unsound mind are not treated as choosers at all. This is the origin of the general exceptions in every modern penal code, and in the Bharatiya Nyaya Sanhita it is sections 20, 21 and 22: nothing is an offence done by a child under seven; nothing is an offence done by a child of seven to twelve without sufficient maturity of understanding on that occasion; and nothing is an offence done by a person who by reason of unsoundness of mind is incapable of knowing the nature of the act or that it is wrong or contrary to law.
Two: mitigation for circumstance. Provocation, compulsion, duress and intoxication are admitted as matters that reduce responsibility without necessarily removing it. Section 23 of the Sanhita deals with involuntary intoxication; grave and sudden provocation reduces murder to culpable homicide.
Three: the return of judicial discretion. If circumstances matter, someone must weigh them, so the judge is given a range rather than a fixed penalty. This single change is why an Indian judge chooses between three years and seven rather than reading a number off a table.
Four: the admission of expert evidence about the offender. Once the offender's mental state is relevant, medical and later psychiatric opinion must be received. This is the doorway through which the Positive School's material eventually entered the courtroom, and it is why the Neo-Classical School is properly described as a bridge rather than as a compromise.
What it kept
Free will as the general rule. The exemptions are exceptions; the ordinary adult is still presumed to choose.
Offences and punishments defined in advance. The discretion is a range fixed by law, not a licence.
Equality, subject to the admitted exceptions.
Proportion, now measured by harm and by culpability together rather than by harm alone.
Why it matters more than either neighbour
Because it is the law. No modern criminal code is Classical in the strict sense and none is Positivist; every one of them is Neo-Classical. The Indian scheme is the standard illustration: offences and maxima fixed by statute, general exceptions for incapacity, mitigation for circumstance, and a judicial discretion within the statutory range, exercised on evidence about the offender.
The Neo-Classical School
Say that in an answer. The examiner is looking for the recognition that the Neo-Classical School is not a historical stage that passed but the framework of the criminal law an Indian student is being trained to practise in.
Criticism
It is a compromise without a principle. If free will is real, why do circumstances reduce responsibility? If it is not, why is anybody punished at all? The School never answers, and its concessions are made case by case rather than derived.
Discretion returns the arbitrariness the Classical School removed. Two judges facing identical facts pass different sentences, and Indian sentencing has been criticised for exactly this, since the statute usually supplies a range and no guidance for choosing within it.
Its test of insanity is out of date. The cognitive test in section 22 asks only whether the accused knew the nature of the act or that it was wrong. Psychiatry has held for well over a century that the disorders that most impair a person's control over his conduct commonly leave knowledge intact, so the section excuses the wrong group.
And its mitigations are unevenly available. Provocation, duress and circumstance are argued far more effectively by an accused with competent counsel, so a doctrine designed to individualise justice can in practice widen the gap between the represented and the unrepresented.
A worked example
Three accused are convicted of causing grievous hurt in the same incident.
Ganesh is thirty, struck the first blow, and has two previous convictions.
Hemant is nineteen, joined in after the fight began, and has no record.
Ismail is thirty-four and has a documented history of a psychotic illness, though the evidence establishes that at the time he knew what he was doing and knew it was wrong.
On strict Classical principles all three receive the same fixed penalty, because the harm and the offence are the same.
On Neo-Classical principles, which is Indian law, the judge has a range. Ganesh's leading role and previous convictions aggravate. Hemant's age and absence of record mitigate. Ismail's illness does not exempt him under section 22, because that section requires incapacity of knowing the nature of the act or that it is wrong, and he had that knowledge; but it is plainly relevant to sentence, and the modern sentencing case law dealt with later in this book requires the court to have psychiatric material before it.
Notice the two lessons. First, the same statutory provision produces three different sentences, which is the Neo-Classical achievement. Second, Ismail's case shows the criticism: a man whose illness contributed materially to the offence gets nothing at the stage of liability, because the test is cognitive, and is left to the mercy of a discretion at the stage of sentence.
The Neo-Classical School
Quick revision
The Neo-Classical School modifies rather than replaces the Classical position: free will as the general rule, with exemptions and mitigations.
Four changes: exemption for incapacity; mitigation for circumstance such as provocation, duress and involuntary intoxication; the return of judicial discretion within a statutory range; and the admission of expert evidence about the offender.
Four retentions: free will as the rule; offences and punishments fixed in advance; equality subject to the exceptions; and proportion, now by harm and culpability together.
In the Sanhita: sections 20, 21, 22 and 23 are the exemptions, and the range between minimum and maximum is the discretion.
Every modern penal code, India's included, is Neo-Classical. That is the point of the topic.
Criticism: a compromise without a principle; discretion reintroduces arbitrariness; the cognitive insanity test excuses the wrong group; and mitigations favour the well represented.
Test yourself
1. State the four modifications the Neo-Classical School made to the Classical scheme. Exemption from liability for those lacking capacity, principally children and the insane; mitigation of responsibility for circumstances such as provocation, duress and involuntary intoxication; the restoration of judicial discretion in sentencing within a statutory range; and the admission of medical and psychiatric evidence about the offender, which the Classical scheme had made irrelevant.
2. Why is it accurate to say that Indian criminal law is Neo-Classical? Because it combines both halves. Offences and maximum punishments are fixed in advance by statute and apply equally, which is Classical; and the general exceptions in sections 20 to 23 of the Sanhita, the mitigating doctrines such as grave and sudden provocation, and the judicial discretion exercised within the statutory range on evidence about the offender, are the Neo-Classical modifications.
3. What is the standing criticism of the insanity test the School produced? That it is purely cognitive. Section 22 excuses only a person incapable, by reason of unsoundness of mind, of knowing the nature of the act or that it was wrong or contrary to law. Psychiatry has long held that the conditions which most impair a person's control over his conduct frequently leave that knowledge intact, so the test excuses a narrow group and excludes many whose illness genuinely caused the offence.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Cartographic School was the first to study crime by counting it, and its discovery was that crime rates are stable, patterned by place and season, and therefore a property of society rather than of individual wickedness.
In the wording a student can write in an exam: the Cartographic School, also called the geographical, statistical or ecological school, was founded in the 1830s by Andre-Michel Guerry in France and Adolphe Quetelet in Belgium; it mapped crime against region, season, age, sex, education and poverty, and it established that the volume of crime in a society is remarkably constant from year to year.
What they did
France began publishing national judicial statistics in 1827, and for the first time it was possible to count crime rather than to speculate about it. Two men took the opportunity.
Andre-Michel Guerry, a lawyer, published in 1833 a statistical study of the moral condition of France, in which he shaded maps of the departments by their rates of crime against the person, crime against property, literacy, illegitimacy and charitable giving. The shaded map is his invention and it is what gives the school its name.
Adolphe Quetelet, an astronomer and mathematician, did the same work with far greater statistical sophistication and drew the general conclusions. His idea of the average man, a statistical construct around which real individuals are distributed, is the foundation of the modern treatment of social data.
The findings
Five, and they are the substance of any answer.
One: crime is regular. Quetelet's most quoted observation is that society prepares the crime and the guilty person is only the instrument. What he meant is precisely measurable: the number of murders, of thefts, and even of murders by particular means, varied so little from year to year that the total could be predicted in advance with an accuracy comparable to that of a death rate. A phenomenon that regular cannot be explained by the free choices of unconnected individuals.
Two: crime varies by place. Crimes against the person were concentrated in the poorer, warmer and more rural southern departments; crimes against property in the wealthier, colder and more industrial north. This is the origin of every later geography of crime.
Three: crime varies by season. Offences against the person peak in the summer and offences against property in the winter, which came to be called the thermic law of delinquency. The explanation offered was partly physiological and partly social: heat raises tempers and lengthens the hours people spend outdoors together, while winter raises need and lengthens the hours of darkness.
Four: crime varies by age and sex, and does so consistently. Quetelet found offending rising in adolescence, peaking in the early twenties and declining thereafter, and found men offending far more than women. Both findings have been reproduced in every country in which they have been looked for since, and they are the most durable results in criminology.
The Cartographic School
Five, and the surprising one: crime was not simply highest where poverty was greatest. Guerry found some of the poorest departments among the most law-abiding. What he pointed to instead was inequality, wealth and poverty next to each other, which produces opportunity and resentment together. This finding is a century ahead of its time and it should be given prominence in an answer, because it is what distinguishes a good one.
The importance of the school
It made criminology empirical. Before Guerry and Quetelet the subject consisted of assertions. After them it consisted of numbers that could be checked, and the discipline's claim to be a science, discussed in its own chapter, begins here rather than with Lombroso.
It shifted the unit of explanation from the individual to society. If the rate is constant while the individuals change every year, then the explanation must lie in the conditions rather than in the persons, which is the founding premise of all sociological criminology.
It anticipated the ecological tradition. Mapping crime onto areas is what the Chicago School did a century later at the scale of a city.
And it created social statistics as a field, which is a contribution beyond criminology.
Criticism
It rests on official statistics. Everything in the chapter on the dark figure applies, and the school's founders had no way of knowing what proportion of offending they were seeing.
It describes without explaining. A correlation between a department's climate and its assault rate does not tell you the mechanism, and the school's own attempts, the thermic law in particular, were physiological guesswork.
It works at too coarse a level. A department is a large unit and averaging across it hides everything that varies within it. The Chicago School's advance was to work at the level of the neighbourhood.
And its determinism was overstated. The claim that society prepares the crime, taken literally, leaves no room for responsibility at all, and it was resisted for that reason.
Cartographic against Chicago: the distinction to get right
Cartographic School
Chicago School
When
1830s, France and Belgium
1920s and 1930s, United States
Unit
Whole regions or departments
Zones and neighbourhoods within one city
Data
National judicial statistics
Juvenile court records, mapped street by street, with fieldwork
Explanation offered
Correlation with climate, season, wealth, literacy
Social disorganisation and cultural transmission
Founders
Guerry and Quetelet
Park, Burgess, Shaw and McKay
Both are ecological. The Cartographic School found the pattern; the Chicago School explained it.
The Cartographic School
A worked example
Consider two districts of Maharashtra. District A is prosperous, urban and industrial. District B is poor, rural and agricultural.
The Cartographic prediction. District A shows the higher rate of property offences and the lower rate of offences against the person; District B the reverse. Both show a summer peak in assaults and a winter peak in theft.
Test it and one further finding appears. Within District A the highest rates are not in the poorest ward but in the ward where an expensive commercial area adjoins a low-income settlement. That is Guerry's finding about inequality rather than poverty, and it has a modern name, the theory of relative deprivation.
What the school can and cannot tell you. It can tell the police where and when to concentrate, which is the whole basis of hot spot policing and is worth a great deal. It cannot tell you why the man who committed a particular burglary did so, and it was never designed to.
Quick revision
Cartographic, geographical, statistical or ecological school, 1830s. Guerry, whose shaded maps of French departments give the school its name, and Quetelet, who supplied the statistics and the theory.
Founded on the French national judicial statistics published from 1827.
Findings: crime rates are remarkably constant year to year, so society prepares the crime; crime against the person is concentrated in the poorer warmer south and crime against property in the richer colder north; the thermic law, with assaults peaking in summer and property offences in winter; offending peaks in the early twenties and men offend far more than women; and inequality rather than poverty alone predicts property crime.
Importance: made criminology empirical, shifted explanation from the individual to society, anticipated the ecological tradition, and founded social statistics.
Criticism: depends on official statistics and so on the dark figure; describes rather than explains; works at too coarse a unit; and its determinism leaves no room for responsibility.
Not the Chicago School: that is a century later, works at neighbourhood level, and supplies the explanation this school lacked.
Test yourself
1. Who founded the Cartographic School and on what material? Andre-Michel Guerry in France and Adolphe Quetelet in Belgium, in the 1830s, working on the national judicial statistics that France began publishing in 1827. Guerry's shaded maps of the French departments, comparing crime with literacy, wealth and other social measures, give the school its name.
2. State the school's five principal findings. That crime rates are strikingly constant from year to year, so that society may be said to prepare the crime; that crimes against the person and against property are differently distributed geographically, the first in the poorer warmer regions and the second in the richer colder ones; that offences follow a seasonal pattern, assaults peaking in summer and property offences in winter, called the thermic law; that offending peaks in early adulthood and is far higher among men; and that inequality rather than absolute poverty predicts property crime.
The Cartographic School
3. Distinguish the Cartographic from the Chicago School. The Cartographic School worked in the 1830s on national judicial statistics at the level of whole departments and established the existence of stable geographical and seasonal patterns without explaining them. The Chicago School worked in the 1920s and 1930s within a single city at the level of zones and neighbourhoods, using juvenile court records and fieldwork, and supplied the explanation, social disorganisation and the cultural transmission of delinquent traditions.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Socialist School explains crime by the economic structure of society, holding that a system built on competition and private accumulation produces both the need and the greed that offending expresses.
In the wording a student can write in an exam: the Socialist School, also called the Marxist or economic school, derives from Karl Marx and Friedrich Engels and was given its fullest criminological form by Willem Bonger in Criminality and Economic Conditions, 1916; it holds that criminal conduct is the product of the economic organisation of society, and specifically of the egoism that a competitive economy fosters in every class.
The argument
Take it in four steps, because a bare assertion that poverty causes crime is not this school and will be marked down.
Step one: the economic structure shapes everything else. Law, morality and the ideas people hold about right and wrong are not independent; they arise from the way production is organised and they tend to serve those who own the means of production.
Step two: capitalism produces egoism. This is Bonger's central and most careful claim, and it is what distinguishes him from a crude poverty theory. A system in which people meet as competitors for exchange, rather than as members of a community producing for use, weakens the altruistic feelings that restrain conduct and strengthens the egoistic ones. Egoism is thus a general condition of the society, not a defect of the poor.
Step three: therefore both classes offend, in their own ways. The poor offend from need, and also from the demoralisation, insecurity and ignorance that poverty brings. The rich offend from greed, using the opportunities their positions supply, and their offending, being committed through business and office rather than through force, is less likely to be defined as crime or prosecuted as such. This step is essential and it is the one students omit.
Step four: the criminal law reflects the interests of the propertied. Which harms are made criminal, how severely they are punished, and whom the police watch are not neutral. Theft of a small sum is heavily policed; the appropriation of a much larger sum through a fraudulent transaction is not.
Marx and Engels themselves
Neither wrote a systematic criminology and an accurate answer says so.
Engels, in his study of the condition of the working class in England in 1845, described crime as the earliest, crudest and least fruitful form of rebellion by the working class against its conditions, an individual protest that could not succeed because it was individual.
Marx wrote about crime chiefly in passing, but two ideas of his are used constantly in this literature. The first is the reserve army of labour, the pool of unemployed that a capitalist economy maintains and from which what he called the lumpenproletariat, the demoralised stratum below the working class, is drawn. The second is his ironic passage on the criminal as a productive worker, who produces the whole apparatus of police, courts, prisons and criminal law, together with the professors who write about crime. It is satire, but it makes a serious point about the criminal justice system as an industry with an interest in its own subject matter.
The Socialist School
Bonger
Willem Bonger, a Dutch scholar, wrote the school's one systematic work.
His method was empirical, not merely theoretical: he assembled statistics on the relation between economic conditions and offending across several countries.
His conclusion was that the cause is not poverty as such but the egoism the economic system generates, which is why he expected and found offending in every class.
He distinguished economic crimes, driven by need and by opportunity, from sexual and vengeance crimes, in which the economic structure operates less directly, through demoralisation and through the conditions of family life.
And he predicted that a society organised for use rather than for profit would generate far less crime. That prediction has not been tested in any pure form and the record of states that claimed to be socialist supplies no support for it, which is a fair point to make in the criticism.
Criticism
The prediction failed. States that abolished private ownership of the means of production did not abolish crime, and some of them produced very high rates of official violence.
It is too economic. Homicide within families, sexual offending and much violence between neighbours have no obvious economic explanation, and the school's attempts to supply one are strained.
Most poor people do not offend. Any theory that explains offending by economic position must explain the far larger number of people in that position who do not offend, and the school has no good answer.
Its account of the law is too simple. Some criminal law plainly protects the weak against the strong: factory safety legislation, food adulteration statutes, and the offences protecting women and members of scheduled castes were not enacted in the interests of the propertied.
And it is hard to falsify. If offending by the poor proves the theory and offending by the rich also proves it, then no observation can count against it, and the chapter on whether criminology is a science shows why that is a defect.
Why the school matters for the rest of this paper
Because Module III of this syllabus is unintelligible without it.
The idea that the powerful commit their own kinds of offence, that those offences cause greater harm than ordinary crime, and that the legal order nevertheless treats them more gently, is Socialist School reasoning. The Indian expression of it is the notion of privileged class deviance. Sutherland's white collar crime is the same insight expressed without the political framework, and radical criminology is the same insight developed with it.
The Socialist School
A worked example
A cooperative bank fails. Two sets of facts emerge.
The first. A clerk earning twenty thousand rupees a month has taken sixty thousand rupees from the till over a year to pay for his mother's treatment.
The second. Three directors have sanctioned loans of forty crore rupees to companies they control, on security they knew to be worthless, and the loans are irrecoverable.
The Socialist School's reading, in four moves. The clerk offends from need, which the economic system produced by leaving medical care to be bought. The directors offend from greed, using positions the same system created. The harm caused by the directors is roughly six thousand times greater. And the clerk will be arrested within a week, while the directors' case will turn on whether a commercial judgment can be shown to be dishonest, will take a decade, and may never be treated as a crime at all.
What is right about the reading. The differential is real, it is documented in every study of Indian economic offences, and the chapters on white collar crime in Module III show the mechanisms by which it happens.
What is missing. It does not explain why this clerk stole when his colleagues in identical circumstances did not, and it does not explain the directors, who were not poor and were not driven by need. For that the reader needs the causes chapters of Module II.
Quick revision
Socialist, Marxist or economic school. Marx and Engels, and Bonger's Criminality and Economic Conditions, 1916.
Engels: crime is the earliest, crudest and least fruitful form of working-class rebellion.
Marx: the reserve army of labour and the lumpenproletariat, and the ironic account of the criminal as a productive worker who sustains an entire industry.
Bonger: the cause is not poverty but the egoism a competitive economy generates in every class, so both rich and poor offend, in different ways.
The criminal law reflects the interests of the propertied in what it criminalises and in what it polices.
Criticism: the prediction that socialism would end crime failed; the theory is too economic to explain sexual and domestic violence; most poor people do not offend; some criminal law protects the weak; and the theory is close to unfalsifiable.
It is the ancestor of radical criminology and of the idea of privileged class deviance in Module III.
The Socialist School
Test yourself
1. State Bonger's central claim and say how it differs from a simple poverty theory. That the cause of crime is the egoism which a competitive economy fosters, by replacing production for use and community with exchange between competitors, and so weakening altruistic restraint. It differs from a poverty theory because egoism is a condition of the whole society, so the school predicts and explains offending by the rich as well as by the poor, whereas a poverty theory can explain only the second.
2. Give two criticisms of the Socialist School and one point in its favour. Against it: states that abolished private ownership did not abolish crime, so its central prediction failed; and it cannot explain the great majority of poor people who never offend, nor much sexual and domestic violence. In its favour: its account of differential treatment is borne out, in that the offences of the powerful are less often defined as crime, less often investigated and far less often punished, which is the finding on which the whole of Module III of this paper rests.
3. How is the school connected to the topics in Module III? Directly. The propositions that the powerful commit characteristic offences of their own, that those offences cause greater harm than ordinary crime, and that the legal order nonetheless treats them more leniently, are Socialist School propositions. Privileged class deviance is their Indian expression, Sutherland's white collar crime is the same insight without the political framework, and radical criminology is the same insight with it.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Positive School abandoned free will, insisted that offending is caused by factors that can be measured, and turned the object of study from the offence to the offender.
In the wording a student can write in an exam: the Positive School, founded in Italy in the 1870s by Cesare Lombroso, Enrico Ferri and Raffaele Garofalo, applied the methods of the natural sciences to the study of the criminal; it rests on determinism rather than free will, and its practical programme is that the response should fit the offender and his dangerousness rather than the gravity of the act.
The three propositions
One: determinism. Human conduct is caused. The offender did not choose freely; he acted as his biology, his psychology and his circumstances determined that he would. If that is right, moral responsibility in the Classical sense disappears, and with it the whole apparatus of desert.
Two: the scientific method. The way to study crime is to study criminals, by measurement, observation, comparison and classification, exactly as a biologist studies an organism. Lombroso measured skulls; the method was as important as any of his findings and it outlived them.
Three: social defence rather than punishment. If the offender did not choose, punishing him for desert makes no sense. What society may do is protect itself, and the measure taken should be proportioned not to the offence but to the dangerousness of the offender: treatment where he can be changed, indefinite detention where he cannot.
What changed as a result
The unit of study. Classical criminology studied acts and penalties. Positive criminology studies persons. Every later school in this paper, sociological, psychological and radical alike, accepts that shift even where it rejects everything else about the Positive School.
The place of the expert. If dangerousness is a fact to be established, someone must establish it, and the doctor, the psychiatrist and later the social worker enter the criminal process. The requirement that a sentencing court have psychiatric and social material before it, dealt with in the sentencing chapter of Module IV, is a Positive School idea that has taken a century and a half to arrive.
The indeterminate sentence. If the measure should last as long as the danger, its length cannot be fixed in advance. Parole, remission and preventive detention all descend from this.
And the idea of treatment. The reformative theory of punishment, which Indian sentencing law formally adopts, is Positivist in its ancestry.
The lasting difficulty
Everything the school gained, it gained by giving up the individual's protection against the State.
The Classical scheme is rigid, and its rigidity is a shield: the penalty is fixed by law in advance, it is equal, and when it is over the offender is free. The Positive scheme is flexible, and its flexibility is a danger: if the measure lasts as long as the dangerousness, and dangerousness is assessed by experts, then a person may be detained indefinitely for what he might do, on an assessment he cannot easily challenge.
The Positive School: The Turn to the Offender
That is not a hypothetical objection. Preventive detention, habitual offender legislation, and the detention of people categorised as members of criminal tribes are all Positive School logic in operation, and India has direct experience of the last of these.
So the honest position is that both schools are necessary and each restrains the other. Liability should be Classical, fixed by law, equal, and requiring proof of an act. The sentence should be Positive, informed by what is known about the offender, but bounded by a maximum the law fixes in advance. That is precisely the Neo-Classical settlement and it is what modern codes contain.
A worked example
Jayant Rao is convicted of housebreaking. He is twenty-two, has two previous convictions for the same offence, is dependent on alcohol, and was thrown out of school at eleven.
On the Classical approach the court asks what the offence is worth. Housebreaking carries a stated maximum, the harm is known, and the sentence is fixed by reference to the act.
On the Positive approach the court asks what Jayant is like and what will stop him. It calls for a psychiatric assessment, a report on his social history, and an opinion on his dependence. It then imposes a measure aimed at the dependence and at his lack of any employable skill, and reviews it when the danger has passed.
Which produces the better outcome? On these facts, plainly the second: a fixed six-month sentence will return him to the same street with the same dependence, and he will be back.
And now the danger. Suppose the assessment concludes that Jayant is unlikely ever to change. On strict Positive logic the measure should continue while the danger continues, which is indefinite detention for a housebreaker. Nothing in the theory stops it, and everything in the Classical tradition does.
The Indian compromise. He is convicted on Classical principles, and sentenced within a statutory maximum on Positive material, with the option of probation under the legislation dealt with in Module IV. Both schools are present in the same order of a Sessions Court, which is the practical answer to the question the topic asks.
Quick revision
The Positive School: Italy, 1870s. Lombroso, Ferri and Garofalo, sometimes called the Italian School or the holy three of criminology.
Three propositions: determinism, so conduct is caused rather than chosen; the scientific method, so the criminal is studied by measurement and classification; and social defence, so the response is proportioned to the offender's dangerousness rather than to the gravity of the act.
Consequences: the unit of study becomes the offender; the expert enters the criminal process; the indeterminate sentence, parole and preventive detention follow; and the reformative theory of punishment has its ancestry here.
The cost: flexibility removes the individual's protection, and indefinite detention for predicted dangerousness is the logical end of the theory.
The working answer is the Neo-Classical settlement: Classical liability, Positive sentencing, bounded by a statutory maximum.
The Positive School: The Turn to the Offender
Test yourself
1. State the three propositions of the Positive School and the practical consequence of each. Determinism, from which it follows that punishment for desert is unjustified; the scientific method applied to the offender, from which follows the entry of medical and psychiatric expertise into the criminal process; and social defence proportioned to dangerousness, from which follow the indeterminate sentence, parole and preventive detention.
2. Why is the Positive School's flexibility a danger as well as an advantage? Because a measure whose length depends on assessed dangerousness rather than on a penalty fixed by law can continue indefinitely, on an expert assessment that the individual has little means of contesting, and for conduct he has not committed. Preventive detention and habitual offender legislation are the standing examples, and the criminal tribes legislation in India was the extreme case.
3. How do the two schools coexist in an Indian sentencing order? Liability is determined on Classical principles: an offence defined in advance, applying equally, requiring proof of the act and the required mental state. Sentence is determined on Positive material: the offender's age, history, dependence, psychiatric condition and prospects, with probation available. The Positive discretion operates only within a maximum the statute fixed in advance, which is the Neo-Classical compromise.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Lombroso claimed that the serious criminal is a distinct biological type, an evolutionary throwback recognisable by physical features, and although the claim was disproved his method founded scientific criminology.
In the wording a student can write in an exam: Cesare Lombroso, an Italian army physician and professor, published L'Uomo Delinquente, The Criminal Man, in 1876; he held that the criminal is an atavistic being, a reversion to a primitive evolutionary type, identifiable by physical stigmata, and that such a person is a born criminal who offends by constitution rather than by choice.
The theory
Atavism. Lombroso's central idea. Atavism means reversion to an ancestral type. The born criminal, he said, reproduces in his person the physical and mental characteristics of primitive humanity and of the lower animals, and is therefore out of place in a civilised society whose rules he cannot follow.
The moment of the theory. Lombroso described examining the skull of a notorious brigand and finding a depression at its base, in the place where a corresponding depression is found in lower animals, and said that at that instant he saw the nature of the criminal illuminated as by a great light.
The stigmata. The physical signs by which the type could be recognised. His lists include an unusually large or small skull, a receding forehead, prominent jaws and cheekbones, large or protruding ears, an asymmetrical face, excessive length of arms, extra nipples, fingers or toes, heavy body hair, and insensitivity to pain. He added non-physical markers: tattooing, the use of a special criminal argot, idleness, vanity, cruelty and a taste for gambling.
The claim about number. In his early work he put born criminals at about one in three of all offenders and estimated the proportion of atavistic offenders in some passages as high as sixty five to seventy per cent. He reduced these figures substantially in later editions, which is a point worth making because it shows the theory changing under criticism.
His classification of offenders
The theory is not only about born criminals, and an answer that stops there is incomplete.
Born criminals. The atavistic type, incorrigible, identifiable by stigmata.
Insane criminals. Those offending through mental disorder, including idiots, imbeciles, paranoiacs and, in his terms, alcoholics and hysterics.
Criminaloids. The largest group. Persons without marked stigmata who offend under the influence of circumstance, opportunity or passion. Lombroso conceded that most offenders fell here, which is a considerable concession.
Criminals by passion. Those who offend in a state of overwhelming emotion, whom he regarded as unlike the others in kind.
And habitual criminals, made rather than born, by upbringing and by contact with other offenders.
Lombroso and the Born Criminal
What Lombroso proposed should be done
Because the born criminal offends by constitution, punishment cannot deter him, so the response must be protective rather than retributive. Lombroso favoured measures proportioned to the offender rather than to the offence: treatment for the reformable, indefinite detention for the incorrigible, and, in his later work, transportation and in extreme cases capital punishment for the irredeemably dangerous.
He also drew a conclusion that is easily overlooked and that is genuinely humane in its context: if the offender is not morally responsible, then the savagery of nineteenth-century punishment is pointless, and he argued for the abolition of much of it.
The criticism
Method. Lombroso compared prisoners and soldiers, but his procedures were loose, his categories shifted, and above all he had no adequate control group. Many of the features he called stigmata were common in the poor populations from which prisoners were drawn, and reflected malnutrition, injury and untreated illness rather than heredity.
Goring's refutation. Charles Goring, an English prison doctor, measured some three thousand English convicts against control groups including university students and soldiers, and published The English Convict in 1913. He found no physical criminal type. The differences Lombroso reported did not survive proper comparison. This is the decisive empirical answer and every good script names it.
Circularity. The stigmata were derived from a population defined as criminal by conviction, and then offered as the cause of criminality. The reasoning goes round in a circle.
Confusion of correlation with cause. Even where a physical difference existed, nothing showed which way the causation ran.
And the consequences. A theory that some people are born criminal invites the identification and detention of a class of people before they offend. It fed the eugenics movement, and in India the same logic underlay the criminal tribes legislation, under which whole communities were notified as criminal by birth. That legislation was repealed in 1952, and the communities it stigmatised are still living with its effects. Say this in an answer; it is the point at which the topic ceases to be a historical curiosity.
Why he still matters
He made criminology empirical. Whatever the quality of his measurements, he measured. He is called the father of modern criminology because he moved the subject from armchair speculation to the examination of actual offenders.
He shifted the object of study from the act to the actor, which every school since has accepted.
He generated a research programme. Goring's refutation is itself part of Lombroso's legacy, because a claim that can be refuted is a scientific claim, and the chapter on whether criminology is a science makes this point at length.
And his multi-factor turn was real. By the later editions and in the work he wrote with his son-in-law Ferrero, Lombroso had added climate, education, economic conditions, alcohol and prison contamination to his account. He ended much closer to the multiple factor position of Module II than he began.
Lombroso and the Born Criminal
A worked example
Suppose Lombroso's method were applied today in a Maharashtra prison. The researcher measures two hundred convicted prisoners and finds that a high proportion are undersized, have poor dentition, bear scars, and are illiterate.
Would that show a criminal type? No, and the reason is Goring's. Measure two hundred men of the same age drawn from the same districts and the same economic stratum who have never been convicted, and the same features will appear in similar proportions. What the prison sample records is poverty, malnutrition, manual labour and lack of medical care, all of which also predict who gets arrested, who cannot obtain bail and who cannot afford counsel.
And the circularity. The sample is defined as criminal because these men were convicted. Conviction depends on the operation of the filters described in the chapter on the dark figure, and those filters select for exactly the characteristics the researcher has measured. The finding is a description of the filter presented as a discovery about human beings.
One line captures it. Lombroso studied the prison and thought he was studying crime.
Quick revision
Cesare Lombroso, L'Uomo Delinquente, 1876. Called the father of modern criminology.
Atavism: the born criminal is an evolutionary throwback, identifiable by physical stigmata such as skull abnormalities, receding forehead, prominent jaw, large ears, facial asymmetry, long arms, excessive hair and insensitivity to pain, with tattooing and criminal argot as further markers.
Classification: born criminals, insane criminals, criminaloids, criminals by passion, and habitual criminals. Criminaloids are the largest group, which is a substantial concession.
Consequence: punishment cannot deter the born criminal, so measures should fit the offender, and much existing punishment is pointless cruelty.
Criticism: no adequate control group; Charles Goring's The English Convict, 1913, found no physical criminal type; the reasoning is circular; correlation was taken for cause; and the theory fed eugenics and, in India, the criminal tribes legislation repealed in 1952.
Legacy: an empirical method, the shift from act to actor, a falsifiable research programme, and a late move towards multiple factors.
Test yourself
1. State Lombroso's theory and name his five classes of offender. That the serious criminal is an atavistic being, a reversion to a primitive evolutionary type, recognisable by physical stigmata, who offends by constitution rather than choice. His classes are born criminals, insane criminals, criminaloids who offend under the influence of circumstance and who form the largest group, criminals by passion, and habitual criminals made by environment and association.
Lombroso and the Born Criminal
2. How was the theory disproved? By Charles Goring in The English Convict, 1913. He measured about three thousand English convicts against properly constituted control groups, including soldiers and university students, and found no physical criminal type: the differences Lombroso had reported did not survive comparison with a control. The features Lombroso called stigmata were markers of poverty, malnutrition and injury common in the populations from which prisoners were drawn.
3. Why is the theory more than a historical curiosity for an Indian student? Because the proposition that some people are criminal by birth licenses their identification and control before any offence. In India that logic produced the criminal tribes legislation, under which whole communities were notified as criminal by birth and subjected to registration and restriction; it was repealed in 1952 and the stigma it created has outlived it by generations.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Ferri added social and economic causes to Lombroso's biology and invented the idea of penal substitutes, and Garofalo tried to define crime without reference to any statute.
In the wording a student can write in an exam: Enrico Ferri, author of Criminal Sociology, held that crime is caused by anthropological, physical and social factors acting together and proposed penal substitutes, measures of social engineering that prevent crime without punishing; Raffaele Garofalo, author of Criminologia, 1885, defined natural crime as conduct offending the basic sentiments of pity and probity.
Enrico Ferri
Ferri was Lombroso's pupil, a member of the Italian parliament, and the author of the draft Italian penal code of 1921, which was never enacted but influenced legislation across Europe and South America.
His law of criminal saturation. Ferri's most quoted proposition. Just as a given volume of water at a given temperature will dissolve a fixed quantity of a chemical, so a given society in given conditions produces a fixed quantity of crime, neither more nor less. Change the conditions and the quantity changes; leave them and no amount of punishment will alter it. Compare Quetelet's finding that crime rates are constant, dealt with in the chapter on the Cartographic School: Ferri supplies a mechanism for the same observation.
The three classes of factor. This is the core of his contribution and it is where the multiple factor approach of Module II begins.
Anthropological factors, belonging to the offender: physical constitution, mental constitution, and personal circumstances such as age, sex, civil status, occupation, education and residence.
Physical factors, belonging to the environment: climate, soil, season, temperature, the length of day and night.
Social factors: population density, migration, public opinion, religion, family organisation, education, industry, alcohol, the economic and political system, and the administration of justice itself.
His classification of criminals. Born criminals; insane criminals; habitual criminals, made by environment and social conditions; occasional criminals, who offend when opportunity and weakness coincide; and criminals by passion. Note that his habitual and occasional classes are defined socially rather than biologically, which is the departure from Lombroso.
Penal substitutes. Ferri's most valuable idea and the one an Indian answer should dwell on. Since crime is produced by conditions, the way to reduce it is to change the conditions, not to increase the punishment. He proposed measures in every field: free trade to lower the price of necessities, public lighting to reduce street offences, the substitution of metal coin for paper to reduce forgery, regulation of the liquor trade, cheap housing, savings banks, better administration of justice, and marriage and divorce law reform. The particular proposals are of their time; the principle is exactly modern situational crime prevention.
Ferri and Garofalo
Raffaele Garofalo
A magistrate and professor, and the most legally minded of the three. He gave the discipline its name, in the title of his Criminologia of 1885.
Natural crime. Garofalo was troubled by the circularity that runs through this whole paper: if crime is what the law says, then criminology's subject changes whenever a legislature votes. He tried to escape it by defining crime independently of any statute. Natural crime, he said, is conduct that offends the basic moral sentiments that every civilised society shares, and he identified two: pity, the revulsion against inflicting suffering, and probity, respect for the property rights of others. Offences against pity are the violent crimes; offences against probity are the crimes of dishonesty.
Rejection of atavism. Garofalo did not accept Lombroso's physical type. He located the defect in a moral anomaly, a deficiency in the altruistic sentiments, which he regarded as psychological and inherited rather than as a physical throwback.
His classification. Murderers, in whom both pity and probity are absent; violent criminals, deficient in pity; thieves, deficient in probity; and lascivious criminals, whose offences he treated as a separate class.
Elimination. Garofalo's response to crime is the harshest of the three and it must be stated. Because the defect is a permanent deficiency in the moral sense, he argued for the elimination of those who cannot adapt: death for those wholly lacking the altruistic sentiments, transportation or long confinement for those partially lacking them, and enforced reparation for those whose offending arose from circumstance.
Criticism
Ferri's saturation law cannot be tested. It is a metaphor from chemistry, and no quantity in it can be measured, so it cannot fail.
Ferri's penal substitutes are unspecific. Almost any social improvement can be described as a penal substitute, which makes the idea powerful as a slogan and weak as a programme. Modern situational prevention is the disciplined version of it.
Garofalo's natural crime is not universal. Societies differ profoundly about which killings and which takings offend pity and probity, and his two sentiments are a description of nineteenth-century European bourgeois morality presented as a human constant.
And it excludes the offences this paper cares about most. Tax evasion, corruption, adulteration and pollution offend neither pity nor probity as Garofalo drew them, so his natural crime leaves out precisely the conduct Module III is about. That is the sharpest objection available and it should be made.
Garofalo's elimination is unacceptable, and his influence on later authoritarian penal thinking is documented.
A worked example
A city has a persistent problem of chain snatching from two-wheelers at traffic signals.
Ferri's analysis. Anthropological factors: the offenders are overwhelmingly young men, which is a constant everywhere. Physical factors: the offences cluster in the evening and in the months when people wear more gold at festivals. Social factors: the availability of a market for melted gold, the ease of escape through congested lanes, and the low probability of detection.
Ferri and Garofalo
Ferri's prescription is not a longer sentence. It is a set of penal substitutes: lighting and cameras at the identified signals, regulation of the small dealers who buy the gold, and traffic engineering that removes the escape route. Every one of those attacks a condition rather than a person, and every one is what a modern crime prevention unit would in fact propose.
Garofalo's analysis. The offence is a crime against probity, so it is natural crime and would be criminal in any society. That tells us the conduct is properly criminalised. It tells us nothing whatever about how to reduce it, which is the difference between the two men in one paragraph.
Quick revision
Enrico Ferri, Criminal Sociology. The law of criminal saturation: given conditions produce a given quantity of crime. Three classes of factor: anthropological, physical and social. Five classes of criminal: born, insane, habitual, occasional and by passion. Penal substitutes: change the conditions rather than raise the punishment.
Raffaele Garofalo, Criminologia, 1885, who gave the discipline its name. Natural crime: conduct offending the basic sentiments of pity and probity. Moral anomaly rather than physical atavism. Classification: murderers, violent criminals, thieves and lascivious criminals. Response: elimination, by death, transportation or enforced reparation.
Criticism: saturation is untestable; penal substitutes are too broad to be a programme; natural crime is not universal and excludes corruption, tax evasion, adulteration and pollution; and Garofalo's elimination is unacceptable.
Ferri's three classes of factor are the direct ancestor of the multiple factor approach in Module II.
Test yourself
1. State Ferri's law of criminal saturation and his three classes of factor. That a given society in given physical and social conditions produces a determinate quantity of crime, neither more nor less, as a solvent at a given temperature dissolves a fixed quantity of a substance. His factors are anthropological, belonging to the offender's physical and mental constitution and personal circumstances; physical, belonging to the natural environment such as climate, season and temperature; and social, covering population, migration, religion, family, education, alcohol, the economic and political order and the administration of justice.
2. What are penal substitutes and why do they matter today? Measures that prevent crime by altering the conditions that produce it rather than by punishing offenders: Ferri's own examples include public lighting, regulation of the liquor trade, cheap housing, savings banks and reform of the administration of justice. They matter because they are the ancestor of modern situational crime prevention, which is among the few approaches with a consistently demonstrated effect on crime rates.
Ferri and Garofalo
3. What is natural crime and what is the decisive objection to it? Garofalo's attempt to define crime without reference to any statute, as conduct offending the basic moral sentiments of pity, the revulsion at inflicting suffering, and probity, respect for the property of others. The decisive objection for this paper is that the definition excludes corruption, tax evasion, adulteration and pollution, which offend neither sentiment as he drew them, so it leaves out exactly the conduct that Module III of this syllabus is concerned with.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Positive School's findings were wrong, its method was defective, and its politics were dangerous, yet it created the discipline and its central move, studying the offender scientifically, has never been given up.
In the wording a student can write in an exam: the criticism of the Positive School falls under five heads: defective method, principally the absence of a control group; circular reasoning; the confusion of correlation with cause; the destruction of responsibility and with it of the individual's protection against the State; and the neglect of the social and economic determinants that the school's own sociological wing later supplied.
The five criticisms
One: method. Lombroso measured prisoners without measuring anybody else. Goring's The English Convict of 1913 supplied the control and the reported differences vanished. A study without a control group can establish nothing at all about what distinguishes one population from another, and this is the single most important methodological lesson in the whole of Module I.
Two: circularity. The characteristics said to cause criminality were derived from a group defined as criminal by conviction. Since conviction is the output of the filters described in the chapter on the dark figure, and those filters select for poverty, low education and lack of representation, the school measured the filter and reported it as a discovery about human nature.
Three: correlation taken for cause. Even where a difference is real, the school inferred a direction of causation without evidence. Prison itself alters a body: poor food, injury, tattooing and untreated illness are consequences of the life the sample had led, not causes of the offending.
Four: determinism destroys responsibility, and with it the individual's protections. If nobody chooses, nobody is to blame, and the criminal trial's central question becomes irrelevant. What replaces it is an assessment of dangerousness, and an assessment can justify detaining a person indefinitely for what he might do. Preventive detention, habitual offender legislation and the criminal tribes legislation are all this logic in operation.
Five: it neglected the social. Lombroso's early work looked inside the body for causes that were largely outside it. Ferri corrected this within the school's own lifetime by adding physical and social factors, and the sociological criminology of the twentieth century completed the correction.
Two consequences that must be stated
Eugenics. A theory that criminality is inherited leads directly to proposals to prevent the birth of criminals. Sterilisation programmes in several countries in the first half of the twentieth century rested on exactly this reasoning.
The criminal tribes legislation in India. The Criminal Tribes Act, first enacted in 1871 and extended thereafter, permitted the notification of whole communities as criminal by birth, with registration, restriction of movement and settlement in designated places. The legislation was repealed in 1952 and the communities were denotified, but the stigma has outlasted the statute by generations, and the denotified communities remain among the most heavily policed and least protected groups in the country. This is the point at which Lombroso stops being a European curiosity and becomes an Indian legal history, and an answer that makes the connection is doing postgraduate work.
The Positive School Criticised
What survived
Be careful to give this its full weight; the school is not simply a mistake.
The scientific method itself. The proposition that offending can be studied by observation and comparison rather than settled by philosophy is the school's, and it is the foundation of the discipline.
The shift from act to actor. Every school after it studies persons and conditions, not only acts.
Falsifiability. Lombroso made a claim precise enough to be tested and refuted. That is what a scientific claim is, and the chapter on whether criminology is a science relies on it.
Individualisation of the response. The idea that the sentence should be fitted to the offender is the school's, and it is now Indian law: probation, parole, remission, the requirement of a pre-sentence report and the sentencing material described in Module IV all descend from it.
The entry of the expert. Medical, psychiatric and social work evidence in the criminal process.
