Meaning, nature, scope and objectives of criminology

Criminology derives from the Latin word 'crimen' (crime) and the Greek word 'logos'
(doctrine) The word Criminology’ originated in 1890. The general meaning of the term is
the scientific study of crime as a social phenomenon, of criminals and of penal institutions‖. Prof.
Kenny (analyzed /defined/ described) that Criminology is a branch of criminal science which
deals with crime causation, analysis and prevention of crime‖. Criminology as a branch of
knowledge is concerned with those particular conducts of human behavior which are
prohibited by society. It is, therefore, a socio-legal study which seeks to discover the causes of
criminality and suggests the remedies to reduce crimes. Therefore, it flows that criminology and
criminal policy are interdependent and mutually support one another. Thus criminology seeks to
study the phenomenon of criminality in its entirety. The problem of crime control essentially
involves the need for a study of the forces operating behind the incidence of crime and a
variety of co-related factors influencing the personality of the offender. This has eventually
led to development of modern criminology during the preceding two centuries. The purpose
of study of this branch of knowledge is to analyze different aspects of crime and device
effective measures for treatment of criminals to bring about their re-socialization and
rehabilitation in the community. Thus criminology as a branch of knowledge has a practical
utility in so far as it aims at bringing about the welfare of the community as a whole.

Defining Criminology

Criminology maybe defined as “the scientific study of the causation, correction, and
prevention of crime”. Criminology is the social science approach to the study of crime as an
individual and social phenomenon. Although contemporary definitions vary in the exact words
used, there is considerable consensus that criminology involves the application of the scientific
method‖ to the study of variation in criminal law, the causes of crime, and reactions to crime (Akers
2000). Definitions Edwin Sutherland Criminology is the body of knowledge regarding crime as a
social phenomenon. It includes within its scope the processes of making laws, breaking laws and
reacting towards the breaking of law. (From the above definition it is apparent that criminology is
a combination of how the society defines and deals with crime within a social and legal context).
Nature and Scope of Criminology Criminology is an inter-disciplinary field of study, involving
scholars and practitioners representing a wide range of behavioral and social sciences as
well as numerous natural sciences. Sociologists played a major role in defining and
developing the field of study and criminology emerged as an academic discipline housed in
sociology programs. However, with the establishment of schools of criminology and the
proliferation of academic departments and programs concentrating specifically on crime and
justice in the last half of the 20 century, the

Nature and Scope of Criminology

Criminology is, ordinarily, the science of crime and seeks to study the phenomenon of
criminality in its entirety. Criminology as a branch of knowledge is concerned with those particular
conducts of individual behaviour which are prohibited by society. It is therefore a societal study
which seeks to discover the causes of criminality and suggest remedies to reduce crimes.

Criminology consists of two main branches - criminal biology, which investigates causes of
criminality found in the mental and physical constitution of the deviant, 'and criminal sociology
which deals with enquiries into the effect of environment as a cause of criminality.
 Criminology, penology and criminal law are inter-related fields. Penology deals with the
custody, treatment, prevention and control of crimes. Criminal law seeks to implement policies
envisaged by criminology and penology (the formulation of criminal policy essentially depends on
crime causations and factors correlated therewith). The object of criminology is to study the
sequence of law making, law-breaking and reaction to law breaking from the point of view of the
efficiency of law as a method of control.

The science of criminology aims at taking up case to case study of different crimes and
suggest measures to 'reform' the offenders. Liberalisation of punishment for affording greater
opportunities for rehabilitation of offenders has been accepted as the ultimate object of penal
justice.

The most significant aspect of criminology is its concern for crime and criminals. It
presupposes the study of criminal with basic assumption that no one is born criminal. It treats
reformation as the ultimate object of punishment while individualization (treatment accorded to
each individual according to his personality) the method of it.

Criminology also seeks to create conditions conducive to social solidarity in as much as it

tries to point out what behaviours are obnoxious and anti-social. The ultimate object is to render a
crimeless society so far as possible with a view to achieving social harmony.

Criminology and Criminal Law

Criminology is a discipline which analyses and gathers the data of crime and criminal behaviour.
The word, ‘ology’ in criminology stands for study. The basic aim of criminology is to assess the very
nature of the crime, statistics of crime, criminal behaviour that motivates the person to commit a
crime and prevention of crimes. Criminology is a very fascinating subject that includes the scientific
principles to assess criminal behaviour and psychology behind it. It also deals with the sociological
aspects of crime and also explains the reason behind the occurrence of crimes in our society.
Criminology basically is specified into three further branches. These are Sociology which deals with
the social aspect of the crimes, criminal aetiology which deals with the causation of crimes and
penology which deals with the mechanism of prevention of crimes. The objective of criminology is
to provide a codified, organised and structural subject that will try to find the cause of crimes and
will ultimately provide ways and remedies on how the crimes can be reduced or eradicated.
Criminology is basically regarded as art or social science because unlike science it does not work on
coded or universally defined principles. There is not any proper theory which can be given
regarding criminology.
Criminal law, on the other hand, is basically a subset of principles or legally defined guidelines or
code of law which are passed by the political authority of any country and which applies equally to
all the members of the society without any prejudicial differences which are enforced by the
punishment and which aim to prevent the criminal tendencies that are prevalent in our
community. These are general penal sanctions which deter any person to commit any sort of crime.
They are just systematic coding principles. The difference between criminal law and other laws are
not clear cut. Criminal law defines what can be constituted as crime and thereby prohibits such
types of acts. If anyone is guilty of committing such forbidden acts then appropriate penal
sanctions are given in the criminal statute. There are various sorts of punishments which are given
in the criminal law. Violators of principles given in the criminal statute of any country can be
compelled to give hefty fines and have to suffer appropriate punishments too. Crime is anything
which is forbidden by the appropriate criminal statute of any country.
The very basic principles on which any criminal statute works is the evidence. Evidence is the
source for proving any criminal offence. It is the very basic foundation to establish any criminal
offence. Each state has its own criminal code and procedure in the United States of America.
Causes of crime
Poverty
Poverty is one of the main reasons for crime. Countries with high rates of economic deprivation
tend to witness higher crime rates than other countries. Since people do not have the means to
secure a living in the right ways, they invest their time in criminal activities since they are not only
an easy means to get what they want but also do not require any other prerequisite talents. The
ever-increasing divide we are witnessing between the rich and the poor can also be attributed to
more and more of the poor looking to crime as a means for living. Not being able to earn and
sustain themselves leaves people so frustrated that they resort to illegal means to sustain
themselves and their families. According to the data collected by National Crime Records Bureau,
theft is one of the most common crimes in India. All in all, the wealth inequality and insufficient
means to acquire a living in an honest way is driving the poor in India towards a life of crime.
Peer Pressure
It is an established fact that peer pressure plays a significant role in the lives of all teenagers and
young adults. That is a phase of life where people tend to look up to their friends and believe what
they do is the right or rather ‘hip and happening’ thing to do. So, peer pressure compels them to
join the bandwagon. The lack of wisdom and experience these people have just added fuel to the
fire. As a result, many individuals in their youth subconsciously get drawn to vices like alcohol
consumption and smoking just by looking at their peers. The problem goes out of hand when this
peer pressure does not stay restricted to alcohol and cigarettes but extends to other illegal
activities involving drugs that have the potential to become an addiction and subsequently ruin
their lives.
Drugs
Crime and drug abuse are closely related. A person under the influence tends to indulge in criminal
activities that they may have not indulged in otherwise. The main problem arises when they get
addicted to the drugs and believe they require it to sustain themselves. In such a situation, drug
addicts are ready to go to any extent to procure these illegal substances. According to the data
collected by the National Institute on Drug Abuse, which is a wing under the National Institute of
Health in the United States of America, over 70,000 people succumbed to drug overdoses in
America, in the year 2019 alone. These figures are alarming. Under the influence of drugs, people
feel the urge to do things that are not only illegal but also have the potential to ruin and at times
even end their lives.
Politics
The interrelation between politics and crime is overlooked many times. This is problematic as many
people have engaged in criminal activities while dealing with political issues. There are umpteen
politicians with a criminal record. Additionally, there have been quite a few politicians in
developing countries who have also been associated with violent crimes and murders. So many
youth members of parties are often given weapons and instructed to handle matters violently
during conflicts. Any political dispute, however insignificant, usually leads to rampant violence
involving mobs. This not only exposes youth to criminal activities but also puts the lives of various
citizens at risk. So, an unstable political situation in a country leads to an exponential increase in
the crimes that take place there.
Religion
Even today, unfortunately, various divides and issues of society can be attributed to religion.
Despite it being a basic human right, many people are deprived of practising their own religion. This
leads to a feeling of resentment in the minds of believers. Moreover, there have been an awful lot
of cases involving crimes over different schools of thought too. Innocent lives have been lost in this
war over ideological concepts that have existed since time immemorial. This is an extremely sad
state of affairs considering that it is already the 21st century and human beings have progressed so
much in other areas. There are a huge number of crimes committed by religious fanatics while they
try to further their cause by propagating their religion or at times try to establish their religious
superiority over other faiths by resorting to destruction and vandalism.
Background
Oftentimes the background and family conditions of a criminal can be attributed to the reason
behind their crimes. When people believe that they are responsible to provide for their family and
they are unable to do so owing to lack of opportunities, lack of education or other such issues that
handicap them, they resort to crime. This is a sad state of affairs as in such situations it is highly
likely that the criminal would have refrained from engaging in criminal activities had there been
sufficient means for them to sustain themselves and provide for their family. This issue does not
lead to crimes such as theft alone but also motivates people to commit gruesome acts that put
their freedom and lives at risk just so they can make a good amount of money through bribes or
ransoms that can be used for their family’s sustenance.
Society
In today’s times, money is one of the most important aspects of everyone’s life. The meaning of
money is not restricted to the amount of wealth in a person’s bank account but is instead also
attributed to their societal status, worth, and even values. As a result of this, people value money
more than their relationships and happiness. What other people think of a person is more
important to them than how they feel. Even schools and universities do not teach children how to
be happy and satisfied in life but instead teach them how to make more money, which indirectly
attributes wealth to worth. A case in point would be people in awe of students who study and take
up professions in the fields of science as opposed to art as conventionally, they have chances of
earning more. As a result, people earning less feel unworthy and are compelled to indulge in a life
of crime so as to make more money and feel more worthy.
Unemployment
The lack of employment opportunities is an issue faced by developing and developed countries
alike. A huge portion of the youth of today are unemployed and as per a report by
the Confederation of Indian Industry, the youth employment rate is ever-increasing. According to
the data recorded by the Centre for Monitoring Indian Economy, the unemployment rate in our
country is ever increasing. Naturally, this leaves the youth frustrated as despite spending a lot of
time and money on their education they still find it tough to get a good job. This leads to a feeling
of resentment towards the system in the minds of many youngsters who then rebel and resort to
crimes early on in their lives.
Unequal rights
Deprivation is another significant contributor to the increasing crime rates. People resort to
notorious activities when they are deprived of their basic rights since that impedes their means to
obtain a livelihood in a conventional and honest way. They have limited options and are already at
a disadvantaged position in society that they choose to make money and sustain themselves
through hook or crook. This usually involves them engaging in criminal activities.
Unfair justice system
The flawed justice system is another major contributor to crimes. When people believe that they
are not given their due and are unfairly treated by the system itself, they harbour feelings of
resentment towards it and start to rebel. This involves them engaging in criminal activities and
doing the opposite of what is expected of them. People try to get justice for themselves when they
feel like the state is not going to do the same and tend to commit various acts of crime in their
journey to avenge themselves and get what they believe they deserve. Many innocent people
resort to crimes when they are wrongly proven to be guilty in the Courts owing to a lack of trust in
the system.
Different types of crimes
Any act that is in violation of the law is a crime. There are various types of crimes. Though not
exhaustive, criminologists group crimes into a few categories mentioned below.
Personal crimes
Personal crimes or crimes against persons refer to those crimes that are perpetrated against an
individual. They include murder, homicide, rape, aggravated assault, robbery, and other such
violent acts.
Property crimes
Property crimes refer to crimes that include theft but do not involve bodily harm. Some examples
include arson, larceny, burglary, theft, etc. Here, the victim is not physically affected but is
indirectly affected by harm or loss to their property.
Hate crimes
These refer to crimes against an individual which are fuelled by prejudices against the said
individual’s race, gender, religion, caste, creed, disability, ethnicity, sexual orientation, and other
such distinguishing factors usually associated with one’s heritage.
Victimless crimes
Victimless crimes or crimes against morality refer to illegal acts which are not aimed at a specific
individual. Here, there are no complainants. Victimless crimes include gambling, administering
illegal drugs, prostitution, and the like which are immoral but do not harm any individual per se.
Such crimes are also known as consensual crimes as the violators here willingly engage in illegal
acts knowing it is against the law. The word consensual crime is preferred by most over victimless
crime as the offenders are said to be victims in these cases as their acts harm themselves.
White-collar crimes
Crimes committed by people who have a respectable position in society and are economically and
socially well placed in the course of their occupation are called white-collar crimes. Some examples
would be embezzling, tax evasion, insider trading, violating tax laws, and the like. Such crimes,
though not gruesome, are still extremely detrimental to society and have a great potential to cause
economic consequences like a recession in no time.
Organized crimes
Organized crimes refer to crimes that involve the sale of goods and services which are unlawful by
a structured group like a mafia. This would include drug cartels, smuggling of weapons,
prostitution, and even money laundering. Needless to say, organized crime has various negative
impacts on both society and the economy.