And the humane side. If the offender did not fully choose, then savage punishment is pointless, and the school argued against the brutality of nineteenth-century penal practice.
A worked example
A study is published claiming that a particular genetic variant is more common among violent offenders.
Apply criticism one. Was there a control group, matched for age, sex and social background? If the comparison is between prisoners and the general population, the study has established nothing.
Apply criticism two. How was the offender group defined? If it is convicted prisoners, the sample is the output of the criminal justice filter, and any characteristic that makes conviction more likely, including anything correlated with poverty, will appear to be associated with violence.
Apply criticism three. Suppose the association survives. Which way does it run, and through what mechanism? A variant associated with impulsivity might raise the risk of many behaviours, of which offending is one, and might operate only in particular environments.
Apply criticism four. Now suppose everything holds up. What follows? Nothing about any individual, because an elevated group risk does not identify a person. And the moment it is used to identify a person, the school's central danger has arrived: detention or supervision for a predicted propensity rather than for an act.
The conclusion for an examination. The Positive School's questions are still being asked, in better laboratories, and its errors are still available to be repeated. That is why the criticism is worth learning as a method rather than as a list.
The Positive School Criticised
Quick revision
Five criticisms: no control group, corrected by Goring's The English Convict, 1913; circular reasoning from a sample defined by conviction; correlation taken for cause; determinism destroying responsibility and the protections that go with it; and neglect of social and economic causes, corrected within the school by Ferri.
Consequences: the eugenics movement, and in India the criminal tribes legislation of 1871, repealed in 1952, whose stigma survives among the denotified communities.
What survived: the scientific method; the shift from act to actor; falsifiability; individualisation of the sentence, now expressed in probation, parole and pre-sentence material; the entry of medical and psychiatric expertise; and the argument against savage punishment.
Test yourself
1. Which single methodological defect does most of the damage, and how was it demonstrated? The absence of a control group. Lombroso measured prisoners without measuring a comparable non-prisoner population, so any characteristic common in the social strata from which prisoners are drawn appeared to be a characteristic of criminals. Charles Goring demonstrated it in The English Convict, 1913, by measuring about three thousand convicts against properly matched controls and finding no physical criminal type.
2. Explain the circularity objection. The stigmata were derived from a population defined as criminal by the fact of conviction, and were then offered as the cause of criminality. Because conviction is the product of a long selection process that favours the poor, the uneducated and the unrepresented, the features identified were features of that selection. The school measured the operation of the criminal justice system and reported it as a discovery about human beings.
3. What is the Indian legal consequence of the born criminal idea? The Criminal Tribes Act, first enacted in 1871, which permitted whole communities to be notified as criminal by birth and subjected to registration, restriction of movement and forced settlement. It was repealed in 1952 and the communities were denotified, but they remain heavily policed and socially stigmatised, so the effects of the legislation have long outlived the statute.
Biological and Constitutional Typologies After Lombroso
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Biological criminology did not end with Lombroso; it became a search for inherited or constitutional predispositions, and the modern position is that biology contributes to risk in interaction with environment and never determines conduct.
In the wording a student can write in an exam: after Lombroso the biological tradition continued through Goring's own hereditarian conclusions, Hooton's anthropometric survey, Sheldon's somatotypes, the family, twin and adoption studies, and the claim about the XYY chromosome; the modern position is one of biosocial interaction, in which biological factors alter susceptibility rather than cause offending.
The line of work
Goring, 1913. The man who refuted Lombroso was not an environmentalist. Having found no physical criminal type, he concluded that convicts were nonetheless slightly shorter and lighter and, more importantly to him, of lower intelligence, and he attributed criminality to inherited defective intelligence. His negative finding is sound; his positive one rests on the intelligence testing of his day and has not survived.
Hooton, 1939. An American physical anthropologist who measured some seventeen thousand people, including a large prisoner sample, and reported that criminals were organically inferior. His work was criticised at once on the same ground as Lombroso's: his control group was unrepresentative, and he assumed that the physical differences he found indicated inferiority rather than merely difference.
Sheldon, 1949. William Sheldon classified physiques into three components: the endomorph, soft and round; the mesomorph, muscular and athletic; and the ectomorph, thin and fragile. He found delinquents disproportionately mesomorphic, a result the Gluecks also reported in their own studies. The finding is real and the interpretation is disputed: a muscular build may make certain offences feasible and may lead others to expect toughness, both of which are social mechanisms rather than biological ones.
Family studies. The Jukes and the Kallikaks, two much-cited nineteenth and early twentieth-century American family histories purporting to show inherited criminality across generations. They are worthless as evidence, because a family shares its environment as completely as it shares its genes, and their chief interest now is as an illustration of how bad research supported eugenic legislation.
Twin studies. Comparing identical twins, who share their genes, with fraternal twins, who do not, on the assumption that both kinds share their environment equally. The consistent finding is higher concordance for offending among identical twins, which suggests a genetic contribution. The assumption that the two kinds of twin have equally similar environments is questionable, since identical twins are treated more alike.
Adoption studies. The stronger design. Comparing adopted children with their biological and their adoptive parents separates heredity from rearing. The Danish and other studies find the highest rate of offending among adoptees where both the biological and the adoptive parent had convictions, some contribution from the biological parent alone, and a smaller contribution from the adoptive parent alone. That pattern is the empirical basis for the interaction position.
Biological and Constitutional Typologies After Lombroso
The XYY claim. In the 1960s it was reported that men with an extra Y chromosome were over-represented in secure hospitals, and this was widely reported as the discovery of a criminal chromosome. Later work found that XYY men are somewhat taller and have somewhat lower average intelligence, that their offending is largely property rather than violent offending, and that the great majority of XYY men have no criminal record at all. The claim is now regarded as a cautionary tale about a small biased sample.
Where the science stands
Three propositions, and an answer that states them is up to date.
No gene causes crime. Crime is a legal category and cannot have a biological cause. What can be inherited is a trait, such as impulsivity or a low tolerance for frustration, which raises the probability of a range of behaviours of which some are criminal.
Interaction is the rule. The best supported findings are of gene and environment interaction: a predisposition expresses itself only in particular conditions, such as childhood maltreatment. Neither factor alone predicts much.
Physiological correlates exist and are modest. Low resting heart rate, some neuropsychological deficits, and the effects of head injury and of early lead exposure have all been associated with antisocial conduct. The associations are real, they are small, and none identifies an individual.
Why the tradition is dangerous, and how to write about it
The danger is not that biological research is done; it is what is done with it.
It individualises a social problem. If offending is in the offender's constitution, then nothing need be changed about housing, schooling, employment or policing.
It invites pre-emption. A predisposition is present before any offence, so a policy built on it must operate on people who have done nothing.
And it has a record. Sterilisation programmes, and in India the criminal tribes legislation, are what this reasoning produced when it was given legal effect.
The correct posture in an answer is neither to deny the findings nor to accept the inference. Say that the associations are modest, that they operate through interaction with environment, that they never identify an individual, and that the history of the field is a history of over-claiming.
A worked example
A newspaper reports a study finding that a variant of a gene affecting the breakdown of neurotransmitters is more common among men convicted of violent offences.
What the study can support. That among men carrying the variant, the rate of violent offending is somewhat higher than among men who do not, in the population studied.
Biological and Constitutional Typologies After Lombroso
What it cannot support. That the variant causes violence. The best known research on this variant found an effect only among men who had been severely maltreated as children; among those who had not, carriers and non-carriers offended at the same rate. The variant is a susceptibility, not a cause.
And what must not be done with it. Screening, registration or supervision of carriers. Most carriers never offend, the great majority of violent offences are committed by non-carriers, and a policy directed at the group would burden many innocent people to reach a few. That is the born criminal error, in modern equipment.
Quick revision
Goring, 1913: no physical criminal type, but he attributed offending to inherited defective intelligence.
Hooton, 1939: organic inferiority, criticised for an unrepresentative control and for equating difference with inferiority.
Sheldon, 1949: endomorph, mesomorph and ectomorph, with delinquents disproportionately mesomorphic; the interpretation is social rather than biological.
Family studies such as the Jukes and the Kallikaks confound heredity with environment and are worthless as evidence.
Twin studies show higher concordance for identical than fraternal twins; adoption studies, the stronger design, find the highest rates where both biological and adoptive parents had convictions.
The XYY claim rested on a small biased sample; most XYY men have no record and their offending is largely against property.
Modern position: no gene causes crime; heritable traits raise susceptibility; gene and environment interact; the physiological correlates are real, modest and never identify an individual.
Test yourself
1. Why are adoption studies a better design than twin studies? Because they separate heredity from rearing directly. A twin study assumes that identical and fraternal twins experience equally similar environments, which is doubtful since identical twins are treated more alike. An adoption study compares the adopted child's offending with that of biological parents who supplied the genes and adoptive parents who supplied the environment, so the two influences can be estimated separately.
2. What is wrong with calling XYY a criminal chromosome? The original observation came from small samples in secure institutions, which are not representative. Later work found that XYY men are taller and somewhat lower in average measured intelligence, that their offending is largely against property rather than violent, and that the great majority have no criminal record at all. Nothing in the evidence supports the inference from a modest institutional over-representation to a causal claim about violence.
3. State the modern position in three propositions. No gene causes crime, because crime is a legal category rather than a natural kind; what may be inherited is a trait such as impulsivity that raises the probability of a range of behaviours, some of which are criminal; and the best supported findings are of interaction, in which a predisposition expresses itself only under particular environmental conditions, so neither factor alone predicts an individual's conduct.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The psychiatric tradition looks for the cause of offending inside the individual mind, in disorder, in unresolved conflict or in a failure of early development, and it supplies the courts with their expert evidence while explaining far less offending than it is popularly credited with.
In the wording a student can write in an exam: the psychiatric and psychoanalytic explanations hold that criminal conduct expresses an underlying mental condition; Sigmund Freud located it in conflict between the id, the ego and the super-ego; August Aichhorn explained delinquency as latent delinquency produced by defective early development; and William Healy studied individual case histories and concluded that emotional disturbance rather than any single factor lay behind most juvenile offending.
The psychoanalytic account
The structure of the mind. Freud's model has three parts. The id is the reservoir of instinctual drives, seeking immediate gratification without regard to reality or morality. The ego is the reality-testing part, which secures gratification in ways the world permits. The super-ego is the internalised moral authority, formed in childhood chiefly out of the relationship with parents, and it produces guilt.
Three routes to offending follow.
A weak or absent super-ego. Where early relationships failed, the moral restraint was never built, so the id's demands meet no internal opposition. This produces the offender who feels no guilt.
An over-strong super-ego. Freud's more surprising suggestion, which he made in a short paper on criminals from a sense of guilt. Here the person carries an unconscious guilt for something else entirely, and offends in order to be punished, which relieves it. This explains the otherwise puzzling offender who leaves obvious traces or confesses without cause.
A weak ego. The moral sense exists but the person cannot manage the conflict between drive and restraint, and behaves impulsively.
Aichhorn. Working with delinquent boys in Vienna, Aichhorn concluded that the environment does not by itself produce delinquency: what it does is bring out a latent delinquency already present because the child had not developed beyond the pleasure principle. His practical work was the more valuable part: he ran his institution on relationships rather than discipline and reported good results, which is an early argument for a therapeutic rather than punitive regime.
Healy. An American psychiatrist who studied juvenile offenders case by case at the Chicago juvenile court. His conclusion was that no single cause could be identified and that emotional disturbance arising from unsatisfactory family relationships was the most common feature. He is important to this paper for a second reason: his case-study method, and his conclusion that many factors operate in each case, is one of the roots of the multiple factor approach dealt with in Module II.
Psychiatric and Psychoanalytic Explanations
Psychiatric categories in the courtroom
Distinguish sharply between explanation and legal effect, because students confuse them constantly.
Psychosis. Conditions such as schizophrenia and severe bipolar disorder, involving loss of contact with reality, delusions and hallucinations. This is the condition that can engage the general exception in the Sanhita, and only where it produced incapacity to know the nature of the act or that it was wrong or contrary to law.
Neurosis. Anxiety, obsessional and phobic conditions. They rarely bear on liability and may bear on sentence.
Personality disorder, and psychopathy. Enduring patterns of behaviour rather than illness in the ordinary sense. The description that recurs in this literature is of a person with superficial charm, absence of remorse or guilt, incapacity for love, impulsiveness and failure to learn from punishment. This category matters to criminology because it names the offender that deterrence cannot reach; it matters legally very little, because such a person knows exactly what he is doing and that it is wrong, so the general exception does not apply.
Intellectual disability. Relevant to whether the accused understood, and to fitness to stand trial.
Criticism
It is unfalsifiable. The unconscious cannot be observed, and a theory that explains offending by a weak super-ego and also by an over-strong one has no observation that could refute it.
It rests on treated populations. Psychiatric writing on offenders is drawn from those referred for assessment, who are a selected minority.
It explains too little. The overwhelming majority of offenders have no diagnosable disorder, and the overwhelming majority of people with mental illness never offend and are far more likely to be victims than offenders. Any answer must say this, because the popular association between mental illness and violence is both widespread and wrong.
It individualises. Like the biological tradition, it locates the problem in the person and leaves the conditions untouched.
And it has been used to detain. An explanation framed in terms of illness leads to detention for treatment, of indefinite duration, on an assessment the subject cannot readily contest.
What it contributes
The general exceptions and fitness to plead could not operate without psychiatric evidence.
Sentencing. The requirement that a court have psychiatric and psychological material before deciding on sentence, established in the modern Indian sentencing case law, is the practical arrival of this tradition in the Indian criminal process.
Treatment. Where offending is genuinely driven by illness or by dependence, treatment works and punishment does not, and diversion into treatment is the rational response.
And it named the limits of deterrence. The offender who cannot learn from punishment is a real category, and a penal policy that assumes universal rational calculation has nothing to say about him.
Psychiatric and Psychoanalytic Explanations
A worked example
Kiran Salvi, aged thirty-one, sets fire to a shed belonging to a neighbour. He is diagnosed with schizophrenia and was, on the evidence, acutely unwell at the time.
Version one. He believed the shed was broadcasting instructions into his head and that burning it was the only way to stop them. He did not know the act was wrong; he thought it was necessary. Section 22 of the Sanhita is engaged, because he was incapable by reason of unsoundness of mind of knowing that he was doing what was wrong or contrary to law.
Version two. He was unwell, and he set fire to the shed because the neighbour had insulted him, knowing perfectly well that arson is an offence and taking care to do it at night. Here the general exception does not apply at all. His illness is real, it is relevant to sentence, and it is not a defence.
The lesson. A diagnosis is not a defence. What the section asks is a question about knowledge at the moment of the act, and the psychiatric evidence is directed at that narrow question and not at the diagnosis.
And the criminological point. Version two is far commoner than version one, which is why the psychiatric tradition explains much less offending than public discussion assumes.
Quick revision
Freud: id, ego and super-ego. Offending from a weak super-ego, from an over-strong one producing the criminal from a sense of guilt, or from a weak ego unable to manage conflict.
Aichhorn: latent delinquency brought out by environment, and a therapeutic rather than a punitive regime.
Healy: case studies at the Chicago juvenile court, emotional disturbance from family relationships, and no single cause. A root of the multiple factor approach.
Courtroom categories: psychosis, which alone can engage the general exception and only on the cognitive test; neurosis; personality disorder and psychopathy, which explain the failure of deterrence but afford no defence; and intellectual disability, going to understanding and to fitness.
Criticism: unfalsifiable; drawn from treated populations; explains a small share of offending; individualises a social problem; and leads to indefinite detention for treatment.
Contribution: the general exceptions, fitness to plead, psychiatric material at sentence, treatment where illness or dependence drives offending, and the identification of the offender deterrence cannot reach.
Test yourself
1. Set out the three psychoanalytic routes to offending. A weak or absent super-ego, where early relationships failed to build moral restraint, producing an offender without guilt; an over-strong super-ego, where unconscious guilt about something else drives the person to offend in order to be punished, which is Freud's criminal from a sense of guilt; and a weak ego, where the moral sense exists but the person cannot manage the conflict between drive and restraint and acts impulsively.
Psychiatric and Psychoanalytic Explanations
2. Why is a psychiatric diagnosis not a defence in Indian law? Because section 22 of the Sanhita asks a narrow question about the accused's knowledge at the moment of the act: whether, by reason of unsoundness of mind, he was incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law. A person may be seriously and genuinely ill and still have that knowledge, in which case the exception does not apply and the illness goes only to sentence.
3. Give two criticisms of the psychiatric tradition that a criminology paper must make. That it is close to unfalsifiable, since a theory explaining offending both by a weak super-ego and by an over-strong one leaves no observation that could count against it; and that it explains a very small share of offending, since most offenders have no diagnosable disorder and most people with mental illness never offend and are far more likely to be victims than offenders.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
The Chicago School found that delinquency rates stayed high in the same areas of a city for decades while the populations living there changed completely, so the cause had to lie in the area rather than in the people.
In the wording a student can write in an exam: the Chicago School of the 1920s and 1930s, working from Park and Burgess's concentric zone model of the city, and through Clifford Shaw and Henry McKay's mapping of juvenile court records, explained crime by social disorganisation in the zone of transition and by the cultural transmission of delinquent traditions from one generation to the next.
The city as an organism
Robert Park and Ernest Burgess treated the city as an ecological system in which groups compete for space and settle into natural areas, in the way that plant and animal communities do.
Burgess's concentric zone model divides the city into five rings. Zone I is the central business district. Zone II is the zone of transition, immediately around the centre, where industry is spreading into old residential property, rents are lowest and turnover is highest. Zone III is working men's homes. Zone IV is the residential zone. Zone V is the commuter belt.
The model is a simplification and it was drawn from one American city, so do not present it as a law. Its value is that it predicts where the trouble will be, and it is right.
The finding
Shaw and McKay mapped the home addresses of tens of thousands of juveniles brought before the Chicago courts, over a period of more than thirty years. Three results.
Rates fell steadily with distance from the centre. The highest rates were in the zone of transition and declined in every direction outward.
The pattern persisted for decades. The same areas showed high rates in the 1900s, the 1920s and the 1930s.
And the populations of those areas changed completely. Successive waves of migrants of entirely different national origins passed through the zone of transition. Each group had high rates while it lived there and lower rates after it moved outward, and the group that replaced it acquired high rates in turn.
That third finding is the decisive one. If the rate is a property of the area rather than of the people, then explanations resting on the character, race or heredity of the residents are excluded by the data.
The explanation
Social disorganisation. In the zone of transition, high population turnover, physical deterioration, poverty and a mixture of cultures prevent the formation of stable community institutions. Neighbours do not know each other, informal supervision of children is weak, and residents cannot organise to solve common problems, including crime. The area is not disorganised in the sense of chaotic; it is disorganised in the precise sense that its capacity for collective action is low.
The Chicago School and Social Ecology
Cultural transmission. Where delinquency persists, it becomes a tradition. Older boys teach younger ones, values and techniques are handed down, and the delinquent tradition survives the departure of every individual who carried it. This is the mechanism that explains persistence across changing populations, and it is the bridge to Sutherland's differential association.
Criticism
It relies on official records. Juvenile court records reflect police attention, and the police attend more closely to poor central areas, so part of the gradient may be a policing gradient.
It cannot explain the non-delinquent majority. Most children in the zone of transition never appear in a court, and social disorganisation does not tell us which ones do.
"Disorganisation" is a value judgment in places. What the observer called disorganisation was sometimes a different organisation, and the ecological tradition has been criticised for taking a middle-class settled neighbourhood as the standard of order.
The zone model does not travel unmodified. Many cities, including Indian cities, do not have a single centre with concentric rings, and the wealthy in Mumbai often live nearer the centre than the poor.
And it says nothing about crime that is not committed in a neighbourhood. Corporate fraud, corruption and professional deviance have no ecology of this kind, which is a serious limitation for a paper whose third module is about exactly those offences.
Why it is the most useful school for an Indian city
Because the mechanism travels even where the map does not.
Mumbai's growth has been by absorbing migrants faster than housing, schooling and policing could be provided. The areas of highest turnover, weakest tenure and thinnest civic institutions are identifiable, and they are not the poorest areas by income but the least settled ones. That distinction, between poverty and instability, is Shaw and McKay's, and it is what makes their work more useful than a simple economic account.
The policy consequence they drew is equally transferable. Shaw founded the Chicago Area Project, which worked through local residents and existing community organisations rather than through outside agencies, on the theory that if the problem is a deficit of collective capacity then building that capacity is the remedy. Community policing, resident associations and local youth work all descend from it.
A worked example
A Mumbai suburb has two localities two kilometres apart.
Locality A is a settled chawl community, poor, occupied by the same families for three generations, with an active residents' association, a mandal that runs the annual festival, and neighbours who know every child by name.
Locality B is a cluster of rented rooms near a wholesale market, occupied by single men on six-month tenancies from four different States, with no association, no common language and complete turnover every two years.
The Chicago School and Social Ecology
Which will show the higher rate of juvenile offending? On the Chicago analysis, Locality B, and not because it is poorer. It may well be less poor in cash terms, because its residents are employed. It is less organised: nobody supervises anybody's children, no adult has standing to intervene, and no group can put pressure on the authorities.
The prediction that tests the theory. Move Locality B's residents to settled housing and their offending rates should fall, while whoever occupies the rooms next should acquire high rates. That is exactly what Shaw and McKay observed across thirty years of Chicago's migrant succession.
And the prescription. Not more policing of Locality B's residents, but tenure, a functioning local body, and support for whatever collective institutions can be built. That is the Chicago Area Project in Marathi.
Quick revision
Chicago School, 1920s and 1930s. Park and Burgess's concentric zone model; Shaw and McKay's mapping of juvenile court records.
Five zones, with Zone II the zone of transition: lowest rents, highest turnover, industry encroaching on old housing.
Findings: rates fall with distance from the centre; the pattern persists for decades; the populations change completely while the rates stay with the area.
Explanation: social disorganisation, meaning a low capacity for collective action, and cultural transmission of a delinquent tradition across generations.
Criticism: reliance on official records that reflect policing; it cannot identify which residents offend; disorganisation carries a value judgment; the zone model does not fit every city; and it has nothing to say about corporate or professional crime.
Legacy: the Chicago Area Project, community policing and community-based prevention. In an Indian city the operative variable is instability of tenure and turnover rather than income.
Test yourself
1. What was Shaw and McKay's decisive finding and why does it exclude hereditary explanations? That delinquency rates remained high in the same areas of Chicago over three decades while the national and ethnic composition of the residents changed completely, each successive migrant group acquiring high rates while in the zone of transition and lower rates on moving outward. Since the rate stayed with the area rather than with any group of people, no explanation based on the character or heredity of the residents can account for it.
2. Define social disorganisation precisely. Not chaos, but a low capacity for collective action. Where population turnover is high, housing is deteriorating and residents share no common institutions, neighbours do not know one another, adults do not supervise other people's children, and residents cannot organise to press for services or to solve common problems, including crime.
The Chicago School and Social Ecology
3. Why is the theory more useful in Mumbai than a simple poverty explanation? Because it identifies instability rather than income as the operative variable. A settled poor locality with long tenure and functioning community institutions will show lower rates than a better-paid locality of short tenancies, high turnover and no common language or association. That distinction is testable, it matches what is observed, and it points to different remedies: tenure and institution building rather than either policing or income transfer alone.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Criminal behaviour is learned in the same way as any other behaviour, in intimate personal groups, and a person becomes an offender when the definitions favourable to breaking the law that he has been exposed to outweigh those unfavourable to it.
In the wording a student can write in an exam: Edwin H. Sutherland's theory of differential association holds that criminal behaviour is learned in interaction with others in a process of communication, principally within intimate personal groups, and that a person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to violation of law.
The nine propositions
Sutherland stated the theory as nine propositions and an examiner expects them, or at least the substance of them, in order.
Criminal behaviour is learned. It is not inherited, and a person not trained in crime does not invent it.
It is learned in interaction with other persons in a process of communication, verbal and by gesture.
The principal part of the learning occurs within intimate personal groups. Impersonal agencies such as films and newspapers play a relatively unimportant part. This proposition is important to Module II, where mass media is examined as a cause.
The learning includes techniques of committing the crime, which are sometimes complicated and sometimes very simple, and the specific direction of motives, drives, rationalisations and attitudes.
The specific direction of motives and drives is learned from definitions of the legal codes as favourable or unfavourable. In some groups a person is surrounded by people who define the codes as rules to be observed, in others by people who define them as rules to be evaded.
A person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to violation of law. This is the principle of differential association and it is the heart of the theory.
Differential associations vary in frequency, duration, priority and intensity. Priority means how early in life the association occurred; intensity refers to the prestige of the source and the emotional force of the relationship.
The process of learning criminal behaviour by association involves all the mechanisms involved in any other learning.
Criminal and non-criminal behaviour are expressions of the same needs and values, so those needs and values do not explain the criminal behaviour. Thieves steal to get money and honest labourers work to get money.
Proposition nine is the one students omit and it is the theory's sharpest point. Explanations that appeal to a desire for money, for status or for excitement explain nothing, because the law-abiding have the same desires.
Sutherland and Differential Association
Why it matters so much on this paper
It explains white collar crime. Sutherland's own reason for developing the theory. Poverty cannot explain the offending of company directors, so a general theory of crime must apply to both. Differential association does: a young executive learns the techniques of price fixing or of falsifying returns from colleagues, in an intimate work group, with rationalisations attached, exactly as a young thief learns from older ones. The theory is the intellectual bridge between Module II and Module III.
It explains the persistence of high-crime areas. It supplies the mechanism the Chicago School needed. A delinquent tradition survives changing populations because it is transmitted by association.
It explains why prison makes offenders worse. Concentrating offenders in one place maximises exposure to definitions favourable to violation of law. This is the criminological argument against imprisonment for minor offences, and it is used in the chapters on probation and prison reform.
And it explains the rationalisations. Every offender group carries a vocabulary that neutralises guilt: everyone does it, the company can afford it, the victim was greedy, nobody is really harmed. Those phrases are learned along with the technique.
Criticism
It cannot be measured. Nobody has counted definitions favourable and unfavourable, and until they can be counted the central proposition cannot be tested.
It does not explain the first offender in a group. If crime is learned from others, someone must have originated it.
It does not explain impulsive and solitary offences, or offences committed by people with no criminal associates.
It underrates the media, and proposition three has been repeatedly challenged, though the evidence on media effects, dealt with in Module II, is weaker than popular opinion assumes.
And it ignores personality. Two brothers exposed to the same associations behave differently, and the theory has no answer.
A worked example
Ashish Kulkarni joins a firm of customs clearing agents as a junior at twenty-three.
Frequency and duration. He spends nine hours a day for two years with four colleagues who routinely arrange for consignments to be under-declared.
Priority. This is his first employment. He has no prior working experience against which to measure it.
Intensity. The senior of the four trained him, secured his confirmation, and is the person whose approval he wants.
What he learns. Not merely that under-declaration happens. He learns the technique, which entries to alter and which officer to approach; and he learns the definitions: that the duty rates are unreasonable, that everyone in the trade does it, that the importer would take his business elsewhere otherwise, and that nobody is hurt.
Now apply proposition nine. Ashish wants promotion, security and his employer's approval. So does every honest clearing agent in the city. The desires do not explain the conduct. What explains it is that in his particular group the definitions favourable to violation exceeded the definitions unfavourable, and that in another firm two streets away the balance runs the other way.
Sutherland and Differential Association
And the prediction. If Ashish is moved to that other firm early enough, the theory predicts he will conform, because the balance of definitions will have changed. That is a testable prediction and it is the basis of every attempt to change organisational culture rather than to punish individuals.
Quick revision
Edwin H. Sutherland, differential association, stated in nine propositions.
Criminal behaviour is learned in communication with others, principally in intimate personal groups; the learning covers techniques and the direction of motives, drives, rationalisations and attitudes.
The core proposition: a person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to it.
Associations vary in frequency, duration, priority and intensity.
Proposition nine: criminal and non-criminal behaviour express the same needs and values, so those needs and values explain nothing.
Uses: it explains white collar crime, which poverty cannot; it supplies the Chicago School's mechanism; it explains why prison makes offenders worse; and it accounts for the rationalisations offenders share.
Criticism: the definitions cannot be counted, so the theory cannot be tested; it cannot explain the first offender, impulsive or solitary offending; it underrates media influence; and it ignores individual personality.
Test yourself
1. State the principle of differential association in Sutherland's own terms. That a person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to violation of law, those definitions being acquired in interaction with others within intimate personal groups, and the associations varying in frequency, duration, priority and intensity.
2. Why is proposition nine the most important for a criminology examination? Because it disqualifies the commonest explanations. If criminal and lawful behaviour express the same needs and values, then greed, ambition, the desire for money or for status cannot explain offending, since the law-abiding have exactly the same desires and pursue them lawfully. What has to be explained is the difference in the definitions to which a person has been exposed, not the difference in what he wants.
3. How does the theory account for white collar crime, and why did Sutherland need it to? It accounts for it because the same learning process operates in an office as on a street: techniques, motives and rationalisations are acquired from colleagues in an intimate work group. Sutherland needed it because his study of corporate offending had shown that poverty and social disorganisation could not explain the offending of respectable and prosperous men, so a general theory of criminal behaviour had to apply to both, or it was not general at all.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Durkheim's anomie is a breakdown of the norms that regulate desire during rapid social change; Merton's anomie is the strain produced when a society urges everyone towards a goal it does not give everyone the means to reach.
In the wording a student can write in an exam: anomie means normlessness. Emile Durkheim used it for the condition in which the regulating force of shared norms weakens, so that individual desires become limitless and are frustrated; Robert K. Merton reformulated it as the disjunction between culturally prescribed goals and the institutionalised means of attaining them, and set out five modes of individual adaptation: conformity, innovation, ritualism, retreatism and rebellion.
Durkheim
The starting point. Durkheim held that crime is normal, in the strict sense that it is found in every society and performs functions. It marks the boundaries of acceptable conduct, and the reaction to it reinforces solidarity among the law-abiding. A society of saints would still identify and punish its worst members. This proposition is worth stating because it startles, and because it is the origin of labelling theory's interest in the reaction rather than the act.
Mechanical and organic solidarity. In a simple society people are alike and are bound by shared belief, which Durkheim called mechanical solidarity, and its law is repressive. In a complex society people are bound by interdependence arising from the division of labour, which is organic solidarity, and its law is restitutive.
Anomie. The transition between them is dangerous. When a society changes rapidly, whether through economic collapse or through sudden prosperity, the norms that told people what to want and what to expect lose their grip. Desire, which is naturally unlimited, is no longer regulated, and the gap between what is wanted and what is attainable produces frustration, deviance and, in Durkheim's own study, suicide.
Note the counter-intuitive part. Anomie arises from sudden prosperity as much as from sudden depression. Both dislocate the scale by which people judge what they are entitled to expect. That is directly relevant to the development and crime question in this module.
Merton
Merton took the word and gave it a different and more usable meaning.
Two elements of a culture. Every society sets goals that its members are urged to pursue, and prescribes institutionalised means by which they may legitimately be pursued.
The American problem, and the Indian one. In a society that presses material success on everybody as the measure of a life, while distributing education, capital and connections very unequally, large numbers of people are urged towards a goal by a route that is closed to them. That disjunction is Merton's anomie, and the pressure it exerts is called strain.
Anomie: Durkheim and Merton
The five adaptations. Learn these with the plus and minus signs; it is the clearest way to remember them.
Adaptation
Cultural goals
Institutionalised means
Example
Conformity
Accepts
Accepts
The salaried employee who works and saves
Innovation
Accepts
Rejects
Theft, fraud, corruption, and most acquisitive crime
Ritualism
Rejects
Accepts
The clerk who has given up on advancement but follows every rule
Retreatism
Rejects
Rejects
Addiction, vagrancy, withdrawal
Rebellion
Replaces
Replaces
The revolutionary who substitutes new goals and new means
Innovation is the criminologically important one. It is the adaptation of the person who has accepted the goal and cannot reach it by the permitted route, and it covers both the pickpocket and the finance director, which is why Merton's scheme is one of the few theories that reaches both ends of Module III.
Criticism
Of Durkheim. Anomie is difficult to measure, and calling crime normal and functional sits uneasily with the fact that a great deal of it is destructive.
Of Merton. He assumes a single dominant goal, which is doubtful in a plural society. He explains acquisitive crime well and expressive violence badly: a man who assaults his neighbour in a quarrel is not innovating towards material success. He explains the working-class offender better than the wealthy one, since strain should fall hardest on those furthest from the goal, and yet the wealthy also offend, which requires the additional argument that the goal is unlimited so that nobody feels he has enough. And he does not explain why one person in a strained position innovates while his brother conforms.
Of both. Neither says anything about how the goals were chosen, or in whose interest, which is the criticism the radical school makes.
Why the pair matters to this syllabus
For development and crime. Durkheim explains why rapid growth, and not only poverty, raises crime, and Merton explains the mechanism: growth advertises a standard of living faster than it distributes the means of reaching it.
For the causes module. Merton's strain is the most defensible form of the economic explanation of crime, and it is better than the crude claim that poverty causes crime because it predicts what actually happens, which is that offending tracks inequality and aspiration rather than absolute deprivation.
And for privileged class deviance. Innovation by those who already have much is Merton's own answer to the objection, and it connects directly to Sutherland.
A worked example
Two young men in a Mumbai suburb, both twenty-two, both with a degree from a small college and no connections.
Both share the goal. Advertising, cinema and the visible consumption of the city around them define success as a flat, a car and a certain standard of appearance. Merton's first element is satisfied.
Anomie: Durkheim and Merton
The means are not equally available. Neither has the family capital, the coaching or the network that leads to the well-paid job.
Nilesh conforms. He takes a job as a delivery rider at a low wage and stays in it, deferring the goal.
Prasad innovates. He joins an operation that sells fake tickets online. He has accepted the goal exactly as Nilesh has, and has rejected the means.
Their neighbour Sameer ritualises. He is a clerk who long ago stopped believing he would rise, and now takes an exacting satisfaction in the correctness of his files.
And a fourth, Deepak, retreats into dependence and drops out of view.
What has explained what. The theory explains the range of adaptations available in that position, and it explains why acquisitive crime concentrates where aspiration is high and access is low. It does not explain why Prasad and not Nilesh, and Merton did not claim it would. That is the boundary of the theory and an answer should mark it.
Quick revision
Durkheim: crime is normal and functional, marking boundaries and reinforcing solidarity; mechanical solidarity with repressive law gives way to organic solidarity with restitutive law; anomie is the deregulation of desire during rapid change, whether depression or sudden prosperity.
Merton: anomie is the disjunction between culturally prescribed goals and institutionalised means, and the pressure it creates is strain.
Five adaptations: conformity, innovation, ritualism, retreatism, rebellion. Innovation is the criminologically central one and covers both street and corporate acquisitive crime.
Criticism: anomie is hard to measure; Merton assumes a single dominant goal, explains acquisitive better than expressive crime, explains the poor offender better than the rich, and cannot say which strained individual will innovate; and neither asks who chose the goals.
Use: the best defensible economic explanation, predicting that offending tracks inequality and aspiration rather than absolute poverty.
Test yourself
1. Distinguish Durkheim's anomie from Merton's. Durkheim's anomie is a condition of the society: the weakening of the shared norms that regulate desire, occurring during rapid social change of either kind, so that appetites become unlimited and frustration follows. Merton's is a structural disjunction: the culture urges everyone towards prescribed goals while the social structure distributes the legitimate means of reaching them unequally, and the resulting pressure is called strain.
2. Set out Merton's five adaptations with their positions on goals and means. Conformity accepts both goals and means. Innovation accepts the goals and rejects the means, which is most acquisitive crime. Ritualism rejects or abandons the goals while adhering to the means. Retreatism rejects both and withdraws. Rebellion replaces both with new goals and new means.
3. Why is Merton's theory better than the claim that poverty causes crime? Because it predicts what is actually observed. If absolute poverty were the cause, the poorest societies and districts would have the most crime, and they do not. Merton's account predicts that offending will track the gap between aspiration and access, so it rises where wealth and poverty are visible to each other, which is what the evidence on inequality and crime shows, and it also accounts for offending by the wealthy, since the goal of material success has no upper limit.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Subcultural theory says that people who cannot reach the society's goals by the approved route solve the problem collectively, by forming groups with their own values in which what they can achieve is what counts as success.
In the wording a student can write in an exam: subcultural theory holds that delinquency is a group solution to a status problem; Albert Cohen described the delinquent subculture as non-utilitarian, malicious and negativistic, arising from status frustration and producing a reaction formation against middle-class values; Cloward and Ohlin added that the form the subculture takes depends on the illegitimate opportunity structure available; and Walter Miller argued that lower-class culture has its own focal concerns which generate delinquency without any reaction.
Cohen
The question he asked. Merton explains theft, which brings money. It does not explain the vandalism, the fighting and the pointless destruction that make up much juvenile delinquency, because none of it gets anybody nearer the goal.
His answer: status frustration. Working-class boys are judged in school by a middle-class measuring rod: ambition, deferred gratification, courtesy, punctuality, respect for property. Many cannot meet it, not from lack of ability but from lack of preparation, and they experience a loss of status among people whose approval they cannot win.
Reaction formation. The solution is collective. Boys in the same position come together and invert the standard: what the school values, the group despises. Property is destroyed rather than stolen, rules are broken conspicuously, and toughness replaces achievement. Within the group, status is now available on terms the members can meet.
The three characteristics. The delinquent subculture is non-utilitarian, because the acts bring no gain; malicious, because the enjoyment lies in the discomfort of others; and negativistic, because its standards are the deliberate inversion of the dominant ones. Learn those three words.
Cloward and Ohlin
The addition. Merton assumed that illegitimate means are available to anyone who wants them. Cloward and Ohlin pointed out that they are not: a person needs access to an illegitimate opportunity structure, to people who will train him, employ him and buy from him, and that structure is distributed as unequally as the legitimate one.
Three kinds of subculture follow, depending on what is available in the neighbourhood.
The criminal subculture arises where there is a stable, organised adult criminal presence into which the young can be recruited. Offending is disciplined and profitable, and violence is discouraged because it attracts attention.
The conflict subculture arises where neither legitimate nor organised illegitimate opportunity exists. The area is unstable and there is nothing to be recruited into, so status is won by fighting, and the territorial gang is the result.
Subcultural Explanations
The retreatist subculture is made up of those who fail in both the legitimate and the illegitimate worlds, and it centres on drug use.
Why this matters. It explains why the crime of one poor neighbourhood is organised and profitable while that of another two kilometres away is violent and pointless, which no theory based on deprivation alone can do.
Miller
Walter Miller rejected the reaction formation. On his account lower-class culture is not a response to middle-class values at all but a long-standing tradition with its own focal concerns: trouble, toughness, smartness in the sense of outwitting others, excitement, fate, and autonomy. A young man who lives out these concerns conscientiously will commit offences as a by-product, without any rebellion being involved.
The criticism of Miller is that he treats a class as culturally homogeneous, and that the concerns he lists are widely admired across classes.
Criticism of the tradition
It is about boys. The classic subcultural studies deal almost exclusively with male juveniles and say nothing useful about female offending.
Not everyone in the position joins. Most working-class boys facing exactly the described frustration do not become delinquent.
The values may be exaggerated. Later work suggested that delinquent boys share conventional values and neutralise them situationally rather than inverting them, which is a different and better supported account.
And it says nothing about adults or about crime by the powerful, which for this syllabus is a significant gap. Its answer, and it is a good one, is that the offending work group described in the chapter on Sutherland is itself a subculture with its own focal concerns.
A worked example
Two groups of teenagers in the same city.
Group one lives in an area where an established network trades in stolen mobile phones, with adults who buy, who provide safe storage and who train newcomers. The boys are recruited at fifteen, are told to avoid violence because it brings police attention, and earn steadily.
Group two lives in a newly built resettlement colony where no such network exists and where the families arrived last year from different districts. There is nothing to be recruited into. Status among these boys is won by fighting the boys of the adjoining building, and the offences are assaults and damage.
Cloward and Ohlin explain the difference exactly. Both groups face the same blocked legitimate opportunity. What differs is the illegitimate opportunity structure, and that difference produces a criminal subculture in one case and a conflict subculture in the other.
Cohen explains what both share. In each, status is available inside the group on terms the members can meet, which is what neither the school nor the labour market offers them.
Subcultural Explanations
And the policy consequence differs for each. For group one, the intervention has to attack the market for stolen handsets, because the subculture exists because the market does. For group two, the intervention is anything that supplies status and structure, since there is no market to attack. A single policy applied to both would fail in one of them.
Quick revision
Subcultural theory: delinquency is a collective solution to a status problem.
Cohen: status frustration when working-class boys are judged by a middle-class measuring rod; reaction formation inverts the standard; the delinquent subculture is non-utilitarian, malicious and negativistic.
Cloward and Ohlin: illegitimate opportunity is unequally distributed too, producing the criminal subculture where organised adult crime exists, the conflict subculture where neither structure exists, and the retreatist subculture for those who fail in both.
Miller: lower-class focal concerns of trouble, toughness, smartness, excitement, fate and autonomy generate delinquency without any reaction against middle-class values.
Criticism: it studies boys; most of those in the position do not offend; delinquents may share conventional values and neutralise them rather than invert them; and it says little about adults or about crimes of the powerful.
Test yourself
1. What problem does Cohen's theory solve that Merton's does not? Merton explains acquisitive offending, which brings the offender nearer the goal. It cannot explain the vandalism, fighting and gratuitous damage that make up much juvenile delinquency, since none of that is useful. Cohen answers that these acts are a collective solution to a status problem: by inverting the standard that has judged them failures, boys create a group within which status is available on terms they can meet.
2. State Cloward and Ohlin's three subcultures and the condition that produces each. The criminal subculture, where a stable organised adult criminal network exists into which the young can be recruited, producing disciplined and profitable offending with violence discouraged. The conflict subculture, where neither legitimate nor organised illegitimate opportunity exists, so status is won by fighting and the territorial gang results. The retreatist subculture, made up of those who have failed in both worlds, centred on drug use.
3. What are Miller's focal concerns, and what is the objection to his account? Trouble, toughness, smartness in the sense of outwitting others, excitement, fate and autonomy, which he treats as long-standing features of lower-class culture that generate offending as a by-product rather than as a reaction. The objection is that he treats a whole class as culturally uniform, and that the concerns he lists are admired well beyond it.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Control theory turns the question round and asks not why people offend but why most people do not, and answers that they are bonded to society; labelling theory says that being publicly identified as a criminal is itself a cause of further offending.
In the wording a student can write in an exam: Travis Hirschi's control theory holds that delinquency results when an individual's bond to society is weak or broken, the four elements of the bond being attachment, commitment, involvement and belief; labelling theory, associated with Edwin Lemert and Howard Becker, distinguishes primary deviance, the original act, from secondary deviance, the offending that follows from the person's acceptance of the deviant identity society has assigned.