Theories of causation of crime

The different types of crimes and the various reasons attributed to their occurrence are not
exhaustive. Crime is caused due to a multiplicity of factors that are ever-changing. That said, there
are certain theories that have risen which attempt to ascertain the causation of crime. They include
biological, economic, psychological, political, and sociological theories.
Biological theories
The interaction of various biological factors can be attributed to the occurrence of criminal matters.
These biological factors refer to neurological, psychological, hereditary, and even biochemical
elements that lead to crime. Conventionally, crime is always regarded as an outcome rising from
various social aspects. However, in the past decade, there has been ample proof suggesting that
genetic and biological factors contribute significantly to criminal behaviour.
Economic theories
Given the assumption that all human beings engage in rational behaviour, it is mind-boggling to see
the crime rates in industrialized economies go through the roof. Many social researchers were of
the opinion that crime is heavily influenced by economic factors like employment, education,
financial conditions, and the like. It is one of the most common side effects of social exclusion.
Criminals with the background of industrial employees engaging in manual work choose that way
of life due to the lack of both education and jobs in the market. Crime is heavily influenced by
wages and the employment status of the people in question. Economists were of the opinion that
educational programmes are the efficient way to combat the issue of rising crime in a world full of
depleting jobs and wages. All economic models of crime focus on deterring effects and the
interrelation between work and crime. They conclude that the main reason for a crime could be
attributed to rampant unemployment.
Psychological theories
Psychological theories of crime are extremely complex in nature. They focus on the personal
relations of the criminal. These theories try to demonstrate the evolution of offending from when
the offender was a child to when they become an adult. Psychologists are of the opinion that
offensive behaviour is akin to unfriendly behavior. A case in point would be reckless driving,
administering drugs, intoxication, and the like. So, they use theories and systems evolving from
observations of unfriendly behavior to analyze and study crime. To deal with criminal tendencies
they resort to motivational approaches that induce thoughtfulness and good decision-making.
Since psychology entails a scientific study of human behavior based on data, various factors that
influence crime were said to be bad upbringing, broken families, parents indulging in crime
themselves, and personality disorders.
Political theories
All methods of crime are said to be in accordance with one political philosophy or the other. So, all
orientations of crime are the consequence of some political theory. Social disputes and
governmental relations are important constituents of crime. People with different and sometimes
conflicting political theories tend to associate crime with different factors. For instance, radical
extremists may be of the opinion that crime is an act of resistance to oppression whereas liberals
are of the opinion that criminals are misguided [people reacting poorly to faulty social institutions.
Sociological theories
Sociological theories can be further divided into three theories namely strain theory, social learning
theory, and control theory.
Strain theory
The strain theory suggests that people resort to crime as a reaction to excess negativity in them
owing to stress or strain. They are so overwhelmed with cynical emotions that they use crime to
reduce their burden. A case in point would be criminals stealing to improve their financial stability,
a criminal causing injury to others as a result of being raised in an abusive household, consuming
illegal drugs to numb side effects of mental illnesses caused by stress, and the like. Crime may also
be an impulsive act aimed at avenging oneself.
Social learning theory
This theory suggests that criminals learn to engage in criminal activities through people in their
social circles like friends, family, acquaintances, etc. So the basic idea here is that one does not
resort to crime independently but crime is a consequence of their association with others. Peers
have a huge influence on people and hence indirectly lead them down the wrong path.
Control theory
Crime is taken for granted in this theory. All criminals are said to have certain desires that they can
accomplish much more easily by resorting to crime as compared to any other legally acceptable
method. An example would be stealing money as opposed to working. People would prefer to steal
as that would give them the same amount of money but minus the effort. So, control theorists
believe that there is no specific reason for crime and it only occurs because it is the most
convenient way for some people to get what they want.
Theories of punishment – a thorough study
Introduction
Punishment. A term which is inherent to criminal justice. It is only because of the term punishment,
that certain acts are classified as ‘crimes’. Down the lane of the history of the society, we have seen
that without punishments, it would have sometimes been impossible to tame the barbaric, as well
as primitive tendencies of the public. It was the weapon named ‘punishment’, that the rulers used
against their subjects in order to maintain a fear in the minds of the public regarding the capacities
and powers of their rulers. Punishments sometimes were also given as an insult to someone else.
However, the most common punishment from which all of us are familiar is the scolding or mild
beating that we get from our parents. In that case, what are the theories of punishment actually in
case of serious crimes? How did they develop? What are the pros and cons of the various ways of
punishing people? Do the Hindu scriptures too depict any form of the punishments mentioned
hereinafter? Through this paper, we will try to answer all such questions and understand how far
are the various Theories of Punishment applicable in the present era. The theories of punishment
are as follows:
 RETRIBUTIVE THEORY.
 DETERRENT THEORY.
 PREVENTIVE THEORY.
 INCAPACITATION THEORY.
 COMPENSATORY THEORY.
 REFORMATIVE THEORY.
 UTILITIRIAN THEORY.
Retributive Theory of punishment
The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the society
would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal sentence over a
perpetrator. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if
translated, means ‘an eye for an eye’. Now, if looked at from the perspective of very serious and
heinous offences, like the Delhi gang rape case, people may feel that it is better to inflict such
retributive punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.
However, we forget to understand sometimes that always having a retributive approach will render
the society one with a primitive system of justice, where the Kings or the Judges were considered
to be the supreme beings and were provided with the stature of God Himself (hence the
address My Lord) and thus, collapse the very concepts of the representatives being ‘servants’.
Before we move on to a deeper understanding of the Retributive Theory, we need to understand
two very important doctrines. Let us have a look at them both.
Doctrine of Societal Personification and the Doctrine of Correctional Vengeance:
 Doctrine of Societal Personification can be stated as-
‘When a member of the society is subjected to a very heinous crime, as a result of which, the whole
society, as if it were a natural person, considers the offence to be inflicted upon itself, comes to the