Control theory
The inverted question. Every theory so far has asked what makes a person offend. Control theory observes that offending is often easy, profitable and enjoyable, and that the real puzzle is conformity.
Hirschi's four bonds.
Attachment. Sensitivity to the opinion of others, principally parents, teachers and friends. A person who cares what his mother will think has a reason not to offend that has nothing to do with punishment.
Commitment. The stake a person has built up in conventional activity: education, a job, a reputation, a business. Commitment is the rational element of the bond, and its strength lies in what the person stands to lose.
Involvement. Time occupied by conventional activity. A person fully engaged in work, study, sport and family has fewer opportunities.
Belief. Acceptance of the moral validity of the rules. Hirschi's point is subtle: the delinquent does not hold a rival set of beliefs, as the subcultural theorists supposed, but holds the conventional ones weakly.
Its strength. It explains the age-crime curve better than any rival. Offending falls sharply in the twenties, and what happens in the twenties is employment, marriage and children, which is commitment, involvement and attachment arriving together. This connection is the strongest argument for the theory and it should be made.
Its weakness. It explains petty and juvenile offending well and serious, organised or corporate offending badly. A finance director has attachment, commitment, involvement and belief in abundance and offends anyway.
Labelling theory
The shift of attention. Labelling theory is not about why the first offence happens; it is about what the reaction does. Becker's formulation is the one to quote in substance: social groups create deviance by making the rules whose infraction constitutes deviance, and deviance is not a quality of the act but a consequence of the application of rules and sanctions to an offender.
Primary and secondary deviance. Lemert's distinction and the core of the theory. Primary deviance is the original act, which may have any of a hundred causes and is often trivial and passing. Secondary deviance is the offending that follows once the person has been caught, labelled, and has begun to organise his life and his identity around the label.
Social Control and Labelling
The mechanism. Being publicly identified changes three things at once. It changes how others treat the person: employment, tenancy, credit and social relations all close. It changes his associations, because the only people who will have him are others similarly labelled, which is Sutherland's mechanism reintroduced. And it changes his self-conception, because a status that others insist on is difficult to refuse.
The master status. A label such as thief, addict or convict overrides every other thing a person is. He is no longer a father, a mason and a Konkani speaker who once stole; he is a thief who happens to have those other attributes.
The policy consequence. If the reaction causes offending, the reaction should be minimised where possible: diversion instead of prosecution, avoiding institutions for the young, keeping records from following a person for life, and the juvenile justice provisions that forbid disclosure of a child's identity and provide for the destruction of records. All of those are labelling theory in legislation.
Criticism
Of control theory. It cannot explain crimes committed by the well bonded, which for this paper is fatal, because Module III is entirely about them. Its measures rely on self-report data from schoolchildren. And bonds may be the effect of conformity rather than its cause.
Of labelling theory. It says nothing about why the primary deviance occurred, which is the question the discipline started with. It portrays the offender as passive, acted upon rather than choosing. It fits minor and consensual offending far better than serious predatory offending, where the victim's interest is real and the reaction cannot be dispensed with. And the empirical claim, that labelled offenders offend more than comparable unlabelled ones, is genuinely difficult to test, since those who are caught differ in other ways from those who are not.
A worked example
Rohit Gaikwad, aged sixteen, is caught with a stolen bicycle.
Route one: he is prosecuted. He appears before a court, the case is reported in the locality, his school asks him to leave, and his family is treated differently at the ration shop. He now spends his time with two boys who have been through the same thing, because nobody else will keep his company. Within a year he is charged with a second offence.
Route two: he is diverted. Under the juvenile justice scheme the matter is disposed of by a board without a criminal record, his identity is not published, he stays in school, and his associations do not change. He does not offend again.
Social Control and Labelling
What labelling theory claims. The difference between the two Rohits is not in the boy but in the reaction. Route one produced secondary deviance; route two did not.
What control theory adds. Route one destroyed his commitment, by removing his schooling, and his attachment, by shaming his family. Route two preserved both. The two theories, asking opposite questions, converge on the same prescription, which is why they are taught together.
And what neither explains. Why Rohit took the bicycle in the first place. Labelling theory does not try; control theory says his bonds were already weak, which is close to circular.
Quick revision
Control theory, Hirschi: the question is why people conform. Four bonds: attachment, commitment, involvement and belief. The delinquent holds conventional beliefs weakly rather than holding rival ones.
Its strength is the age-crime curve, since employment, marriage and children supply commitment, involvement and attachment together; its weakness is that it cannot explain offending by the well bonded.
Labelling theory, Lemert and Becker: deviance is not a quality of the act but a consequence of the application of rules and sanctions.
Primary deviance, the original act, against secondary deviance, the offending that follows the label; the label becomes a master status; the mechanism runs through others' treatment, changed associations and changed self-conception.
Policy: diversion, avoiding institutions for the young, protecting the identity of a child and destroying records, which is what the juvenile justice legislation does.
Criticism: control theory cannot reach Module III's offenders; labelling theory does not explain primary deviance, makes the offender passive, and fits serious predatory crime badly.
Test yourself
1. Name Hirschi's four bonds and explain what each contributes. Attachment, sensitivity to the opinion of parents, teachers and friends, which supplies a reason to conform that is independent of punishment; commitment, the accumulated stake in conventional activity that the person would lose by offending; involvement, the time absorbed by conventional activity, which reduces opportunity; and belief, acceptance of the moral validity of the rules, which the delinquent holds weakly rather than rejecting.
2. Distinguish primary from secondary deviance and state the mechanism connecting them. Primary deviance is the original act, which may have any cause and is often minor and transient. Secondary deviance is the offending that follows once the person has been detected and labelled. The connection runs through three changes the label produces: others withdraw employment, housing and social acceptance; the person's associations narrow to others carrying the same label, which supplies criminal learning; and the label becomes a master status that the person eventually accepts as his identity.
3. Why do the two theories converge on the same policy prescription? Because a heavy formal reaction does both kinds of damage at once. Labelling theory objects that public identification creates a deviant identity and a deviant peer group. Control theory objects that expulsion from school, loss of employment and family shame destroy commitment and attachment, which are the bonds that were restraining the person. Diversion, protection of identity and avoidance of institutions answer both objections.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Radical criminology turns the discipline's question round: instead of asking why people break the law, it asks who makes the law, whose conduct it criminalises, and whose it leaves alone.
In the wording a student can write in an exam: radical, conflict or critical criminology holds that criminal law is not a neutral expression of consensus but an instrument reflecting the interests of those with economic and political power; the approach of radical criminologists is therefore to study criminalisation and the operation of the criminal justice system rather than the conduct of offenders.
The propositions
One: society rests on conflict, not consensus. The mainstream schools assume that the criminal law expresses values everybody shares. The conflict tradition denies it: a complex society contains groups with opposed interests, and law is the outcome of the contest between them.
Two: the criminal law reflects the interests of the powerful. Not by conspiracy but by the ordinary operation of influence. Those who own, employ and finance shape what is prohibited, how severely, and what is policed.
Three: the object of study is the process of criminalisation. The traditional question, why does this man offend, is replaced by the question, why is this conduct an offence and that conduct not. This is the single most important sentence in the chapter.
Four: the criminal justice system reproduces inequality. Selective policing, the operation of bail, the quality of defence and the practice of sentencing combine to fill the prisons with the poor, whatever the distribution of offending.
Five: crime should be redefined by harm, or by human rights. Some radical writers proposed abandoning the legal definition of crime altogether, and defining it as conduct that violates human rights, so that racism, sexism, imperialism, unsafe workplaces and preventable poverty would count as crimes.
The strands
Conflict criminology. The moderate version. It does not require Marxism; it holds only that groups compete, that law expresses the outcome, and that crime rates reflect which groups have lost. Thorsten Sellin's account of culture conflict, in which the norms of a migrant group collide with those of the host society, belongs here.
Instrumental Marxist criminology. The strong version: law is an instrument of the ruling class, and the criminal justice system is its enforcement arm.
Structural Marxist criminology. A more careful version, which allows that the law sometimes acts against particular capitalists, in order to preserve the long-term stability of the system as a whole. This is a better account of the factory acts and the food safety statutes.
The New Criminology. The British statement of the position in 1973, by Taylor, Walton and Young, which called for a fully social theory of deviance connecting the offender's own choices with the political economy that produced the conditions and with the reaction of the state.
Radical, Conflict and Critical Criminology
Left realism. The important later correction, made by some of the same writers. Its argument is that the radical position had romanticised the offender and forgotten the victim, and that crime is a real and serious problem for exactly the working-class communities the tradition claimed to speak for. Left realism accepts that policing and prosecution are necessary and asks that they be made accountable and directed at real harms. An answer that includes this shows a much better grasp than one that stops in 1973.
Critical, feminist and green criminology. The later branches. Feminist criminology's principal contributions are that criminology had almost entirely ignored women, both as offenders and as victims, and that violence within the home was systematically excluded from what counted as crime. Green criminology extends the harm-based definition to environmental destruction.
Criticism
It idealises the offender. Presenting the burglar as a primitive rebel does not survive contact with the burgled, who are usually poor.
It cannot explain most crime. A very large share of offending is committed by the disadvantaged against the disadvantaged, which no theory of ruling-class law explains.
The harm-based definition has no boundary. If crime means whatever the writer regards as seriously harmful, the discipline loses the one definition everybody can agree on, and its findings become unfalsifiable.
Its programme is not a policy. Where the answer to crime is the transformation of the economic order, there is nothing to be done about tomorrow's burglaries, which is precisely the objection left realism made.
And the empirical record is mixed. Some criminal law plainly protects the weak, and the statutes protecting workers, women and scheduled castes are examples.
Its value for this paper, which is very high
Whatever its defects as a general theory, the radical tradition supplies the question that Module III of this syllabus is built on.
Privileged class deviance is a radical concept. The term describes conduct that causes great harm, is committed by those with power, and is either not criminalised at all or is criminalised and not enforced. Noticing that pattern requires the radical question about criminalisation; it cannot be arrived at from within a consensus model.
And it explains the pattern of the dark figure. The chapter on measuring crime showed that non-recording is heaviest exactly where the offender is respectable and the victim diffuse. A consensus theory has to treat that as an accident of detection. A conflict theory predicts it.
A worked example
Two events in the same year in the same State.
A construction worker falls from an unguarded scaffold and dies. The site had no safety net, the contractor had been warned, and eleven other workers had been injured there in eighteen months. The matter is dealt with by a departmental inspection and a compounding fee.
Radical, Conflict and Critical Criminology
A man kills another in a quarrel outside a bar. He is arrested the same night, charged with culpable homicide, and tried.
The radical reading. Both are deaths caused by a human decision. One is treated as a crime with the full apparatus of arrest, charge and trial. The other is treated as a regulatory matter, and the decision that produced it, to save the cost of the netting, is invisible to the criminal law. The difference is not in the harm, and it is not in the culpability, since the contractor knew the risk and accepted it. It is in the identity of the person who made the decision.
The mainstream reply. The elements differ. The bar killing has an identified actor with an identifiable mental state; the fall involves a corporate decision, diffuse responsibility, a difficult causal chain and a specialised regulatory statute Parliament chose to enact.
And the radical rejoinder. Every one of those difficulties is a consequence of choices the law made about how to frame the offence, and those choices are what needs explaining. That exchange is the whole of the debate, and reproducing it is a complete answer to the July 2026 question.
Quick revision
Radical, conflict or critical criminology: society rests on conflict; law reflects the interests of the powerful; the object of study is criminalisation rather than the offender; the system reproduces inequality; and crime should be redefined by harm or by human rights.
Strands: conflict criminology, including Sellin's culture conflict; instrumental and structural Marxist criminology; the New Criminology of Taylor, Walton and Young, 1973; left realism, which restored the victim and accepted that crime is a real problem for the poor; and feminist and green criminology.
Criticism: it idealises the offender; most crime is committed by the disadvantaged against the disadvantaged; a harm-based definition has no boundary and becomes unfalsifiable; it offers no policy for tomorrow; and some criminal law plainly protects the weak.
Its value here: privileged class deviance is a radical concept, and the patterned dark figure is what a conflict theory predicts and a consensus theory must treat as accident.
Test yourself
1. State the approach of radical criminologists in one sentence and say how it differs from every earlier school. That the proper object of criminological study is the process by which conduct is made criminal and by which the criminal law is enforced, rather than the conduct of offenders. It differs from every earlier school because those schools take the legal definition of crime as given and ask why people breach it, whereas the radical question is why the definition falls where it does and in whose interest.
Radical, Conflict and Critical Criminology
2. What is left realism and why does it matter? The correction made within the radical tradition itself, holding that the earlier position had romanticised the offender and ignored the victim, and that crime is a real and serious problem for the working-class communities the tradition claimed to speak for. It matters because it restores the victim to a theory that had written him out, and because it accepts that policing and prosecution are necessary while insisting that they be accountable and directed at real harms.
3. Give the strongest criticism of the harm-based redefinition of crime. That it removes the only boundary the discipline has. If crime means whatever the observer considers seriously harmful, then each writer studies a different subject, no finding can be checked against another's, and the claim that a given state of affairs is criminal cannot be refuted. The legal definition is arbitrary in its content but it is public, shared and checkable, which is why criminology has never in practice been able to do without it.
Modern Criminology: Rational Choice, Routine Activity and Situational Prevention
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
Modern criminology moved back from the offender to the offence, asking not what kind of person offends but what makes a particular offence easy, rewarding and safe, and then removing those conditions.
In the wording a student can write in an exam: the modern opportunity theories comprise rational choice, which treats the offence as a decision made on the information available; routine activity theory, which holds that a crime occurs when a motivated offender, a suitable target and the absence of a capable guardian converge in time and space; and situational crime prevention, which reduces crime by altering those conditions rather than the offender.
Rational choice
The claim, carefully stated. Offenders make choices, and those choices are rational in a limited way: they use the information they have, they are influenced by immediate rather than distant consequences, and they satisfice rather than optimise. This is not the Classical School's calculator. It is bounded rationality.
Two decisions are distinguished. The involvement decision, whether to become the sort of person who commits this kind of offence at all, which is influenced by everything the earlier chapters describe. And the event decision, whether to commit this particular offence now, which is influenced by the immediate circumstances. Crime prevention works on the second, which is why it works at all.
Offences are studied one at a time. A burglar's decision has nothing in common with a fraudster's, so the theory refuses to generalise across offence types and studies the decision structure of each. This is why the tradition produces usable findings.
Routine activity theory
The formulation. Cohen and Felson's theory holds that a criminal event requires the convergence in time and space of three things: a likely or motivated offender, a suitable target, and the absence of a capable guardian against the offence. If any one is missing there is no crime.
Its power is the second and third elements. Every other theory concentrates on the first. This one says that the supply of motivated offenders can be treated as constant and that crime rates will still move, because targets and guardianship change.
Target suitability. Remembered by four properties: value, inertia, meaning how easily it can be moved, visibility, and access. A gold chain is high in value, low in inertia, highly visible and easily accessible, which is precisely why chain snatching exists as an offence category.
Capable guardian. Not only a police officer. A neighbour at a window, a shopkeeper, a working streetlight, a functioning lock, a colleague who might notice an entry in a ledger. Guardianship is mostly informal and mostly incidental.
The historical claim. Cohen and Felson explained the rise in property crime in post-war America not by more offenders but by changed routines: more households empty during the day as women entered paid employment, and more portable valuable goods to steal. It is one of the few criminological theories to have predicted an aggregate trend correctly.
Modern Criminology: Rational Choice, Routine Activity and Situational Prevention
Situational crime prevention
The practical programme, and the reason this chapter matters. Five techniques, each with a mechanism.
Increase the effort. Locks, barriers, immobilisers, controlled access, screening.
Increase the risk. Lighting, cameras, entry and exit screening, natural surveillance, place managers.
Reduce the rewards. Property marking, disabling stolen goods, removing cash from a system, disrupting the market in which stolen property is sold.
Reduce provocations. Managing queues, reducing crowding and frustration at ticket counters, avoiding disputes at closing time.
The standard objection is displacement, that the offender simply goes elsewhere. The evidence is that displacement is real but partial, and that a diffusion of benefits often occurs, in which the protected area's neighbours also see a fall because offenders overestimate the extent of the measure.
The criticism
It ignores causes. It says nothing about why anyone is motivated, and it is content not to.
It reaches only some offences. It works well on burglary, vehicle theft and street robbery, and it has much less to say about violence within families, sexual offending or corporate crime.
It has social costs. A city organised around target hardening becomes a city of gates, cameras and private guards, and the burden of protection falls on those who can pay for it.
And it can be an excuse. Advising a victim to guard her property better slides easily into blaming her, which is the objection victimology has already recorded.
Why it is worth so much anyway
Because it works, and very little else in criminology demonstrably does.
Vehicle theft fell sharply in many countries after electronic immobilisers were made compulsory. Handset theft fell where networks were required to block stolen devices. Deaths from one method of suicide fell when the means was removed. In each the offender population was untouched and the offence fell, which is the whole claim.
For an Indian city the implication is direct: the largest available reductions in snatching, vehicle theft and burglary come from the market in stolen goods, from lighting and from the design of streets, and not from the length of the sentence.
A worked example
A suburban railway station reports a high rate of mobile phone theft on the up platform between six and eight in the evening.
Routine activity analysis. Motivated offenders are present and can be assumed constant. Suitable targets are abundant: high value, no inertia, highly visible in a commuter's hand, and completely accessible in a crowd. Capable guardians are absent: the crowd itself is the cover, and the staff are occupied elsewhere.
Modern Criminology: Rational Choice, Routine Activity and Situational Prevention
The prevention that follows. Increase the effort by managing the crowd so bodies are not pressed together at the platform edge. Increase the risk by lighting and by staff positioned at the two identified points. Reduce the reward by working with the network operators so a stolen handset can be blocked and is worth less, and by acting against the two shops that buy them. Remove excuses with announcements.
Note what has not been proposed. No change to the law, no increase in the punishment, and no attention at all to the offenders' backgrounds. That is the point of the tradition.
And the honest limitation. None of this asks why a nineteen-year-old is on that platform looking for a phone, and the chapters in Module II are still needed for that. The two approaches answer different questions and a good answer says so.
Quick revision
Rational choice: offenders make bounded, immediate, offence-specific decisions; distinguish the involvement decision from the event decision, and prevention works on the second.
Routine activity: a crime needs a motivated offender, a suitable target and the absence of a capable guardian, converging in time and space.
Target suitability: value, inertia, visibility, access. Guardianship is mostly informal.
Cohen and Felson explained post-war property crime by changed routines rather than by more offenders.
Situational crime prevention: increase the effort, increase the risk, reduce the rewards, reduce provocations, remove excuses.
Displacement is partial and diffusion of benefits is real.
Criticism: it ignores causes, reaches only some offences, produces a fortified city, and can slide into blaming the victim. It is nonetheless among the few approaches with demonstrated effect.
Test yourself
1. State the routine activity formulation and explain why the second and third elements matter more than the first. That a criminal event requires the convergence in time and space of a motivated offender, a suitable target and the absence of a capable guardian. The second and third matter more because they are the ones that can be changed: the supply of motivated offenders can be treated as constant and crime rates will still move as the availability of targets and the presence of guardianship change, which is what makes prevention possible without reforming anybody.
2. Name the five techniques of situational crime prevention with an example of each. Increase the effort, by locks, barriers and immobilisers; increase the risk, by lighting, cameras and natural surveillance; reduce the rewards, by property marking, disabling stolen handsets and disrupting the market in stolen goods; reduce provocations, by managing queues and crowding; and remove excuses, by clear posted rules and easy compliance.
Modern Criminology: Rational Choice, Routine Activity and Situational Prevention
3. What is displacement, and what is the evidence about it? The objection that a prevented offence is not prevented but moved, to another place, time, target, method or offence. The evidence is that displacement is real but partial, so a net reduction usually remains, and that the opposite effect, a diffusion of benefits, often occurs as well, in which areas adjoining the protected one also see a fall because offenders overestimate how far the measure extends.
Syllabus topic 2, "Criminology From - Ancient to Modern thought"
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In one line
India has produced very little academic criminology and a very great deal of official criminology, so the serious study of crime in this country is found in commission reports, committee reports and Supreme Court judgments rather than in a school of thought.
In the wording a student can write in an exam: criminology in India has no school of its own; its foundations are the ancient treatment of danda and the Arthashastra, its modern body of knowledge is produced chiefly by Law Commission reports, committees of enquiry and the National Crime Records Bureau, and its most influential single idea, privileged class deviance, is Indian in origin and is the organising concept of this syllabus.
Why there is so little academic criminology
Four reasons, and stating them is a better answer than pretending a tradition exists.
Criminology is taught in law faculties rather than as a discipline. It appears as a paper in an LL.M. or a B.A., and rarely as a department with a research programme of its own.
The data are not there. No continuous national victimisation survey, no cohort studies, no reliable series on how cases move through the system. A discipline that cannot measure cannot accumulate.
The subject has been colonised by administration. Where a European question would be researched, an Indian one is referred to a committee, and the committee's report becomes the authority. That is why Module IV of this syllabus is largely about commissions.
And the sociology of crime has been separated from the law of crime. Sociology departments study caste, agrarian relations and communal violence, which are criminological subjects, but the results rarely reach a law syllabus.
What Indian criminology does consist of
The ancient inheritance. Danda, the Arthashastra's treatment of the misappropriating official, and the reformative and purificatory conception of punishment, all covered in the chapter on ancient India.
The colonial legacy, which is mostly negative. The Indian Penal Code was drafted on utilitarian principles by Macaulay, and the Criminal Tribes Act embodied the born criminal theory in legislation. The first is the framework of Indian criminal law and the second is its most damaging application of criminological theory, and both should be named.
The official reports. These are the real literature and they should be cited by name in an examination.
The Santhanam Committee on Prevention of Corruption, which reported in 1964, is the foundational Indian study of official corruption and of white collar crime, and it recommended the Central Vigilance Commission.
The Law Commission's twenty-ninth report, on whether socio-economic offences should be brought into the Penal Code, is the leading Indian treatment of white collar crime as a legislative problem.
The Law Commission's forty-seventh report, on the trial and punishment of socio-economic offences.
Criminological Thought in India
The National Police Commission, which reported between 1979 and 1981 in eight reports, remains the most thorough study of policing in India and its recommendations underlie the police reform litigation dealt with in Module III.
The Malimath Committee on Reforms of the Criminal Justice System, 2003, which proposed a shift towards elements of the inquisitorial system and a stronger place for the victim, and which remains controversial.
The Justice Verma Committee, 2013, on amendments to the criminal law relating to offences against women, the most influential Indian criminological report of recent decades.
The Lentin Commission, 1988, on the deaths in the J.J. Hospital, which is examined in Module III and is the standard Indian study of deviance in the medical and drug administration.
The National Crime Records Bureau, whose annual compilations are the only continuous national series, with the limitations set out in the chapter on the dark figure.
And the Supreme Court. Judgments in police reform, custodial violence, prison conditions, victim compensation and sentencing contain a great deal of criminological reasoning, and in the absence of an academic literature they function as one.
The Indian contribution to the discipline
Privileged class deviance. The concept, associated with Upendra Baxi's writing, is the Indian addition to criminological vocabulary and it is what MU's Module III examines. It differs from white collar crime by being about power rather than only about occupation, and it includes official, police and political deviance which Sutherland's term does not naturally cover.
The study of collective violence. Communal, caste and agrarian violence have been studied in India more thoroughly than almost anywhere, largely through commissions of inquiry, and they form a separate paper in this very group.
And the criminology of the criminal justice system itself. Delay, undertrial detention, custodial violence and the non-registration of complaints are studied in India as criminological phenomena in their own right, which is a genuine contribution: in most literatures they are treated as administrative problems.
A worked example
A student is asked to write on the causes of custodial death in India and looks for the literature.
What is not available. There is no long-running Indian research programme on custodial violence, no cohort study of arrestees, and no reliable national dataset on deaths in police custody that is independent of the police.
What is available, and it is substantial. The National Police Commission's reports on the conditions and incentives under which Indian policing operates. The Law Commission's work on the same subject. The National Human Rights Commission's requirement that custodial deaths be reported to it and the record that has produced. The line of Supreme Court judgments on arrest, on custodial death and on closed circuit television in police stations, all of which contain factual findings. And the annual figures compiled by the Bureau, with the caution that they are compiled from police returns.
Criminological Thought in India
How a good answer uses them. It takes the mechanism from the general criminological literature, in this case the pressure to produce a detection combined with the near-impossibility of an independent complaint, and it takes the Indian facts from the commissions and the judgments. That combination is what an Indian criminology answer looks like, and it is worth saying so.
Quick revision
India has almost no academic criminology and a great deal of official criminology; the literature is commission reports, committee reports, Bureau statistics and Supreme Court judgments.
Four reasons: the subject is taught in law faculties rather than researched; there is no victimisation survey or cohort data; questions are referred to committees rather than researched; and the sociology of crime is separated from the law of crime.
The colonial legacy: the Penal Code drafted on utilitarian lines, and the Criminal Tribes Act embodying the born criminal theory.
The reports to name: Santhanam, 1964; Law Commission reports twenty-nine and forty-seven on socio-economic offences; the National Police Commission, 1979 to 1981; Malimath, 2003; Justice Verma, 2013; and the Lentin Commission, 1988.
India's own contributions: the concept of privileged class deviance; the study of collective violence; and the treatment of delay, undertrial detention and non-registration as criminological phenomena rather than as administrative failures.
Test yourself
1. Why is there so little academic criminology in India, and what stands in its place? Because the subject is taught within law faculties rather than pursued as a research discipline, because the data a research programme needs do not exist, because questions of crime policy are referred to committees rather than studied, and because the sociology of crime developed apart from the law of crime. What stands in its place is official criminology: commission and committee reports, the National Crime Records Bureau's compilations, and the factual findings in Supreme Court judgments.
2. Name five Indian official reports a criminology answer should be able to cite. The Santhanam Committee on Prevention of Corruption, 1964; the Law Commission's twenty-ninth and forty-seventh reports on socio-economic offences; the National Police Commission, which reported between 1979 and 1981; the Malimath Committee on Reforms of the Criminal Justice System, 2003; and the Justice Verma Committee on criminal law amendment, 2013.
3. What is India's own contribution to criminological vocabulary and how does it differ from Sutherland's? Privileged class deviance. It differs from white collar crime by being organised around power rather than around occupation, so it covers official deviance, police deviance and political deviance as well as occupational offending by professionals and businessmen, and it directs attention to the response of the legal order rather than only to the conduct.
The multiple factor approach holds that crime has no single cause, and that any offence is the product of a combination of factors which differs from case to case.
In the wording a student can write in an exam: the multiple factor theory of crime rejects the search for a single universal cause and holds that criminal behaviour results from the interaction of a plurality of factors, biological, psychological, social and economic, whose combination varies from offender to offender, so that no one factor is either necessary or sufficient.
What it says
Three propositions, and they should be stated separately because the criticism attacks them separately.
One: no single cause exists. Neither heredity, nor poverty, nor a broken home, nor mental disorder, nor bad company explains crime as a whole. Each is present in some cases and absent in others, and each is present in enormous numbers of people who never offend.
Two: any offence is produced by a combination. In the individual case a number of factors have operated together, and the offence is the resultant. The same offence in two people may rest on wholly different combinations.
Three: the combination varies. There is no fixed set. What criminology can do is identify the factors that recur and estimate their weight, not produce a formula.
Where it came from
Its ancestry is in the Positive School. Ferri's division of causes into anthropological, physical and social factors, described in the chapter on Ferri and Garofalo, is the multiple factor approach in embryo, and Lombroso himself moved a long way towards it in his later editions.
Its method is the case study. William Healy, the psychiatrist who examined juveniles at the Chicago juvenile court, published The Individual Delinquent in 1915 after studying a thousand cases and concluded that in each case a number of factors had operated and that no general causal law could be extracted. His method, examining the individual thoroughly rather than counting a population, is what the approach rests on.
Cyril Burt studied young offenders in London and reported that a large number of conditions were associated with delinquency, of which he identified around one hundred and seventy, with several operating in every case.
Sheldon and Eleanor Glueck carried out the largest work in the tradition, matching five hundred delinquent boys with five hundred non-delinquent boys of the same age, intelligence, ethnic origin and neighbourhood, and comparing them across physical, psychological and social measures. The matched control design is what makes their work valuable and it is what Lombroso lacked.
Its practical attraction
It fits what a practitioner sees. Any probation officer, magistrate or prison officer who reads a hundred case files will recognise the description at once: each file is different, and each contains several things that went wrong.
Module one is free. The rest of this chapter comes with the LL.M. Criminal Law and Criminal Administration Semester 2 notes.
You are reading a chapter from a later module. Everything in module one of every
subject stays free, and so does every question paper and the syllabus.
Every single-factor theory of crime has failed for the same two reasons: the factor is absent in many offenders, and it is present in enormous numbers of people who never offend.
In the wording a student can write in an exam: a single factor explanation of crime is one that identifies a single condition as the cause of criminal behaviour; each such theory fails the test of necessity, because offenders exist in whom the factor is absent, and the test of sufficiency, because the factor is present in very large numbers of non-offenders.
The test to apply
Learn this and every single-factor theory can be dismantled in two sentences.
Is the factor necessary? If offending occurs without it, it cannot be the cause.
Is the factor sufficient? If the factor occurs without offending, it cannot be the cause by itself.
A cause in the strict sense should be both. No candidate in the history of criminology has been either.
The candidates, and how each fails
Heredity and physical type. Lombroso's born criminal. Not necessary, because most offenders have none of the stigmata. Not sufficient, because Goring found the features distributed as widely outside prisons as within them.
Low intelligence. Advanced by Goring and by others in the early twentieth century, with prison populations reported to test poorly. Not necessary: fraud, forgery and corruption require ability. Not sufficient: most people who test poorly never offend. And the finding was largely an artefact of who gets caught, since a person of low ability is more easily detected and less able to defend himself.
Poverty. Not necessary, because the offences of Module III are committed by the prosperous. Not sufficient, because most poor people do not offend, and some of the poorest regions record the lowest rates, which Guerry found in the 1830s.
The broken home. Not necessary: many offenders come from intact families. Not sufficient: most children of separated or bereaved parents do not offend. Later work found that it is conflict and supervision, not the structure of the household, that matters.
Mental illness. Not necessary, since the overwhelming majority of offenders have no diagnosable disorder. Not sufficient, since the overwhelming majority of people with mental illness never offend and are far more likely to be victims.
Bad company. Closer than most, and it is the basis of Sutherland's theory. Still not sufficient on its own, because it does not explain who becomes the company, and not necessary for offences committed alone.
Mass media. Neither. The effect that research finds is small, short-lived and conditional, and the vast majority of those exposed do not offend. Dealt with in its own chapter.
The rest of this chapter comes with the notes.
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Chapter Forty-Six
Burt, Healy and the Gluecks
Syllabus topic 3, "Multiple Factor theory"
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In one line
Three bodies of research built the multiple factor approach: Healy's case studies of a thousand juveniles, Burt's catalogue of about one hundred and seventy conditions, and the Gluecks' matched comparison of five hundred delinquent and five hundred non-delinquent boys.
In the wording a student can write in an exam: William Healy, The Individual Delinquent, 1915; Cyril Burt, The Young Delinquent, 1925; and Sheldon and Eleanor Glueck, Unraveling Juvenile Delinquency, 1950, are the three foundations of the multiple factor approach, and their common conclusion is that in every case a number of conditions operate together and no general causal law can be extracted.
Healy
What he did. Healy was a physician who set up a psychopathic institute attached to the Chicago juvenile court and examined a thousand repeat juvenile offenders, each with a medical examination, psychological testing, a family history and an interview.
What he found. No single factor was present in all cases or even in most. In each individual a number of conditions combined, and the combination differed. Where he found a common thread it was emotional disturbance arising out of family relationships, but he presented that as a frequent element rather than as a cause.
Why it matters. Healy established the individual case study as a method in criminology and he established the practice of examining an offender comprehensively rather than through one discipline's lens. The pre-sentence report and the modern requirement that a sentencing court have psychiatric, psychological and social material are direct descendants.
Its limitation. His subjects were repeat offenders referred to a court clinic, which is a selected group twice over, and he had no control group of non-offenders.
Burt
What he did. Cyril Burt was an educational psychologist working for the London County Council. In The Young Delinquent he compared young offenders with non-offending schoolchildren across a very wide range of measures.
What he found. He identified a large number of conditions associated with delinquency, commonly given as about one hundred and seventy, grouped under headings such as hereditary, physical, intellectual, emotional, family, school and neighbourhood. He reported that several were present in every case he examined, and that no single one was decisive.
Why it matters. It is the classic statement of the approach: a long list, no hierarchy, and a conclusion that delinquency is the product of a concurrence of conditions.
Its limitations, and one that must be stated. The list is unweighted, so it cannot say which conditions matter more, and it is largely a list of correlations. Separately, and importantly, Burt's later work on the heritability of intelligence was the subject of serious allegations of data fabrication after his death, and while that controversy concerns different research it is a reason for caution in relying on his figures. An answer that mentions this is showing genuine familiarity with the literature.
The rest of this chapter comes with the notes.
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Chapter Forty-Seven
Sutherland's Objection: A Factor Is Not a Cause
Syllabus topic 3, "Multiple Factor theory"
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In one line
Sutherland accepted that many conditions are associated with crime and denied that a list of them is an explanation, because a factor is something that goes with offending while a cause is something that produces it.
In the wording a student can write in an exam: Sutherland's objection to the multiple factor approach is that it confuses multiple factors with multiple causes; a scientific explanation requires a general process present whenever crime occurs and absent whenever it does not, and a catalogue of correlations, however long, is the material for such an explanation rather than the explanation itself.
The objection, in four steps
Step one: the approach is a description, not a theory. Burt's one hundred and seventy conditions tell you what is often found alongside delinquency. They do not tell you how any of it works. A theory must state a mechanism.
Step two: the factors are of different logical kinds and cannot be added. A head injury, a father's death, a neighbourhood's turnover rate and a friend's example are not commensurable quantities. Saying that nine of them combined does not say what the combination is.
Step three: no factor is necessary or sufficient, and a list of insufficient factors is still insufficient. Adding a second condition that is neither necessary nor sufficient to a first does not produce a cause. It produces two correlations.
Step four, and the decisive one: the approach cannot be refuted. If any combination will do, then no case can contradict the theory. An offender with none of the listed factors will be found to have some other one. The chapter on whether criminology is a science explains why this is fatal to a claim to be scientific.
What Sutherland proposed instead
He did not propose a single cause. This is the point students get wrong and it should be stated clearly: Sutherland's objection is not that there is one cause; it is that there must be one process.
His demand was for a general proposition that holds in every case. The factors then find their place not as separate causes but as different routes to the same mechanism. His candidate was differential association: a person offends because the definitions favourable to violation of law to which he has been exposed outweigh the definitions unfavourable to it.
Notice how the factors reappear inside it. Poverty matters when it places a person among people who define the law as an obstacle; where it places him among people who define it as binding, it produces no offending, which is why most poor people do not offend. A broken home matters when it removes supervision and pushes a boy towards the street; a bereaved household with strong supervision does not. A neighbourhood matters through the associations available in it, which is exactly what the Chicago School found. Media matters little, because proposition three says the significant learning happens in intimate personal groups.
The rest of this chapter comes with the notes.
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Chapter Forty-Eight
The Multiple Factor Theory Evaluated
Syllabus topic 3, "Multiple Factor theory"
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In one line
The multiple factor theory is an accurate description of what is found in real cases and a poor theory of why crime happens, and its modern form, risk factor research, keeps the accuracy while trying to supply the missing mechanism.
In the wording a student can write in an exam: the relevance and applicability of the Multiple Factor Theory lie in its realism, its resistance to ideology and its usefulness to sentencing and treatment; its defects are that it lists without weighting, describes without explaining, cannot be refuted, and confuses correlation with causation.
The merits
One: it corresponds to the evidence. Every serious study, from Healy to the Gluecks to modern longitudinal research, finds several conditions operating in each case and none universal. A theory should fit the data before it is elegant.
Two: it resists the overclaim that is this discipline's besetting sin. The history in Module I is a series of single-factor theories each of which was asserted too confidently and each of which failed. The multiple factor approach is a standing corrective.
Three: it is what a practitioner needs. A magistrate, a probation officer and a prison officer each face one person with one history. The approach directs attention to what is actually in that history.
Four: it supports individualised sentencing. If the combination varies, then the response must be assessed case by case, which is the reformative principle and is now embedded in Indian sentencing practice through the requirement of psychiatric, psychological and social material before a sentence is fixed.
Five: it is honest about uncertainty. Criminology cannot say which individual will offend. The approach admits it. Single-factor theories conceal it and are therefore more dangerous when applied to people.
The defects
One: a list is not a theory. It states no mechanism, so it cannot say how the factors combine or in what order they operate.
Two: the factors are unweighted. One hundred and seventy conditions with no ranking gives no guidance about where to intervene. If a State can fund one programme, the approach does not say which.
Three: it cannot be refuted, and a proposition that no observation can contradict is not scientific.
Four: it confuses correlation with causation, and it confuses direction. Poor school performance is associated with delinquency; the offending may be the cause of the poor performance rather than its effect, or both may follow from something else.
Five: it treats factors as additive when they interact. Two conditions may have no effect apart and a large effect together. The chapter on biological typologies gave an example: a genetic susceptibility that raises risk only among those maltreated in childhood. A list cannot represent that.
Six: it can excuse everything. If nine factors are present in every offender's file, and the same nine are present in millions of non-offenders, then citing them explains nothing and can be used to explain any conduct after the fact.
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Chapter Forty-Nine
The Multiple Factor Theory in India
Syllabus topic 3, "Multiple Factor theory"
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In one line
The multiple factor approach describes Indian offending well, but the Indian list is not the Western one, because caste, dowry, land, communal identity and migration operate here in ways no imported catalogue contains.
In the wording a student can write in an exam: applying the multiple factor theory to India requires adding factors absent from Western lists, namely caste, communal and religious identity, land and agrarian relations, dowry and family structure, rural to urban migration, and the operation of the criminal justice system itself, and it requires acknowledging that India lacks the longitudinal data on which the modern form of the approach depends.
Why the Western list does not transfer
Because the social structure is different. Caste is not a variety of class and cannot be folded into it. It determines occupation, residence, marriage, access to institutions and the treatment a complainant receives at a police station, and it is the organising variable in a whole class of offences.
Because the family is different. Household size, joint residence, the arrangement of marriage and the transfer of dowry generate offending patterns that a study of nuclear families does not encounter.
Because the economy is different. Most employment is informal, most transactions are unrecorded, and land holdings are small and disputed. Each of these produces its own offending.
And because the criminal justice system is different. Delay measured in years, undertrial detention exceeding the likely sentence, and the well-documented difficulty of getting a complaint registered are not background conditions here; they are factors that shape offending, victimisation and desistance directly.
The Indian list
Six factors that any Indian application must contain, over and above the standard ones covered in the chapters that follow.
Caste. It supplies a class of offences defined by the identity of the victim; it determines whose complaints are registered; and it structures the rural violence that is a separate paper on this group.
Communal and religious identity. Episodic collective violence has been studied in India through commissions of inquiry more thoroughly than through any other route.
Land and agrarian relations. A very large share of rural violence, including homicide, arises out of disputes over land, boundaries and irrigation, and this is the commonest single context for serious violence in rural India.
Dowry and the position of women in the household. Cruelty within marriage, dowry death and the offences connected with them are a category with no close Western equivalent, and their explanation lies in family structure and property transfer rather than in individual pathology.
Migration and urban settlement. Mumbai's growth by absorbing migrants faster than housing, schooling and policing can be supplied produces exactly the conditions the Chicago School identified, and the operative variable, as that chapter showed, is instability of tenure rather than income.
The rest of this chapter comes with the notes.
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Chapter Fifty
Classifying the Causes of Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
The causes of crime are conventionally grouped as physical, biological, psychological, socio-cultural and economic, and the grouping is a filing system rather than a theory.
In the wording a student can write in an exam: the causes of crime are classified as physical or geographical, biological or hereditary, psychological, socio-cultural and economic, with mass media, substance abuse and the operation of the criminal justice system treated separately; and MU's papers ask for them in exactly these terms, requiring a critical evaluation of their impact on criminal behaviour.
The classification
Physical and geographical. Climate, season, temperature, region, and the built environment.
Biological and hereditary. Constitution, heredity, body chemistry, injury, and the effects of age and sex.
Psychological. Intelligence, personality, emotional disturbance and mental disorder.
Economic. Poverty, unemployment, inequality, affluence and greed.
And three that sit across the categories. Mass media, alcohol and drugs, and the criminal justice system itself.
MU's July 2026 paper lists "Socio-cultural factors, Economic factors, Psychological factors, Influence of Mass Media", and the set-2 paper of the same session lists "socio-cultural, economic, physical and psychological causes". Between them they name every heading above except the biological, so a student who prepares this classification is prepared for the question in whatever order it comes.
Five warnings to carry into every chapter that follows
One: a factor is not a cause. Established in the chapter on Sutherland's objection and applying to every chapter below. Each of the twenty is an association, and the question in each case is what it does and how.
Two: check necessity and sufficiency. Are there offenders without the factor? Are there millions with the factor who do not offend? For every one of the twenty the answer to both is yes.
Three: watch the direction. Does the factor produce the offending, or the offending the factor, or both a third thing? Unemployment and offending travel together, and a conviction is one of the surest ways to become unemployed.
Four: remember the filter. Almost all the evidence comes from convicted populations, and everything in the chapter on the dark figure applies. A factor that makes detection more likely will appear as a cause of crime.
Five: ask whether the factor reaches the crimes of Module III. This is the test that matters most on this syllabus. Poverty, broken homes and low intelligence explain nothing about a director who falsifies a balance sheet or a doctor who prescribes for a commission. A cause that explains only the offending of the poor is a cause of arrest as much as of crime.
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Chapter Fifty-One
Physical, Geographical and Environmental Factors
Syllabus topic 4, "Causes of Crimes"
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In one line
Climate and season are associated with offending, but only weakly and only through social routines, whereas the design of the built environment has a large and demonstrated effect.
In the wording a student can write in an exam: physical factors in criminology comprise climate, season, temperature, region and the built environment; the classical claim, the thermic law of delinquency, is that offences against the person peak in the hot months and offences against property in the cold, and the modern position attributes such patterns to changed routine activities rather than to any direct physiological effect.
The classical claims
The thermic law. Stated by the Cartographic School and elaborated by Quetelet, Guerry and later by Ferri. Crimes against the person increase in the summer and crimes against property in the winter, and the effect was said to be strongest in the temperate latitudes.
Region. Guerry's own finding was that crimes against the person concentrated in the poorer, warmer south of France and crimes against property in the richer, colder north.
Temperature and violence. The proposition that heat raises irritability and lowers tolerance, so that assaults rise with the thermometer.
Time of day and the moon. Offences cluster at particular hours, which is well established, and lunar claims, which are not.
What survives
The seasonal pattern is real and it is social. Offences against the person rise in the hot months in most of the countries where it has been examined, and India is no exception. The mechanism, so far as it can be shown, is that people spend more time outdoors, spend more time together, drink more, and stay out later, so the occasions for conflict multiply. Long evenings do the work, not the temperature as such.
The property pattern is about darkness and about occupancy. Burglary rises when hours of darkness are longer and when houses are empty. In India the pattern follows festivals and the marriage season, when cash and gold are in houses and families are away, which is a routine explanation and not a climatic one.
The heat and aggression association is genuine but small. It has been found repeatedly and its size is modest, and disentangling it from the routines that also change with the weather has proved difficult.
Region tells you almost nothing by itself. Regional differences in recorded crime in India track policing, registration practice, urbanisation and the composition of the population far more strongly than they track climate.
The built environment, which is the useful part
The physical factor that matters is the one the classical writers did not study: how a place is designed.
Defensible space. The proposition that residents will exercise informal control over space they perceive as theirs, and will not over space that belongs to nobody. Layouts producing clearly bounded, overlooked, personalised territory show less crime than layouts producing anonymous corridors and blank service areas.
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Chapter Fifty-Two
Biological and Hereditary Factors
Syllabus topic 4, "Causes of Crimes"
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In one line
Biology contributes to offending by affecting temperament and self-control rather than by producing criminality, and its effects appear only in combination with environment.
In the wording a student can write in an exam: hereditary and biological factors operate on criminal behaviour indirectly, through temperament, impulsivity, arousal and cognitive functioning; the evidence comes from twin and adoption studies, from work on head injury, neurotoxins and nutrition, and from studies of autonomic arousal, and in every case the effect is a modest contribution to risk that requires an environment to express itself.
What the evidence supports
Heritability of antisocial behaviour is real and partial. Twin and adoption studies, described in the Module I chapter on biological typologies, consistently find a genetic contribution to persistent antisocial conduct. The adoption studies show the strongest effect where both the biological and the adoptive parent had convictions, which is the clearest available demonstration that heredity and environment work together rather than separately.
What is inherited is temperament, not crime. Crime is a legal category. What can be inherited is a disposition, and the dispositions that recur in this research are impulsivity, sensation seeking, low tolerance of frustration and difficulty in delaying gratification. Each raises the probability of a wide range of behaviours, of which some are criminal.
Low autonomic arousal. Low resting heart rate is among the most consistently replicated biological correlates of antisocial behaviour in young people. Two explanations are offered and both may be right: that low arousal is unpleasant, so the person seeks stimulation, and that low arousal means less fear, so the threat of punishment restrains less.
Head injury and neurological damage. Damage to the frontal regions is associated with disinhibition and with poor control of aggression, and it is over-represented among violent offenders. The direction of causation is a genuine difficulty, since a violent life produces head injuries as well as following from them.
Neurotoxins. Childhood exposure to lead is associated with lower cognitive functioning and with later antisocial behaviour, and it is one of the few biological factors that is unambiguously environmental in origin and removable by policy.
Nutrition and the perinatal period. Poor nutrition in pregnancy and in early childhood, and complications at birth, are associated with later antisocial conduct, particularly where the family environment is also adverse.
What the evidence does not support
There is no criminal gene and no criminal chromosome. The XYY claim, dealt with in Module I, rested on small and biased samples.
Biology does not predict an individual. Every effect described above is a difference in average probability between groups. It cannot be applied to a person, and the moment it is, the born criminal error has been repeated.
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Chapter Fifty-Three
Age, Sex and Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
Offending rises sharply in adolescence, peaks in the late teens or early twenties and falls away thereafter, and men offend several times more often than women, and no explanation of crime that cannot account for these two facts is worth much.
In the wording a student can write in an exam: the age-crime curve is the most robust finding in criminology: offending rises steeply from early adolescence, peaks between about seventeen and twenty-two depending on the offence, and declines throughout adulthood; and the sex ratio in offending is heavily male, most sharply for violence and least for offences such as fraud committed within the household or workplace.
The age-crime curve
The shape. Steep rise, sharp peak, long decline. It has been found in every country and every period in which it has been looked for, in official statistics and in self-report data alike, and it was already visible to Quetelet in the 1830s.
Property offences peak earlier than violent offences, typically in the middle to late teens for theft and in the early twenties for serious violence, and offences requiring position and access, such as fraud and corruption, peak far later.
Two competing explanations, and the examiner wants both.
The curve reflects a change in offenders. On this view most young offenders are adolescence-limited: they offend for a few years and stop, and a small group of life-course persistent offenders continues. The evidence for this is the Gluecks' follow-up and the modern cohort studies.
The curve reflects a change in circumstances. On this view the same people become less likely to offend as employment, marriage and children arrive, which is control theory's account: commitment, attachment and involvement all increase together in the twenties.
The two are not exclusive and the best supported position combines them: most desist because their circumstances change, and a small minority whose difficulties began early do not.
The Indian pattern is the same. Recorded offending in India is heavily concentrated in the eighteen to thirty band, and the concentration is sharper for the offences that require physical capacity.
Sex and crime
The finding. Men are recorded as offenders several times more often than women, and the ratio is widest for robbery, homicide and other violence and narrowest for offences such as theft within a household, some kinds of fraud, and offences relating to children.
Explanations, and their weaknesses.
The chivalry hypothesis. Women are less often reported, arrested, charged and convicted, because complainants, police and courts treat them more leniently, so the difference is partly in the recording. There is some support for this, and it does not survive as a complete explanation: the sex difference appears in self-report data too, though smaller.
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Chapter Fifty-Four
Psychological Factors: Intelligence, Personality and Emotion
Syllabus topic 4, "Causes of Crimes"
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In one line
The psychological factors that matter are not intelligence and not mental illness but the ordinary traits of self-control, impulsivity and the habits of thought that let a person set a rule aside.
In the wording a student can write in an exam: the psychological factors in crime causation comprise intelligence, whose association is weak and largely an artefact of detection; personality traits, principally impulsivity, low self-control, sensation seeking and hostility; emotional disturbance arising from early relationships; and the cognitive processes by which an offender neutralises the restraint that his own values would otherwise supply.
Intelligence
The old claim. Goring, and the American testing movement of the early twentieth century, held that offenders were of low intelligence and that feeble-mindedness was the chief cause of crime. Whole legislative programmes were built on it.
What is now accepted. There is a modest association between low measured intelligence, particularly verbal ability, and delinquency, and it survives controlling for social class. It is not large, and it explains a small fraction of offending.
And the two reasons to be careful. First, detection: a person of low ability is more easily caught, less able to explain himself and less able to defend himself, so part of the association is produced by the criminal justice system rather than by offending. Second, the mechanism is probably indirect: low verbal ability produces school failure, school failure produces exclusion, and exclusion produces unsupervised time and delinquent association. The intelligence is at the start of a chain and not at the point of the offence.
And it does not reach Module III at all. The offences of the third module require considerable ability.
Personality
Low self-control. The proposition of Gottfredson and Hirschi's general theory of crime, and the most influential psychological claim in modern criminology. Self-control is a stable trait formed in early childhood by effective parenting: supervision, recognition of deviant behaviour, and consistent correction. People low in it are impulsive, prefer simple tasks, seek risk and physical activity, are self-centred and have low tolerance of frustration. On this account they are prone not only to crime but to accidents, smoking, drinking, unstable employment and unstable relationships, which is what the evidence shows.
Sensation seeking. A preference for novelty and excitement, connected with the low autonomic arousal described in the chapter on biological factors.
Hostility and the tendency to attribute hostile intent. A trait that matters specifically for violence: a person who reads an ambiguous act as a deliberate slight will respond as though it were one.
Extraversion and neuroticism. Eysenck's theory, which held that criminality is associated with high extraversion and high neuroticism, and later high psychoticism, on the ground that extraverts condition poorly and so acquire a conscience less readily. The theory is historically important, the evidence is mixed, and the psychoticism dimension is the weakest part.
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Chapter Fifty-Five
Mental Disorder and Criminal Responsibility
Syllabus topic 4, "Causes of Crimes"
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In one line
Mental illness explains a very small share of offending, and Indian law excuses it only where the illness deprived the accused of the knowledge that what he was doing was wrong.
In the wording a student can write in an exam: section 22 of the Bharatiya Nyaya Sanhita 2023 provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; the test is cognitive, it is applied at the time of the act, and legal insanity, not medical insanity, is what the section requires.
The empirical position first
Get this right before the law, because most answers get it backwards.
Most offenders have no diagnosable disorder. The great majority of crime is committed by people who are mentally well.
Most people with mental illness never offend, and they are considerably more likely to be victims of crime than perpetrators of it. The popular association between mental illness and violence is not supported by the evidence and repeating it in an answer is an error.
Where an association exists it is narrow. Untreated psychosis with particular kinds of delusion, and substance use disorders, carry a raised risk. Substance use accounts for more of the association than psychosis does, and the two together account for a small fraction of all offending.
And the direction runs the other way too. People with serious mental illness are heavily over-represented in Indian prisons, which reflects the absence of any alternative disposal rather than any propensity to offend.
The legal test
Section 22. The words are set out above and every word of them is worked.
"By reason of unsoundness of mind." There must be a condition, and it must be the reason for the incapacity. Eccentricity, bad temper and unusual belief are not enough.
"At the time of doing it." The state of mind at the moment of the act is what matters. A person who was ill before and after, and lucid at the moment, is not within the section. This is why evidence of conduct immediately before and after the offence is so heavily relied on.
"Incapable of knowing." Not merely that he did not think about it, but that he could not know.
"The nature of the act." He did not know what he was physically doing, for instance believing he was cutting a rope when he was cutting a throat.
"Or that he is doing what is either wrong or contrary to law." He knew what he was doing but did not know it was wrong, or did not know it was against the law. Either limb suffices.
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Chapter Fifty-Six
Socio-Cultural Factors: The Family and the Broken Home
Syllabus topic 4, "Causes of Crimes"
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In one line
What matters in a family is not whether it is intact but whether the child is supervised, whether the discipline is consistent, and whether there is affection and conflict, and a broken home with those things does better than an intact home without them.
In the wording a student can write in an exam: the family affects offending through supervision, consistency of discipline, parental affection, family conflict and parental criminality; the broken home as such is a weak predictor once these are controlled, and the finding that matters is that conflict within an intact family predicts delinquency more strongly than the separation of parents does.
The variables that actually matter
Supervision. Whether a parent knows where the child is, whom he is with, and when he will be home. This is the single strongest family variable in the research literature and it is the one most easily disrupted by a parent working two jobs.
Consistency of discipline. Erratic discipline, in which the same conduct is ignored one day and punished harshly the next, predicts delinquency more strongly than either strict or lenient discipline consistently applied. The child learns nothing from a rule that does not hold.
Harsh and punitive discipline. Physical punishment is associated with later aggression, and the association survives controlling for the behaviour that prompted it.
Parental affection and rejection. The Gluecks' five family variables, described in their chapter, include the affection of each parent for the boy and the cohesiveness of the family.
Conflict. Persistent quarrelling and violence between parents predicts offending strongly, and this is where the broken home finding is actually located.
Parental criminality. Having a convicted parent is among the strongest single predictors in the longitudinal studies. The mechanisms are disputed and probably several: transmitted attitudes, poorer supervision, the effect of a parent's imprisonment on the household's income and stability, and the greater police attention that a known family attracts.
And family size. Larger families show higher rates, most plausibly because supervision is spread thinner.
The broken home, examined
The popular claim. That children of separated, divorced or bereaved parents offend more.
The finding. There is an association, and it is much weaker than the claim supposes, and most of it disappears once conflict and supervision are taken into account.
Three refinements that a good answer makes.
Separation by conflict differs from separation by death. Where the household breaks up after prolonged quarrelling, the association with offending is real. Where a parent dies, it is markedly weaker. That difference alone shows that the mechanism is the conflict rather than the structure.
A high-conflict intact home is worse than a low-conflict separated one. This is the finding that most contradicts the popular position and it should be stated in terms.
The rest of this chapter comes with the notes.
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Chapter Fifty-Seven
Socio-Cultural Factors: School, Peer Group and Companionship
Syllabus topic 4, "Causes of Crimes"
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In one line
Delinquent companionship is the strongest social correlate of offending there is, and the school matters chiefly because it determines who a young person's companions are.
In the wording a student can write in an exam: companionship with delinquent peers is among the strongest correlates of offending in every study in which it has been measured; the school operates both directly, through attachment, achievement and exclusion, and indirectly, by determining the peer group available; and the mechanism connecting the two is Sutherland's differential association.
The peer group
The finding. Having delinquent friends predicts offending more strongly than almost any other social variable. Most juvenile offending is committed in company. Offenders' associates are offenders.
Three explanations, and an answer should give all three.
Learning. The Sutherland account: techniques, motives and rationalisations are transmitted in intimate groups, and the balance of definitions favourable to violation is what the group supplies.
Selection. Birds of a feather. Young people who are already inclined to offend seek out others like themselves, so the association reflects choice rather than influence. This is the objection to a purely causal reading and it has real force.
Facilitation. The group makes possible what an individual would not attempt: it supplies courage, an audience, a division of labour, and a way of distributing responsibility so that no member feels wholly answerable.
Where the evidence sits. Longitudinal studies that establish sequence find both selection and influence operating: young people choose companions like themselves, and are then influenced by them further. The practical consequence is that separating a young person from a delinquent group changes his offending, which is what makes the finding useful.
And the corollary that matters most for policy. Any measure that concentrates offenders together maximises exposure to definitions favourable to violation. Prison does this. So do institutions for juveniles. This is the criminological argument against custody for the young and it recurs in Module IV.
The school
Attachment to school. Liking school, caring what teachers think, and valuing what happens there. Hirschi's bond, applied to the institution where a young person spends most of his waking hours.
Achievement. Failure at school predicts delinquency, and the mechanism is Cohen's status frustration: the school is where a young person is publicly ranked, and those it ranks low must find status elsewhere.
Attendance and dropping out. Leaving school early is among the most consistently reported correlates of offending in Indian data as well as elsewhere. The mechanisms are three at once: unsupervised time, the removal of the institution that supplied non-delinquent associates, and entry into a labour market that offers only casual work.
Exclusion. A school that removes a difficult child removes him into exactly the conditions that produce offending. This is where the labelling argument and the association argument converge, and it is why exclusion is the single most consequential decision a school makes about a child at risk.
The rest of this chapter comes with the notes.
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Chapter Fifty-Eight
Socio-Cultural Factors: Caste, Religion, Community and Culture Conflict
Syllabus topic 4, "Causes of Crimes"
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In one line
Caste, religion and community do not make people offend; they determine which conflicts arise, who is protected when they do, and whose complaint is believed.
In the wording a student can write in an exam: the relation between the socio-culture pattern and criminal behaviour operates through culture conflict, in which the norms of one group collide with the law or with the norms of another; in India the operative divisions are caste, religious community and region, and they affect offending, victimisation and the response of the criminal justice system alike.
Culture conflict
Sellin's concept, and it is the theoretical anchor of the topic. A person conforms to the norms of the group in which he was raised, and where those norms differ from the law, conformity to the group is a breach of the law.
Two forms.Primary conflict, where two cultures meet, as when a migrant's practice is lawful at home and criminal where he has moved. Secondary conflict, where a single society has developed groups with divergent norms, so that a subculture's rules and the law's rules diverge.
The Indian illustrations are unusually clear. Practices connected with marriage, with the disposal of property, with the treatment of women and with caste observance are governed by community norms in a great many households, and several of them are now offences. Child marriage, dowry, the harassment of an inter-caste couple, and some customary practices are conduct that a community regards as correct and the law treats as criminal. The offender is conforming and offending at the same time.
And note the direction of the reform. The law here is deliberately ahead of the norm, and that is a choice about the criminal law's function: it is being used to change a practice rather than to reflect a consensus. Whether it works is a criminological question, and the answer, on the Indian evidence, is that prohibition alone changes very little and prohibition combined with a changed incentive structure changes a good deal.
Caste
As a source of conflict. Disputes over land, over water, over temple entry, over the conduct of a marriage and over the assertion of dignity are the commonest contexts of serious rural violence in India.
As a category of victimisation. A separate body of law exists precisely because the ordinary law was not reaching the offences committed against members of scheduled castes and scheduled tribes, and its existence is an admission that identity determines who is protected.
As a determinant of the response. This is the criminologically important point and it belongs in every Indian answer. Whether a complaint is registered, whether an investigation is pursued, whether witnesses are protected and whether a conviction follows are all affected by the relative position of complainant and accused. The registration failure documented in the chapter on police deviance is not evenly distributed.
The rest of this chapter comes with the notes.
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Chapter Fifty-Nine
Urbanisation, Industrialisation and Migration
Syllabus topic 4, "Causes of Crimes"
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In one line
Cities have more recorded crime than villages, but the operative variable is not size or density: it is the instability of a population that has arrived faster than the institutions that would settle it.
In the wording a student can write in an exam: urbanisation is associated with higher recorded rates of property offending and lower rates of some kinds of interpersonal violence; the mechanism is anonymity, weakened informal social control, greater opportunity and higher population turnover, and it is turnover and instability rather than density or poverty that carry most of the effect.
Why the city differs
Anonymity. In a village a person is known, and being known is a restraint that operates continuously and costs nothing. In a city he is not, and the informal sanctions that regulate rural conduct do not reach him.
Weakened informal control. The Chicago School's social disorganisation, described in its own chapter: where turnover is high and residents share no institutions, nobody supervises anybody's children and nobody can organise to solve a common problem.
Opportunity. More property, more valuable and more portable property, more strangers to victimise, more anonymous transactions and more escape routes.
Reduced guardianship. Households empty during working hours, streets used by strangers, and neighbours who do not know who belongs.
Heterogeneity. Groups with different norms living beside each other, which is Sellin's culture conflict in its urban form.
And greater visibility to the police. Part of the urban excess in recorded crime is that urban offences are more likely to be reported and recorded, since a police station is nearer and the complainant is less dependent on the accused.
What urbanisation reduces
An answer that presents the city as simply worse is wrong.
Some forms of collective and caste violence are rural, and their contexts, land, water, temple entry, the conduct of a marriage, are village contexts.
Feuds are rural, because they require a settled population that will still be there next year.
And some offences within families are more reported in cities, because the victim is less enclosed by kin and there is somewhere to go.
The Indian pattern
The growth is unplanned and the institutions lag. Mumbai has absorbed migrants faster than housing, schooling, transport and policing could be provided for decades. The criminological consequence is that a large population lives in exactly the conditions the Chicago School identified: insecure tenure, high turnover, dense occupation and thin civic institutions.
Tenure is the variable, not income. A settled chawl or an old settlement with three generations in the same rooms has strong informal control however poor it is. A cluster of six-month tenancies has none, however well its residents are paid. This distinction is the single most useful thing in the chapter and it should be made in any answer.
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Chapter Sixty
Poverty as a Cause of Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
Poverty is associated with recorded offending but is neither necessary nor sufficient for it, and what carries most of the association is inequality, insecurity and the way the criminal justice system treats the poor.
In the wording a student can write in an exam: poverty as a cause of crime is the oldest and weakest of the economic explanations; the evidence shows that absolute poverty is a poor predictor of crime rates, that relative deprivation and inequality predict far better, and that a substantial part of the observed association between poverty and crime is produced by the selective operation of the criminal justice system.
The claim and the case for it
The claim. Want drives people to take what they need, and a person with nothing has nothing to lose by offending.
What supports it. Prisoners are overwhelmingly poor, in India and everywhere. Property offending rises in periods of economic distress in some studies. Aristotle observed that poverty is a parent of revolution and of crime, and every subsequent writer has repeated it. And the mechanism is intuitive: hunger, debt and the impossibility of meeting an obligation are real pressures.
And it is not empty. Some offending is directly driven by need, and the offences most obviously so, petty theft of food, of fuel, of small sums, are exactly the offences that fill the lower courts.
Why it fails as a general explanation
One: it is not necessary. The whole of Module III of this paper is about offenders who are not poor. Tax evasion, adulteration, corruption, fraud and professional deviance are committed by people with more than enough, and their aggregate harm exceeds that of ordinary property crime by a very wide margin.
Two: it is not sufficient, and the numbers are overwhelming. Several hundred million people in India live in poverty and the prison population is a few lakh. The overwhelming majority of poor people never offend, and any theory that ignores them has explained nothing.
Three: the poorest places are often not the most criminal. Guerry found this in the 1830s and it has been found repeatedly since. Some of the poorest districts of India record among the lowest rates of property offending, and some of the most prosperous record the highest.
Four: the association is contaminated by the system. This is the point that makes the chapter criminological. A poor person is more likely to be noticed and arrested, less likely to obtain bail, less able to instruct competent counsel, more likely to plead or be convicted, and less likely to have his sentence suspended. The prison population is therefore poor for reasons that have nothing to do with who offends. The prosperous offender described in Module III is filtered out at every one of those stages.
The rest of this chapter comes with the notes.
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Chapter Sixty-One
Unemployment, Inequality and Affluence
Syllabus topic 4, "Causes of Crimes"
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In one line
Unemployment matters less than its quality and duration, inequality is the economic variable that predicts crime best, and affluence produces its own offending, which is the part of the topic this syllabus cares about most.
In the wording a student can write in an exam: the economic factors in crime causation are unemployment, whose association with offending is real but modest and works through duration and instability rather than through the fact of being out of work; inequality, which is the strongest economic predictor of crime rates; and affluence, which supplies both the opportunity and the motive for the offences of Module III.
Unemployment
The intuitive claim. No income means offending to obtain one.
What the evidence shows. The association between unemployment rates and crime rates is real, modest and inconsistent across studies. It is stronger for property offences than for violence, and stronger for youth unemployment than for general unemployment.
Four qualifications that a good answer makes.
Duration matters more than incidence. Short spells between jobs have little effect. Long-term joblessness, particularly of young men who have never been employed, has much more.
Quality matters as much as presence. Casual, insecure, badly paid work produces effects closer to unemployment than to employment. In India, where most employment is informal, this is the important observation: measuring the employment rate tells you very little.
Direction is a real problem. A conviction is among the surest ways to lose employment and to be refused it thereafter, so unemployment among offenders is partly the consequence of their offending.
And employment does not merely supply income. It supplies structure, supervision, adult associates and something to lose, which are three of Hirschi's four bonds. That is why the effect of employment on desistance in the Gluecks' follow-up was so much stronger than any effect of income.
Inequality
The finding. Across countries and across regions within countries, measures of income inequality predict crime rates, and particularly homicide rates, considerably better than measures of average income or of poverty.
The mechanisms.
Relative deprivation. Set out in the previous chapter.
Strain. Merton's account: a common goal, unequally distributed means.
Reduced social cohesion. Highly unequal societies have lower levels of trust and weaker collective institutions, which weakens informal control.
And opportunity. Inequality places valuable property within reach of people who do not have it, which is a routine activity point.
The Indian relevance. India's inequality has risen while its poverty has fallen, and the crime pattern predicted by the inequality account, rising acquisitive and economic offending with no corresponding fall in property crime, is broadly what is recorded.
Affluence
The half of the topic that most answers omit, and the half this syllabus is built on.
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Chapter Sixty-Two
Mass Media and Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
The evidence that media consumption causes crime is much weaker than public discussion assumes, and the media's real criminological importance lies in what it does to fear, to policy and to the trial rather than to offenders.
In the wording a student can write in an exam: the influence of mass media and crime is asserted through four claimed effects, imitation, desensitisation, arousal and the supply of techniques; the research finding is that any direct effect on serious offending is small, short-lived and conditional, and Sutherland's third proposition holds that impersonal agencies play a relatively unimportant part compared with intimate personal groups.
The four claimed effects
Imitation, or the copycat effect. That people reproduce what they see. There are documented instances, particularly for method rather than for the decision to offend: a widely reported method of suicide, of hijacking or of a particular fraud is followed by others using the same method. Note the distinction: the media may influence how, and there is little evidence that it determines whether.
Desensitisation. That repeated exposure to depicted violence reduces the emotional response to real violence. Laboratory work supports a short-term reduction in physiological response. Whether it translates into conduct outside the laboratory is not established.
Arousal. That violent content produces a temporary state of excitement that raises the chance of an aggressive response to a provocation soon after. This effect is measurable and it is very short-lived.
Supply of techniques. That reporting teaches methods. This is the best supported of the four for particular offences, especially fraud and cyber offences, and it is why some reporting conventions exist.
Why the evidence is weak
Laboratory studies measure aggression, not crime. A student who presses a button labelled as a loud noise after watching a film has not committed an offence, and the step from the laboratory measure to a robbery is not one the data support.
Field studies cannot separate selection from effect. People inclined to aggression choose violent entertainment. That association does not establish direction.
The aggregate figures do not cooperate. Exposure to violent media has increased enormously across two generations in most countries, and violent crime has not risen correspondingly, and in many places has fallen sharply.
And almost everybody is exposed. A factor present in practically the whole population cannot explain why a very small fraction offends. This is the sufficiency test from the single factor chapter, and media fails it more completely than any other candidate.
Sutherland's proposition three says exactly this: the principal part of the learning of criminal behaviour occurs within intimate personal groups, and impersonal agencies of communication play a relatively unimportant part.
The rest of this chapter comes with the notes.
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Chapter Sixty-Three
Obscenity, Pornography and the Printed Word
Syllabus topic 4, "Causes of Crimes"
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In one line
Indian law prohibits obscenity, but the Supreme Court has declined to fix the standard of what adults may read by reference to what is fit for a child, and has left the regulation of the press to the body Parliament created.
In the wording a student can write in an exam: obscenity is an offence under the general penal law and under the special statutes governing indecent representation and the protection of children; the question whether the courts should prescribe standards for the press was answered in Ajay Goswami v. Union of India, in which the Supreme Court declined to lay down guidelines and held that the existing statutory framework, including the Press Council of India, was sufficient.
The legal framework in outline
The general penal law punishes the sale, distribution and public exhibition of obscene material, with exceptions for material justified as being for the public good on the ground of science, literature, art or learning, and for material kept or used for religious purposes.
Special statutes deal with the indecent representation of women, with material involving children, and with the transmission of obscene material in electronic form.
And the Press Council Act 1978 creates the body charged with preserving the freedom of the press and maintaining and improving the standards of newspapers and news agencies, with the power to receive complaints and, where it finds a breach of journalistic ethics or an offence against public taste, to warn, admonish or censure. Its constitution and its limitations are the subject of three chapters in Module III.
The test of obscenity
The old test asked whether the material would tend to deprave and corrupt those whose minds are open to such immoral influences, judged by its effect on the most susceptible.
The modern Indian test asks how an ordinary person of common sense and prudence would view the material, taken as a whole and in the context of contemporary community standards, rather than by isolating a passage and judging its effect on the most vulnerable reader.
Two consequences. Material must be read as a whole, and the standard is contemporary and communal rather than fixed and individual.
The leading case
Ajay Goswami v. Union of India, AIR 2007 SC 493, (2007) 1 SCC 143, decided on 12 December 2006.
Facts. The petitioner complained that newspapers were carrying material that was sexually exploitative and unsuitable for minors, and that the existing machinery, including the Press Council of India, was inadequate. He sought directions from the Supreme Court prescribing standards for the press so that children would be protected.
Held. The petition was dismissed. The Court held that a sufficient statutory framework already existed and declined to lay down guidelines of its own. It held that the freedom of expression cannot be curtailed by reducing the material available to adults to what is fit for a child, and it noted that the Press Council of India is the body Parliament established to maintain the standards of the press, operating by self-regulation with a statutory backstop, which is the scheme the law has chosen.
The rest of this chapter comes with the notes.
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Chapter Sixty-Four
Alcoholism and Substance Abuse
Syllabus topic 4, "Causes of Crimes"
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In one line
Alcohol is present in a very large share of violent offending in India and elsewhere, and it operates by removing restraint and by structuring the occasions on which conflict occurs rather than by any simple chemical compulsion.
In the wording a student can write in an exam: alcoholism and substance abuse are among the strongest situational correlates of violent offending; the mechanisms are disinhibition, impairment of judgment and of the reading of social cues, the routines of drinking which bring young men together at night, and, for dependence-producing drugs, the economic compulsion to obtain money for the substance.
The four mechanisms
Disinhibition. Alcohol reduces the restraint that would otherwise operate at the moment. It does not create a motive; it removes the brake on one that was already there.
Impairment of judgment and perception. A person who has been drinking reads ambiguous conduct as hostile more readily, misjudges risk, and overestimates his capacity. This is why alcohol figures in so much assault arising out of trivial provocation.
The routine. Drinking happens at particular places, at particular hours, and in particular company. Young men gathered at night at closing time is a situation, and situations produce offences. A great deal of what is attributed to the chemical is attributable to the setting, and this is why measures directed at the setting, licensing hours, glassware, queue management and dispersal, reduce violence more reliably than measures directed at drinkers.
Economic compulsion, for dependence. A person dependent on an expensive substance needs money daily, and acquisitive offending follows. The mechanism is real and it applies to substances that are both dependence-producing and costly, which is largely a function of prohibition, since illegality is what makes them expensive.
What must not be said
Alcohol is not a cause in the strong sense. Most drinking produces no offence, and most drinkers never offend. The test from the single factor chapter applies.
Culture determines what drinking does. The behavioural consequences of intoxication vary greatly between societies, which is strong evidence that the effect is not purely pharmacological.
And the direction is contaminated. Drinking is part of the lifestyle in which offending occurs, so the association reflects a shared setting as well as any causal effect.
The Indian dimension
Prohibition and its consequences. Several States prohibit or restrict liquor, and the criminological result is consistent: an illicit market, adulterated liquor with periodic mass poisonings, a large volume of prosecutions of consumers and small sellers, and a source of corruption. It is the standard illustration of the chapter on criminalisation, in which an unenforceable prohibition produces selective enforcement and extortion rather than compliance.
Alcohol and offences within the household. A very large share of complaints of cruelty within marriage in India involve alcohol, and the connection runs through both disinhibition and the economic loss to a household with little margin.
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Chapter Sixty-Five
Drugs, the NDPS Act and Drug Related Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
The narcotics statute is the most severe general criminal statute in India, and its design shows what happens when a legislature chooses deterrence through severity over every other consideration.
In the wording a student can write in an exam: the Narcotic Drugs and Psychotropic Substances Act 1985 prohibits the production, manufacture, possession, sale, purchase, transport and use of narcotic drugs and psychotropic substances except for medical or scientific purposes; punishment is graded by quantity, small, more than small and less than commercial, and commercial; it carries a presumption of a culpable mental state, makes offences cognizable and non-bailable with a stringent bail condition, and provides for the death penalty for certain repeat offences.
The scheme
Section 8 is the prohibition. Nobody shall cultivate, produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import, export or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent the Act, the rules or a licence permit.
Sections 20 and 21 are typical of the punishment provisions, dealing respectively with cannabis and with manufactured drugs and preparations, and each is graded by quantity: a small quantity attracts a lighter punishment, a quantity greater than small but less than commercial an intermediate one, and a commercial quantity a minimum of ten years rising to twenty with a heavy fine.
Section 27 punishes consumption, and it is the provision under which a user rather than a trafficker is prosecuted.
Section 27A punishes financing illicit traffic and harbouring offenders, and it reaches the person behind the trade rather than the carrier.
Section 31A provides the death penalty for certain offences after a previous conviction, involving specified quantities.
Section 35 presumes a culpable mental state where an offence requires one, casting on the accused the burden of proving that he had no such mental state.
Section 37 makes offences cognizable and non-bailable, and imposes on bail for the graver offences the double condition that the court be satisfied there are reasonable grounds for believing the accused is not guilty and that he is not likely to commit an offence while on bail.
Section 39 allows the court to release certain offenders on probation, and section 64A gives immunity from prosecution to an addict charged with consumption or with an offence involving a small quantity who volunteers for treatment, an immunity withdrawn if he does not complete it.
Section 71 empowers the Government to establish centres for the identification, treatment, education, after-care, rehabilitation and social reintegration of addicts.
What the design tells a criminologist
It is a severity strategy. Minimum sentences, a heavy fine, a reversed burden on the mental element, a bail condition close to a presumption against release, and the death penalty for a repeat offence. Everything the chapter on Beccaria said about severity applies, and the evidence is that certainty and swiftness do the deterrent work.
The rest of this chapter comes with the notes.
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Chapter Sixty-Six
Juvenile Delinquency and Its Causes
Syllabus topic 4, "Causes of Crimes"
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In one line
Juvenile offending is produced by the same factors as adult offending acting on people who are more susceptible to them, and the Indian legal response treats a child in conflict with the law as a child first.
In the wording a student can write in an exam: the Juvenile Justice (Care and Protection of Children) Act 2015 replaced the Act of 2000; it deals separately with a child in conflict with law and a child in need of care and protection, requires the best interest of the child to be the primary consideration, provides for Juvenile Justice Boards and Child Welfare Committees, and permits a child of sixteen to eighteen alleged to have committed a heinous offence to be tried as an adult after a preliminary assessment.
The causes
Everything in this module applies, and four factors carry most of the weight for this age group.
Supervision. The strongest family variable, and the age at which it matters most is exactly the age at which Indian school retention falls.
School leaving. Its three consequences, unsupervised time, loss of non-delinquent associates and entry into casual adult employment, are set out in the school chapter.
Delinquent association. The strongest social correlate, and juvenile offending is overwhelmingly committed in company.
And the age-crime curve itself. Offending rises steeply from early adolescence for reasons that are developmental as well as social: impulse control matures later than the capacity for planning, and the peer group's influence peaks in exactly these years.
The Indian additions. Child labour, which places children among adult workers; children living on the street, who are both offenders and, far more often, victims; migration, which separates children from supervising adults; and destitution, which produces the offences of survival.
The legal response
Two categories, and they must not be confused. A child in conflict with law is a child alleged or found to have committed an offence and who has not completed eighteen years on the date of the offence. A child in need of care and protection is a child in the situations the Act lists, including one found without any home or means of subsistence, one working in contravention of labour law, one at imminent risk of marriage before the lawful age, and others.
Principles. The Act sets out general principles that govern its administration, among them the presumption of innocence for a child below eighteen, the principle of the best interest of the child, the principle of institutionalisation as a measure of last resort, the principle of repatriation and restoration, and the principle of fresh start.
The Juvenile Justice Board deals with a child in conflict with law: a Metropolitan or Judicial Magistrate with two social worker members, at least one a woman.
The rest of this chapter comes with the notes.
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Chapter Sixty-Seven
Recidivism and the Habitual Offender
Syllabus topic 4, "Causes of Crimes"
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In one line
A small minority of offenders commits a large majority of offences, and the strongest predictor of reoffending is having been punished before, which is a finding about the punishment as much as about the offender.
In the wording a student can write in an exam: recidivism is the commission of a further offence by a person previously convicted; the habitual offender is a statutory category attracting enhanced punishment and, under some State legislation, registration and restriction; and the criminological significance of recidivism is that a small proportion of offenders accounts for a large proportion of offences, so that identifying and diverting that group is worth more than any general measure.
The concentration finding
The finding. In every cohort study in which it has been looked for, a small fraction of the group, typically around six per cent of the whole birth cohort and under a fifth of those who offend at all, accounts for well over half of all recorded offences.
Why it matters more than anything else in this module. It means that offending is not evenly spread. Most people who offend do so once or twice and stop. A small group persists, and it is that group that produces most of the harm.
And the policy consequence is double edged. It supports concentrating resources on a small identified group, which is efficient. It also invites exactly the pre-emptive control the Positive School's critics warned about, since the identification of a persistent offender before he has persisted is prediction, and prediction of individuals in criminology is weak.
Why people reoffend
Because the conditions are unchanged. A person released to the same locality, the same associates, the same absence of employment and the same dependence has had nothing altered except that he now has a record.
Because of the record itself. A conviction closes employment, tenancy and credit, which is the labelling mechanism operating through material consequences rather than through identity.
Because prison supplies associations. Sutherland's mechanism: custody concentrates people who define the law as an obstacle, for months at a time.
Because the intervening period was wasted. An undertrial or a convict who receives no training, no treatment for dependence and no assistance on release has spent the period accumulating disadvantage.
And because a few offenders have the early-onset profile described in the age-crime chapter: difficulties beginning in early childhood, poor self-control, school failure and early offending, which is the life-course persistent group.
The habitual offender in Indian law
Enhanced punishment. The general penal law and several special statutes provide heavier punishment for a person previously convicted. The anti-corruption statute has its own provision for a habitual offender, and the narcotics statute provides the death penalty for certain repeat offences.
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Chapter Sixty-Eight
Organised Crime
Syllabus topic 4, "Causes of Crimes"
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In one line
Organised crime is a continuing enterprise that supplies illegal goods and services or extracts money by force, and its distinguishing feature is not violence but organisation, corruption and continuity.
In the wording a student can write in an exam: organised crime was made an offence in the general penal law by section 111 of the Bharatiya Nyaya Sanhita 2023, which covers continuing unlawful activity including kidnapping, robbery, extortion, land grabbing, contract killing, economic offence and cyber-crime, committed by a syndicate as part of an organised crime syndicate; section 112 creates the separate offence of petty organised crime.
The characteristics
Six, and they are what distinguish organised crime from a group of people committing offences together.
Continuity. The enterprise survives the departure of any individual, including its leaders. This is the defining feature.
Structure and division of labour. Roles are differentiated: financiers, organisers, enforcers, transporters, disposers.
Corruption. An organised criminal enterprise cannot operate over time without the protection or acquiescence of some part of the administration, the police or the political system. This is why organised crime belongs in a paper whose third module is about official deviance: it is the point at which ordinary crime and privileged class deviance meet.
Supply of goods and services people want. Much organised crime is the provision of prohibited goods and services for which there is demand: narcotics, gambling, liquor under prohibition, unregulated finance. Prohibition creates the market and the profit.
Monopoly and the use of violence to preserve it. Violence is instrumental rather than expressive, and a well-established enterprise uses less of it, not more, because violence attracts attention.
And the investment of proceeds in legitimate business, which is where organised crime becomes indistinguishable from ordinary commerce and where money laundering enters.
The Indian legislative history
The Maharashtra Control of Organised Crime Act 1999 was the first serious Indian statute directed at the phenomenon, enacted against the background of organised extortion and contract killing in Mumbai. It introduced a definition of an organised crime syndicate, provided for the admissibility of confessions to senior police officers subject to safeguards, imposed stringent bail conditions and provided for the attachment of property. Its provisions and their interpretation are dealt with in the Penal Laws paper of this group, which prints it as a topic.
Other State legislation followed on similar lines.
And the Sanhita has now brought organised crime into the general penal law. Section 111 makes organised crime an offence, defining it by reference to continuing unlawful activity carried on by a person singly or jointly as a member of an organised crime syndicate or on its behalf, by use of violence, threat of violence, intimidation, coercion or other unlawful means, and listing kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes and trafficking among its forms. Section 112 creates the offence of petty organised crime: whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act. The Explanation makes clear that theft here includes trick theft, theft from a vehicle, dwelling house or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting and theft of an automated teller machine.
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Chapter Sixty-Nine
Cyber Crime as a Modern Form
Syllabus topic 4, "Causes of Crimes"
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In one line
Cyber crime is not a new kind of motive but an old set of motives operating in a setting that removes distance, multiplies targets and destroys guardianship.
In the wording a student can write in an exam: cyber crime covers offences in which a computer resource is the target, the instrument or the environment of the offence; its criminological significance is that it removes the requirement of physical proximity between offender and victim, converts a single offender into a mass offender, and disables the informal guardianship on which most crime prevention rests.
The classification
The computer as target. Unauthorised access, damage to data, denial of service, and the introduction of malicious code. The offence could not exist without the machine.
The computer as instrument. Cheating, extortion, forgery, distribution of prohibited material and stalking, all of which existed before and are now committed through a computer resource. This is the largest category by volume in India.
The computer as environment. Offences whose setting is online: harassment, defamation, the organisation of other offences, and the markets in which stolen goods and prohibited substances are traded.
Why the setting changes the criminology
Apply routine activity theory, and the whole phenomenon becomes intelligible.
The offender need not be present. Convergence in time and space, which the theory requires, now means convergence in time only. An offender in one State can victimise a person in another within seconds, and jurisdiction, investigation and evidence all become harder in exactly that step.
Suitable targets multiply enormously. Every person with a bank account and a telephone is a target, available at all hours, and the target's value is high while its inertia is zero.
Capable guardians largely disappear. The guardianship in ordinary crime is informal: neighbours, shopkeepers, passers-by. Online there are no passers-by. What replaces them is the platform and the bank, which are private bodies with their own interests, and whether they act is a commercial decision.
And one offender scales. A street offender commits one offence at a time. A person operating a fraud by message commits ten thousand attempts at the cost of one, which changes the economics of offending completely: a very low success rate is still profitable.
Applying the older theories
Differential association. Techniques and rationalisations are transmitted, now in online groups rather than in physical ones. Note that this is the one place where Sutherland's third proposition, about impersonal agencies, needs qualification: an online group can be an intimate personal group in his sense, because the interaction is genuine even though the medium is not face to face.
Neutralisation. All five techniques are heard: the victim was greedy; the bank will refund it; nobody is really hurt; everybody in the trade does this; I did it for my family.
The rest of this chapter comes with the notes.
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Chapter Seventy
Crime Causation Assessed
Syllabus topic 4, "Causes of Crimes"
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In one line
Criminology can say a great deal about why offending is distributed as it is and very little about why a particular person offended, and confusing those two claims is the source of most bad criminology and most bad policy.
In the wording a student can write in an exam: a critical evaluation of the impact on criminal behaviour of the various factors must distinguish aggregate explanation, where the discipline is genuinely strong, from individual prediction, where it is weak; must distinguish a factor from a cause; and must ask of every factor whether it reaches the offences of the powerful as well as those of the poor.
What is actually established
Six findings, each replicated widely, and a student who can list them is in possession of the reliable content of Module II.
One: the age and sex distributions. Offending peaks in late adolescence and early adulthood and falls throughout adult life, and men offend far more than women. These are the most robust findings in the subject.
Two: the concentration of offending. A small minority of offenders accounts for most offences, and a small number of places and victims accounts for most incidents.
Three: delinquent association. The strongest social correlate of offending, operating by selection and by influence together.
Four: family supervision and conflict, which matter far more than family structure.
Five: certainty and swiftness of detection deter, and severity of punishment deters very little. This is Beccaria's claim and it is among the best supported propositions in the discipline.
Six: opportunity matters. Changes in the availability and protection of targets move crime rates, independently of anything about offenders, which is the routine activity finding and the basis of the only prevention with a consistent record of success.