defence of that person either by way of demanding justice or by conducting the same on its own,
the society is said to be personified.’
A very self-explanatory doctrine. To be put simply, it means that the society, whenever a heinous
crime of an extreme form is committed, assumes the form of a natural person and behaves in a
collective manner so as to get justice.
Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case, etc.
 Doctrine of Correctional Vengeance maybe stated as-
‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful (as
painful as the original act, or even more) punishments upon the victim for creating a deterrent, it is
said to exhibit correctional vengeance.’
The above definition, too, is quite self-explanatory in its nature. Now that we have understood
these two doctrines, we have a basic idea about what really is retributivism or retributive justice.
Let us now have a closer look upon the same.
Understanding Retributive Theory of Punishment:
‘The concept of retributive justice has been used in a variety of ways, but it is best understood as
that form of justice committed to the following three principles:
1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes,
morally deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other goods that
might arise—if some legitimate punisher gives them the punishment they deserve; and
3. that it is morally impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers.’
The above three principles clarify the needs for retributive justice even further. We may
understand retributive justice in this manner. The place where both Criminal Law as well as Moral
Law meet, is the place where mostly the retributive punishments are generated.
In fact, although people may classify punishments into seven different types, but in reality, every
punishment, indeed, is retributive in nature. It is very interesting to see that the damages claimed
under Torts, or the remedies sort for environmental violations, maybe compensatory, but at their
hearts, are retributive in nature. Then why aren’t they labelled as retributive, instead? Well, the
answer to the question is simple. Retributive punishments are somewhat vengeful in their nature
(an eye for an eye). They may not be vengeful always, but maybe merely morally vengeful. When
we say this, it means that although the punishment is not literally the thing that was originally done
by the perpetrator, is still acts as a vengeance by virtue of its seriousness.
E.g: If a person rapes someone, capital punishment maybe given as a retributive measure. If we
literally give the person back what he did, i.e., sex, then it would be pleasurable rather than
torturing for him. Now that we have understood briefly that how exactly the retributive
punishment works, let us now move on to understand the ways in which Retributive Theory is
displayed in the Hindu texts and scriptures.
Retributive Theory and the Hindu Scriptures:
The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga Saptashati, are
primarily based on Retributive Theories but also, depict the ways in which one should proceed
while applying them.
Ramayana- In the Ramayana the whole story began from retribution itself. Lakshmana cut the
nose of Raavan’s sister, because of which he kidnapped Sita. In order to rescue her and also to
avenge her kidnapping, Ram went to kill Raavan. But, the major difference between the application
of the retributive punishment between the two was that Raavan did not even give Ram a chance to
repent for his younger brother’s act, but, Ram gave several chances to Raavan to correct his act.
Mahabharata– Mahabharata, once again, is a very good example of how retributive punishment
should be inflicted. The Pandavas had not started-off with the war right away. They had sent Shri
Krishna as their messenger of peace a number of times to the Kauravas, but, they did not give
in. Mahabharata, especially Shrimad Bhagvad Geeta, talks about the time when the retributive
mode should be used. As we all know that Arjun was about to leave the battlefield as he was too
scared to go against his own relatives, it was Krishna who said that ‘when all other paths close
down, only then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.’
Now, let us move on to see some important case laws regarding this theory of punishment.
Case Laws:
1. Nirbhaya Judgement– This case is indeed the first and foremost case to be mentioned,
while talking about retributive justice in India. In this Judgement, the Supreme Court
sentenced four out of six felons involved in the extremely heinous Delhi gang rape case
to death, much to the delight of the society, as they had committed an extremely
gruesome, as well as morally unimaginable crime.
2. Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had
already undergone a six month imprisonment term, before being officially convicted by
the Court. The Court held that since the convict had been convicted and also, the
required ‘blemish’ had also been imposed upon him, it was not necessary to sentence
him again in the name of ‘retributive punishment’, as it would inflict a very big loss
upon the family as well.
Pros and Cons:
Pros-
1. Acts as a strong deterrent.
2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.
Cons-
1. Sometimes, may become disproportionate with the seriousness of the crime.
2. Society develops feelings of vengeance and destructive tendencies follow.
3. The State may become autocratic in its functioning, using the punishment to torment
people.
Deterrent Theory of punishment
In Deterrent theory of punishment, the term “DETER” means to abstain from doing any wrongful
act. The main aim of this theory is to “deter” (to prevent) the criminals from attempting any crime
or repeating the same crime in future. So, it states that deterring crime by creating a fear is the
objective; to set or establish an example for the individuals or the whole society by punishing the
criminal. That simply means, according to this theory if someone commits any crime and he/she is
punished by a severe punishment, then, it may result maybe that the people of the society will be
or may be aware of the severe punishments for certain kinds of crimes and because of this fear in
the minds of the people of the society, the people may stop from committing any kind of crime or
wrongful act. Here I used the phrase “may stop” instead of “will stop”. That means, there is a
probability of committing any crime or repeating the same crime.
The deterrent theory of punishment is utilitarian in nature. For a better understanding we can say
like, ‘The man is punished not only because he has done a wrongful act, but also in order to ensure
the crime may not be committed.’ It is best expressed in the word of Burnett, J who said to a
prisoner:
“Thou art to be hanged not for having stolen a horse, but in order that other horses may not be
stolen”.
Through making the potential criminals realize that it doesn’t pay to commit a crime, the deterrent
theory hopes to control the crime rate in the society.
Jurisprudential School of Thought:
The deterrent theory can be related to the sociological school of Jurisprudence. The sociological
school creates a relationship between the society and law. It indicates law to be a social
phenomenon, with a direct and/or indirect connection to society. One of the main aim of the
deterrence is to establish an example for the individuals in the society by creating a fear of
punishment.
Now most important question is arrived at; “Who established this deterrent theory of punishment?”
The concept of deterrent theory can be simplifying to the research of philosophers such like
Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy Bentham (1748-1832). These
social contract thinkers provided the foundation of modern deterrence in criminology.
In the Hobbesian view, people generally pursue their self-interests, such as material gain, personal
safety and social reputation and make enemies, not caring if they harm others in the process. Since
people are determined to achieve their self-interests, the result is often conflict and resistance
without a fitting Government to maintain safety. To avoid, people agree to give up their
egocentricity as long as everyone does the same thing, approximately. This is termed as “Social
Contract”. According to this social contract, he stated that individuals are punished for violating the
social contract and deterrence is the reason for it to maintain the agreement between the State
and the people, in the form of a social contract workable.
According to Cesare Beccaria, while discussing about punishments, the proportion of the crime and
punishments should be equal for it to serve as a deterrence or have a deterring value.
According to J. Bentham, who is known as the founder of this theory, a hedonistic conception of
man and that man as such would be deterred from crime if punishment were applied swiftly,
certainly, and severely. But being aware that punishment is an evil, he says, if the evil of
punishment exceeds the evil of the offence, the punishment will be unprofitable; he would have
purchased exemption from one evil at the expense of another.
From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we came to know
that the theory of deterrence consists of 3 major components. They are as follows:
 Severity: It indicates the degree of punishment. To prevent crime, criminal law must
emphasize penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals from
committing any crime. And if the punishment is not severe enough, it will not deter
criminals from committing a crime.
 Certainty: It means making sure that punishments must happen whenever a criminal
act is committed. Philosopher Beccaria believed that if individuals know that their
undesirable acts will be punished, then they will refrain from offending in the future.
 Celerity: The punishment for any crime must be swift in order to deter crime. The faster
the punishment is awarded and imposed, it has more effect to deter crime.
Therefore, deterrence theorists believed that if punishment is severe, certain and swift, then a
rational person will measure the gain or loss before committing any crime and as a result the
person will be deterred or stopped from violating the law, if the loss is greater than the gain.
According to Austin’s theory, “Law is the command of the Sovereign”. In his imperative theory, he
clearly declared three important things, which are as follows:
1. Sovereign.
2. Command.
3. Sanction.
Austin’s question is that ‘Why do people follow the rule?’. He believes that people will follow the
law because people have a fear of punishments. On the basis of his beliefs, we can see a small
example over here: When people are biking, they wear a helmet as per biking rules. Now, we can
assume that some people wear helmets genuinely to save themselves from road accidents but on
the other hand, some people wear helmets because of escaping fines or in fear of cancellation of
their biking licence. So, in that case, they know that if they bike rashly or disobey the biking rules
they will be punished by giving huge a amount of fine or their biking licence will be cancelled. So
here we can say that the purpose of the deterrent theory is successful and applied also.
Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that there were
several punishments like public hanging, not only that but also people were immersed in hot oil or
water. Most penal systems made use of deterrent theory as the basis of sentencing mechanism till
early 19th century.
 In England, punishments were more severe and barbaric in nature to restrict same
crime in the future. At the time of ‘Queen Elizabeth I’, deterrent theory of punishment
was applied for restricting future crimes, even for too little crimes like ‘pickpocketing’.
 In India also, inhuman punishments are granted.
But, if we discuss or follow this theory in today’s context, then, it will be very clear that “deterrent
theory” is not applicable at all or it may not be useful enough to prevent or to deter crimes by
creating a fear in the minds of people. We have a very recent example of why deterrent theory is
not successful in the case of “Nirbhaya Rape Case, 2012”. This case is the foremost case to be
mentioned while talking about deterrent theory of punishment. In this judgement, the Supreme
Court sentenced four out of six offenders involved in the extremely heinous Delhi gang rape case to
death. Now, the most important questions are-
 Whether the death sentence to the culprits will act as a deterrent?
 Will the number of crimes against women in our society drop down permanently?
 Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?
The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter crime, by
creating a fear or establishing an example to the society.’ Now, death penalty is a severe
punishment. In the Nirbhaya case, the Court gave death sentence to the four convicts for
committing gang rape. We can say that it is a great example for future offenders who will think
about committing a crime like rape in future. So, according to this theory, after Nirbhaya judgment
crimes like rape should not happen. But they are happening till now. Day-by-day, rape cases are
increasing in our society.
In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been served to
“India’s Daughter” and though the decision came after a staggering seven years, it will help to
secure the safety of women and prevent rape cases in the future. But it seems to further, as
starting of the year 2020 has seen a slew of rape cases continue unabated. As an example, we can
see for a recent gang rape case which was happened at Hathras, Balrampur, on 1st October 2020.
So, simply we can see that there is no improvement through severe punishments also. “Death
penalty does not act as a deter to rape cases”- This is the actual message we have understood. So
that’s why we can say that in today’s generation there is no major implication of ‘Deterrent Theory
of Punishment’.
Preventive Theory of punishment
Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals.
Main object of the preventive theory is transforming the criminal, either permanently or
temporarily. Under this theory the criminals are punished by death sentence or life imprisonment
etc.
Philosophical View of Preventive Theory:
Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature. Philosophy of preventive theory affirms that the
preventive theory serves as an effective deterrent and also a successful preventive theory depends
on the factors of promptness. The profounder of this theory held that the aim of punishment is to
prevent the crimes. The crimes can be prevented when the criminal and his notorious activities are
checked. The check is possible by disablement. The disablement may be of different types.
Confining inside the prison is a limited form of disablement, that is temporary and when it is an
unlimited form of disablement, that is permanent. It suggests that imprisonment is the best mode
of crime prevention, as it seeks to eliminate offenders from society, thus disabling them from
repeating the crime. The death penalty is also based on this theory. This theory is another form of
deterrent theory. One is to deter the society while another is to prevent the offender from
committing the crime. From an overall study, we came to know that there are three most
important ways of preventive punishment, they are as follows:
 By creating the fear of punishment.