What is not established
No factor causes crime. Not poverty, not the broken home, not mental illness, not media, not intelligence, not heredity. Each fails necessity and sufficiency.
No individual can be predicted. Every finding above is about groups, and the errors in applying a group probability to a person are large in both directions.
And no general theory commands agreement. Sutherland's, Merton's, Hirschi's and the opportunity theories each explain a great deal and each fails somewhere, usually at the offences the others explain.
The three tests to apply to any claimed cause
Necessity and sufficiency. Are there offenders without it, and non-offenders with it? The answer for every candidate is yes to both.
Direction and confounding. Did the factor precede the offending, and is a third thing producing both? Almost no Indian study can answer this, because the design required, following the same people over time, has not been used here.
And the Module III test. Does the factor reach the offences of the powerful? A factor that explains only the offending of the poor is at least partly a description of who gets arrested, and this is the test that this syllabus in particular demands.
The rest of this chapter comes with the notes.
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Module III
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Chapter Seventy-One
Deviance: The Sociological Idea Behind This Module
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Deviance is conduct that departs from the norms of a group and attracts a negative reaction, and it is wider than crime, which is why this module can reach conduct the criminal law does not.
In the wording a student can write in an exam: deviance is behaviour that violates the norms of a social group and provokes a reaction of disapproval, censure or sanction; all crime is deviance, but not all deviance is crime, and the study of deviance therefore includes conduct that causes serious harm and has never been criminalised at all.
Why the module is about deviance rather than crime
MU could have called this module privileged class crime. It did not, and the choice is deliberate.
Because much of the conduct is not criminal. A lawyer who takes a case he cannot competently conduct, a doctor who prescribes a drug because a company pays him to, a journalist who takes money for favourable coverage, a professor who passes a student for a consideration, and an official who grants a licence to a friend may commit no offence at all, and each does real harm.
Because whether conduct is criminal is itself the question. The radical criminology chapter established that the interesting question about the powerful is why their conduct is not criminalised. A module confined to crime could not ask it.
And because the professions govern themselves. The sanction for professional deviance is usually disciplinary rather than penal, and a study confined to the criminal courts would miss almost everything.
The vocabulary
Norm. A rule of expected behaviour in a group. Norms may be legal, moral, professional, customary or merely conventional.
Deviance. Departure from a norm, attracting disapproval.
Social control. The means by which a group secures conformity. Informal control is the disapproval of family, neighbours and colleagues; formal control is the sanction of an institution, from a professional body's censure to a criminal court's sentence.
And the key proposition. Deviance is relative. Nothing is deviant in itself; it is deviant in relation to a norm held by a particular group at a particular time. Conduct normal in one group is deviant in another, which is Sellin's culture conflict from Module II.
The forms of deviance
Deviance that is criminal. Theft, assault, corruption.
Deviance that is not criminal but is professionally punishable. Most professional misconduct.
Deviance that is not punishable at all but is socially sanctioned. Rudeness, meanness, unreliability.
Positive deviance. Departure from a norm in a direction the society approves, such as extraordinary honesty in a corrupt environment. It is a real category and it explains why some officials do not take what others take.
And deviance by those who define deviance. The category this module is about. When a police officer fabricates evidence, a judge takes a consideration, or a regulator protects the industry he regulates, the person violating the norm is the person appointed to enforce it, and no ordinary mechanism reaches him.
The rest of this chapter comes with the notes.
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Chapter Seventy-Two
What Privileged Class Deviance Means
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Privileged class deviance is deviant conduct by those who hold power, whether economic, official, political or professional, which causes great harm, is rarely defined as crime, and is almost never punished.
In the wording a student can write in an exam: the notion of privileged class deviance is the Indian formulation, associated with Upendra Baxi's writing on the Indian legal order, describing the deviance of those with power rather than merely those with occupational position; it includes official deviance, police deviance, political deviance, professional deviance and corporate deviance, and its defining feature is the mismatch between the harm caused and the response of the legal order.
The definition, taken apart
"Privileged class." Not a class in the economic sense alone. The category is defined by access to power: to office, to discretion, to capital, to a licence, to a profession, or to political authority. A police constable is not wealthy and is privileged in the sense that matters, because he holds a power over others that they cannot resist.
"Deviance," not crime. For the reasons given in the previous chapter. A great deal of the conduct is not criminal, and whether it should be is one of the questions the concept is designed to raise.
And the implicit third element: the response. The concept is not merely a description of who offends. It is a claim about the legal order's reaction, and the phrase in MU's own syllabus is "Privileged Class Deviance and Indian Legal order". The two halves belong together.
Why it is not simply white collar crime
Students use the two terms interchangeably. They overlap heavily and they are not the same, and an examiner setting both on the same paper is testing the difference.
White collar crime
Privileged class deviance
Origin
Sutherland, United States, 1939
Indian legal writing, 1970s and after
Defined by
The offender's occupation and social status
The offender's power
Requires
A crime, in the legal sense
Deviance, criminal or not
Covers police deviance
Not naturally
Centrally
Covers political deviance
Not naturally
Centrally
Central question
Why does a respectable man offend
Why does the legal order not reach him
The practical consequence. A study of white collar crime in India would examine company frauds, tax evasion and professional misconduct. A study of privileged class deviance examines those and also custodial violence, the fabrication of evidence, the misuse of a discretionary allotment, the criminalisation of politics and the failure to register a complaint. MU's syllabus asks for the second.
The rest of this chapter comes with the notes.
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Chapter Seventy-Three
White Collar Crime: Sutherland's Concept and Its Origin
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
White collar crime is crime committed by a person of respectability and high social status in the course of his occupation, and Sutherland invented the term to show that the theories of crime built on the poor were wrong.
In the wording a student can write in an exam: Edwin H. Sutherland introduced the concept in his presidential address to the American Sociological Society in 1939 and developed it in White Collar Crime, 1949, defining it as a crime committed by a person of respectability and high social status in the course of his occupation.
The origin, which is the argument
Sutherland's purpose was not to add a category. It was to destroy a theory.
The state of criminology in 1939. Every general explanation of crime rested on the characteristics of the poor: poverty, broken homes, slum residence, feeble-mindedness, psychopathy. The data were drawn from prisons and juvenile courts, and the conclusions were drawn about human beings.
Sutherland's move. He studied the seventy largest American corporations and examined their records over their lifetimes, counting decisions against them by courts and commissions for restraint of trade, misrepresentation in advertising, infringement of patents and trade marks, unfair labour practices, rebates, financial fraud and war-time regulations. He found that every one of the seventy had at least one adverse decision, that the average was about fourteen, and that many were recidivists on any ordinary test.
The conclusion. If crime is committed on this scale by the wealthiest and most respectable, then poverty, broken homes and feeble-mindedness cannot be the causes of crime, because those conditions are absent. A general theory of criminal behaviour must explain both, or it is not general.
And his own theory answers it. Differential association applies unchanged: the techniques, the motives and above all the rationalisations of price fixing or of false advertising are learned in an intimate work group exactly as those of theft are learned in a street group.
The definition, taken apart
"A crime." Sutherland insisted the conduct was crime although it was mostly dealt with by administrative and civil proceedings, because it was legally punishable and was socially injurious. This was and is contested and it is dealt with below.
"Committed by a person." The offender is an individual, though he acts for an organisation. Corporate crime, where the entity is the offender, is a related and later category.
"Of respectability and high social status." The offender is not marginal. He is respected, and the respect is part of what makes the offence possible.
"In the course of his occupation." This excludes crimes of the rich committed outside their work: a wealthy man who murders his wife is not a white collar criminal. It is the occupational role that supplies the opportunity, and this is the element students most often get wrong.
The rest of this chapter comes with the notes.
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Chapter Seventy-Four
White Collar Crime Against Traditional Crime
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
White collar crime differs from traditional crime in the offender, the victim, the method, the visibility, the proof, the response and the public reaction, and in every one of the seven it is the more difficult to control.
In the wording a student can write in an exam: white collar crime is distinguished from traditional or conventional crime by the respectability of the offender, the diffusion of the victim, the absence of physical force, the concealment of the act within lawful activity, the technical difficulty of proof, the administrative rather than penal response, and the absence of public condemnation.
The comparison
Traditional crime
White collar crime
Offender
Usually poor, often young, often previously known to the police
Respectable, of high status, in an occupational role, rarely known to the police
Victim
An identified individual who knows at once
Diffuse: many people, a company, the revenue, the public, often unaware for years
Means
Physical force, stealth or direct deception
Position, documents, transactions and professional judgment
Scene
A place, at a moment
A course of conduct over months or years, inside lawful activity
Harm
Immediate, visible, usually modest in value
Delayed, invisible, frequently enormous in value
Evidence
Eyewitnesses, recovery, physical traces
Documents, accounts, expert opinion, and inference from a pattern
Mental element
Usually obvious from the act
The hardest issue in the case: was it dishonesty or commercial misjudgment
Investigator
The local police station
A specialised agency, often after a regulator has been involved
Response
Arrest, remand, trial, imprisonment
Inspection, notice, penalty, compounding, settlement, and rarely a prosecution
Public reaction
Fear and condemnation
Indifference, and sometimes admiration for the offender's ability
Effect on the offender
Stigma that survives the sentence
Little or none, and frequently continued professional standing
The three differences that matter most
One: the victim does not know. In a robbery the victim knows within seconds. In a mis-sold financial product, an adulterated medicine, a rigged tender or an evaded tax, no one feels anything at the time. Since almost every criminal process begins with a complaint, and no one complains, the offence does not enter the system at all. This single difference explains most of the rest.
Two: the conduct is inside lawful activity. A theft is an event that has no lawful version. A transaction at an inflated price, a loan against weak security, a certificate given without adequate examination and a purchase made from a favoured supplier all have entirely lawful versions that look identical. What separates the two is a state of mind, which is why the proof is so hard and why the next chapter is devoted to it.
Three: the response is not the criminal law. Regulators, departmental proceedings, compounding and settlement are the ordinary responses. Each is a real sanction and none is a conviction, and the cumulative effect is that the conduct is not treated as crime by the society that suffers it.
The rest of this chapter comes with the notes.
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Chapter Seventy-Five
Why White Collar Crime Is Hard to Prove
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
White collar crime is hard to prove because the act itself is usually lawful, so the prosecution has to establish a state of mind out of documents, against a defendant who controls the documents and can afford to contest every one of them.
In the wording a student can write in an exam: the difficulty of proving white collar crime arises from eight sources: the absence of a complainant, the lawful appearance of the act, the mental element, the documentary nature of the evidence, the control of the evidence by the accused, diffusion of responsibility within an organisation, the inequality of resources at trial, and delay.
The eight reasons
One: nobody complains. The victim does not know, and the criminal process begins with a complaint. Detection therefore depends on an audit, an inspection, a regulator or a disclosure, and none of these is designed to find crime.
Two: the act looks lawful. A loan, a purchase order, a certificate, a valuation, a sale at a price, a payment to a consultant: each has an ordinary and lawful form. There is no equivalent of the broken lock.
Three: the mental element is the whole case. Since the act is lawful in appearance, the offence turns entirely on dishonesty or on knowledge, which must be proved beyond reasonable doubt against a defendant who says he made a commercial judgment that turned out badly. Proving that a decision was dishonest rather than merely wrong is the hardest task in Indian criminal law, and it explains most acquittals in this class.
Four: the evidence is documentary and technical. Books of account, board minutes, valuations, invoices, correspondence and electronic records, requiring expert interpretation, which the defence will meet with its own experts.
Five: the accused controls the evidence. The records are his, or his employer's. They can be constructed contemporaneously to support the lawful version, they can be lost, and they can be produced selectively. The offender knows the system he is defrauding better than any investigator does.
Six: responsibility is diffused. In an organisation a decision passes through several hands and no single person did the whole of it. Each says he acted on what he was given, and the structure that makes the offence possible is also what defeats the identification of an offender. Attributing a mental state to a company is a doctrinal problem in itself.
Seven: the resources are unequal. The accused instructs experienced counsel, forensic accountants and technical experts. The prosecution is conducted by a public prosecutor with a large list, on an investigation done by an officer with no specialist training. Every interlocutory point is contested and appealed.
Eight: delay. These cases take many years. Documents deteriorate, witnesses retire or die, memories fail, and officers are transferred. Delay is not neutral between the parties: it favours whichever side does not want a conclusion.
The rest of this chapter comes with the notes.
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Chapter Seventy-Six
White Collar Crime in India and the Santhanam Committee
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
India has known white collar crime as an organised subject since the Santhanam Committee reported in 1964, and every diagnosis it made has been repeated by every committee since.
In the wording a student can write in an exam: the Committee on Prevention of Corruption, chaired by K. Santhanam, which reported in 1964, is the foundational Indian study; it described the forms white collar crime takes in India, recommended the creation of the Central Vigilance Commission, and its analysis was carried forward by the Law Commission's twenty-ninth report on socio-economic offences and its forty-seventh report on their trial and punishment.
The Santhanam Committee
What it was. A committee appointed by the Government of India to review the arrangements for checking corruption among public servants and to advise on measures for their improvement. It reported in 1964.
What it found. That corruption had increased and had become organised rather than casual; that it had spread from the lower levels into the higher; that the arrangements for detecting and punishing it were inadequate; and that the existence of large sums of unaccounted money was both a cause and an effect of the problem.
Its most quoted observation concerns the classes of persons who obstruct the working of the system: it identified those in trade, industry and the professions who deal with the administration and who, in its account, contribute substantially to corruption. Its analysis was that corruption is a transaction with two sides, and that a study confined to the public servant is half a study.
Its principal recommendations. A Central Vigilance Commission at the Centre with a corresponding machinery in the States; vigilance officers in each Ministry and Department; a code of conduct; the strengthening of the anti-corruption law; and administrative measures reducing the occasions for corruption, principally the elimination of unnecessary discretion, delay and permission.
And its lasting importance for this paper. The Central Vigilance Commission was created by executive resolution in 1964 on this recommendation and was given a statutory footing only in 2003, and the chapters on it in Module IV take the story from there.
The Law Commission reports
The twenty-ninth report examined whether socio-economic offences should be brought into the Indian Penal Code. Its importance is that it treated this class of offence as a category requiring its own treatment, and it set out the features that distinguish it: the motive is avarice rather than passion, the conduct injures the community rather than an individual, the offence is committed in the course of a lawful occupation, and detection is difficult.
The forty-seventh report, on the trial and punishment of social and economic offences, addressed the procedural and evidentiary difficulties set out in the previous chapter, and recommended presumptions, special procedures and sentencing directed at profit rather than at liberty alone.
The rest of this chapter comes with the notes.
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Chapter Seventy-Seven
Tax Evasion, Black Money and the Parallel Economy
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Tax evasion produces unaccounted money, unaccounted money funds corruption and organised crime, and the whole system is sustained because evasion is easy, detection is rare and the response is usually a payment rather than a prosecution.
In the wording a student can write in an exam: tax evasion is the illegal non-payment or underpayment of tax by concealment or misrepresentation, distinguished from tax avoidance, which is the arrangement of affairs within the law to reduce liability; the money generated is black money or unaccounted income, and its circulation outside the recorded economy is the parallel economy.
The distinction that must be drawn first
Evasion is illegal. Concealing income, understating receipts, inflating expenditure, claiming a deduction not due, and failing to file are all evasion, and they attract penalty and prosecution.
Avoidance is not. Arranging affairs so that less tax is payable, using exemptions, structures and timing, is lawful, however aggressive, unless a specific or general anti-avoidance rule applies.
The line is not always clear, and a great deal of tax litigation is about where it falls. For criminology the point is that the two are treated entirely differently and that the more sophisticated the taxpayer, the more likely his conduct is to be characterised as avoidance.
Why it is the central white collar offence in India
Scale. No other single category approaches it by value.
It funds the others. Corruption requires cash that cannot be traced. Political expenditure requires it. Organised crime requires it. Real estate transactions at understated value require it. The parallel economy is the circulatory system of most of the offences in this module.
It is invisible. There is no victim, no complaint, and no event. The offence consists in an absence: an entry that was not made.
And it is normalised. The neutralisation techniques described in the psychological factors chapter are heard in their purest form here: everyone does it, the rates are unreasonable, the money would be wasted anyway, the government takes enough already. All five techniques are available and all five are used.
How the parallel economy works
Generation. Unrecorded sales, understated receipts, inflated purchases, bogus expenditure, over-invoicing and under-invoicing in trade, and the receipt of cash on which no return is filed.
Storage and movement. Cash; gold and jewellery; real estate purchased at an understated recorded value with the balance in cash; benami holdings, meaning property held in another's name for the real owner; and, at the larger end, transfers abroad through trade mis-invoicing and layered entities.
Return to the recorded economy. Loans from entities that exist only on paper, capital gains manufactured through securities transactions, share premium on shares issued to shell companies, and cash deposited as business receipts. This is money laundering, which has its own chapter.
The rest of this chapter comes with the notes.
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Chapter Seventy-Eight
Corporate Fraud and Bank Fraud
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Corporate fraud is committed through the company's own lawful machinery, and bank fraud is its commonest Indian form, in which credit is created against security that everybody involved knows is worthless.
In the wording a student can write in an exam: corporate fraud covers the falsification of accounts, the diversion of funds, fraudulent related-party transactions and the misuse of a company's credit; bank fraud covers the obtaining of credit by misrepresentation and its sanction by officers who know the position, and the officers of a private banking company are public servants for the purposes of the Prevention of Corruption Act 1988 by virtue of section 46A of the Banking Regulation Act 1949.
The forms of corporate fraud
Falsification of accounts. Recording sales that did not occur, deferring expenditure, capitalising what should be expensed, and creating fictitious assets. The purpose is usually to support a share price, a credit rating or a borrowing.
Diversion and siphoning. Funds raised for one purpose applied to another, usually through payments to entities connected with the promoters.
Related-party transactions at manufactured prices. Buying from or selling to an entity the promoter controls, at a price that transfers value out of the company.
Fraud on creditors. Obtaining credit on a picture the company knows to be false, and stripping assets before default.
Fraud on shareholders and on the public. Misstatements in a prospectus, concealment of material facts, and insider dealing.
And the offences of omission, principally the failure of those charged with oversight, auditors, independent directors and audit committees, to do what they were appointed to do.
Bank fraud, which is the Indian form
The pattern. A borrower obtains credit by overstating his position or by offering security that is worth much less than the valuation. Officers of the bank sanction it, sometimes because they are deceived and sometimes because they are not. The account is renewed and enhanced rather than classified as bad, because classification is visible and renewal is not. Default follows, by which time the money has moved.
Why it is so difficult to prosecute. Every element of the chapter on why proof is difficult applies, and one more: lending against security is ordinary banking, so the offence must be distinguished from a bad commercial decision, and the distinction lies in what the officers knew at the time.
Who is liable. Where the bank is a public sector bank its officers are plainly public servants. The question for a private bank was settled by the leading case.
Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli, decided on 23 February 2016.
Facts. The chairman and managing director and other office bearers of Global Trust Bank, a private banking company, were prosecuted under the Prevention of Corruption Act 1988. They contended that officers of a private bank are not public servants within section 2(c) of that Act, so that no prosecution under it could lie. Section 46A of the Banking Regulation Act 1949 deems every chairman, director, auditor, liquidator and officer of a banking company to be a public servant, but by its terms for the purposes of Chapter IX of the Indian Penal Code, and those offences had been carried into the 1988 Act.
The rest of this chapter comes with the notes.
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Chapter Seventy-Nine
Securities Fraud and Manipulation of the Market
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Securities fraud is the manipulation of a market in which price is supposed to reflect information, and it is committed by creating false information, by concealing true information, or by trading on information others do not have.
In the wording a student can write in an exam: securities fraud covers price manipulation, insider trading, misstatement in a prospectus or in disclosures, front running and the fraudulent collection of money from the public; the regulator is the Securities and Exchange Board of India, with powers of investigation, direction, disgorgement and penalty, and its orders are appealable to the Securities Appellate Tribunal.
The forms
Price manipulation. Creating a false or misleading appearance of trading, by circular trading between connected accounts, by synchronised trades matched in advance, by placing and withdrawing orders to move a price, or by trading at the close to fix a settlement price.
Insider trading. Dealing in a security on the basis of unpublished price sensitive information obtained by virtue of a connection with the company. The wrong is the unfair advantage, and the rules operate by presumption because proving that a person traded on the information rather than in spite of it is nearly impossible.
Misstatement and concealment. In a prospectus, in periodic disclosures, or in the reporting of related-party dealings.
Front running. A person who knows a large order is about to be placed trades ahead of it for his own account.
And collective investment schemes and unregistered deposit taking, which in India is the form that reaches the largest number of individual victims, since the money comes from small investors in small amounts.
The regulator, and the leading illustration
Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, decided on 31 August 2012.
Facts. Two companies of the Sahara group raised very large sums from a very large number of investors through an instrument described as an optionally fully convertible debenture, issued on a private placement basis. They contended that the issue was private, that it was governed by the provisions relating to unlisted companies, and that the Securities and Exchange Board of India therefore had no jurisdiction over it. The Board took the view that the issue was in substance a public issue and required refund.
Held. The Board had jurisdiction. An issue made to more than the statutory threshold of persons is a public issue by force of the statute, whatever the issuer calls it, and it attracts the listing and disclosure obligations that go with a public issue. The companies were directed to refund the amounts collected with interest, and the Court gave directions for the verification of investors and the deposit of the sums.
The rest of this chapter comes with the notes.
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Chapter Eighty
Money Laundering and Benami Holdings
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Money laundering is the process of making the proceeds of crime appear lawful, and a benami holding is property held in one person's name for another, and both exist because the profit is the point of every offence in this module.
In the wording a student can write in an exam: money laundering is the concealment of the origin of the proceeds of crime so that they may be used as untainted property, classically in three stages, placement, layering and integration; a benami transaction is one in which property is transferred to or held by one person while the consideration is paid by another, for whose benefit it is held.
The three stages
Placement. Getting the money into the financial system: cash deposits broken into small amounts, deposits through businesses that deal in cash, and purchases of instruments.
Layering. Moving it through transactions designed to break the connection with its origin: transfers between accounts and entities, loans to and from paper companies, purchases and sales at manufactured prices, and cross-border movement through trade mis-invoicing.
Integration. Bringing it back as apparently lawful wealth: as a loan repayment, as a capital gain, as share premium, as a gift, or as the sale proceeds of an asset bought with the money in the first place.
The Indian statute and the leading case
The Prevention of Money Laundering Act 2002 is now the most used instrument against privileged class deviance in India. Its features are an offence of money laundering defined in terms of dealing with the proceeds of crime derived from a scheduled offence; wide powers of attachment of property before trial; an adjudicating authority and an appellate tribunal; special courts; and stringent conditions on bail.
Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, decided on 27 July 2022.
Facts. A very large number of petitions challenged the constitutional validity of central provisions of the Prevention of Money Laundering Act 2002: the definition of the offence and of proceeds of crime, the power of provisional attachment, the powers of search, seizure and arrest, the requirement that the twin conditions be satisfied before bail, the admissibility of statements recorded by officers of the Enforcement Directorate, and the presumption in respect of interconnected transactions.
Held. The Court upheld the provisions challenged. It held that the offence of money laundering is a distinct offence from the scheduled offence out of which the proceeds arise; that officers of the Enforcement Directorate are not police officers, so that statements recorded by them are not hit by the bar on confessions to police officers; that the twin conditions for bail are valid; and that the powers of attachment, search and seizure, read with the safeguards in the Act, are constitutional. It left open for a larger bench the question concerning the manner in which certain amendments had been enacted.
The rest of this chapter comes with the notes.
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Chapter Eighty-One
Adulteration, Spurious Goods and Crimes Against the Consumer
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Adulteration and the supply of spurious goods are white collar offences whose victims die, and they are treated far more gently than any offence causing comparable harm by force.
In the wording a student can write in an exam: adulteration of food and drugs and the manufacture of spurious goods are white collar offences in Sutherland's sense, committed in the course of a lawful occupation by persons of standing; they are dealt with by the food safety and drugs legislation, by the general penal law where death or hurt results, and by the Consumer Protection Act 2019, which defines a defect, a deficiency and a spurious good and provides for punishment for adulterated and spurious goods including imprisonment.
Why this offence is the sharpest illustration in the module
The harm is death. Adulterated liquor, contaminated cough syrup, spurious drugs and adulterated food have killed people in India in numbers that no ordinary offence approaches.
The offender is respectable. A manufacturer, a licensee, a distributor.
The victim cannot know. A person who takes a spurious medicine and does not recover attributes it to the illness.
The proof is technical. It depends on a sample, on its collection, sealing and dispatch within a prescribed time, and on an analyst's report, and a failure at any of those steps ends the case.
And the response is characteristically administrative. Suspension of a licence, a direction, a compounding, and only occasionally a prosecution.
Put those five together and this is Module III in its purest form: the greatest harm in the module, treated the most leniently.
The instruments
The food safety legislation. Licensing, standards, sampling, analysis, and offences graded by whether the article is unsafe and whether injury or death results.
The drugs legislation. Licensing of manufacture and sale, standards of quality, and offences relating to spurious and adulterated drugs, with the graver forms attracting substantial minimum sentences.
The general penal law. Where death results, the provisions on causing death by a rash or negligent act, and in an appropriate case culpable homicide, are available. In practice they are seldom used, because the causal chain from a batch to a death is hard to establish and the mental element harder.
And the Consumer Protection Act 2019, which is the consumer's own route. It defines a defect in goods, a deficiency in service and a spurious good as one falsely claimed to be genuine; it establishes District, State and National Commissions; it creates a Central Consumer Protection Authority with power to order recall and to prohibit misleading advertisement; and it provides punishment for a person who manufactures for sale or stores, sells or distributes any product containing an adulterant or any spurious goods, with imprisonment and fine graded by whether injury or death results, and with power to suspend or cancel a licence.
The rest of this chapter comes with the notes.
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Chapter Eighty-Two
Curbing White Collar Crime
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
❧
In one line
White collar crime is curbed by raising the probability of detection, by removing the discretion and the opacity that create the opportunity, and by taking the profit, and not by raising sentences.
In the wording a student can write in an exam: the measures for curbing white collar crime fall under five heads: prevention by design, which removes the opportunity; detection, which raises the probability of being caught; procedure, which makes proof possible; sanction, which must reach the profit and the position rather than only the liberty; and culture, which attacks the rationalisations.
One: prevention by design
Reduce discretion. The Santhanam Committee's central administrative recommendation. Every permission, licence, allotment, clearance and exemption that depends on an individual's judgment is an opportunity, and the most effective anti-corruption measure ever taken in India is the elimination of permissions rather than the punishment of officials.
Remove the human interface. Online filing, automated allotment, direct transfer of benefits and electronic tendering each remove the point at which a payment could be demanded.
Publish. Disclosure of tenders, allotments, beneficiaries and decisions makes deviance visible to those with an interest in noticing it.
Segregate duties and rotate. The person who assesses should not be the person who verifies, and long tenure in a sensitive post is the standard precondition of an established arrangement.
And simplify the rule. A rule nobody can comply with produces both evasion and extortion, and simplification does more for compliance than enforcement does.
Two: detection
Audit. Internal audit, statutory audit and the audit of government by the Comptroller and Auditor General are the principal detection mechanisms for this class of offence, and they are covered in Module IV.
Information matching. Requiring transactions to leave a record that can be matched against a declaration, which is the approach described in the tax evasion chapter and the most promising line available.
Whistle blowing. Insiders are the best source of information about offences committed inside an organisation, and protecting them is dealt with in Module IV.
Surveillance by regulators, as in the market manipulation example in the securities chapter.
And investigative journalism, which in India has exposed more privileged class deviance than any statutory mechanism, and whose position is dealt with in topic 6.
Three: procedure
The measures examined in the chapter on why proof is difficult: presumptions where a fact is peculiarly within the accused's knowledge, strict and vicarious liability for regulatory offences, special courts, specialised investigating agencies, and time limits. Each is a departure from ordinary protections and each is justified only by the demonstrated failure of ordinary proof.
Four: sanction
Take the profit. Attachment, disgorgement, confiscation and restitution, for the reasons set out in the money laundering chapter. This is the single most important item in the list.
The rest of this chapter comes with the notes.
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Chapter Eighty-Three
Are the Present Laws Sufficient?
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
India has more than enough law and far too little enforcement, so the honest answer is that the laws are broadly sufficient and the institutions are not.
In the wording a student can write in an exam: the deficiency is not in the substantive law, which covers every form of white collar conduct through the general penal law, the anti-corruption statute, the company, securities, tax, food, drugs and consumer legislation, and the money laundering and benami statutes; it lies in detection, investigative capacity, delay, sanction requirements, and the absence of a sanction that reaches the profit and the position quickly.
The case that the laws are sufficient
Every form of conduct is covered. Falsification, diversion, misrepresentation, manipulation, adulteration, evasion and bribery are all offences, and the statutes are numerous rather than scarce.
The procedural difficulties have been legislated for. Presumptions, reversed burdens, strict and vicarious liability, special courts, and specialised agencies all exist.
The profit can be reached. Attachment under the money laundering statute, confiscation under the benami legislation and disgorgement by the securities regulator are powerful and are used.
And the definitions have been widened. The anti-corruption statute was amended in 2018, the benami legislation was given machinery in 2016, the Companies Act 2013 defined fraud and created the Serious Fraud Investigation Office, and the Consumer Protection Act 2019 created a Central Authority with power of recall.
On any comparison with 1964, when the Santhanam Committee reported, the statute book is transformed.
The case that they are not
The offences most often committed are the least prosecuted. Not because the law is absent but because nobody complains and nobody detects.
Investigative capacity is thin. Economic offences require accountants, analysts and digital forensics. A station house officer has none of these, and the specialised wings are small.
Sanction requirements obstruct. Where the accused is a public servant, approval is needed before investigation and sanction before prosecution, and both take time and are decisions made by people who may be reluctant.
Delay defeats the law that exists. A prosecution concluded in fifteen years deters nobody and punishes an old man for what a middle-aged one did.
Parallel proceedings multiply. A departmental inquiry, a regulatory proceeding, a tax proceeding and a criminal trial on the same facts produce a decade of interlocutory litigation.
Regulatory capture. Where the regulator is close to the industry, the first response is corrective rather than punitive, and the second response is usually the same.
And there is one real substantive gap, worth naming because it is the honest answer to the question as put. India has no general offence of corporate manslaughter or of corporate homicide, so where an organisational decision causes death the criminal law reaches the diffuse individuals with difficulty and the organisation not at all, which is why the adulteration cases in the previous chapter end as they do.
The rest of this chapter comes with the notes.
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Chapter Eighty-Four
Bail in Economic Offences
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
One line of authority says that economic offences are a class apart and call for a stricter approach to bail, and another says that bail is the rule and that pre-trial detention cannot be used as punishment, and the reconciliation is that the seriousness of the charge is a factor and not a rule.
In the wording a student can write in an exam: in Nimmagadda Prasad v. Central Bureau of Investigation the Supreme Court held that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail; in Sanjay Chandra v. Central Bureau of Investigation it held that the seriousness of the charge is not by itself conclusive and that detention before conviction is neither punitive nor preventive.
The two lines
Nimmagadda Prasad v. Central Bureau of Investigation, (2013) 7 SCC 466, decided on 9 May 2013.
Facts. The appellant sought bail in a prosecution arising out of very large investments alleged to have been made in his companies as a quid pro quo for official favours obtained from a State Government. Bail had been refused by the courts below.
Held. Bail was refused. Economic offences constitute a class apart. They are committed with deliberate design and with an eye to personal profit regardless of the consequence to the community, and they affect the economy of the country as a whole. They therefore need to be visited with a different approach in the matter of bail.
Sanjay Chandra v. Central Bureau of Investigation, AIR 2012 SC 830, (2012) 1 SCC 40, decided on 23 November 2011.
Facts. The appellants were accused in the prosecution arising out of the allocation of telecommunications spectrum, charged with cheating and conspiracy and with offences under the Prevention of Corruption Act. They had been in custody for months and their applications had been refused below, principally on the ground that the offences were economic offences of great magnitude affecting the national economy.
Held. Bail was granted. The seriousness of the charge is a relevant consideration but is not by itself conclusive, and the refusal of bail cannot be used as a punishment before trial. Detention before conviction is neither punitive nor preventive; the object of bail is to secure the attendance of the accused at trial, and where that object can be achieved by conditions the accused should not be detained. The Court took into account the length of the trial in prospect and the accused's roots in the community.
How they are reconciled
They are not actually inconsistent, and an answer should say why.
Sanjay Chandra states the rule: bail is the norm, detention is the exception, and the object of bail is attendance at trial rather than anticipatory punishment.
The rest of this chapter comes with the notes.
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Chapter Eighty-Five
Official Deviance
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
❧
In one line
Official deviance is the misuse of public office, and its distinctive feature is that the power being misused was given for the public and is exercised against them.
In the wording a student can write in an exam: official deviance is deviant conduct by a holder of public office in the exercise of, or under colour of, that office; it includes corruption, the abuse of discretion, favouritism and nepotism, the deliberate use of delay, the misuse of coercive power and the suppression of information, and it is distinguished from ordinary white collar crime by the fact that the offender holds power conferred in trust for the public.
The forms
Corruption. The taking of an undue advantage for doing or forbearing to do something in the exercise of office. The statute is the subject of Module IV.
Abuse of discretion. Granting a licence, a permission, an allotment or a contract to a person who should not have it, or refusing one to a person who should. It differs from corruption because no payment need pass: favour, connection, community and future advantage all operate.
Nepotism and favouritism. Appointment, transfer, promotion and posting decided by relationship.
The deliberate use of delay. Distinctively Indian and much under-discussed. An official who does nothing has not committed any identifiable act, and delay is a currency: a file that could move today and does not is a demand that need never be spoken.
Misuse of coercive power. Registration, inspection, sealing, prosecution, licensing and taxation are all powers whose threat is worth more than their exercise.
Suppression and falsification of information. Records altered, reports withheld, and inspections recorded as done that were not.
And organisational deviance, where the deviance is the institution's rather than the individual's: an inspection regime designed not to find anything, a complaint mechanism designed not to receive complaints, a target that can be met only by falsification.
Why it is not simply corruption
Students treat the two as synonyms and lose marks for it.
Corruption requires a transaction. Official deviance does not: an officer who allots a plot to his brother-in-law's firm has taken nothing.
Corruption is criminalised. Much official deviance is not, and where it is, it is dealt with by service rules rather than by the criminal law.
And the anti-corruption machinery is built for the transaction. Trap cases, presumption of acceptance and the tracing of payments are all designed to catch a taking, and they are useless against a decision that was simply wrong in a way that benefited somebody.
The three problems it creates
One: the deviant controls the record. The official who made the decision also wrote the note explaining it, and a decision supported by a plausible file is nearly unassailable.
The rest of this chapter comes with the notes.
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Chapter Eighty-Six
Police Deviance
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Police deviance is distinctive because the police decide whether anything else becomes a case at all, so their deviance is the one form that can conceal every other.
In the wording a student can write in an exam: police deviance covers custodial violence, extra-judicial killing, the refusal to register a complaint, false and fabricated cases, extortion, selective enforcement, the misuse of arrest, and corruption; it is distinguished from other official deviance because the police control the gateway to the criminal justice system and their deviance is therefore also a means of concealing the deviance of others.
The forms
Custodial violence and custodial death. The gravest form and the subject of the next chapter.
Extra-judicial killing. A killing described as an encounter, and the difficulty is that a genuine exercise of the right of private defence and a staged killing produce the same paperwork.
Refusal to register. The most common form by volume, described in its own chapter, and the one that decides whether an offence exists at all in the record.
False and fabricated cases. Registering a case that has no foundation, adding an accused, planting recoveries and manufacturing witnesses. It is used to oblige a complainant with influence, to settle a private score and to produce a detection.
Extortion. Payment for not registering, for not arresting, for granting bail from the station, for permitting a business to operate and for releasing a vehicle.
Selective enforcement. Enforcing against the visible, the unprotected and the powerless while leaving others alone, which is where police deviance meets the whole theme of this module.
Misuse of arrest. Arrest is a power that can be exercised immediately and remedied only slowly, which makes it the most effective instrument of pressure available to a police officer.
And custodial corruption of the process, meaning the alteration of records, the antedating of documents and the manipulation of case diaries.
Why it happens: the structural account
An answer that attributes police deviance to bad character has explained nothing, since the same conduct appears in every force. The structural account has five elements.
One: the detection target. A station is judged on detection and on the maintenance of order. Both create incentives to record less and to detect more, and both are met more easily by manipulation than by investigation.
Two: resources. The investigating officer at a station carries far more cases than can be investigated, has no forensic support and often no vehicle. Confession is the cheapest available method of investigation, and torture is the cheapest method of obtaining a confession.
Three: the law of evidence. A confession to a police officer is not admissible, which is a protection. Its unintended effect is that the officer must convert a confession into a discovery or into other evidence, and the pressure to produce a recovery is what much custodial violence is about.
The rest of this chapter comes with the notes.
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Chapter Eighty-Seven
Custodial Violence and Custodial Death
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Custodial violence is the State using against a person the power it holds in trust to protect him, and Indian law has answered it with safeguards at arrest, with compensation in public law, and with cameras, none of which has ended it.
In the wording a student can write in an exam: custodial violence is the infliction of physical or mental suffering on a person in the custody of the State; it violates article 21, which protects life and personal liberty against deprivation except according to procedure established by law, and article 20(3), which protects against self-incrimination; and the remedies developed by the Supreme Court are compensation in public law, procedural safeguards at arrest, and, most recently, mandatory closed circuit television in police stations.
Why it happens
Set out in the police deviance chapter and repeated here in one line: confession is the cheapest method of investigation available to an overloaded officer with no forensic support, a confession to a police officer is inadmissible so it must be converted into a recovery, and there is no independent body to complain to.
Two further features make it peculiarly hard to prove. The only witnesses are police officers. And the injuries are described in the station records as caused before arrest, during a fall, or in a scuffle while escaping.
The compensation remedy
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.
Facts. The petitioner's son, Suman Behera, was taken into police custody and his body was found the next day on a railway track with multiple injuries. The State's defence was that he had escaped from custody and had been run over by a train. The mother's letter was treated as a writ petition under article 32 claiming compensation for the violation of article 21. The Court directed the District Judge to inquire, and the inquiry established that the death was unnatural and was caused by the injuries inflicted while he was in custody.
Held. A claim in public law for compensation for the contravention of a fundamental right is a remedy available under articles 32 and 226, distinct from and in addition to the private law remedy in tort, and the principle of sovereign immunity does not apply to it. The Court awarded one lakh fifty thousand rupees to the petitioner, with ten thousand rupees as costs to the Supreme Court Legal Aid Committee, leaving her free to pursue any other remedy.
Why it matters here. It establishes that the State pays for what its officers do in custody, without the victim's family having to bring a civil suit and without the defence of sovereign immunity. The route it opened had been begun in Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
The rest of this chapter comes with the notes.
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Chapter Eighty-Eight
Police Deviance in Registration and Investigation
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
The single most consequential decision in Indian criminal justice is whether a station house officer writes anything down, and the law that makes registration mandatory exists because he frequently does not.
In the wording a student can write in an exam: the refusal to register a first information report is the commonest form of police deviance; the Supreme Court held in Lalita Kumari v. Government of Uttar Pradesh that registration on information disclosing a cognizable offence is mandatory, and the corresponding provision is now section 173 of the Bharatiya Nagarik Suraksha Sanhita 2023.
Why non-registration happens
The detection percentage. A station is judged on the proportion of registered cases it detects. A case unlikely to be solved lowers that proportion, and not registering it protects the figure. This is a target producing exactly the behaviour a target always produces.
The pressure to show low crime. A rise in registered offences is read as a failure of the station, so the station suppresses the figure rather than the offence.
Workload. Registration creates an obligation to investigate that the station cannot discharge.
Influence. Where the person complained against has standing, the complaint is turned away or diverted into a non-cognizable entry.
And money. Not registering is a service that can be sold, and so is registering against somebody.
The law
Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, AIR 2014 SC 187.
Facts. A minor girl was abducted. Her father gave written information at the police station and the officer did not register a first information report. When he approached the Superintendent of Police no action followed either. He came to the Supreme Court under article 32, and the Court took the case as the occasion to settle a question on which its own benches had differed for years: whether an officer who receives information disclosing a cognizable offence must register a case at once, or may first satisfy himself that the information is true.
Held. Registration is mandatory where the information discloses a cognizable offence, and no preliminary inquiry is permissible in that situation. A preliminary inquiry is permitted only where the information does not disclose a cognizable offence but indicates that an inquiry is needed, and its scope is only to find out whether a cognizable offence is disclosed, never to test whether the information is true. Such an inquiry must be completed within seven days. If it discloses a cognizable offence the report must be registered; if it ends in closure, the informant must be given a copy of the closure entry with brief reasons within one week. The Court gave illustrative categories in which a preliminary inquiry may be appropriate.
The rest of this chapter comes with the notes.
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Chapter Eighty-Nine
Controlling the Abuse of Public Power: Police Reform
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
India's police still operate under an Act of 1861, the Supreme Court issued seven binding directions to reform them in 2006, and the incompleteness of their implementation is the single best illustration in this book of a policy without an institution.
In the wording a student can write in an exam: in Prakash Singh v. Union of India the Supreme Court issued seven directions binding on the Union and the States pending fresh legislation: a State Security Commission, a selection and minimum tenure of two years for the Director General of Police, a minimum tenure for operational field officers, the separation of investigation from law and order, a Police Establishment Board for transfers and postings, Police Complaints Authorities at State and district level, and a National Security Commission at the Union level.
The problem the directions address
The Police Act 1861. Enacted after 1857, designed to produce a force answerable to the executive rather than to the community, and still the governing statute in much of the country.
Political control of postings and transfers. The National Police Commission, which reported between 1979 and 1981 in eight reports, found illegitimate political interference in postings, transfers and the handling of individual cases, and found that an officer's career depended on compliance. That single finding explains most of what the other chapters in this module describe.
Investigation subordinated to order. The same officers are responsible for maintaining order and for investigating offences, and the first always takes precedence, so investigation is done by whoever is left.
And no independent complaint mechanism, which is the point made repeatedly in this module.
The case
Prakash Singh v. Union of India, (2006) 8 SCC 1.
Facts. Two former Directors General of Police petitioned under article 32 for the implementation of the recommendations of the National Police Commission and of later committees, the police still being governed by the Police Act 1861 and being, they said, subject to illegitimate political control.