 By disabling the criminal permanently or temporarily from committing any other crime.
 By way of reformation or making them a sober citizen of the society.
Case Laws:
1. Dr. Jacob George v state of Kerala: In this case, the Supreme Court held that the aim of
punishment should be deterrent, reformative, preventive, retributive & compensatory.
One theory preferred over the other is not a sound policy of punishment. Each theory
of punishment should be used independently or incorporated on the basis of merit of
the case. It is also stated that “every saint has a past & every sinner has a fortune”.
Criminals are very much a part of the society so it is a responsibility of the society also
to reform & correct them and make them sober citizens of the society. Because the
prevention of crime is the major goal of the society and law, both of which cannot be
ignored.
2. Surjit Singh v State of Punjab: In this case, one of the accused, a policeman entered the
house of the deceased with the intention to commit rape but failed to do so as the as
sons of the deceased shouted for help. Another accused suggested the policeman to kill
the deceased. The accused was held liable under section 450 of the Indian Penal
Code. While on the contrary, the death penalty or capital punishment is more of a
temporary form of disablement.
Incapacitation Theory of punishment
Meaning:
The word “incapacitation” means ‘to prevent the offence by punishing, so that the future
generation fears to commit the criminal act.’ Incapacitation happens either by removing the person
from the society, either temporarily, or permanently, or by some other method, which restricts him
due to physical inability. One of the most common way of incapacitation is incarceration of the
offenders, but in case of severe cases, capital punishments are also applied. The overall aim of
incapacitation is preventing or restraining the danger in the future.
Definition:
“Incapacitation refers to the restriction of an individual’s freedoms and liberties that they would
normally have in society.”
Purpose of Incapacitation Theory:
One of the primary purposes of this theory is removing the sufficiently dangerous persons from the
society. The risk that is found to be posed by the offenders are largely a matter of inception.
Therefore, if one country treats one offence in one way, another country will treat the same
offence in a different way. For example, in the U.S., they use incarceration to incapacitate
offenders at a much higher rate, than in other countries. It has been seen that unlike the other
theories of punishments like deterrence, rehabilitation and restitution, the theory of incapacitation
simply rearranges the distribution of offenders in the society so that the rate of crime decreases in
the society. The main aim of the theory of incapacitation is to dissuade others from the offenders
in the past, so that it is not followed by the future generation.
Application of the theory:
The theory of incapacitation gets reserved only for those people who are either sentenced to
prison or to life imprisonment. Yet, it also includes things like being supervised by the departments
within the community, like probation and parole.
Origin:
The theory of incapacitation was originated in Britain, during the 18th and the 19th centuries,
where the convicted offenders were often transported to places like America and Australia. Later in
the 21st century, the theory was changed to some extent, where the offenders were to remain in
the primary method of incapacitation which was found in most of the contemporary penal systems.
Therefore, the theory usually takes the form of imprisonment, which is considered to be the best
the form of incapacitation, rather than other methods of incapacitation.
So, can incapacitation reduce crime?
According to a study conducted by The University of Chicago, it has been proven that the crime
rates can be prevented by 20 per cent. Also, it has been seen that if other theories are applied like
Retributive Theory, Compensatory Theory, etc., then they lay down a fairly stringent application of
putting the criminal behind the bars for at least 5 years. Also, it can happen to increase the
population of the prison if the rest of the theories are applied. If a small number of high-rate
offenders commit a disproportionately large amount of crime, targeting limited prison resources on
these offenders should achieve increased crime control without increasing prison populations
unreasonably. This policy will depend on the degree of the crime committed and whether the
criminal is early in his carrier.
Compensatory Theory of punishment
Definition:
The main look out in the law of crimes is to penalize the criminal, and/or to seek his reformation
and rehabilitation with all the resources and goodwill available through the Courts and other
Governmental and non-Governmental organizations. It must be seen that the criminals should get
proper judgement for their crimes so caused and the harassment caused to the victim and towards
their family members and property. The victims in a crime can be compensated on mainly two
grounds, namely-
1. A criminal who had inflicted an injury against the person (or group of persons), or the
property must be compensated for the loss caused that has caused to the victim, and
2. The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary contribution of
retribution.
Case Laws:
 In the landmark case of DK Basu v. State of West Bengal the Apex Court held that a
victim who is under the custodial right, has every right to get compensated as her Right
to Life, which is under Article 21 of the Constitution, has been breached by the officer
of the State.
 In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, Justice Thomas had held
that, “The Reformative and reparative theories deserve serious consideration, where
the victim(s) of crime or his family members should get compensated from the wages
that is earned in prison by the criminal.” The Court suggested that the particular State
should enact a comprehensive legislation in respect of his compensation payable to
victim of a crime.
Reformative Theory of punishment
The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of discipline
ought to be the change of the crook, through the strategy for individualization. It depends on the
humanistic rule that regardless of whether a wrongdoer perpetrates a wrongdoing, he doesn’t stop
to be a person. In this way, an exertion ought to be made to change him/her during the time of
his/her detainment. For example, he may have executed bad behaviour under conditions which
may never happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the liable party.
He ought to be told and perform some craftsmanship or industry during the hour of his
confinement with the objective that he may have the alternative to start his life again after his
conveyance from jail.
History of the Theory:
The human development has consistently been administered under the standard of an
incomparable force. The job and type of pre-eminent force has changed throughout a long term.
Beginning from the primitive type of Government to the present just, republican and different
types of Governments, the obligation of the incomparable authority has changed a lot. The idea of
discipline has additionally changed like the idea of State duty throughout the long term. The idea of
discipline relied upon the premise of religion and the organization of the Kings. During old
occasions, the idea of discipline was retributive premise, where the hoodlums were given uncouth
type of discipline. Afterward, over the entry of ages, the significance of common liberties expanded
which in essence cleared path for the replacement of Retributive hypothesis by Reformatory and
Rehabilitative hypotheses. Under the Reformative and Rehabilitative hypotheses, the blamed are
given such structures for discipline which would change them and keep them from perpetrating
such wrongdoings.
The theory of punishment being followed in India with the goal to change the crooks as opposed to
rebuffing them isn’t that compelling in avoidance of the event of violations in India. The essential
idea of law isn’t to be static, but to be dynamic in nature. At exactly that point the law will have the
option to be successful in all fields of the general public.
The Main Purpose Reformative Theory:
The reason for this hypothesis of discipline is to make the criminal languish over his bad behaviour.
Here the motivation behind the discipline is profoundly customized and rotates around the mental
outlet of the person in question or his family. The primary reason might be accomplished to parole
and probation, which have been acknowledged as current procedures of improving the guilty
parties all around the globe. Consequently, the backers of this hypothesis legitimize imprisonment
not exclusively to separate hoodlums and kill them from society. Not many of the advanced
reformative procedures of discipline are essentially concocted for the treatment of guilty parties as
per their mental attributes, for example, probation, parole, uncertain sentence, exhortation and
pardon. The reformative techniques have demonstrated to be valuable in the event of adolescent
misconduct, first wrongdoers and ladies. Sex cases additionally appear to react well to the
reformative strategy for discipline. All the more as of late, the reformative hypothesis is in effect
widely utilized as a technique for treatment of intellectually denied wrongdoers.
Criticism:
1. Reformative theory anticipates better framework and offices in jail, legitimate co-
appointment between various control and diligent exertion on their part to shape
criminals. It requires gigantic ventures which poor nation can’t bear the cost of.
2. A great many guiltless individuals who have high respects for law are finding hard to get
fundamental courtesies hypothesizes moral avocation for giving better offices inside
jail.
3. Also, the soundness of the hypothesis is more towards motivators for the commission
of wrongdoing instead of counteraction.
4. Transformation can work out on those individuals who can be improved, there are
individuals who can’t be changed like bad-to-the-bone lawbreaker, profoundly
instructed and proficient hoodlums.
5. This theory disregards possible wrongdoers and people who have submitted
wrongdoing however not inside the arms of law. Further, it ignores the cases of
survivors of violations.
6. Degenerate social ecological is liable for wrongdoing yet not person duty, is the way of
thinking of reformative which is difficult to process. In any case, it is out of line to
excuse the honourable idea of reconstruction as a complete disappointment. All know
 about the occasions where untalented, uninformed and evidently hopeless lawbreakers
have created aptitudes in jail, which have changed them into profoundly valuable
people.
Utilitarian Theory of punishment
The utilitarian hypothesis of discipline tries to rebuff guilty parties to debilitate, or “hinder,” future
bad behaviour. Under the utilitarian philosophy, laws ought to be utilized to amplify the joy of
society. Since wrongdoing and discipline are conflicting with bliss, they ought to be kept to a base.
Utilitarian’s comprehend that a wrongdoing-free society doesn’t exist, yet they attempt to incur
just as much discipline as is needed to forestall future violations.
The utilitarian hypothesis is “consequentialist” in nature. It perceives that discipline has
ramifications for both the wrongdoer and society and holds that the all-out great created by the
discipline ought to surpass the absolute malevolence. At the end of the day, discipline ought not be
boundless. One delineation of consequentialism in discipline is the arrival of a jail detainee
experiencing an incapacitating sickness. In the event that the detainee’s demise is fast approaching,
society isn’t served by his proceeded with restriction since he is not, at this point fit for carrying out
wrongdoings.
Under the utilitarian way of thinking, laws that indicate discipline for criminal leads ought to be
intended to dissuade future criminal direct. Discouragement works on a particular and an overall
level. General discouragement implies that the discipline ought to keep others from carrying out
criminal acts. The discipline fills in as an illustration to the remainder of society, and it advises
others that criminal conduct will be rebuffed. Explicit discouragement implies that the discipline
ought to keep similar individual from perpetrating violations. Explicit prevention works in two
different ways. Initially, a guilty party might be placed in prison or jail to truly keep her from
perpetrating another wrongdoing for a predefined period. Secondly, this crippling is intended to be
undesirable to such an extent that it will demoralize the guilty party from rehashing her criminal
conduct.
Does Utilitarian Theory Support Death Penalty:
The apparent seriousness of capital punishment, there has been an exceptional debate
encompassing the issue. Rivals of capital punishment pronounce that it is savage and harsh thus
the administration ought to get rid of it. Then again, its allies keep up that capital punishment is a
fundamental type of discipline that ought to be utilized on the most horrible guilty parties in the
public eye. The exceptionally captivated discussion on capital punishment has kept on existing for
quite a long time. Moral hypotheses can be utilized to concoct an answer for this exceptionally
dubious issue. Morals figure out what is the correct strategy in a given circumstance. Various
strong moral hypotheses have been proposed by researchers and scholars throughout the long
term. This paper will utilize one of the most broadly applied moral hypotheses, which is
utilitarianism, to exhibit that capital punishment is for sure legitimized.
Review of the Utilitarian Theory:
From a utilitarian viewpoint, activities that advance the satisfaction of the larger part in the public
arena ought to be sought after while those that prevent this bliss ought to be evaded. The
utilitarian hypothesis can be applied to the issue of the death penalty since this type of discipline
produces both positive and negative results.
Net Benefits:
The principal significant advantage offered by capital punishment is that it assumes a huge
discouragement job. The most significant objective of the criminal equity framework is to debilitate
individuals from taking part in wrongdoing.
This is accomplished by joining disciplines to violations with the goal that an individual sees the
benefits of taking part in unlawful activities as being exceeded by the results. In that capacity, an
ideal society would be one where nobody is rebuffed since the danger of discipline shields
everybody from taking part in wrongdoing. Capital punishment is the most extreme discipline and
its accessibility is probably going to dissuade individuals who probably won’t be frightened by long
jail sentences.
From a utilitarian point of view, the prevention job is moral since it adds to the general satisfaction
of the general public. At the point when crooks are deflected from participating in wrongdoing, the
general public is more secure and individuals appreciate the harmony and security in their
networks.
Another huge advantage offered by capital punishment to the general public is that it prompts the
perpetual debilitation of the indicted individual. Not at all like different types of discipline which
just confine a portion of the opportunities of the guilty party, capital punishment removes his life.