Held. The Court issued seven binding directions to the Union and the States pending fresh legislation. Constitute a State Security Commission to insulate the police from extraneous influence and to lay down policy. Select the Director General of Police from among the three senior-most officers empanelled by the Union Public Service Commission and give him a minimum tenure of two years. Give operational officers in the field a minimum tenure of two years. Separate investigation from law and order in towns above a certain population. Constitute a Police Establishment Board to decide transfers and postings. Constitute Police Complaints Authorities at State and district level to inquire into serious complaints against police officers. And constitute a National Security Commission at the Union level for the selection and placement of heads of the central police organisations.
The rest of this chapter comes with the notes.
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Chapter Ninety
Political Deviance and the Criminalisation of Politics
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Political deviance is the misuse of elected or party position, and its worst form in India is the entry into legislatures of people against whom serious criminal cases are pending, because they are then the people who decide what the criminal law shall be.
In the wording a student can write in an exam: political deviance covers corruption in office, the misuse of legislative privilege, undeclared and unlawful election expenditure, defection for consideration, and the criminalisation of politics, meaning the presence in legislatures of persons facing serious criminal charges; disqualification operates only on conviction, so a person may sit and legislate for years while charges are pending.
The forms
Corruption in office. A Minister or a legislator who takes an undue advantage is a public servant and the anti-corruption statute applies, subject to the sanction question worked in Module IV.
Misuse of privilege. Legislative privilege exists to protect the freedom of debate, and it can be used to obstruct an inquiry into a member's own conduct.
Election expenditure. Statutory ceilings exist and are widely exceeded, and the unaccounted money described in the tax evasion chapter is what pays for it.
Paid news, which is where election expenditure meets journalistic deviance, and which has its own chapter in topic 6.
Defection. Movement between parties for office or consideration, addressed by the anti-defection provisions of the Constitution.
And the criminalisation of politics, which is the largest of them.
The cash for questions case
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184.
Facts. On 12 December 2005 a television channel broadcast video recordings, made in an operation it called Operation Duryodhana, of persons said to be members of Parliament accepting money for tabling questions and raising issues in the House. The episode was reported as cash for questions. Inquiry committees were constituted by both Houses, and on their reports ten members of the Lok Sabha and one member of the Rajya Sabha were expelled by resolution. The expelled members challenged the expulsions.
Held. The petitions were dismissed. Each House possesses the power to expel a member under article 105(3); the power does not conflict with any other constitutional provision; and it does not violate the rights of the constituency, since an expelled member may stand for re-election and the constituency may elect him again. The Court also held that the proceedings of a House are open to judicial review where they are vitiated by illegality or unconstitutionality, though not for mere irregularity of procedure.
Why it matters here. Three things. It establishes that a House can act against its own members for corruption, which is a real internal sanction. It establishes that the House's action is reviewable for illegality, so privilege is not absolute. And it is the leading Indian example of a sting operation exposing privileged class deviance, which connects directly to the chapters on journalism in topic 6.
The rest of this chapter comes with the notes.
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Chapter Ninety-One
Privileged Class Deviance in the Educational Field
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
Deviance in education is the sale of what is supposed to be earned, and the capitation fee litigation is the story of the courts trying and failing to stop it.
In the wording a student can write in an exam: privileged class deviance in the educational field covers the capitation fee, the sale of seats and of degrees, examination malpractice, fraudulent recognition and affiliation, and the diversion of institutional funds; the constitutional line runs from Mohini Jain v. State of Karnataka through Unni Krishnan and T.M.A. Pai Foundation to P.A. Inamdar v. State of Maharashtra.
What the deviance consists of
The capitation fee. A payment demanded for admission over and above the prescribed fee, which converts a seat awarded on merit into a seat sold. It is the central form and the one MU names.
The sale of seats through management quotas at fees unrelated to cost.
Examination malpractice. Leaked papers, impersonation, mass copying, and the purchase of marks. The Sanhita's petty organised crime provision now names the selling of public examination question papers expressly.
Fraudulent recognition and affiliation. Institutions obtaining permission on false representations about faculty, premises and equipment, and inspection processes that do not inspect.
Diversion of funds. Trust and society funds applied to the personal purposes of those controlling the institution.
And research and academic deviance, including plagiarism, fabricated results and predatory publication, which is the professional deviance of teachers dealt with in topic 6.
The constitutional line
Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, decided on 30 July 1992.
Facts. A candidate for admission to a private medical college in Karnataka challenged a notification permitting the college to charge a capitation fee far above the fee payable by holders of government seats.
Held. The right to education is concomitant to the fundamental rights in Part III, since without education the rights in that Part remain beyond the reach of an illiterate majority, and the State is under a constitutional mandate to provide educational institutions at all levels. Charging a capitation fee was held to be arbitrary and violative of articles 14 and 21.
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, decided on 4 February 1993.
Facts. Private unaided professional colleges challenged State legislation regulating capitation fees, and the Court reconsidered how far Mohini Jain had gone in recognising a fundamental right to education.
Held. The right to education flows from the right to life under article 21, but its content must be determined in the light of the directive principles in articles 41, 45 and 46. The Court therefore held that every child has a fundamental right to free education up to the age of fourteen years and that beyond that age the right is subject to the limits of the State's economic capacity and development. It also framed a scheme regulating admissions and fees in private professional colleges.
The rest of this chapter comes with the notes.
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Chapter Ninety-Two
The Legal Control of White Collar Crime in India
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
The legal control of white collar crime in India is spread across a general penal law, about a dozen special statutes, half a dozen regulators and three specialised agencies, and its weakness is not the number of instruments but the coordination and the speed with which they operate.
In the wording a student can write in an exam: the legal control of white collar crime in India operates through the general penal law, the Prevention of Corruption Act 1988, the Companies Act 2013 with the Serious Fraud Investigation Office, the Securities and Exchange Board of India Act 1992, the Prevention of Money Laundering Act 2002, the Benami Transactions (Prohibition) Act 1988 as amended in 2016, the tax statutes, the food safety and drugs legislation, the Consumer Protection Act 2019, and the Central Vigilance Commission Act 2003 with the Lokpal and Lokayuktas Act 2013.
The inventory
General penal law. Cheating; criminal breach of trust; forgery; falsification of accounts; criminal conspiracy; and now organised crime and petty organised crime under sections 111 and 112 of the Bharatiya Nyaya Sanhita 2023.
Corruption. The Prevention of Corruption Act 1988 as amended in 2018, the whole of which is Module IV.
Company and corporate. The Companies Act 2013: a definition of fraud, punishment for it, the auditor's duty to report a suspected fraud, disqualification of directors, and the Serious Fraud Investigation Office. The insolvency framework, which removes control from a defaulting promoter.
Securities. The Securities and Exchange Board of India Act 1992 and the regulations on prohibition of fraudulent and unfair trade practices and on insider trading, with powers of direction, disgorgement and penalty, appealable to the Securities Appellate Tribunal.
Proceeds. The Prevention of Money Laundering Act 2002, with attachment, adjudication, special courts and twin bail conditions. The Benami Transactions (Prohibition) Act 1988 as substantially amended in 2016, with confiscation and its own machinery.
Revenue. The income tax and goods and services tax statutes, with penalty, prosecution and information reporting.
Consumer facing. The food safety legislation, the drugs legislation, and the Consumer Protection Act 2019 with the Central Consumer Protection Authority.
Economic regulation. The competition legislation for cartels and abuse of dominance; the environmental statutes; and the labour and factory legislation.
And the institutions. The Central Bureau of Investigation, the Enforcement Directorate, the Serious Fraud Investigation Office, the State economic offences wings, the Central Vigilance Commission, the Lokpal and the State Lokayuktas, the regulators, and the Comptroller and Auditor General.
The four control strategies, and which works
Criminal prosecution. Comprehensive in coverage and the weakest in operation, for the eight reasons in the chapter on why proof is difficult.
Regulatory action. Faster, on a lower standard of proof, with disgorgement as a remedy, and exposed to capture. On the evidence it is the most effective of the four.
The rest of this chapter comes with the notes.
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Chapter Ninety-Three
Privileged Class Deviance and the Indian Legal Order Assessed
Syllabus topic 5, "Privileged Class Deviance and Indian Legal order"
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In one line
The Indian legal order has prohibited privileged class deviance comprehensively and reaches it selectively, and the gap between the two is not an accident of enforcement but a product of how the deviance is constructed.
In the wording a student can write in an exam: the Indian legal order's response to privileged class deviance shows a consistent pattern: comprehensive prohibition, weak detection, administrative rather than penal processing, long delay, and sanctions that fall on position and property rather than on liberty; and the deficiency lies in institutions rather than in law.
The five findings of this topic
Read together they are a single proposition about the Indian legal order and privileged class deviance: the law forbids it comprehensively and the institutions reach it selectively.
One: the harm is inverted. The conduct examined in this topic causes greater aggregate harm than all conventional property crime, and it occupies a small fraction of the criminal justice system's attention. The adulteration chapter is the sharpest case: an offence that kills, processed as a licensing matter.
Two: the dark figure is patterned. Non-recording is heaviest exactly where the victim does not know, the loss is diffuse and the offender is respectable, which is the profile of every offence in this topic.
Three: the law is not the problem. The inventory in the previous chapter is comprehensive, and the qualification worth naming is the absence of a general offence of corporate homicide.
Four: the effective sanctions operate outside the criminal law. Regulatory direction, disgorgement, attachment and confiscation, licence cancellation and debarment do the work. Each avoids the criminal standard of proof, and that avoidance is what makes them effective.
Five: the deviant participates in making the law. The chapter on political deviance established this, and it explains the shape of everything in Module IV.
Three criticisms of the Indian legal order, stated fairly
It legislates instead of building. New offences are cheap, visible and quick; investigative capacity, independent inspection and fast trials are expensive, invisible and slow. The incentives of government favour the first, and the record shows it.
It creates institutions and withholds their independence. The police reform directions, the vigilance machinery, the whistle blower statute, the professional disciplinary bodies and the Lokpal all show the same pattern: the body exists and the appointment, the staffing or the power to act is retained by the entity it was meant to restrain.
And it accepts delay. Nothing in this module is untouched by it. Delay converts a prohibition into a risk, a sanction into a remote possibility and a trial into a punishment for those who cannot obtain bail.
Professional deviance is the abuse by a member of a profession of the position of trust that the profession's monopoly creates, and it is distinctive because the profession itself is the body that judges it.
In the wording a student can write in an exam: professional deviance is conduct by a member of a profession that violates the standards of that profession, committed in the exercise of professional functions; it arises from the asymmetry of knowledge between professional and client, which the profession's monopoly and self-regulation exist to answer, and it is distinctive in that the disciplinary body is drawn from the profession itself.
What a profession is, and why it matters
Four features, and each of them produces a form of deviance.
Specialised knowledge the client cannot evaluate. A patient cannot tell whether the operation was necessary; a client cannot tell whether the advice was sound; a litigant cannot tell whether the adjournment was needed. This asymmetry is the whole basis of the relationship and the whole opportunity for deviance.
A monopoly conferred by law. Only a registered doctor may practise medicine, only an enrolled advocate may appear. The monopoly is granted because the public cannot judge competence, and it removes the ordinary discipline of competition.
A duty to the client that overrides self-interest, which is what distinguishes a profession from a trade.
And self-regulation. Because only members of the profession can judge professional competence, the disciplinary power is given to the profession. That is the bargain: monopoly in exchange for policing your own.
Professional deviance is the breach of that bargain, and the recurring finding of this topic is that the policing half of it is not performed.
The forms
Six, and they recur across every profession MU names.
One: exploiting the asymmetry. Unnecessary work, unnecessary procedures, advice given for the adviser's benefit.
Two: conflict of interest. Acting where the professional has an interest of his own, including a commission, a shareholding or a relationship.
Three: incompetence. Undertaking work beyond the professional's capacity, or performing it below the accepted standard.
Four: dishonesty. Falsification of a record, a certificate given without examination, a false report, misappropriation of a client's money.
Five: collusion. With the other side, with an official, or with another professional, against the person the professional serves.
And six: collective deviance. Strikes, boycotts, cartelised fees and the closing of ranks against a complainant, which is deviance by the profession rather than by a member of it.
Why self-regulation fails, and it fails everywhere
State this as a general finding before the individual professions, because it is what the chapters that follow illustrate.
The judges are colleagues. They will meet the accused professionally for the rest of their careers.
The deviance of lawyers matters more than that of any other profession because a lawyer's client cannot check him and the courts depend on him to tell the truth.
In the wording a student can write in an exam: professional misconduct by an advocate is dealt with under section 35 of the Advocates Act 1961, which empowers a State Bar Council, on receipt of a complaint or otherwise, where it has reason to believe that an advocate on its roll has been guilty of professional or other misconduct, to refer the case to its disciplinary committee.
The forms of deviance at the Indian Bar
Touting and the solicitation of work. The classic Indian form, and the subject of the leading case.
Undercutting and fee cartels, which are opposite deviations from the same rule.
Misappropriation of client money. Fees taken for court fees or for settlements received and not accounted for. It is the commonest subject of disciplinary complaint.
Neglect. Accepting a brief and not filing, not appearing, or not informing the client, which is the example worked in the previous chapter.
Misleading the court. Suppressing a decision, misstating the record, filing a false affidavit.
Collusion. With the opposing side, or with court staff.
Intimidation of the court, which is the subject of the chapter on contempt.
Strikes and boycotts, which have their own chapter.
And appearing without competence, taking a matter that the advocate cannot conduct.
The leading case on the standard
Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, (1976) 2 SCC 291.
Facts. Advocates practising in the criminal courts were charged with professional misconduct under section 35(1) of the Advocates Act 1961. They positioned themselves at the entrance to the Magistrates' Courts, watched for potential litigants arriving, and at sight rushed towards them in a scrimmage to snatch briefs, laying claim to engagements even by physical fight and by undercutting fees.
Held. The Court held that the rule on solicitation, fairly construed, sets out wholesome rules of professional conduct, and that the appellate Disciplinary Tribunal's dissection of the rule into three separate elements disfigured it. That exercise was, in the Court's words, as unserviceable as it was supererogatory, because the disciplinary provisions of the Advocates Act and its predecessors have never turned on splitting up the text of a rule but on the broad canons of ethics and the high tone of behaviour long established by case law and accepted by the Bar. The Court also criticised the State Disciplinary Committee's approach.
Why it matters. Two things. Professional misconduct is judged against the broad standards of the profession and not by parsing a rule, which is why no exhaustive definition of misconduct exists or could exist. And the case is a picture of the Indian Bar's characteristic deviance at its lower end: the competition for the litigant at the court gate, which is a consequence of far more advocates than briefs.
The Advocates Act gives the Bar Councils the exclusive power to discipline advocates, and the record of how they use it is the standing Indian illustration of why self-regulation fails.
In the wording a student can write in an exam: under section 35 of the Advocates Act 1961 a State Bar Council which has reason to believe that an advocate on its roll is guilty of professional or other misconduct refers the case to its disciplinary committee, which may dismiss the complaint, reprimand the advocate, suspend him from practice for a period, or remove his name from the roll; an appeal lies to the Bar Council of India under section 37 and from there to the Supreme Court under section 38.
The structure
The State Bar Council, whose functions under section 6 include admitting persons as advocates on its roll, entertaining and determining cases of misconduct against advocates on its roll, safeguarding the rights, privileges and interests of advocates on its roll, and promoting legal education.
The Bar Council of India, whose functions under section 7 include laying down standards of professional conduct and etiquette for advocates, laying down the procedure to be observed by disciplinary committees, and exercising general supervision and control over State Bar Councils.
Disciplinary committees, constituted under section 9, each consisting of three persons of whom two are elected members of the Council and one is co-opted from among advocates having the prescribed standing.
Section 35, the substantive disciplinary provision, which names the four orders available: dismissal of the complaint, reprimand, suspension from practice for such period as the committee deems fit, and removal of the name from the State roll.
Section 36, the disciplinary power of the Bar Council of India, which may withdraw a proceeding for disposal before itself.
Section 36B, which requires a State Bar Council's disciplinary committee to dispose of a complaint expeditiously and in each case within one year of the date of the receipt of the complaint or of the date of initiation of the proceedings at the instance of the State Bar Council, failing which the proceedings stand transferred to the Bar Council of India.
Section 37, appeal to the Bar Council of India, and section 38, appeal from there to the Supreme Court.
And section 49, the general rule-making power of the Bar Council of India, under which the standards of professional conduct and etiquette are made.
What the standards contain
The rules made under section 49 set out the advocate's duties, and they are grouped in a way worth remembering because it maps the whole subject.
Duty to the court. To maintain a respectful attitude; not to influence the decision by illegal or improper means; to appear in the prescribed dress; not to appear in a matter in which he has a pecuniary interest; and not to act or plead where he is himself a witness.
Lawyers have no right to strike, the Supreme Court has said so in terms, and strikes continue, which makes this the clearest available demonstration of a profession that cannot enforce a rule against itself.
In the wording a student can write in an exam: in Ex-Capt. Harish Uppal v. Union of India the Supreme Court held that lawyers have no right to go on strike or to give a call for boycott, not even a token strike, that a lawyer holding a vakalatnama cannot stay away from court in pursuance of such a call, and that no Bar Council or Bar Association may even permit a meeting to be called to consider a strike call.
Why it is deviance and not protest
A strike by lawyers, and the boycott of courts that usually accompanies it, is not an ordinary industrial action, and four things separate it.
Because the person harmed is the client. He has paid, he has waited, and his matter is adjourned for reasons that have nothing to do with him. He has no say in the decision and no remedy.
Because the harm falls hardest on those least able to bear it. An undertrial whose bail application is not moved stays in custody. A daily wage earner who has travelled loses the day. A litigant in his eighth year loses another date.
Because it is a collective breach of the duty to the court, which requires an advocate who has accepted a brief to appear.
And because it is a monopoly withdrawing a service the law forbids anyone else to supply. Nobody else may appear for the litigant. That is what makes it different from any other withdrawal of labour, and it is the point the Supreme Court fastened on.
The case
Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, (2003) 2 SCC 45.
Facts. The petition raised the legality of strikes and boycotts called by Bar Associations and Bar Councils, and asked what a court should do when lawyers abstain from work in answer to such a call.
Held. Lawyers have no right to go on strike or to give a call for boycott, not even a token strike. Protest may be expressed by press statements, television interviews, banners or placards outside the court premises, black or white or any colour arm bands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts. A lawyer holding a vakalatnama cannot stay away from court in pursuance of a call for strike, and all lawyers must boldly refuse to abide by such a call; no adverse consequence, threat, coercion or expulsion may be visited on a lawyer who refuses. No Bar Council or Bar Association may even permit a meeting to be called to consider a strike call. The Court recognised only the rarest of exceptions, where the dignity, integrity and independence of the Bar and of the Bench are at stake, and even then only a protest of one day at most and only with the consent of the Chief Justice or the presiding judge.
An advocate who intimidates a court commits contempt, and the Supreme Court may punish him for it but may not, in that proceeding, take away his right to practise, because that power belongs to the Bar Councils.
In the wording a student can write in an exam: in Supreme Court Bar Association v. Union of India the Court answered in the negative the question whether it may, in exercise of its contempt jurisdiction under article 129 read with article 142, debar an advocate from practice, holding that the disciplinary jurisdiction conferred by the Advocates Act 1961 belongs to the Bar Councils and cannot be assumed by the Court in the first instance.
The problem
An advocate misbehaves in court. Two distinct wrongs are committed at once.
Contempt of court, which the court itself punishes, because the court must be able to protect its own proceedings.
Professional misconduct, which the Advocates Act gives to the Bar Council.
The question is whether the court, punishing the first, may also impose the sanction that belongs to the second. It matters because the disciplinary route is slow and internal, and a court faced with an advocate who has intimidated a judge has an obvious temptation to deal with the whole matter itself.
The case
Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, (1998) 4 SCC 409.
Facts. In an earlier case the Supreme Court had convicted an advocate of criminal contempt and, invoking articles 129 and 142 of the Constitution, had sentenced him to six weeks' simple imprisonment suspended for four years and had also suspended him from practice as an advocate for three years. The Bar Council had been given no opportunity to deal with his case under the Advocates Act at all. The Supreme Court Bar Association petitioned for a declaration on the Court's power to do this.
Held. The question, whether the Supreme Court while dealing with contempt proceedings can debar a practising lawyer from his profession under article 129 read with article 142, was answered in the negative. Disciplinary jurisdiction over an advocate is conferred by the Advocates Act 1961 on the Bar Councils and their disciplinary committees, and the Court cannot exercise it in the first instance. The wider the amplitude of the power under article 142, the greater the need for restraint, and it is not permissible for the Court to take over the role of statutory bodies and perform their functions.
Why it matters. It settles the boundary. It also states a principle of general importance for this whole module: a court's power to do complete justice does not extend to assuming the functions of a statutory body, however unsatisfactory that body's performance. The remedy for a disciplinary system that does not work is to reform it, not to bypass it.
The teacher's deviance is distinctive because the person harmed is a child or a young adult who cannot judge the service, cannot change the supplier and will not know for years what he did not learn.
In the wording a student can write in an exam: professional deviance of teachers covers examination malpractice, the private tuition economy, plagiarism and research fraud, the abuse of the position over students, and institutional deviance in recognition, appointment and the diversion of funds; the profession has no unified disciplinary body comparable to the Bar Councils or the medical regulator, which is the principal structural feature of the topic.
The forms
Examination malpractice. Leakage and sale of question papers, impersonation, organised mass copying, and the sale of marks. The Bharatiya Nyaya Sanhita 2023 now names the selling of public examination question papers expressly in section 112, as one of the acts constituting petty organised crime when committed by a member of a group or gang, which is a recognition that the conduct is organised rather than individual.
The private tuition economy. Teaching inadequately in the classroom in order to sell the same teaching privately, and coercing students of one's own school into paying for it. This is the exploitation of the asymmetry described in the framework chapter, and it is the commonest form by volume in India.
Plagiarism and research fraud. Fabricated data, plagiarised text, ghost authorship, and publication in journals that do not review. It matters beyond the university where the research informs medicine, engineering or policy.
Abuse of position. Sexual harassment, discrimination in marking, and the use of a student's labour for the teacher's private work. The asymmetry here is greater than in any other profession because the student's future is in the teacher's hands.
Recognition and appointment deviance. Appointment by payment, appointment of persons who do not teach, and inflated faculty lists produced for an inspection, which connects directly to the chapter on deviance in the educational field.
And absence. The most consequential form in Indian school education, and one that requires no dishonesty of any other kind.
Why the profession is different
There is no single regulator. Doctors have a medical commission, advocates have Bar Councils, chartered accountants have their institute. Teachers are regulated by whoever employs them, by the school board, by the university, and in higher education by a national body concerned mainly with recognition and funding rather than with individual conduct.
Discipline is employment discipline. A teacher who is found to have taken money for marks is dealt with by his employer under service rules, and the outcome depends on whether the employer wants the finding made.
The complainant is a student. He is dependent on the institution for his degree, he will need its certificate and its goodwill, and complaining is a decision with career consequences. That is a stronger deterrent to complaint than exists in any other profession in this topic.
Judicial deviance is the hardest form in this module to reach, because the independence that protects a judge from pressure also protects him from accountability, and the two cannot be separated cleanly.
In the wording a student can write in an exam: a judge of a superior court holds office during good behaviour and may be removed only by an address of each House of Parliament under article 124(4) on the ground of proved misbehaviour or incapacity; in K. Veeraswami v. Union of India the Supreme Court held that such a judge is a public servant within the anti-corruption statute and may be prosecuted, subject to the safeguard of prior consultation with the Chief Justice of India.
The forms
Corruption. The taking of an undue advantage for a judicial act. It is the gravest and the least documented, for the reasons below.
Favour without payment. Listing, adjournment, the grant of interim relief and the constitution of a bench are all decisions that can be made for reasons other than the merits.
Conflict of interest. Hearing a matter in which the judge, his family or his former practice has an interest, or in which he was previously engaged.
Nepotism in appointment, which is the standing criticism of the collegium system.
Post-retirement expectation. The prospect of an appointment after retirement is a lever, and its criminological interest is that it requires no payment, no promise and no communication.
Delay and non-delivery. A judge who does not deliver judgments is not committing an offence, and the harm is large and diffuse, which is precisely the profile of privileged class deviance in this module.
And conduct outside court inconsistent with the office.
Why it is peculiarly hard to reach
Independence. The protections that prevent the executive from pressing a judge, security of tenure, salary charged on the Consolidated Fund and removal only by an address of Parliament, also prevent anybody else from acting.
The complainant is a litigant or an advocate. Both must appear before the same judge or his colleagues again.
No first information report may be registered at will. The Veeraswami safeguard, set out below, requires consultation before any criminal case is registered against a judge of a superior court.
Contempt. An allegation against a judge risks a contempt proceeding, which is a serious deterrent to complaint and is meant to be one.
And the removal threshold is very high. Proved misbehaviour or incapacity, established through a statutory inquiry, followed by a special majority in both Houses. No judge of the higher judiciary has been removed by this route.
The two governing cases
K. Veeraswami v. Union of India, (1991) 3 SCR 189, decided on 25 July 1991.
There are three routes against a judge, removal by Parliament, prosecution under the criminal law and the in-house procedure, and the first has never succeeded, the second requires a consultation, and the third is unpublished.
In the wording a student can write in an exam: a judge of the Supreme Court or a High Court may be removed only by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership and a majority of not less than two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity, under article 124(4), made applicable to High Court judges by article 217(1)(b); the procedure for investigation and proof is the Judges (Inquiry) Act 1968.
Route one: removal by Parliament
The constitutional provision. Article 124(4) provides for removal by an order of the President passed after an address by each House supported by the double majority, on the ground of proved misbehaviour or incapacity. Article 124(5) empowers Parliament to regulate by law the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity.
The Judges (Inquiry) Act 1968. Section 3 provides that where notice of a motion for an address is given, signed by not less than one hundred members of the House of the People or not less than fifty members of the Council of States, the Speaker or the Chairman may, after consulting such persons as he thinks fit and considering such materials as are available to him, either admit the motion or refuse to admit it. If the motion is admitted, the Speaker or Chairman keeps it pending and constitutes a Committee of three: one chosen from among the Chief Justice and other Judges of the Supreme Court, one from among the Chief Justices of the High Courts, and one who is in his opinion a distinguished jurist. Where notices are given on the same day in both Houses, no Committee is constituted unless the motion is admitted in both.
Section 4 provides for the report of the Committee, section 5 for its powers, and section 6 for the consideration of the report and the procedure for the presentation of an address.
Why it has never succeeded. The motion requires the signatures of a large number of members and can be refused admission by the Speaker or Chairman. The Committee must find misbehaviour proved. And the address then requires the double majority in both Houses, which is a political decision that has never been carried through to a vote resulting in removal. In the one instance in which a Committee found misbehaviour proved, the motion failed in the House.
Journalistic deviance is distinctive because the profession's product is information the reader cannot verify, and because the profession is also the principal means by which every other kind of deviance in this module is exposed.
In the wording a student can write in an exam: professional deviance of journalists covers paid news, inaccuracy and fabrication, trial by media, intrusion on privacy, communal and inflammatory reporting, blackmail through the threat of publication, and the suppression of news for commercial or political reasons; the regulator for the print medium is the Press Council of India under the Press Council Act 1978.
The forms
Paid news. Payment for editorial coverage presented as news. It is the form with the clearest legal consequence and it has its own chapter.
Fabrication and inaccuracy. Reporting what did not happen, or reporting without checking. Its harm is that the reader has no means of telling the difference.
Trial by media. Reporting that presumes guilt, publishes confessions and identifies accused persons and witnesses before trial, dealt with in its own chapter.
Intrusion on privacy. Publication of the identity of victims of sexual offences, of children, and of persons whose distress is the story.
Communal and inflammatory reporting, whose consequences in India have been established by successive commissions of inquiry into episodes of collective violence.
Blackmail. The threat of publication used to extract payment. It is a criminal offence and it is the least reported form because the victim is frequently not blameless.
Suppression. The story that is not run, because of an advertiser, an owner's interest or a political relationship. It is invisible by definition and it is arguably the largest category.
And plagiarism and the recycling of unverified material, which the speed of digital publication has multiplied.
Why the profession is different from the others in this topic
It has no monopoly and no entry qualification. Anybody may publish, and that is a constitutional value rather than a defect. It follows that the regulatory model used for law and medicine, an entry roll and removal from it, is not available and would not be acceptable.
Its regulation must not become censorship. Every mechanism proposed against journalistic deviance is also a mechanism that could be used against reporting somebody in power dislikes. This tension is the whole subject and it is why the Press Council's powers are so weak.
Its product is a public good. The reader who is misled has usually paid nothing and has no contract.
And the profession is the principal detector of other deviance. The cash for questions case, the sting operations in the chapter on trial by media, and the exposure of corporate frauds and adulteration have all come from journalism rather than from any statutory body. A regulatory regime that suppressed this would cost more than the deviance it prevented.
The Press Council is a statutory body of twenty-nine, mostly journalists and newspaper owners, with the powers of a civil court to inquire and no power to do anything at the end of an inquiry except warn, admonish or censure.
In the wording a student can write in an exam: the Press Council of India is constituted under the Press Council Act 1978; its objects under section 13(1) are to preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India, and its sole sanction under section 14 is to warn, admonish or censure, or to disapprove the conduct of an editor or journalist.
Constitution
Section 4 incorporates the Council as a body corporate.
Section 5 provides that the Council shall consist of a Chairman and twenty-eight other members.
The Chairman is nominated by a Committee consisting of the Chairman of the Council of States, the Speaker of the House of the People, and a person elected by the members of the Council. By convention the Chairman is a retired judge of the Supreme Court.
The twenty-eight members are drawn as follows. Thirteen from among working journalists, of whom six are editors and seven are working journalists other than editors, with a minimum representation for newspapers published in Indian languages. Six from among persons who own or carry on the business of management of newspapers, two each from big, medium and small newspapers. One from among persons who manage news agencies. Three having special knowledge or practical experience of education and science, law, and literature and culture, nominated respectively by the University Grants Commission, the Bar Council of India and the Sahitya Academy. And five members of Parliament, three nominated by the Speaker from the House of the People and two by the Chairman from the Council of States.
Note the arithmetic, because it is the whole of the criticism. Twenty of the twenty-eight members are journalists, editors, newspaper owners or news agency managers. The Council is the profession, with three outsiders and five parliamentarians added.
Section 6 gives a term of three years and provides that a member nominated from among journalists, owners or news agency managers who is himself censured under section 14 ceases to be a member.
Objects and functions
Section 13(1) states the twin objects: to preserve the freedom of the Press, and to maintain and improve the standards of newspapers and news agencies in India. Both, in that order, and the pairing is deliberate.
Section 13(2) lists the functions, of which the ones to remember are: to help newspapers and news agencies to maintain their independence; to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards; to ensure the maintenance of high standards of public taste and to foster a due sense of the rights and responsibilities of citizenship; to encourage a sense of responsibility and public service among those engaged in journalism; to keep under review any development likely to restrict the supply and dissemination of news of public interest; to keep under review assistance received by any newspaper or news agency from any foreign source; and to concern itself with developments such as concentration of ownership which may affect the independence of the Press.
The Press Council curbs unprofessional journalism by writing the profession's code, by adjudicating complaints against it, and by publishing its findings, and it does all three without any power to compel anything.
In the wording a student can write in an exam: the Council's role against unprofessional and unethical journalism operates through three functions: building up a code of conduct under section 13(2)(b), adjudicating complaints under section 14 with the civil court powers in section 15, and publicity, both by requiring the publication of the particulars of an inquiry under section 14(2) and through its own reports.
Function one: writing the code
Section 13(2)(b) charges the Council with building up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards.
What the code does. It is not made once and enacted; it is built up from the Council's own adjudications, so that its norms are the accumulated rulings on particular complaints. That method matters: it gives the code the character of case law rather than of regulation, and it means the standards are the profession's own rather than the Government's.
The norms that recur. Accuracy and fairness; verification before publication; a distinction between news and comment; the right of reply and the prompt correction of error; caution in reporting communal matters; caution in reporting pending proceedings; the protection of the identity of victims of sexual offences and of children; caution in reporting suicide; the avoidance of intrusion into private grief; and the disclosure of interest.
And this is a genuine achievement. In a profession with no entry qualification and no monopoly, a body of stated standards to which practitioners can be held is not a small thing, and it is what a lawyer means by saying that the Council has jurisdiction over ethics rather than over conduct.
Function two: adjudication
Who may complain. Any person aggrieved, and the Council may also act on its own motion.
Against whom. A newspaper, a news agency, an editor or a working journalist. Note that the Council also entertains complaints by the press against public authorities that have interfered with its freedom, which is the other half of section 13(1) and is frequently forgotten. Section 15(4) expressly permits observations respecting the conduct of any authority including Government.
Procedure. An opportunity of being heard, then an inquiry in the manner provided by regulations, with the civil court powers under section 15 to summon witnesses, require discovery, receive affidavits and requisition public records. The inquiry is deemed a judicial proceeding for the purposes of the perjury provisions. A source need not be disclosed.
Outcome. For reasons recorded in writing: a warning, an admonition, a censure, or the disapproval of the conduct of an editor or journalist. And the decision is final and not questionable in any court.
The Press Council has been successful at articulating standards and unsuccessful at enforcing them, and the reason is that Parliament deliberately gave it no power to enforce anything.
In the wording a student can write in an exam: the Council's success must be measured against the twin objects in section 13(1), preserving the freedom of the Press and maintaining standards; on the first it has a real record, and on the second its effectiveness is limited by its composition, its sanction, its jurisdiction confined to print, and the bar in section 14(3) on inquiring into matters pending in court.
Where it has succeeded
It has built a body of standards. In a profession with no monopoly and no entry qualification, a stated and accumulated code to which practitioners can be held is a genuine achievement, and it is the Council's principal one.
It has defended press freedom. The first of the two objects in section 13(1), and the one usually forgotten in an examination answer. The Council has upheld complaints by newspapers against authorities that have withheld advertisements, denied accreditation or otherwise interfered, and section 15(4) permits it to observe upon the conduct of any authority including Government.
It has produced the substantial Indian inquiry into paid news, which identified the mechanisms and put the practice on the public record.
It has provided a cheap and accessible forum. A complaint costs nothing, requires no lawyer and does not depend on proving damage, which is more than a defamation action offers.
And it has kept the alternative away. A self-regulatory body with statutory backing has occupied the space that a licensing regulator would otherwise occupy, which is worth something even if it does very little.
Where it has failed
The sanction is not a sanction. Warn, admonish, censure. For a newspaper whose offending story sold well, none of these has a measurable cost. The one power with force, requiring publication of the particulars of the inquiry under section 14(2), is discretionary and sparingly used.
Composition. Twenty of the twenty-eight members come from the industry: thirteen journalists, six owners or managers and one news agency manager. This is the self-regulation problem of the framework chapter in its clearest Indian form, and it is worse here than at the Bar, because the owners whose commercial decisions produce paid news and suppression sit on the body that judges them.
Jurisdiction. The Act reaches newspapers and news agencies. Television and digital publication, where the largest audiences and the most complained-of conduct now are, are outside it entirely.
Section 14(3). No inquiry where a proceeding is pending in a court. Trial by media is by definition reporting on a pending proceeding, so the Council is excluded from the very category MU's papers most often complain about.
Paid news is the sale of editorial space presented as news, and it deceives three parties at once: the reader, the honest competitor, and the election authorities.
In the wording a student can write in an exam: paid news is any news or analysis appearing in a print or electronic medium for a price in cash or kind, presented as editorial content rather than as advertisement; the Press Council of India examined it in a substantial inquiry and the effective legal remedy lies not with the Council but with the Election Commission, under the provision of the Representation of the People Act 1951 dealing with the account of election expenses.
Why it is a distinct wrong
The reader is deceived. He is entitled to assume that what is presented as reporting reflects the judgment of the newspaper and not a payment. That assumption is the whole value of the product.
The competitor is deceived. A candidate who does not pay is reported less favourably or not at all, and the coverage his opponent bought is invisible as such.
The election account is falsified. The cost of the coverage is election expenditure and does not appear in the return, which is where the legal remedy comes in.
And the mechanism corrupts the newspaper permanently. Once editorial space is priced, the distinction between the advertising and the editorial departments has gone, and there is no way back to it within the same organisation.
The forms
Direct payment for a favourable article, unmarked.
Package deals in which coverage over a campaign is sold at a rate.
Negative packages, in which payment secures the absence of adverse coverage or the presence of it about an opponent.
Private treaties, in which the newspaper takes equity in a company in exchange for coverage, which is the corporate rather than the electoral form.
And the treatment of advertising as news, which is the mildest and most widespread form.
Why it is hard to prove
No document. The payment is in cash and there is no contract, since a contract would evidence the offence.
The article is not false. Praise of a candidate is opinion, and a newspaper is entitled to hold an opinion. What is wrong is the concealment of the payment, not the content.
Both parties are guilty, so neither complains.
And the newspaper's records are its own, which is the general difficulty of white collar proof.
What can be proved is the pattern: identical articles under different bylines in different papers, coverage in exact proportion to a candidate's known expenditure, and a sudden reversal of a paper's editorial position.
The legal remedy
Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, decided on 5 May 2014.
Media coverage can defeat a fair trial and can also be the only means of exposing the subversion of one, and Indian law has had to permit the second while restraining the first.
In the wording a student can write in an exam: trial by media is publication that assumes or asserts guilt before adjudication, and it engages the accused's article 21 right to a fair trial and the law of contempt; a sting operation conducted in good faith to expose the subversion of a criminal trial, and whose material is placed before the court, does not amount to contempt, as the Supreme Court held in R.K. Anand v. Registrar, Delhi High Court.
Trial by media
What it is. Publication of the accused's identity and photograph, of a confession said to have been made to the police, of the contents of a case diary, of interviews with witnesses, of reconstructions, and of assertions of guilt, before and during the trial.
Why it matters.
Witnesses. A witness who has read six days of coverage asserting a version cannot be said to be giving an independent account, and a witness whose statement has been broadcast is a witness who has been coached in public.
The presumption of innocence. Reduced to a formality where the accused's guilt has been established in public months before the charge.
The acquitted man. If he is acquitted after four years, the correction reaches nobody, and the harm to his employment, his family and his standing is permanent.
And the pressure on the court. A judge is not supposed to be affected, and asserting that he is not is different from establishing it.
The Indian remedies. Contempt, where the publication prejudices a pending proceeding; postponement orders, which a court may make where a real and substantial risk of prejudice exists and no less restrictive measure will do; the ordinary law of defamation; and, in respect of print, the Press Council, which is however barred by section 14(3) of its own Act from inquiring into a matter pending in court.
The tension. Every restraint on reporting a pending case is a restraint on reporting the administration of justice, which is a matter of legitimate public interest and in which openness is itself a safeguard.
The sting operation
What it is. The recording of conduct by a person who conceals his purpose, usually with a hidden camera, and usually while offering the target an opportunity to commit the conduct.
Why it matters to this paper. The offences in this module are committed in private between parties who both benefit and neither of whom will complain. A recording is the only evidence there can be, and every significant Indian exposure of privileged class deviance in recent decades has come from one: the cash for questions matter examined in the political deviance chapter, and the case below.
The statutory press regulator covers newspapers, the largest audiences are on television and online, and what regulates those is a mixture of industry self-regulation, an executive oversight mechanism and the ordinary law.
In the wording a student can write in an exam: the Press Council Act 1978 applies to newspapers and news agencies only; television news is regulated by industry self-regulatory bodies together with the programme code under the cable television legislation; and digital news and online curated content are governed by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, whose three-tier grievance mechanism has been challenged before the High Courts.
The three regimes
Print. The Press Council of India, statutory, with the powers described in its own chapters and the sanction of censure.
Television. No statutory council. The programme code under the cable television legislation binds the carriage of programmes and can be enforced by the Central Government against a channel's transmission, and the news broadcasters have formed self-regulatory bodies with their own codes, complaints machinery and modest penalties. Their authority rests on the members' agreement to be bound.
Digital. The 2021 Rules apply to publishers of news and current affairs content and to publishers of online curated content, and impose a Code of Ethics together with a three-tier grievance redressal structure: self-regulation by the publisher, self-regulation by a body of publishers headed by a retired judge or an eminent person, and an oversight mechanism of the Central Government with an inter-departmental committee.
The objection to the third tier
The third tier is the constitutional difficulty and it must be stated.
The complaint. A grievance mechanism whose final level is a committee of officials, empowered to direct the deletion or modification of content, places editorial control in the executive. That is the objection to every regulator of speech and it is at its strongest where the regulator is the Government itself.
The litigation. The Rules have been challenged before several High Courts by digital news publishers and by industry associations, and the challenges have concerned the Code of Ethics and the three-tier oversight structure. This book does not state the outcome of any of those proceedings, because the judgments have not been read for it, and a student should check the current position before relying on one. That is the honest course where a matter is under active litigation across several courts and appeals, and stating an outcome from memory is exactly what the sourcing rule in this book forbids.
The general point survives the litigation. A regulatory model in which the Government is the appellate authority over news content is different in kind from one in which a statutory council of the profession may censure, and describing the difference is what the question requires.
Medical deviance is the most dangerous in this topic because the patient cannot evaluate the service, cannot refuse it in an emergency, and will often never know that anything was wrong.
In the wording a student can write in an exam: professional deviance of doctors covers negligence, unnecessary investigation and surgery, the acceptance of commissions for referrals and for prescribing, overcharging and the exploitation of an emergency, refusal of treatment, sex determination and the sex-selective abortion trade, participation in the organ trade, falsification of records and certificates, and research misconduct.
The forms
Negligence. The failure to exercise the skill and care of an ordinary competent practitioner, which has three chapters of its own because Indian law treats it differently in criminal, consumer and civil proceedings.
Unnecessary investigation and surgery. The most economically significant form. A patient cannot tell whether a scan, a procedure or an operation was needed, and where the doctor's income depends on the volume of what he orders, the incentive is direct.
Commissions. Payment for referring a patient to a diagnostic centre, a hospital or another practitioner, and payment by manufacturers for prescribing. The professional conduct regulations prohibit this expressly and it is widespread.
Overcharging and the exploitation of an emergency. A person whose relative is critically ill is not in a position to negotiate.
Refusal of treatment. In an emergency, or on grounds of ability to pay, or pending a police formality. The Supreme Court settled long ago that a medical practitioner must attend an injured person and that no procedural formality may stand in the way.
Sex determination and sex-selective abortion, which has its own chapter.
The organ trade.
Falsification. False medical certificates, false injury reports, false post-mortem findings, and altered case papers after an adverse event. The last is the form that defeats every subsequent proceeding.
And research misconduct, including unethical trials on patients who did not effectively consent.
Why the asymmetry is worse here than in any other profession
The patient cannot evaluate the service either before or after. He does not know whether the operation was necessary, and if he recovers he will assume it was.
He cannot refuse. In an emergency there is no time and no alternative supplier.
Outcome is not evidence. Patients die under good treatment and recover under bad, so a bad outcome proves nothing and a good one conceals a great deal.
The record is the doctor's. Case papers, investigation reports and prescriptions are all in the hospital's custody, and an altered record is nearly impossible to disprove.
And the expert is a colleague. Any proceeding requires the opinion of another doctor, and the profession's reluctance to give evidence against its members is well documented and is the subject of the chapter on the criminal standard.
A doctor is criminally liable for a patient's death only where his negligence was gross, and the Supreme Court has added a procedural protection requiring an independent medical opinion before he is prosecuted.
In the wording a student can write in an exam: in Jacob Mathew v. State of Punjab the Supreme Court held that for criminal liability the negligence must be of a gross or very high degree, that a doctor is not liable merely because a better course of treatment was available so long as he followed a practice acceptable to the medical profession of the day, which is the Bolam test, and that a private complaint against a doctor should not be entertained unless supported by a credible opinion of another competent doctor.
The distinction between civil and criminal negligence
The elements are the same. Duty, breach and resulting damage.
The degree is not. Civil liability follows from any failure to meet the standard of the ordinary competent practitioner. Criminal liability requires something more: negligence so gross that it shows a disregard for the life and safety of others, and not a mere error of judgment or an accident.
And the consequence is not. A civil finding requires payment; a criminal conviction takes liberty and ends a career.
That difference in degree is not a technicality. It is what allows a profession to make difficult decisions under uncertainty without every bad outcome exposing the practitioner to prosecution.
The leading case
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.
Facts. A patient admitted to a hospital at Ludhiana had difficulty in breathing at about eleven at night. The duty nurse was contacted and no doctor came for twenty to twenty-five minutes. When two doctors arrived an oxygen cylinder was connected but, according to the complaint, it was empty, and the patient died. A first information report was lodged and an offence of causing death by a rash or negligent act was registered against the doctors.
Held. The Court summed up its conclusions. Negligence is the breach of a duty caused by the omission to do something a reasonable man would do or the doing of something a prudent and reasonable man would not do, and its essential components are duty, breach and resulting damage. Professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better course was available, which is the test in Bolam's case. The jurisprudential concept of negligence differs in civil and criminal law, and what may be negligence in civil law may not be negligence in criminal law: for criminal liability the negligence must be gross or of a very high degree.
A patient may complain to a consumer commission that medical treatment was a deficient service, and that route, opened in 1995, is how almost all Indian medical negligence is now litigated.
In the wording a student can write in an exam: in Indian Medical Association v. V.P. Shantha the Supreme Court held that service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, medicinal and surgical, falls within the definition of service under the consumer legislation, except where the service is rendered free of charge to every patient or under a contract of personal service.
The gateway case
Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550.
Facts. The question was whether, and in what circumstances, a medical practitioner, a private hospital or a nursing home renders a service within the consumer law, so that a patient may complain to a consumer forum instead of suing. The medical profession argued that it was governed by its own disciplinary law and that treatment was not a service of the kind the Act contemplated.
Held. Service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, medicinal and surgical, falls within the definition of service, except where the doctor renders service free of charge to every patient or under a contract of personal service. Disciplinary control by the Medical Council does not exclude the Act. A contract of personal service, which is excluded, requires a relationship of master and servant and is different from a contract for personal services, which is not excluded, so an ordinary doctor and patient relationship is within the Act.
Why it matters. It gave the patient a forum that is cheap, does not require a lawyer, and decides on affidavits and documents. Almost every reported Indian medical negligence decision since is a consumer decision, and the argument that a profession's own disciplinary machinery displaces the general law was rejected in terms, which is a proposition of general importance for this whole topic.
The standard applied
Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480.
Facts. The complainants alleged that a patient died because of negligent treatment at a hospital, and the National Commission had rejected the claim. The appeal required the Supreme Court to restate the standard by which a charge of medical negligence is to be judged.
Held. The Court set out a list of principles to be kept in view in deciding cases of medical negligence, beginning with the classical definition of negligence as the omission to do something a reasonable man would do or the doing of something a prudent and reasonable man would not do, and ending with the proposition that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence and in the interest of their patients, whose welfare must be paramount. It emphasised that doctors are not to be held negligent merely because a treatment did not succeed or because a different course might have been followed.
The medical regulator was replaced in 2019, and the new body separates ethics and registration into an autonomous board with appellate power over the State Medical Councils.
In the wording a student can write in an exam: the National Medical Commission Act 2019 replaced the Indian Medical Council Act 1956; it constitutes the National Medical Commission with four Autonomous Boards, of which the Ethics and Medical Registration Board under section 27 maintains the National Register, regulates professional conduct, promotes medical ethics, and exercises appellate jurisdiction over actions taken by a State Medical Council under section 30.
The structure
The Commission is constituted under section 3 and composed under section 4, with a Chairperson and members appointed on the recommendation of a Search Committee under section 5, and with powers and functions under section 10.
Four Autonomous Boards are constituted under section 16: the Under-Graduate Medical Education Board, the Post-Graduate Medical Education Board, the Medical Assessment and Rating Board, and the Ethics and Medical Registration Board.
The Ethics and Medical Registration Board, under section 27, performs four functions: it maintains the National Registers of all licensed medical practitioners in accordance with section 31; it regulates professional conduct and promotes medical ethics in accordance with the regulations, ensuring compliance through the State Medical Council where that Council has been given disciplinary power under a State Act; it develops mechanisms for continuous interaction with State Medical Councils; and it exercises appellate jurisdiction in respect of actions taken by a State Medical Council under section 30.
State Medical Councils, under section 30. Where a State Act confers disciplinary power on the State Medical Council in respect of professional or ethical misconduct by a registered practitioner, the Council must act in accordance with the regulations and guidelines under the Act. Until a State Council is established, the Ethics and Medical Registration Board itself receives complaints. And the practitioner must be given an opportunity of hearing before any action, including the imposition of any monetary penalty.
Two appeals. A practitioner aggrieved by a State Medical Council's action may appeal to the Ethics and Medical Registration Board, whose decision binds the State Council; and a practitioner aggrieved by the Board may appeal to the Commission within sixty days.
And section 31 requires the Board to maintain a National Register containing the name, address and recognised qualifications of every licensed practitioner. Section 34 bars practice by a person not enrolled.
What is better than the old scheme
Ethics is a separate board with its own president and members, rather than a committee of an elected council.
Appointment is by a Search Committee rather than by election, which removes the electoral incentive that is the standing objection to self-regulation.
The Lentin Commission inquired into the deaths of fourteen patients given contaminated glycerol at a government hospital in Bombay, and it found a corrupt nexus running from the drug firms through the drug regulator to the hospital, which is why it is the standard Indian illustration of professional and official deviance in medicine.
In the wording a student can write in an exam: on 21 February 1986 the State Government of Maharashtra appointed Justice B. Lentin as a one-man Commission of Inquiry under the Commissions of Inquiry Act 1952 to probe the death of fourteen patients at the government-run J.J. Hospital between 22 January and 7 February 1986 after they were administered contaminated glycerol, and to fix responsibility.
What happened
The facts are stated by the Supreme Court in Dr. Baliram Waman Hiray v. Justice B. Lentin, AIR 1988 SC 2267, (1988) 4 SCC 419, decided on 12 September 1988.
Facts. On 21 February 1986 the State Government of Maharashtra appointed Shri Justice B. Lentin as a one-man Commission of Inquiry to probe into the death of fourteen patients in the government run J.J. Hospital between 22 January 1986 and 7 February 1986 after they were administered contaminated glycerol, and to fix responsibility. The inquiry revealed the existence of a corrupt and venal nexus between the drug firms, the delinquent Food and Drugs Administration and hospital staff on the one hand, and the appellant, some other persons and certain Government officials on the other, and the Commission's report was an indictment of the State's public health system. Finding the appellant's evidence self-contradictory, the Commission issued a show cause notice and then directed the filing of a complaint for giving false evidence on oath. He challenged that direction, contending that a Commission of Inquiry is not a Court for the purposes of section 195(1)(b) of the Code of Criminal Procedure 1973.
Held. Allowing the appeal, the Court held that a Commission of Inquiry is not a Court properly so called. A Commission is appointed by the appropriate Government for the information of its mind, in order to decide the course of action to be followed; it is therefore a fact-finding body, is not required to adjudicate upon the rights of parties and has no adjudicatory function; and the Government is not bound to accept its recommendation or to act upon its findings. The mere fact that the procedure it adopts is of a legal character and that it has power to administer an oath does not impart to it the status of a Court. The legal fiction in the Commissions of Inquiry Act deeming its proceedings to be judicial is confined to offences punishable under sections 193 and 228 of the Indian Penal Code and does not extend beyond that. The judgment does not prevent the State Government from launching a prosecution for those offences if otherwise permissible in law.
These are the forms of medical deviance where the doctor is not merely careless but is the necessary participant in an offence that could not be committed without him.
In the wording a student can write in an exam: the criminal law reaches medical deviance specifically in three places: the prohibition of pre-natal sex determination under the legislation on pre-conception and pre-natal diagnostic techniques; the prohibition of commercial dealing in human organs under the transplantation legislation; and the general law, together with the consumer law, in respect of unnecessary investigation and surgery.
Sex determination
The wrong. A pregnancy is tested to determine the sex of the foetus, and where it is female the pregnancy is terminated. The doctor is the necessary participant: the family cannot do it and the technology is his.
The statute. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 prohibits sex selection, regulates the use of pre-natal diagnostic techniques, requires the registration of genetic counselling centres, laboratories and clinics, prohibits any communication of the sex of the foetus, prohibits advertisement, and provides for punishment including suspension of registration and removal of the practitioner's name from the medical register.
Why enforcement is hard. There is no complainant: the family wanted the test, the doctor was paid, and the foetus cannot complain. The offence leaves no victim who knows he is one, which is the general profile of the offences in this module and the extreme case of it.
What works. Decoy operations, record inspection, tracking of ultrasound machines, and the mandatory maintenance and production of forms. Every one of these is a detection measure rather than a punishment measure, which is what the chapter on curbing white collar crime predicted.
And the professional dimension. A practitioner convicted under the Act faces removal from the register, which is the sanction that matters to him. The chapter on the medical regulator shows how rarely it is imposed.
The organ trade
The wrong. A person in need of money is induced to give an organ, and a person able to pay receives it, with a doctor performing the operation and a hospital's authorisation committee approving it as a donation between related persons or out of affection.
The statute. The Transplantation of Human Organs and Tissues Act 1994 permits removal of organs from a living donor who is a near relative, or from any other person only with the approval of an authorisation committee satisfied that the donation is by reason of affection or attachment or for any other special reason; regulates removal after brain-stem death; prohibits commercial dealings in human organs; and provides punishment for the doctor who takes part, including removal of the practitioner's name from the register.
The technocrat's deviance is the false certificate, and it matters because the whole point of a certified professional is that a stranger can rely on his signature without checking anything.
In the wording a student can write in an exam: professional deviance of technocrats covers the auditor who certifies accounts he knows to be false, the valuer who values to order, the engineer who certifies work not done or materials not used, the architect who certifies a structure not built to plan, and the company secretary or other professional whose compliance certificate is untrue; the auditor's position is now governed by section 143(12) of the Companies Act 2013, which requires the reporting of a suspected fraud, defined and punished by section 447.
Why the technocrat is different
His product is reliance. A valuation, an audit report, a structural certificate and a completion certificate are all issued so that somebody else, a bank, a shareholder, a purchaser, a regulator, can act without inspecting. If the certificate is false the whole chain that relied on it fails.
He is paid by the person he certifies. The auditor is paid by the company, the valuer by the borrower, the engineer by the contractor. That structural conflict is the profession's defining problem and no amount of ethics training addresses it.
And he is the gatekeeper for other offences. Almost every offence in Module III required a certificate. The bank fraud needed a valuation. The corporate fraud needed an audit report. The unsafe building needed a structural certificate. The technocrat is where the chain of privileged class deviance passes through a person with a professional qualification, and stopping it there is more efficient than stopping it anywhere else.
The forms
The auditor. Certifying accounts known to be false; failing to obtain evidence and certifying anyway; accepting management representations that contradict the records; and not reporting a fraud noticed in the course of the audit.
The valuer. Valuing to a figure the client requires, whether for a loan, a merger, an insurance claim or a tax position.
The engineer. Certifying that work was executed to specification when it was not, which is the mechanism of most public works corruption and of the building collapses that follow.
The architect and the structural consultant. Certifying compliance with a sanctioned plan and with structural requirements.
The chartered accountant in tax matters. Certificates and returns supporting positions the professional knows to be unsustainable.
And the company secretary or compliance professional, whose certificate that a company has complied is the basis on which a regulator does not inspect.
The Indian machinery
The professional institutes. Chartered accountants, cost accountants, company secretaries and engineers each have their own body with disciplinary powers over their members. Everything in the framework chapter about self-regulation applies, with the additional feature that the institutes' disciplinary records are not readily public.
Every profession in this topic shows the same six features, and the common cause is that the body which judges the deviance is drawn from the group that commits it.
In the wording a student can write in an exam: the professions share a monopoly granted in exchange for self-regulation, and in each of them self-regulation fails in the same way: the adjudicators are colleagues, the complainant is a layman, the evidence is professional judgment, proceedings are slow, sanctions are weak, and the profession has an institutional interest in the finding.
The comparison
Profession
Regulator
Composition
Heaviest sanction
External oversight
Lawyers
State Bar Council and Bar Council of India, under the Advocates Act 1961
Elected advocates, plus one co-opted advocate on the committee
Removal from the roll
Appeal to the Supreme Court under section 38
Teachers
The employer, under service rules
The management
Dismissal from that post
None, and no register
Judges
The Chief Justice, through the in-house procedure; Parliament, for removal
Judges
Withdrawal of judicial work; removal by an address of Parliament
None short of Parliament
Journalists
Press Council of India for print; self-regulatory bodies for broadcast; the 2021 Rules for digital
Twenty of twenty-eight from the industry
Censure
None; section 14(4) makes the decision final
Doctors
State Medical Council and the Ethics and Medical Registration Board under the 2019 Act
Medical practitioners
Removal from the register, and a monetary penalty
Appeal to the Board and to the Commission
Technocrats
The professional institutes; and for auditors of specified companies, the National Financial Reporting Authority
Members of the profession, and for the Authority, an external body
Removal from the register
The Authority, which is the one real instance
Read the last column. Four of the six have no external oversight of the self-regulator at all. Two have an appeal, and only one, the auditors of specified companies, has a genuinely external regulator. That column is the answer to the question this topic asks.
The six shared features
One: the monopoly bargain. Each profession holds a monopoly, or something close to it, granted because the public cannot judge competence. The consideration is that the profession will police itself. Where it does not, the bargain has failed and the monopoly remains.
Two: the adjudicators are colleagues. They practise beside the accused and will do so afterwards.
Three: the complainant cannot prove his case. He is a layman, the record is with the professional, and he needs an expert from the same profession.
Four: the conduct is defensible as judgment. A clinical decision, a legal opinion, an audit conclusion, an editorial choice and a judicial order can all be defended as a permissible view, which is why the mental element is the whole case in every one of these chapters as it was in every white collar chapter.
The rest of this chapter comes with the notes.
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Module IV
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Chapter One Hundred Seventeen
What the Response of the Indian Legal Order Means
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The response of the Indian legal order is everything the law does about the crime and the deviance the first three modules described, and it runs from the Constitution through five statutory institutions to the way an offender is sentenced and released.
In the wording a student can write in an exam: the response of the Indian legal order operates at five levels: the constitutional, the penal, chiefly the Prevention of Corruption Act 1988; the institutional, being the Central Vigilance Commission, the Central Bureau of Investigation, the Lokpal and Lokayuktas, the Public Accounts Committee and the Comptroller and Auditor General, and Commissions of Inquiry; the transparency and protective, being the Right to Information Act 2005 and the whistle blower legislation; and the judicial and correctional, being public interest litigation, speedy trial, sentencing, probation, prisons, victim compensation and decriminalisation.
What the module contains, in order
The constitutional foundation, one chapter.
The Prevention of Corruption Act 1988, eight chapters, because MU asks about it on eight of the eleven printed papers and asks about the Antulay case on seven.
The vigilance and investigative machinery, three chapters: the Central Vigilance Commission, the legislation under which it is established, and the Central Bureau of Investigation with the episode MU's 2018 paper calls CBI v. CBI.
The ombudsman family, three chapters: the idea and its origin, the Lokpal, and the Lokayukta.
Parliamentary financial oversight, two chapters: the Public Accounts Committee, which is the most-asked short note on this paper, and the Comptroller and Auditor General with the other committees.
Commissions of inquiry, four chapters: the Act, the powers and procedure, the legal effect of a report, and the practice.
The transparency and protective statutes, two chapters: the Right to Information Act and whistle blower protection.
Other statutory responses, two chapters: money laundering and asset recovery, and consumer protection.
The judicial response, two chapters: public interest litigation and speedy trial.
The correctional response, four chapters: sentencing, probation, prisons and the victim.
Decriminalisation, one chapter.
And the assessment, one chapter, which is the last in the book.
The three questions to ask of every institution in this module
Carry these through all thirty-four chapters, because they are what turns a description into an answer.
Who appoints it, and can it be removed? An institution whose members are appointed by the executive and can be removed by it will not restrain the executive. This is the single variable that determines whether any of these bodies works, and it recurs from the Central Vigilance Commission to the Lokpal to the Police Complaints Authorities.
Can it act on its own, or does it need somebody's permission? Sanction requirements, references, and the need for a Government reference to a commission of inquiry are all the same limitation in different clothes.
The rest of this chapter comes with the notes.
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Chapter One Hundred Eighteen
The Constitutional Response
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Constitution supplies the standard against which every response in this module is measured: equality of treatment, fairness of procedure, and a State directed towards the conditions in which crime is less likely.
In the wording a student can write in an exam: the constitutional response operates through article 14, equality before the law and the equal protection of the laws; article 21, which requires that a deprivation of life or personal liberty be by a procedure established by law, read to mean a fair, just and reasonable procedure; articles 20 and 22, the protections of the accused; the directive principles in articles 39, 39A, 41 and 47; the fundamental duties in article 51A; and the enforcement machinery of articles 32 and 226.
The guarantees to the accused
Article 20(1). No person shall be convicted of an offence except for the violation of a law in force at the time of the act, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time. This is the Classical School's principle of legality, in the Constitution.
Article 20(2). No person shall be prosecuted and punished for the same offence more than once.
Article 20(3). No person accused of an offence shall be compelled to be a witness against himself, which is the protection against self-incrimination worked in the chapter on custodial violence.
Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law, and the procedure must be fair, just and reasonable. Almost every judicial development in this module, speedy trial, legal aid, compensation for custodial death, the conditions of confinement and the treatment of victims, rests on this article.
Article 22. Protection against arrest and detention: the right to be informed of the grounds of arrest, to consult and be defended by a legal practitioner of one's choice, and to be produced before a Magistrate within twenty-four hours.
The equality guarantee, and why it matters most in this module
Article 14 guarantees equality before the law and the equal protection of the laws.
Its bearing on the third module. Everything in Module III was a description of unequal treatment: the same harm processed differently depending on the position of the person who caused it. Article 14 does not by itself convert a differential enforcement practice into an actionable wrong, and that limitation is worth stating. What it does is supply the standard by which the pattern is judged and the ground on which a classification in a statute can be challenged.
And the equality of the accused. The differential access to bail, to counsel and to expert evidence described throughout this book is an inequality in fact rather than in law, which is the difficulty article 14 has always had with this class of problem.
The rest of this chapter comes with the notes.
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Chapter One Hundred Nineteen
The Prevention of Corruption Act 1988: Objects and Scheme
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Act consolidates the law on the corruption of public servants, widens who counts as one, provides for trial by special judges, and since 2018 punishes the giver as well as the taker.
In the wording a student can write in an exam: the Prevention of Corruption Act 1988 consolidated and amended the law relating to the prevention of corruption, replacing the Prevention of Corruption Act 1947 and the corresponding provisions of the Indian Penal Code; it was substantially amended by the Prevention of Corruption (Amendment) Act 2018, which recast the offences in terms of an undue advantage, created an offence of bribing a public servant, made a commercial organisation liable, and inserted section 17A requiring previous approval before any enquiry or investigation into a decision taken in the discharge of official functions.
The objects
Consolidation. Before 1988 the law was in the 1947 Act and in the bribery provisions of the Indian Penal Code, and the 1988 Act brought them together and repealed the earlier scheme.
Widening. The definition of public servant was enlarged well beyond government service, for the reasons dealt with in the next chapter.
Speed. Trial exclusively by special judges, with a direction that a case be tried as expeditiously as possible and, so far as practicable, held from day to day.
And in 2018, four further objects. To bring Indian law into line with the United Nations Convention against Corruption, which India ratified; to punish the giver of a bribe and not only the taker; to make a commercial organisation liable where a person associated with it bribes a public servant to obtain business; and to protect honest officials from prosecution for decisions taken in good faith, which is the purpose section 17A serves and the point on which the amendment is most criticised.
The scheme
Sections 1 and 2, extent and definitions, including the definitions of public servant, undue advantage and public duty.
Sections 3 to 6, the court. The Central Government or the State Government may by notification appoint special Judges to try offences under the Act and any conspiracy or attempt or abetment relating to them. A person is qualified for appointment only if he is or has been a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge. Offences under the Act are triable only by a special Judge, who takes cognizance without the accused being committed for trial, may try any other offence with which the accused may be charged at the same trial, and in trying an offence follows the procedure for warrant cases before a Magistrate. Section 6 provides for summary trial in certain cases.
Sections 7 to 12, the bribery offences, dealt with in their own chapter.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty
Who Is a Public Servant Under the Act
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Everything in the Act depends on the accused being a public servant, and the definition is deliberately wide, covering many people who are not government servants at all.
In the wording a student can write in an exam: section 2(c) defines a public servant in twelve inclusive clauses covering, among others, any person in the service or pay of the Government or remunerated by fees or commission for the performance of a public duty; any person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act, or a Government company; any judge; any arbitrator; any person who holds an office by virtue of which he is authorised to perform any public duty; and any office bearer or employee of an educational, scientific, social, cultural or other institution receiving financial assistance from the Government.
Why the definition is so wide
Because corruption follows public power rather than government employment. A person who allots a plot, grants a licence, awards a contract, examines a candidate or certifies a building exercises public power whether or not he is on a government payroll.
Because functions have been contracted out. Registrars, valuers, inspectors, certifying agencies and educational bodies perform public duties without being departments.
And because the earlier law was too narrow, and the 1988 Act was enacted to widen it.
The Explanations to the section make two points expressly: a person falling within any of the clauses is a public servant whether appointed by Government or not; and any person in actual possession of the situation of a public servant, whatever the legal defect in his right to hold it, is a public servant.
The three decisions that fixed the boundaries
A judge is a public servant.K. Veeraswami v. Union of India, (1991) 3 SCR 189, decided on 25 July 1991.
Facts. A former Chief Justice of the Madras High Court was prosecuted under the Prevention of Corruption Act 1947 for possessing assets disproportionate to his known sources of income. He contended that a judge of a superior court is not a public servant under the Act and that criminal prosecution would compromise the independence of the judiciary, the Constitution having provided only for removal by Parliament.
Held. A judge of the High Court or the Supreme Court is a public servant within the Act and can be prosecuted, so that a judge is not above the criminal law. To protect independence the Court laid down a safeguard: no criminal case shall be registered against a judge of a superior court without first consulting the Chief Justice of India, and if the Chief Justice is himself the person concerned, the President is to be consulted.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-One
The Bribery Offences: Sections 7 to 12
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Since 2018 the Act punishes the public servant who takes, the middleman who trades on influence, the person who gives, the company on whose behalf it is given, and the person in charge of that company.
In the wording a student can write in an exam: section 7 punishes a public servant who obtains, accepts or attempts to obtain an undue advantage with the intention to perform or cause performance of a public duty improperly or dishonestly, or as a reward for having done so; section 7A punishes a person who takes an undue advantage to influence a public servant by corrupt or illegal means or by personal influence; section 8 punishes the giver; sections 9 and 10 reach a commercial organisation and the person in charge of it; section 11 punishes a public servant who obtains a valuable thing without consideration from a person concerned in a proceeding or business transacted by him; and section 12 punishes abetment.
Section 7: the taking
The section, as substituted in 2018, punishes any public servant who:
(a) obtains or accepts or attempts to obtain from any person an undue advantage, with the intention to perform or cause performance of a public duty improperly or dishonestly, or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or by another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty, or to forbear performance of such duty, in anticipation of or in consequence of accepting an undue advantage from any person.
Punishment: imprisonment for not less than three years, extending to seven years, and fine.
Explanation 1 is the provision that decides most cases: the obtaining, accepting or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by the public servant is not or has not been improper. The Act's own illustration is a public servant who asks a person for five thousand rupees to process his routine ration card application on time, and it says the public servant is guilty. So taking money for doing what you were required to do anyway is an offence.
Explanation 2 provides that obtaining, accepting or attempting to obtain covers the case where the public servant obtains the undue advantage for himself or for another person by abusing his position, or by using his personal influence over another public servant, or by any other corrupt or illegal means; and that it is immaterial whether the advantage is obtained directly or through a third party.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Two
Criminal Misconduct by a Public Servant: Section 13
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Criminal misconduct now means only two things, misappropriating property entrusted to a public servant and enriching himself illicitly, and the clause under which most corruption cases were brought before 2018 no longer exists.
In the wording a student can write in an exam: section 13(1) as substituted in 2018 provides that a public servant commits criminal misconduct (a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, or allows any other person so to do; or (b) if he intentionally enriches himself illicitly during the period of his office; and section 13(2) punishes it with imprisonment of not less than four years extending to ten years, and fine.
The two clauses
Clause (a): misappropriation. Dishonest or fraudulent misappropriation, or conversion for his own use, of property entrusted to him or under his control as a public servant, or allowing another person to do so. It is criminal breach of trust by a public servant, with a higher minimum sentence.
Clause (b): illicit enrichment. Intentionally enriching himself illicitly during the period of his office.
Explanation 1 supplies the proof: a person shall be presumed to have intentionally enriched himself illicitly if he, or any person on his behalf, is in possession of, or has at any time during the period of his office been in possession of, pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2 defines known sources of income as income received from any lawful sources.
This is the disproportionate assets case, and it is the provision under which the Veeraswami prosecution and a great many others proceed. Note its structure: the prosecution proves possession of assets disproportionate to known lawful income, and the burden of satisfactorily accounting for them is on the public servant.
What was removed in 2018, and why it matters
The section before 2018 had five clauses. The one that mattered most was clause (d), which made it criminal misconduct for a public servant, by corrupt or illegal means or by abusing his position, to obtain for himself or for any other person any valuable thing or pecuniary advantage, and, in its third limb, to obtain for any person any valuable thing or pecuniary advantage while holding office as a public servant, without any public interest.
Why it mattered. It did not require proof that the public servant took anything. A decision that conferred an advantage on somebody, taken by abusing his position or without any public interest, was itself criminal misconduct. Most large Indian corruption prosecutions, particularly those concerning allocations, licences and contracts, were founded on it.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Three
Presumption, Sanction and Section 17A
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Section 20 makes the prosecution's case once acceptance is proved, and sections 17A and 19 require two separate permissions from within the same government before anything can happen at all.
In the wording a student can write in an exam: section 20 raises a presumption that an undue advantage proved to have been accepted was accepted as a motive or reward; section 17A requires the previous approval of the appropriate Government before a police officer may conduct any enquiry, inquiry or investigation into an offence relatable to a recommendation made or decision taken by a public servant in the discharge of his official functions; and section 19 requires the previous sanction of the appropriate Government or competent authority before a court may take cognizance of an offence under sections 7, 11, 13 and 15.
Section 20: the presumption
The provision. Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself or for any other person any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage as a motive or reward under section 7, or without consideration or for an inadequate consideration under section 11.
What it does. It splits the prosecution's task in two. The prosecution must prove the fact of acceptance, which is what a trap case is designed to establish through recovery and independent witnesses. The motive, which is the mental element and would otherwise be nearly impossible to prove, is then presumed.
What it does not do. It does not presume acceptance. Recovery of money from a public servant proves nothing by itself, since it must be shown that he accepted it as an undue advantage, and the ordinary defence is that the money was thrust upon him, or was a repayment of a loan, or was planted. Where that defence raises a reasonable doubt about acceptance, the presumption never arises.
And it is rebuttable. The accused may displace it on the balance of probabilities, and he need not prove his explanation beyond reasonable doubt.
Section 17A: approval before enquiry
The provision, inserted in 2018. No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval of the Central Government for a person employed in connection with the affairs of the Union, of the State Government for a person employed in connection with the affairs of a State, and in any other case of the authority competent to remove him from office at the time when the offence was alleged to have been committed.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Four
Trial, the Special Judge and Attachment
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Offences under the Act are tried only by a special Judge, who is a Sessions Judge by qualification, takes cognizance without committal, tries the case as expeditiously as possible and may attach the property.
In the wording a student can write in an exam: sections 3 to 6 provide for the appointment of special Judges, their exclusive jurisdiction, their procedure and summary trial; section 22 applies the Code of Criminal Procedure subject to modifications; section 23 governs particulars in a charge of criminal misconduct; and section 18A applies the Criminal Law Amendment Ordinance 1944 to the attachment of property.
The special Judge
Appointment, section 3. The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified, to try offences punishable under the Act and any conspiracy to commit, attempt to commit or abetment of such an offence.
Qualification. A person is not qualified for appointment as a special Judge unless he is or has been a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure.
Exclusive jurisdiction, section 4. Every offence punishable under the Act shall be tried by the special Judge for the area within which it was committed, or by the special Judge appointed for the case. When trying any case, a special Judge may also try any offence other than one under the Act with which the accused may, under the Code, be charged at the same trial. And a case is to be tried as expeditiously as possible and, so far as practicable, held from day to day.
Procedure, section 5. A special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. He may tender a pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence, on condition of a full and true disclosure, and for the purpose of the trial is deemed to be a Court of Session.
Section 6 provides for summary trial in certain cases where the offence is punishable with imprisonment not exceeding a stated term.
Why this design. Committal proceedings and the ordinary hierarchy were thought to be the causes of delay, so the Act removes committal, fixes exclusive jurisdiction, gives the trial court the powers of a Court of Session and directs day-to-day hearing. The result, as the chapter on what the Act has achieved shows, is that corruption trials take about as long as any other, which tells you that committal was not the cause.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Five
The Antulay Case
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The first Antulay decision settled that sanction is needed only where the accused is still a public servant when the court takes cognizance, and the second, four years later, is the case in which the Supreme Court recalled its own order because it had directed a trial the statute did not permit.
In the wording a student can write in an exam: R.S. Nayak v. A.R. Antulay, decided on 16 February 1984, is the Constitution Bench decision on sanction under section 6 of the Prevention of Corruption Act 1947 and on whether a Member of the Legislative Assembly is a public servant; A.R. Antulay v. R.S. Nayak, decided on 29 April 1988, is the seven-judge decision recalling the Court's own direction transferring the trial from a Special Judge to a High Court judge.
Getting the two apart
Note the party order. In 1984 the complainant Nayak is the appellant, so the case is R.S. Nayak v. A.R. Antulay. In 1988 the accused is the appellant, so it is A.R. Antulay v. R.S. Nayak. A student who gets this wrong has cited the wrong case, and the cases decide entirely different things.
Note the subject. 1984 is about sanction. 1988 is about the Court's own power to correct itself.
And note that neither decides whether he was guilty. MU's question asks for the outcome of the case, and the honest answer begins by saying which case and which question.
The first decision
R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684, (1984) 2 SCC 183, decided on 16 February 1984, by a Constitution Bench of five judges.
Facts. R.S. Nayak filed a complaint against A.R. Antulay, then Chief Minister of Maharashtra, under sections 161 and 165 of the Indian Penal Code and section 5 of the Prevention of Corruption Act 1947, alleging abuse of the office of Chief Minister. The first complaint was rejected for want of the Governor's sanction under section 6 of the 1947 Act. After the Governor granted sanction a fresh complaint was filed before the Special Judge, by which date Antulay had already resigned as Chief Minister. He applied to be discharged on the ground that, being a Member of the Legislative Assembly, a fresh sanction under section 6 from the Assembly was needed. The Special Judge accepted that argument and discharged him, holding an MLA to be a public servant. The complainant appealed.
Held, allowing the appeal, four things.
On the relevant date. The relevant date for section 6 is the date on which the court is called upon to take cognizance, not the date of the offence. Where the accused has ceased to be a public servant by then, no sanction is needed, because the policy of section 6, which is to protect a serving public servant from a frivolous or speculative prosecution, has no work to do once he has ceased to hold the office.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Six
What the Act Has Achieved, and What It Has Not
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Act has produced a workable law against the small bribe taken in cash and has not produced a workable law against anything else.
In the wording a student can write in an exam: the Prevention of Corruption Act 1988 has strengthened the framework by consolidating the law, widening the definition of public servant, providing exclusive trial by special Judges, supplying a presumption that makes the trap case triable, and, since 2018, punishing the giver and the commercial organisation; it has failed to address detection, delay, the two sanction gates, and the offences that involve no cash.
What it has achieved
A consolidated and current law. One statute covering the field, amended in 2018 to align with the United Nations Convention against Corruption.
A wide definition of public servant, reaching corporations, government companies, universities, aided institutions, cooperative societies receiving aid, service commissions, judges, arbitrators and, after the Ramesh Gelli decision, officers of private banks.
A triable offence. The combination of the trap, the recovery, independent witnesses and the section 20 presumption makes the small bribery case provable, which the general law of the Penal Code did not.
Exclusive trial by a qualified judge, without committal.
Liability of the giver and of the company, since 2018, with the adequate procedures defence, which gives compliance programmes a legal purpose.
Attachment of the proceeds, and the linkage to the money laundering statute.
And a deterrent that operates at the bottom of the administration. The possibility of a trap is a real constraint on the officer who would otherwise demand a payment across a counter, and it is the Act's genuine achievement.
What it has not achieved
Detection. The Act creates offences and says nothing about how they are found. Every case begins with a complainant willing to be part of a trap, and the complainant is the person who wanted the work done and must still deal with the department afterwards.
The offences without cash. The commonest official deviance, described in that chapter, is the decision made for a friend, the file held for eight months and the discretion exercised for a reason that is never stated. Section 13's clause (d) reached the first of these and was removed in 2018; nothing reaches the second or third at all.
Delay. Corruption trials take as long as any other, and the day-to-day direction in section 4 has not changed that. A conviction fifteen years after the event deters nobody and punishes a different man.
The two gates. Section 17A approval and section 19 sanction, each granted by an authority within the same administration. The three-month time limits are an improvement and they do not answer the objection, because a refusal ends the matter and no appeal is provided.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Seven
The Central Vigilance Commission
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Central Vigilance Commission is the apex body of the vigilance administration, it supervises the anti-corruption work of the Central Bureau of Investigation, and it advises rather than decides.
In the wording a student can write in an exam: the Commission consists of a Central Vigilance Commissioner as Chairperson and not more than two Vigilance Commissioners; it exercises superintendence over the functioning of the Delhi Special Police Establishment so far as its work relates to offences under the Prevention of Corruption Act 1988; it exercises superintendence over the vigilance administration of the Ministries and of central corporations, companies, societies and local authorities; and it inquires or causes inquiries into complaints against specified categories of officials.
Origin
The Commission was created by an executive resolution in 1964, on the recommendation of the Santhanam Committee on Prevention of Corruption, which reported in that year and is worked in its own chapter in Module III.
It had no statutory basis for thirty-five years. It was given one first by the Central Vigilance Commission Ordinance 1999, promulgated after the Supreme Court's directions in Vineet Narain v. Union of India, and then by the Central Vigilance Commission Act 2003, section 3 of which deems the Commission continued under the 1999 executive resolution to be the Commission constituted under the Act.
That sequence is the whole story of Indian vigilance machinery in three sentences: a committee recommends a body, the executive creates it without a statute, and thirty-five years later a court has to direct that it be given one.
Composition, appointment and removal
Section 3(2). A Central Vigilance Commissioner as Chairperson, and not more than two Vigilance Commissioners as Members.
Section 4, appointment. By the President by warrant under his hand and seal, after obtaining the recommendation of a Committee consisting of the Prime Minister as Chairperson, the Minister of Home Affairs and the Leader of the Opposition in the House of the People. Where no Leader of the Opposition has been recognised, the Leader of the single largest opposition group is included. An appointment is not invalid merely by reason of a vacancy in the Committee.
Section 5. Terms and conditions of service.
Section 6, removal. Removal only by order of the President on the ground of proved misbehaviour or incapacity, after the Supreme Court, on a reference made to it by the President, has on inquiry reported that he ought to be removed. The President may suspend him pending that reference. He may also be removed if he is adjudged insolvent, is convicted of an offence which in the Government's opinion involves moral turpitude, engages in paid employment outside his duties, or is otherwise unfit.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Eight
The Legislation Under Which the Commission Is Established
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Commission existed for thirty-five years without a statute, and it has one because the Supreme Court directed in the hawala case that it be given one.
In the wording a student can write in an exam: the Commission was created by an executive resolution in 1964 on the recommendation of the Santhanam Committee; in Vineet Narain v. Union of India the Supreme Court directed that it be given statutory status and supervision over the Central Bureau of Investigation, with a minimum tenure for the Director and a selection process; the directions were implemented by the Central Vigilance Commission Ordinance 1999 and then by the Central Vigilance Commission Act 2003.
The three stages
Stage one: 1964, an executive resolution. The Santhanam Committee on Prevention of Corruption recommended a Central Vigilance Commission and the Government created one by resolution. It had no statute, so its powers rested on the executive's own instructions and could have been withdrawn the same way.
Stage two: 1997, the Supreme Court.
Vineet Narain v. Union of India, AIR 1998 SC 889, (1998) 1 SCC 226, decided on 18 December 1997.
Facts. Petitions arising out of the Jain hawala diaries alleged that the Central Bureau of Investigation had failed to investigate senior public figures because of political interference.
Held. The Court issued directions to insulate the investigating agencies: statutory status for the Central Vigilance Commission, its supervision over the Central Bureau of Investigation, a fixed minimum tenure for the Director, and a selection process. The directions were to hold the field until Parliament legislated.
Why it matters. It is the case behind the Act, and it is the best illustration in this module of the courts acting on administrative accountability rather than on an individual grievance. It also created the doctrine of continuing mandamus, under which the Court retains the matter and monitors compliance, which is dealt with in the chapter on the judicial response.
Stage three: the statute. The Central Vigilance Commission Ordinance 1999 gave effect to the directions, and the Central Vigilance Commission Act 2003 replaced it. Section 3 of the 2003 Act expressly deems the Commission constituted under the 1999 Ordinance, and continued under the Government resolution of 4 April 1999 as amended in 2002, to be the Commission constituted under the Act, so the institutional continuity from 1964 is preserved.
What the Act did beyond constituting the Commission
Section 24 deals with the existing Vigilance Commission, transferring its work and its pending matters.
Section 25 provides for the appointment of officers of the Directorate of Enforcement, with a Committee headed by the Central Vigilance Commissioner recommending the appointment of the Director, and a minimum tenure. This is the same insulation applied to a second agency.
The rest of this chapter comes with the notes.
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Chapter One Hundred Twenty-Nine
The Central Bureau of Investigation, and CBI v. CBI
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
India's principal anti-corruption investigating agency has no statute of its own, operates under a police statute of 1946, needs a State's consent to work in it, and in 2018 its two senior officers accused each other of corruption in public.
In the wording a student can write in an exam: the Central Bureau of Investigation functions under the Delhi Special Police Establishment Act 1946; section 4(1) vests the superintendence of the Establishment, so far as it relates to the investigation of offences under the Prevention of Corruption Act 1988, in the Central Vigilance Commission, and in all other matters in the Central Government; section 4A provides for the appointment of the Director on the recommendation of a Committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India or a Judge nominated by him; and section 4B gives the Director a tenure of not less than two years and provides that he shall not be transferred except with the previous consent of that Committee.
The statutory scheme
Section 2 constitutes the special police establishment for the investigation in a Union territory of offences notified under section 3.
Section 3 provides for the Central Government to specify the offences to be investigated.
Section 4(1) vests superintendence, so far as it relates to the investigation of offences under the Prevention of Corruption Act 1988, in the Commission; section 4(2) vests superintendence in all other matters in the Central Government; and section 4(3) vests administration in the Director.
Section 4A, the Committee for the appointment of the Director: the Prime Minister as Chairperson, the Leader of the Opposition recognised as such in the House of the People or, where there is none, the Leader of the single largest opposition party in that House, and the Chief Justice of India or a Judge of the Supreme Court nominated by him. No appointment is invalid merely by reason of a vacancy or absence of a member. The Committee recommends a panel chosen from officers of the Indian Police Service on the basis of seniority, integrity and experience in the investigation of anti-corruption cases.
Section 4B, terms of service: the Director shall continue to hold office for not less than two years, extendable in the public interest on the Committee's recommendation for reasons recorded in writing by up to one year at a time and not beyond five years in total; and he shall not be transferred except with the previous consent of the Committee.
Section 4BA creates a Directorate of Prosecution headed by a Director appointed by the Central Government on the recommendation of the Central Vigilance Commission, with a tenure of not less than two years.
The rest of this chapter comes with the notes.
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Chapter One Hundred Thirty
The Ombudsman: The Idea and Its Origin
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
An ombudsman is an independent officer who investigates complaints of maladministration against the administration, reports his findings and recommends redress, and his authority is his independence and his publicity rather than any power to compel.
In the wording a student can write in an exam: the ombudsman is an institution of Scandinavian origin, established in Sweden in 1809, whose essential features are appointment by and reporting to the legislature rather than the executive, independence of the administration he investigates, access without cost or formality, investigation of maladministration, and the power to recommend rather than to decide, backed by the publication of his findings.
The idea
The problem it answers. A citizen wronged by the administration has a court and a departmental complaint. The court is expensive, slow and confined to legality: it can quash a decision that was outside the law and can do nothing about one that was lawful, rude, dilatory or stupid. The departmental complaint goes to the department. Between them there is a gap, and the ombudsman occupies it.
Maladministration. The word covers what falls into that gap: bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. It is wider than illegality and narrower than dissatisfaction.
The five essential features.
Independence. Appointed by the legislature or on the recommendation of a body the executive does not control, with security of tenure and a salary charged on the public fund.
Accessibility. A complaint costs nothing, needs no lawyer and requires no form.
Investigation. Power to obtain documents, to require answers and to enter premises.
Recommendation, not decision. He reports and recommends; the department decides. This is the feature students most often misstate.
Publicity. His reports go to the legislature and are public. That is the sanction.
The history
Sweden, 1809, where the Justitieombudsman was created by the Constitution to supervise the observance of the laws by judges and officials on behalf of the Riksdag.
Finland, Denmark and Norway followed in the twentieth century, and the Danish model of 1955 is the one most other countries copied.
New Zealand, 1962, the first common law country, and the United Kingdom in 1967, where the office is called the Parliamentary Commissioner for Administration and access is through a Member of Parliament rather than direct.
And the spread since, to well over a hundred countries, with variants: sectoral ombudsmen for banking, insurance and telecommunications, and specialised ones for prisons, for children and for the armed forces.
The Indian adaptation, and how it differs
The Indian institutions are called the Lokpal at the Union level and the Lokayukta in the States, and the names were proposed by the Administrative Reforms Commission, which recommended the institution in its interim report on problems of redress of citizens' grievances in 1966.
The rest of this chapter comes with the notes.
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Chapter One Hundred Thirty-One
The Lokpal
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Lokpal is a nine-member body with jurisdiction over the Prime Minister, Ministers, members of Parliament and all central public servants, which can inquire, direct an investigation, grant sanction and direct a prosecution.
In the wording a student can write in an exam: under section 3 the Lokpal consists of a Chairperson, who is or has been a Chief Justice of India or a Judge of the Supreme Court or an eminent person, and not more than eight Members, of whom fifty per cent shall be Judicial Members and not less than fifty per cent shall be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women; and under section 14 its jurisdiction extends to the Prime Minister, Ministers of the Union, members of either House of Parliament, and Group A, B, C and D officers and officials of the Central Government.
Composition and appointment
Section 3. A Chairperson who is or has been a Chief Justice of India, or is or has been a Judge of the Supreme Court, or an eminent person meeting the qualification for a non-judicial Member; and not more than eight Members, of whom fifty per cent must be Judicial Members. A Judicial Member must be or have been a Judge of the Supreme Court or a Chief Justice of a High Court. A non-judicial Member must be a person of impeccable integrity and outstanding ability with special knowledge and expertise of not less than twenty-five years in anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management. Not less than fifty per cent of the Members must be from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities and women.
Section 4, the Selection Committee. The Chairperson and Members are appointed by the President after obtaining the recommendations of a Selection Committee consisting of the Prime Minister as Chairperson, the Speaker of the House of the People, the Leader of Opposition in the House of the People, the Chief Justice of India or a Judge of the Supreme Court nominated by him, and one eminent jurist recommended by the other four and nominated by the President. No appointment is invalid merely by reason of a vacancy in the Committee. The Selection Committee constitutes a Search Committee of at least seven persons of standing to prepare a panel, of whom not less than fifty per cent must be from the same categories.
Note the design. Two of the five members of the Selection Committee are from the Government, one is the Speaker, one is the Chief Justice or his nominee, and one is a jurist chosen by the other four. It is a genuine attempt at a committee the executive does not control, and the vacancy clause is the qualification, since it allows the Committee to proceed without the Leader of the Opposition.
The rest of this chapter comes with the notes.
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Chapter One Hundred Thirty-Two
The Lokayukta
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Lokayukta is the State ombudsman, Maharashtra was the first State to have one, and Maharashtra's new statute has been enacted but is only partly in force.
In the wording a student can write in an exam: section 63 of the Lokpal and Lokayuktas Act 2013 requires every State to establish a body to be known as the Lokayukta; Maharashtra's institution was created by the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, and the Maharashtra Lokayukta Act 2023 has been enacted to replace it, its section 66 repealing the 1971 Act on the commencement of the new one.
The State institution
The obligation. Section 63 of the central Act requires every State to establish a Lokayukta, to deal with complaints relating to corruption against certain public functionaries, by a law made by the State legislature. The design of each State's institution is therefore the State's own, and they differ considerably.
Maharashtra was first. The Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 established a Lokayukta and Upa-Lokayuktas for the State, and Maharashtra is conventionally described as the first Indian State to create the office.
The classical shape of a State Lokayukta, as the 1971 model has it, is closer to the ombudsman idea described two chapters ago than the Lokpal is: the office receives complaints about the actions of public servants, investigates, and reports its findings and recommendations to the competent authority, which is required to consider them and to inform the Lokayukta of the action taken. The sanction is the report and its publication rather than a power to punish.
The Maharashtra Act of 2023
Establishment. Section 3 provides that as and from the commencement of the Act there shall be established, by notification in the Official Gazette, a body to be called the Lokayukta, Maharashtra State, consisting of a Chairperson who is or has been the Chief Justice of a High Court or a Judge of the Supreme Court or a Judge of the Bombay High Court, and not more than four Members of whom two shall be Judicial Members. A Judicial Member must be or have been a Judge of a High Court, with a proviso permitting a person who is or has been a Judge not below the rank of Principal District Judge where a High Court Judge is not available. A non-judicial Member must be a person of impeccable integrity and outstanding ability with special knowledge and expertise of not less than twenty-five years in anti-corruption policy, public administration, vigilance, finance and related fields.
Section 4 provides for appointment of the Chairperson and Members, sections 5 to 9 for vacancies, term, conditions of service, restriction on employment after ceasing to hold office and a Member acting as Chairperson, and section 10 for the Secretary and staff.
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Chapter One Hundred Thirty-Three
The Public Accounts Committee
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Public Accounts Committee is a committee of Parliament that examines the audited accounts of the Union and the reports of the Comptroller and Auditor General, and asks the officials who spent the money to explain themselves in person.
In the wording a student can write in an exam: the Public Accounts Committee is a financial standing committee of Parliament, constituted annually, consisting of twenty-two members, fifteen elected by the House of the People and seven by the Council of States, by the system of proportional representation by means of the single transferable vote; its Chairman is appointed by the Speaker and by convention is drawn from the Opposition; and it examines the appropriation accounts of the Union and the reports of the Comptroller and Auditor General presented to Parliament under article 151.
What it is, and what it is not
It is a committee of Parliament, not a statutory body and not a court. It derives its existence from the Rules of Procedure and Conduct of Business of the House rather than from a statute.
It is not a Government body. A Minister may not be a member, and the Chairman is by convention a member of the principal Opposition party, which is the single most important thing about it: it is the one financial oversight body in this module whose head is not chosen by the Government.
It does not audit. The Comptroller and Auditor General audits; the Committee examines the audit.
And it does not punish. It reports to the House, and the executive responds with action taken notes.
Composition and working
Twenty-two members: fifteen elected by the House of the People and seven by the Council of States, each for a term of one year, elected by proportional representation by means of the single transferable vote, so that every party is represented in proportion to its strength.
The Chairman is appointed by the Speaker from among the members of the House of the People, and by a convention observed since 1967 he is a member of the Opposition.
A Minister is not eligible to be a member. If a member is appointed a Minister he ceases to be a member of the Committee.
How it works. It takes up the audit reports of the Comptroller and Auditor General laid before Parliament, selects paragraphs for detailed examination, calls for written explanations from the Ministries, and then examines the Secretary of the Ministry as the accounting officer, in person and on the record. Its reports are presented to the House, and the Ministry is required to furnish action taken notes.
What it examines
The appropriation accounts, that is whether the money granted by Parliament was spent for the purpose for which it was granted, within the amount granted, and under the authority governing it.
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Chapter One Hundred Thirty-Four
The Comptroller and Auditor General, and the Other Financial Committees
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Comptroller and Auditor General is the constitutional auditor of the Union and the States, is protected like a judge of the Supreme Court, and his reports are the principal means by which the misuse of public money is discovered in India.
In the wording a student can write in an exam: article 148 creates the office of the Comptroller and Auditor General of India, appointed by the President by warrant under his hand and seal and removable only in like manner and on the like grounds as a Judge of the Supreme Court, with his salary and administrative expenses charged upon the Consolidated Fund of India; article 149 provides for his duties and powers; article 150 for the form of accounts; and article 151 requires his reports on the accounts of the Union to be submitted to the President and laid before each House of Parliament.
The office
Article 148. Appointment by the President by warrant under his hand and seal. He may be removed from office only in like manner and on the like grounds as a Judge of the Supreme Court, that is by an address of each House on the ground of proved misbehaviour or incapacity. His conditions of service are determined by Parliament and may not be varied to his disadvantage after appointment. He is ineligible for further office under the Union or a State after ceasing to hold office. And his salary, allowances and pension, and the administrative expenses of his office, are charged upon the Consolidated Fund of India.
Read that list. Removal only as a judge; conditions unalterable to his disadvantage; a bar on further office; and expenses charged on the Consolidated Fund. Those four devices are the strongest set of protections given to any officer in this module, and they are the standard against which the vigilance and ombudsman institutions should be measured.
Article 149. He performs such duties and exercises such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by law made by Parliament, which is the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act 1971.
Article 151. His reports relating to the accounts of the Union are submitted to the President, who causes them to be laid before each House of Parliament; and his reports relating to the accounts of a State are submitted to the Governor, who causes them to be laid before the legislature of the State.
What the audit covers
Regularity audit, which asks whether expenditure conformed to the authority governing it and whether it was within the grant.
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Chapter One Hundred Thirty-Five
The Commissions of Inquiry Act 1952
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Act lets a Government appoint a body to inquire into any definite matter of public importance, gives it the powers of a civil court, and requires it to be appointed if either House so resolves.
In the wording a student can write in an exam: the Commissions of Inquiry Act 1952, Act 60 of 1952, dated 14 August 1952, is an Act to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers; under section 3 the appropriate Government may, if it is of opinion that it is necessary, and shall if a resolution to that effect is passed by each House of Parliament or the Legislature of the State, appoint by notification a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance.
What a commission of inquiry is for
It establishes facts about an episode. A criminal trial asks whether a named accused committed a defined offence; a commission asks what happened, why, and who along the chain contributed. The Lentin Commission, worked in Module III, is the standard illustration.
It is used where the ordinary machinery has failed or cannot reach. Where the regulator was part of the problem, where the episode is too large for one prosecution, or where the question is about a system rather than about an individual.
It is public. Its report goes to the appropriate Government and, in the usual case, is laid before the legislature.
And it is quick by comparison. A commission reports in a year or two where a prosecution takes a decade, which is why, as the Lentin chapter observed, the most effective Indian response to a serious episode of institutional wrongdoing is a body with no power to decide anything.
Section 3: appointment
Who may appoint. The appropriate Government, meaning the Central Government in relation to a matter relatable to a Union List entry and the State Government in relation to a matter relatable to a State or Concurrent List entry, subject to the opening words which now read "save as otherwise provided in the Lokpal and Lokayuktas Act 2013".
When it may. If it is of opinion that it is necessary so to do.
When it must. If a resolution to that effect is passed by each House of Parliament or, as the case may be, by the Legislature of the State. This is the most important thing in the section and it is usually missed. The legislature can compel an inquiry that the executive does not want.
Into what. Any definite matter of public importance. Both words carry weight: the matter must be definite, so a roving inquiry into general conditions is outside the section, and it must be of public importance.
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Chapter One Hundred Thirty-Six
Commissions of Inquiry: Appointment, Powers and Procedure
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
A commission has the powers of a civil court as of right, further powers of search and seizure if the Government notifies them, and must hear anybody whose conduct it examines or whose reputation may be damaged.
In the wording a student can write in an exam: section 4 gives every Commission the powers of a civil court in respect of summoning and enforcing attendance from any part of India and examining on oath, requiring discovery and production of documents, receiving evidence on affidavits, requisitioning public records and issuing commissions; section 5 confers additional powers where the Government so notifies; and section 8B requires the Commission to give a reasonable opportunity of being heard to any person into whose conduct it proposes to inquire or whose reputation is likely to be prejudicially affected.
The powers as of right
Section 4 gives every Commission, without any further notification, the powers of a civil court trying a suit under the Code of Civil Procedure 1908 in respect of:
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
Note the reach of clause (a). From any part of India, which is wider than the ordinary process of a civil court.
The additional powers
Section 5(1). Where the appropriate Government is of opinion, having regard to the nature of the inquiry and the other circumstances, that any of the following provisions should apply, it may by notification direct that they shall apply to that Commission.
Section 5(2). Power to require any person, subject to any privilege claimable under any law, to furnish information on points or matters which in the Commission's opinion may be useful for or relevant to the subject matter of the inquiry; and a person so required is deemed legally bound to furnish it within the meaning of the provisions of the general penal law on furnishing false information and omitting to give information.
The remaining sub-sections confer powers of entry, search and seizure, on the pattern of the Code of Criminal Procedure, and provide that the Commission shall be deemed to be a civil court for stated purposes and that its proceedings shall be deemed judicial proceedings for the purposes of the perjury provisions.
Sections 5A and 5B. The Commission may utilise the services of certain officers and investigating agencies for conducting investigation pertaining to the inquiry, and may appoint assessors.
Why the two-tier structure matters. The ordinary powers come with the appointment; the coercive powers of search and seizure come only if the Government chooses to notify them. So the effectiveness of a commission is partly in the Government's gift even after it has been appointed, which is the same observation as section 7 in the previous chapter.
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Chapter One Hundred Thirty-Seven
The Report of a Commission and What It Is Worth in Law
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
A commission's report decides nothing: it is the opinion of a fact-finding body appointed for the information of the Government's mind, and the Government is not bound to accept it.
In the wording a student can write in an exam: in Dr. Baliram Waman Hiray v. Justice B. Lentin the Supreme Court held that a Commission of Inquiry is not a Court properly so called; it is appointed by the appropriate Government for the information of its mind, is a fact-finding body with no adjudicatory function, is not required to adjudicate upon the rights of parties, and the Government is not bound to accept its recommendation or to act upon its findings.
The governing decision
Dr. Baliram Waman Hiray v. Justice B. Lentin, AIR 1988 SC 2267, (1988) 4 SCC 419, decided on 12 September 1988.
Facts. The facts of the Lentin Commission are worked in full in [The Lentin Commission Report]. What matters here is what happened next: finding the appellant's evidence before the Commission self-contradictory, the Commission issued him a show cause notice and then directed the filing of a complaint for giving false evidence on oath. He challenged that direction, contending that a Commission of Inquiry is not a Court for the purposes of section 195(1)(b) of the Code of Criminal Procedure 1973.
Held. Allowing the appeal, the Court held that a Commission of Inquiry is not a Court properly so called. It is appointed by the appropriate Government for the information of its mind, in order to decide the course of action to be followed; it is a fact-finding body, is not required to adjudicate upon the rights of parties and has no adjudicatory function; and the Government is not bound to accept its recommendation or to act upon its findings. That its procedure is of a legal character and that it may administer an oath do not make it a Court. The statutory fiction deeming its proceedings judicial is confined to the offences of giving false evidence and of insult or interruption, so the Commission could not itself direct the filing of a complaint under section 195(1)(b), though the State Government remains free to prosecute for those offences if otherwise permissible in law.
The five consequences
One: the report is not a verdict. Nobody is convicted, acquitted, liable or exonerated by it. A person adversely named has not been found guilty of anything in law.
Two: the Government need not act on it. It must lay the report before the legislature with a memorandum of action taken, and the memorandum may say that no action is proposed.
Three: the report is not evidence of what it finds. In a subsequent trial the facts must be proved afresh, and the report is not admissible to establish them. The chapter on police deviance in registration recorded the related proposition from T.T. Antony v. State of Kerala, where the Supreme Court quashed a second first information report registered on the strength of a Commission's findings and held that a Commission's report could not by itself supply the foundation for a fresh criminal case on facts already investigated.
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Chapter One Hundred Thirty-Eight
Commissions of Inquiry in Practice
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Commissions of inquiry are what India appoints when an episode is too large, too systemic or too politically charged for the ordinary machinery, and their record is a record of good reports and poor follow-through.
In the wording a student can write in an exam: the Act has been used for industrial and public health disasters, episodes of collective violence, failures of regulation and allegations against holders of high office; the recurring pattern is that the inquiry establishes the facts and the follow-up action does not follow, because the report binds nobody, as Dr. Baliram Waman Hiray v. Justice B. Lentin holds.
The kinds of matter commissions are used for
Public health and drug administration failures. The Lentin Commission, appointed on 21 February 1986 by the State Government of Maharashtra to probe the death of fourteen patients at the government run J.J. Hospital between 22 January and 7 February 1986 after they were administered contaminated glycerol, and to fix responsibility, is the standard Indian example and is worked in full in Module III.
Episodes of collective violence. Communal and caste violence has been inquired into by commissions more often than by any other mechanism, and the resulting reports are the principal Indian literature on the subject. The companion paper in this group, Collective Violence and Criminal Justice System, is built on them.
Disasters. Building and bridge collapses, fires, industrial accidents and transport disasters.
Regulatory failure, where the body that should have prevented the harm is itself under examination, which is precisely why the ordinary machinery cannot be used.
And allegations against holders of high office, which is the politically contested use and the one that generates the litigation.
What commissions do well
They establish facts. Wide powers, compellable witnesses, immunity that secures candid evidence, and a single body examining a whole chain rather than one accused.
They are comparatively fast. One or two years against a decade for a prosecution.
They reach systems. The finding in the Lentin Commission was of a nexus running from the drug firms through the regulator to the hospital, which is a finding no trial could have produced.
They are public. The report goes to the legislature with a memorandum of action taken.
And they produce reform. Procedural changes, licensing changes and occasionally legislation follow from reports far more often than from prosecutions.
What they do badly
Nothing follows automatically. The report binds nobody, as the previous chapter established.
They can be used to defer. Appointing a commission removes an issue from public argument for the duration of the inquiry, and where the Government's own conduct is in question that is an advantage to it.
The terms of reference control the outcome. The Government drafts them, and an inquiry into what happened at a hospital and an inquiry into why the drug regulator licensed the supplier are different inquiries.
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Chapter One Hundred Thirty-Nine
The Right to Information Act as an Instrument Against Deviance
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The Right to Information Act works against deviance because it removes the opacity that every form of official deviance depends on, and because it puts the power to obtain the document in the hands of any citizen without a lawyer, a reason or a locus.
In the wording a student can write in an exam: section 3 gives all citizens the right to information; section 4 places proactive disclosure obligations on every public authority; section 6 allows any person to make a request without giving any reason and without providing personal details except those necessary for contacting him; section 7 fixes a thirty-day period; section 8 lists the exemptions; section 19 provides two appeals; and section 20 empowers the Information Commission to impose a penalty on the Public Information Officer personally.
Why it reaches deviance where the other institutions do not
Because no permission is needed. Compare the two gates in the anti-corruption statute, the reference required for a commission of inquiry, and the reference required for the Central Vigilance Commission's inquiry function. A right to information application needs nobody's approval.
Because there is no locus requirement. Section 6 permits any person to apply, and requires no reason to be given for the request. The chapter on official deviance identified the diffusion of the victim as the central difficulty; the Act answers it by giving standing to everybody.
Because the burden is on the authority. Section 19 places the burden of proving that a refusal was justified on the Public Information Officer who refused.
Because the penalty is personal. Section 20 permits the Information Commission to impose a penalty on the Public Information Officer himself for refusing without reasonable cause, for delay, for a malafide denial, for knowingly giving incorrect or misleading information or for destroying information. A sanction that falls on the individual officer rather than on the department is rare in Indian administrative law and it is what makes the Act work.
And because the output is a document. Everything else in this module needs proof, and this is the mechanism that produces it. The chapter on curbing white collar crime identified information as the most promising line of attack, and this is the statute that supplies it.
The scheme in outline
Section 2 defines information, record, right to information and public authority, the last widely, so as to include a body owned, controlled or substantially financed by the Government and a non-governmental organisation substantially financed by it.
Section 3. Subject to the Act, all citizens shall have the right to information.
Section 4. Every public authority must maintain its records catalogued and indexed, publish stated categories of information about its organisation, functions, powers, duties, decision-making processes, norms, rules, documents held, budget and beneficiaries of subsidy programmes, and provide reasons for its administrative or quasi-judicial decisions to affected persons. Section 4 is the part of the Act that would matter most if it were complied with, because proactive disclosure removes the need for an application at all.
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Chapter One Hundred Forty
Protecting the Whistle Blower
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Every offence in Module III is committed inside an organisation, so somebody inside always knows, and the whole question is whether that person can afford to say so.
In the wording a student can write in an exam: the Whistle Blowers Protection Act 2014 provides a mechanism to receive complaints relating to disclosure of allegations of corruption or wilful misuse of power or discretion against a public servant, to inquire into them, and to provide safeguards against victimisation of the person making the disclosure; section 1(3) provides that it shall come into force on such date as the Central Government may by notification appoint.
Why the insider matters more than any institution
The chapter on why white collar crime is hard to prove listed eight difficulties. An insider defeats six of them at a stroke: he knows there is an offence, so the absence of a complainant disappears; he knows which of the lawful-looking transactions was not lawful; he can identify the document; he knows who decided; he is not deterred by the diffusion of responsibility because he knows where it lay; and he removes the need for the investigator to understand a business he has never worked in.
Every significant Indian exposure has had one. The audit that finds an entry, the officer who records an objection, the employee who keeps a copy. The chapter on technocrats identified the same thing from the other end: section 143(12) of the Companies Act works because it makes a professional's silence the offence.
And the cost falls entirely on him. He loses his employment, his promotion, his posting and often his safety, while the benefit is diffuse and public. That is a textbook collective action problem and it is why protection has to be statutory.
The Act
Section 3, public interest disclosure. Any public servant, any other person or any non-governmental organisation may make a public interest disclosure to the Competent Authority, alleging against a public servant an attempt to commit or the commission of an offence under the Prevention of Corruption Act 1988, wilful misuse of power or wilful misuse of discretion causing demonstrable loss to the Government or demonstrable wrongful gain to the public servant or to a third party, or the attempt to commit or the commission of a criminal offence. The disclosure must be made in good faith, in the prescribed form, and with the complainant's identity.
The identity provision. The Competent Authority must conceal the identity of the complainant and of any document produced, and not reveal it except to the head of the department where it considers it necessary, with reasons recorded in writing.
Section 4, inquiry. The Competent Authority ascertains from the complainant whether he made the disclosure, seeks a report or explanation from the head of the department, and may then conduct discreet inquiries or direct any agency to do so. It shall not entertain an anonymous complaint.
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Chapter One Hundred Forty-One
Money Laundering, Attachment and Asset Recovery
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Taking the proceeds is now the most effective Indian response to the offences in this book, and it works because it does not require a conviction.
In the wording a student can write in an exam: the Prevention of Money Laundering Act 2002 makes dealing with the proceeds of crime derived from a scheduled offence a distinct offence, and permits provisional attachment of property before trial, with adjudication by an authority and appeal to a tribunal; offences under the Prevention of Corruption Act 1988 are scheduled offences, so the corruption case and the attachment run together.
Why it displaced the other responses
Because the offence is committed for the money. Every chapter of Module III described conduct undertaken for profit. A sanction that removes the profit attacks the motive; a sentence fifteen years later does not.
Because it does not need a conviction. Attachment is provisional and is confirmed by an adjudicating authority. The criminal standard of proof, which defeats the prosecution in these cases for the eight reasons already given, is not the standard at that stage.
Because it reaches property in other hands. The benami holdings and paper companies described in Module III are within reach in a way that the prosecution of an individual is not.
Because it is fast. Months rather than a decade.
And because the agency is specialised. The Enforcement Directorate investigates money laundering and nothing else, which answers the capacity problem identified in the chapter on why prosecution fails.
What the Supreme Court has accepted
Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, decided on 27 July 2022.
Facts. A very large number of petitions challenged the constitutional validity of the Act's central provisions. The challenge and the Court's answer are worked in full in [Money Laundering and Benami Holdings]; what matters here is the disposal.
Held. The provisions challenged were upheld: money laundering is a distinct offence from the scheduled offence out of which the proceeds arise; officers of the Enforcement Directorate are not police officers, so statements recorded by them are not barred; the twin conditions for bail are valid; and the powers of attachment, search and seizure, read with the safeguards in the Act, are constitutional. A question about the manner in which certain amendments had been enacted was left open for a larger bench.
What that decision means for this module. The most effective instrument against the profits of privileged class deviance operates with substantially reduced procedural protections, and the Supreme Court has accepted the trade-off. An answer should state it as a trade-off, name both sides, and take a position rather than describing the Act neutrally.
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Chapter One Hundred Forty-Two
Consumer Protection and Professional Accountability
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Consumer law is the only response in this module in which the person injured controls the proceeding, and it is the route by which most Indian professional deviance is actually litigated.
In the wording a student can write in an exam: the Consumer Protection Act 2019 replaced the Act of 1986; it defines a consumer, a defect in goods and a deficiency in service; establishes District, State and National Commissions; creates a Central Consumer Protection Authority with powers of investigation, recall, refund and action against misleading advertisements; provides for mediation; and, following Indian Medical Association v. V.P. Shantha, medical services are within it.
Why it belongs in a criminology paper
Because the victim is a party. Every other response in this module is brought by the State, and the chapter on crime as a public wrong showed what that costs the person injured. Here he is the complainant, he decides whether to proceed, and the remedy is paid to him.
Because the standard of proof is lower. Preponderance of probabilities rather than beyond reasonable doubt, which is decisive in exactly the cases the criminal law cannot prove.
Because it is cheap and quick by comparison. No court fee of significance, no requirement of a lawyer, decision on affidavits and documents, and filing from where the complainant resides or works.
And because it is where professional deviance ends up. Almost every reported Indian decision on medical negligence is a consumer decision, as the chapter on that subject showed, and the same is increasingly true of deficient services by builders, insurers, banks and educational institutions.
The scheme
Definitions. A consumer is a person who buys goods or hires or avails services for a consideration, including through electronic means, but not a person who obtains goods for resale or for a commercial purpose. A defect is any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard of goods. A deficiency is any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained under any law or under a contract, and it expressly includes any act of negligence or omission or commission which causes loss or injury, and the deliberate withholding of relevant information.
The Commissions. District, State and National, with pecuniary jurisdiction fixed by the Act and rules, appeals from one to the next and from the National Commission to the Supreme Court.
The Central Consumer Protection Authority. Established to regulate matters relating to violation of consumer rights, unfair trade practices and false or misleading advertisements. It may inquire, may order recall of goods or withdrawal of services, may order reimbursement of the price, and may act against a misleading advertisement including by imposing a penalty on the manufacturer or endorser and prohibiting an endorser from endorsing that product for a period.
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Chapter One Hundred Forty-Three
The Judicial Response: Public Interest Litigation and Continuing Mandamus
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Public interest litigation is the procedure by which a person who has suffered nothing may ask a court to enforce the rights of people who cannot come themselves, and continuing mandamus is the technique by which the court keeps the case and supervises compliance.
In the wording a student can write in an exam: public interest litigation relaxes the requirement of locus standi, so that any member of the public acting bona fide may move the Supreme Court under article 32 or a High Court under article 226 on behalf of persons unable to approach the court by reason of poverty, disability or a socially or economically disadvantaged position; and continuing mandamus is the practice of keeping the petition pending and issuing directions from time to time until compliance is achieved, of which Vineet Narain v. Union of India is the leading example.
Why it matters to this paper
Count what came through this door in this book.
Custodial violence.D.K. Basu v. State of West Bengal began as a letter enclosing newspaper reports of deaths in police lock-ups, which was treated as a writ petition, and produced eleven requirements at arrest. Nilabati Behera v. State of Orissa began as a mother's letter and established public law compensation.
Police reform.Prakash Singh v. Union of India, a petition by two retired police officers, produced seven binding directions.
Camera oversight in police stations.Paramvir Singh Saini v. Baljit Singh.
Insulation of the investigating agencies.Vineet Narain v. Union of India, which produced statutory status for the Central Vigilance Commission, its supervision over the Central Bureau of Investigation, a minimum tenure for the Director and a selection process, and whose directions were to hold the field until Parliament legislated.
The appointment of a Vigilance Commissioner.Centre for Public Interest Litigation v. Union of India, in which the High Powered Committee under the Central Vigilance Commission Act had recommended a candidate against whom a criminal case was pending; the appointment was quashed, and the Court held that the Committee must consider not only the personal integrity of the candidate but the institutional integrity of the office, and that where a selection would adversely affect institutional competency and functioning it is the Committee's duty not to recommend that candidate.
The Director of the Central Bureau of Investigation.Common Cause (Registered Society) v. Union of India.
And victim compensation, sentencing material and the treatment of the mentally ill accused, each dealt with in its own chapter.
Every one of those is an institutional reform, and not one came from the legislature on its own initiative. That is the criminological finding of this chapter.
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Chapter One Hundred Forty-Four
The Judicial Response: Speedy Trial
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
The right to a speedy trial is part of article 21, the Supreme Court once fixed outer time limits and then held that it could not, and the new procedure code has now fixed some of them by statute.
In the wording a student can write in an exam: the right to a speedy trial is implicit in article 21, as Hussainara Khatoon v. Home Secretary, State of Bihar established; in P. Ramachandra Rao v. State of Karnataka a Constitution Bench of seven judges held that courts cannot prescribe fixed outer time limits after which a criminal proceeding must terminate, since that is legislation rather than adjudication; and the Bharatiya Nagarik Suraksha Sanhita 2023 now fixes several such periods by statute.
The right
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369, (1980) 1 SCC 98.
Facts. Petitions for habeas corpus disclosed that very large numbers of undertrial prisoners in Bihar had been in custody for periods far exceeding the maximum sentence they could have received, many for offences of no gravity, and that most had never been represented.
Held. The right to a speedy trial is an integral and essential part of the fundamental right to life and liberty under article 21; and the State is under a constitutional obligation to provide free legal services to an accused who cannot afford them, since a procedure that keeps an accused unrepresented is not reasonable, fair or just. The Court directed the release of undertrials whose detention had exceeded the maximum term.
Why it matters. It is the case that made delay a constitutional question rather than an administrative one, and it is where legal aid became a constitutional entitlement.
The attempt to fix limits, and its reversal
Benches of the Supreme Court had, in a line of cases, prescribed outer periods after which a criminal proceeding must be closed and the accused discharged or acquitted. The correctness of doing so was referred to a larger bench.
P. Ramachandra Rao v. State of Karnataka, decided on 16 April 2002 by a Constitution Bench of seven judges.
Facts. Earlier benches had laid down fixed outer time limits for criminal trials, directing that a prosecution be closed and the accused discharged or acquitted if the trial was not concluded within stated periods. The correctness of prescribing such bars of limitation by judicial direction was referred to a larger bench.
Held. The right to a speedy trial is part of the right to life and personal liberty, but the courts cannot prescribe fixed periods after which a criminal proceeding must terminate. Such time limits are legislation, not adjudication, and they operate mechanically without regard to the reasons for the delay. The earlier directions fixing outer limits were held not to be good law, while the duty of every court to deal with delay case by case remains.
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Chapter One Hundred Forty-Five
The Sentencing Response
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Indian sentencing has a rarest of rare test for the death penalty, no guidance at all for anything else, and since 2022 a requirement that the court have psychiatric, psychological and social material before it in a capital case.
In the wording a student can write in an exam: Bachan Singh v. State of Punjab upheld the death penalty and confined it to the rarest of rare cases where the alternative of life imprisonment is unquestionably foreclosed; Machhi Singh v. State of Punjab set out categories in which that test may be satisfied; and Manoj v. State of Madhya Pradesh requires the State to place psychiatric and psychological evaluation, jail conduct and social history before the sentencing court as a matter of course.
The framework
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, upheld the constitutionality of the death penalty and confined it to the rarest of rare cases when the alternative option of life imprisonment is unquestionably foreclosed, requiring the court to weigh aggravating and mitigating circumstances relating both to the crime and to the criminal.
Machhi Singh v. State of Punjab, (1983) 3 SCC 470, drew from that decision categories of case in which the community's collective conscience may be so shocked as to satisfy the test, relating to the manner, motive, magnitude and anti-social nature of the crime and the personality of the victim.
And nothing at all for the rest. For every offence below the death penalty, Indian law gives a maximum, sometimes a minimum, and no guidance on where within the range a sentence should fall. There are no sentencing guidelines and no sentencing council. The result is the disparity that the chapter on the Neo-Classical School identified as the price of discretion.
The requirement of material
Manoj v. State of Madhya Pradesh, decided on 20 May 2022.
Facts. Three appellants had been sentenced to death and the sentences confirmed. The appeals raised, besides the merits of the conviction, the question of what material a court must have before it can decide between death and life imprisonment, given that mitigating circumstances are almost never placed on record in a usable form.
Held. The death sentences were commuted to life imprisonment. The Court laid down that the State must, as a matter of course and at the trial stage, place material bearing on the accused's background, before and after the offence: a psychiatric and psychological evaluation, the jail conduct report, the report of a probation officer, and evidence of socio-economic circumstances and family history. The trial court must call for that material rather than wait for the defence to produce it, so that the balancing of aggravating and mitigating circumstances required by the sentencing case law is done on evidence.
The rest of this chapter comes with the notes.
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Chapter One Hundred Forty-Six
The Reformative Response: Probation
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Probation lets a court release an offender under supervision instead of sending him to prison, and its purpose is to keep him away from the associations and the record that make reoffending more likely.
In the wording a student can write in an exam: under the Probation of Offenders Act 1958, section 3 allows a court to release certain offenders after admonition; section 4 allows release on a bond of good conduct with or without supervision; section 6 provides that a person under twenty-one convicted of an offence not punishable with imprisonment for life shall not ordinarily be sentenced to imprisonment unless the court records reasons; and section 12 provides that a person released under section 3 or section 4 shall not suffer disqualification attaching to a conviction under any other law.
The scheme
Section 3, release after admonition. Where a person is convicted of an offence punishable with imprisonment for not more than two years, or with fine only, and no previous conviction is proved, the court may, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or the extenuating circumstances, release him after due admonition instead of sentencing him.
Section 4, release on probation of good conduct. Where a person is convicted of an offence not punishable with death or imprisonment for life, and the court is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, it may direct his release on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during a period not exceeding three years, and in the meantime to keep the peace and be of good behaviour. The court may also direct supervision by a probation officer, and shall record reasons where it does not.
Section 5 empowers the court to order the offender to pay compensation for loss or injury caused to any person by the offence, and costs.
Section 6, the offender under twenty-one. Where a person under twenty-one years of age is convicted of an offence not punishable with imprisonment for life, the court shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and shall record its reasons. Before doing so the court shall call for a report of the probation officer.
The rest of this chapter comes with the notes.
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Chapter One Hundred Forty-Seven
The Prison Response
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Indian prisons are governed by a statute of 1894, hold more people awaiting trial than serving sentences, and their conditions are regulated chiefly by decisions of the Supreme Court under article 21.
In the wording a student can write in an exam: the prison response is governed by the Prisons Act 1894 and State prison manuals, with a Model Prisons and Correctional Services Act 2023 circulated by the Central Government for adoption by the States; the principal constitutional development is that a convict is not denuded of all fundamental rights, which Sunil Batra v. Delhi Administration established; and the defining Indian fact is the proportion of the prison population who are undertrials.
The legal framework
The Prisons Act 1894, which is a statute about custody and discipline rather than about correction, and the State prison manuals made under it, which govern classification, work, remission, visits and discipline.
Prisons are a State subject, so the position differs between States and no national standard is enforceable as such.
The Model Prisons and Correctional Services Act 2023, circulated by the Central Government to replace the 1894 Act, deals with the classification and segregation of prisoners, security, technology in prison administration, parole and furlough, the treatment of women and transgender prisoners, and after-care and rehabilitation. It is a model for States to adopt, so its effect depends on adoption by each State legislature, and a student should say so rather than describing it as the law.
The constitutional position
Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.
Facts. Two petitions were heard together. A convict under sentence of death challenged his solitary confinement, contending that the provision of the Prisons Act requiring a prisoner under sentence of death to be confined in a cell apart from all other prisoners and placed under the charge of a guard does not authorise solitary confinement and that the jail authorities could not impose such punishment under the guise of giving effect to it. A second petitioner challenged the provision empowering the Superintendent to confine a prisoner in irons as conferring unguided power.
Held. The Court dismissed the petitions but read both provisions down severely. The provision on confinement of a prisoner under sentence of death does not empower the prison authorities to impose solitary confinement on him, and even jail discipline inhibits solitary confinement as a punishment. Convicts are not by reason of conviction denuded of all fundamental rights. On bar fetters, they may be imposed only after considering the particular characteristics of the individual prisoner, routine reasons will not do, reasons must be recorded in the Superintendent's journal and the prisoner's history ticket in language the prisoner can understand, and the case must be reviewed.
The rest of this chapter comes with the notes.
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Chapter One Hundred Forty-Eight
The Victim Oriented Response
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Indian law has given the victim a definition, a right to information, a right to be heard before withdrawal, a right of appeal and two routes to compensation, and it has not made her a party.
In the wording a student can write in an exam: the victim-oriented response consists of the statutory definition of victim in section 2(1)(y); the duty to inform the victim of the progress of the investigation within ninety days under section 193; the right to be heard before withdrawal from prosecution under section 360; compensation by the offender under section 395 and the victim compensation scheme under section 396; treatment under section 397; and the right of appeal under the proviso to section 413.
The five rights
Definition. Section 2(1)(y): a victim is a person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim. It entered Indian law by amendment in 2008 and is carried into the Sanhita unchanged.
Information. The police must inform the informant or the victim of the progress of the investigation, including by electronic communication, within ninety days, and the informant is entitled to a free copy of the first information report.
Participation. The victim may engage an advocate to assist the prosecution with the court's permission; and the victim must be given an opportunity of being heard before the court consents to the Public Prosecutor withdrawing from the prosecution.
Compensation. Section 395 for an order against the convicted offender, and section 396 for the State scheme administered by the Legal Services Authorities on a recommendation by the court, or on the victim's own application where the offender is not traced. Both are worked in the chapter on compensating the victim, together with Ankush Shivaji Gaikwad v. State of Maharashtra, which established the mandatory duty on the court to apply its mind to compensation in every criminal case and to record reasons.
Appeal. The proviso to section 413 gives the victim a right to prefer an appeal against an order of acquittal, a conviction for a lesser offence, or the imposition of inadequate compensation, subject to the requirement of leave established in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka.
And treatment. Section 397 requires all hospitals, public or private, to provide first aid or medical treatment free of cost to victims of specified offences and to inform the police immediately, which is the statutory form of the duty Pt. Parmanand Katara v. Union of India imposed.
What is still missing
The victim is not a party. She may assist, be informed and be heard on withdrawal; she cannot conduct the case, choose the charge or compel an investigation.
The rest of this chapter comes with the notes.
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Chapter One Hundred Forty-Nine
Decriminalisation as a Response
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
Taking conduct out of the criminal law is a response too, and India has done a good deal of it in the last few years, by the courts on the harm principle and by Parliament on grounds of enforcement capacity.
In the wording a student can write in an exam: decriminalisation in India has proceeded on two tracks: the judicial, in which Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India removed offences that enforced a moral view without demonstrable harm; and the legislative, in which the Bharatiya Nyaya Sanhita 2023 omitted offences carried forward from 1860 and a series of statutes replaced criminal penalties with monetary ones on the ground of enforcement capacity and of the ease of doing business.
The judicial track
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Facts. Section 377 of the Indian Penal Code 1860 punished carnal intercourse against the order of nature with imprisonment for life or up to ten years. As applied, it criminalised consensual sexual acts between adults of the same sex. The provision had been read down by the Delhi High Court and that decision had been reversed, and the petitioners challenged it afresh.
Held. Section 377 is unconstitutional in so far as it criminalises consensual sexual acts between adults in private. The provision is manifestly arbitrary and over-broad, since making a consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness; it violates article 15; and it offends dignity, privacy and the freedom to express one's identity. The Court applied what it called transformative constitutionalism, holding that a classification which may have been valid when adopted may cease to be so as social norms change, and that constitutional morality rather than popular morality governs.
Joseph Shine v. Union of India, AIR 2018 SC 4898.
Facts. A writ petition under article 32 challenged section 497 of the Indian Penal Code 1860, which made adultery an offence, and section 198(2) of the Code of Criminal Procedure 1973, which allowed only the husband of the married woman to prosecute. Section 497 punished only the man, treated the woman as incapable of being an abettor, and exempted the act entirely if the husband consented or connived.
Held. A Constitution Bench of five judges unanimously struck down section 497 as violative of articles 14, 15 and 21. It rested on the stereotype that a wife is the property of her husband, it denied the woman sexual autonomy and dignity, and the consent or connivance exception showed that what was protected was the husband's proprietary interest rather than the sanctity of marriage. Section 198(2) of the Code was declared unconstitutional to the extent that it applied to section 497.
The rest of this chapter comes with the notes.
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Chapter One Hundred Fifty
The Response of the Indian Legal Order Assessed
Syllabus topic 7, "Response of Indian Legal Order"
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In one line
India has built every institution the problem requires and has withheld from each of them the one thing that would make it work, which is the power to act without the permission of the body it was created to restrain.
In the wording a student can write in an exam: the response of the Indian legal order towards corruption and administrative deviance consists of a comprehensive penal statute, a vigilance commission, an investigating agency, an ombudsman at the Union and in the States, parliamentary financial oversight, commissions of inquiry, and transparency and whistle blower legislation; the recurring defect is not the absence of law or of institutions but the dependence of each institution on a permission, a reference, a sanction or a notification controlled by the executive.
The inventory, and what each is worth
Institution
What it can do
What stops it
Prevention of Corruption Act 1988
Try the trap case with the section 20 presumption; reach the giver and the company since 2018
Section 17A approval, section 19 sanction, the narrowing of section 13, and delay
Central Vigilance Commission
Superintend the anti-corruption work of the investigating agency and the vigilance administration; review pending sanctions
It advises, it cannot direct an outcome, and the two provisos to section 8(1) confine it
Central Bureau of Investigation
Investigate
No statute of its own; State consent under section 6; and its Director's insulation had to be enforced by a court
Lokpal
Inquire, direct investigation, grant sanction, direct prosecution
Six years to constitute; jurisdiction confined to corruption; dependent on other agencies
Lokayuktas
The same at State level
Uneven design, recommendatory findings, no investigators, long vacancies
Public Accounts Committee
Examine the accounting officer in public on the audit
After the event, and its recommendations are not binding
Comptroller and Auditor General
Audit for regularity, propriety, performance and receipts
Reports rather than decides; depends on being read
Commissions of inquiry
Establish the facts of an episode quickly and publicly
Terms of reference drafted by the Government; the report binds nobody; section 7 winding up
Right to Information Act 2005
Produce the document, on any citizen's application, with a personal penalty for refusal
Section 4 non-compliance; delay and vacancies in the Commissions
Whistle Blowers Protection Act 2014
Protect the insider
Commencement; anonymous complaints excluded; public servants only
Read the third column. Nine of the ten are limited by something the executive controls: an approval, a reference, a consent, a notification, a term of reference or an appointment. The one that is not is the Right to Information Act, and it is the one that has produced the most.
The four findings of this module
One: India is not short of law. The chapter on whether the laws are sufficient established this, and the only substantive gap worth naming is the absence of a general offence of corporate homicide.