Capital Punishment

Capital Punishment is also known as a death penalty, execution of an offender sentenced to death
after conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the
important parts of capital punishment.

Evolution of capital punishment in India

India retained the 1861 Penal Code at independence in 1947, which provided for the death penalty
for murder. The idea of abolishing the death penalty expressed by several members of the
Constituent Assembly during the drafting of the Indian Constitution between 1947 and 1949, but
no such provision was incorporated in the Constitution. In the next two decades, to abolish the
death penalty, private members bills were introduced in both Lok Sabha and Rajya Sabha, but none
of them were adopted. It was estimated that between 1950 and 1980, there were 3000 to 4000
executions. It is more difficult to measure the number of people sentenced to death and executed
between 1980 and the mid-1990s. It is estimated that two or three people were hanged annually.
In the 1980 Bachan Singh judgment, the Supreme Court ruled that the death penalty should only be
used in the “rarest of rare” cases, but it is not clear what defines the rarest of the rare.

Position in India

India opposed a UN resolution calling for a moratorium on the death penalty because it goes
against the Indian statutory legislation as well as against each country’s sovereign right to establish
its own legal system.

In India, it is awarded for the most serious of crimes. It is awarded for heinousness and grievous
crimes. Article 21 says that no person shall be deprived of ‘right to life’ which is promised to every
citizen in India. In India, various offences such as criminal conspiracy, murder, war against the
government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with
death sentences under Indian Penal Code (IPC). The president has the power to grant mercy in a
case of death penalty. Bachan Singh vs State of Punjab,[1] the Court held that capital punishment
will only be given in rarest of rare cases.

Only the president has the power to confer mercy in cases related to death sentences. Once a
convict has been sentenced to death in a case by the Sessions Court, it must be confirmed by the
High Court. If the appeal to the Supreme Court made by the convict fails then he may submit a
‘mercy petition’ to the President of India. Detailed instructions on the procedure are to be followed
by States to deal with petitions for mercy from or on behalf of death-sentenced convicts. Appeals
to the Supreme Court and requests for special leave to appeal to that court by such convicts shall
be set out by the Ministry of Home Affairs. Under Article 72 of the Constitution of India, the
President has the power to grant pardon, reprieves, respites or remissions of punishment or to
suspend, remit or reduce the sentence of any person who has been convicted of an offence.

What are the execution methods followed in India?

There are two methods of execution in India and they are:

Hanging

All the death penalties in India are carried out by hanging. After independence, Godse was the first
person to be executed in India by the death penalty in the case of Mahatma Gandhi. India’s
Supreme Court suggested the death penalty should only be imposed on the rarest of rare cases in
India.

Shooting

Under the 1950 Army Act, both hanging and shooting are listed in the military court-martial system
as official methods of execution.

What are the death penalty crimes?

The crimes and offences which are punishable by death are:

Aggravated murder

It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860. In Bachan
Singh v. State of Punjab,[2] the Court of India held that the death penalty is constitutional only
when applied as an exceptional penalty in “the rarest of the rare” cases.

Other offences resulting in death

In the Indian Penal Code, the death penalty is given to a person who commits murder during
an armed robbery. The abduction of the victim for the money is punishable with the death
penalty if the victim is killed. Organized crime involvement, if it leads to death, is punishable by
death. Committing or helping to commit Sati to another person is also punishable by the death
penalty.

Terrorism-related offences not resulting in death

Muhammad Afzal was executed by hanging on 9th February 2013. He was executed of the
December 2001 attack on India’s parliament in which nine people got killed by five gunmen
armed with guns and explosives. Mohammad Ajmal Amir Qasab, the only surviving shooter in
2008, was hanged on 21 November 2012 for various crimes, including waging war on India,
murder and terrorist acts.

The use of any special category of explosive to cause an explosion that could endanger life or
cause serious damage to property is punishable by the death penalty.

Rape not resulting in death

A person who inflicts injury in a sexual assault which results in death or is left in a “persistent
vegetative state” may be punished with death under the Criminal Law Act, 2013.

Gang rapes are punishable with death penalties. These changes were imposed after medical
student Jyoti Singh Pandey’s 2012 gang rape and death in New Delhi.

According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is
below 12 years of age may be sentenced to death or sent to prison for 20 years along with fine.
The 2018 amendment also specifies the death penalty or life imprisonment for a girl’s gang
rape under the age of 12. These changes to criminal law followed an eight-year-old girl’s rape
and murder, Asifa Bano, who triggered a lot of political unrest in Jammu and Kashmir State and
across the country.

To know more about the evolution of capital punishment in India and who all are excluded
from capital punishment, please watch the video below:

Kidnapping not resulting in death

According to Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an
offence punishable by death. If any person detaining anybody and threatens to kill him or harm
him during which the kidnapper’s act actually resulted in the death of the victim, will be liable
under this section.

Drug trafficking not resulting in death

If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to

commit any of a range of drug trafficking offences, or financing of certain types and amounts
of narcotic and psychotropic substances, he or she can be sentenced to death.

Treason

The death penalty is given to any person who is waging or trying to wage war against the
government and helping Navy, Army, or Air Force officers, soldiers, or members to commit a
mutiny.

Military offences not resulting in death

Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty
and various other offences are punishable by death if committed by a member of the Army or
Navy or Air Force.

Other offences not resulting in death

If a person is a party to criminal conspiracy to commit a capital offence is punishable by death.

Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is
harmed by the attempt.

If a person provides false evidence with the knowledge that it can lead to the conviction of a
person belonging to scheduled caste or tribe for committing a capital offence on the basis of
such evidence, will be punished with the death penalty if it results in the conviction and
execution of an innocent person.

Which category of offenders are excluded from capital punishment?

Minor

According to the law in India, a minor who is under the age of 18 at the time of committing a
crime is not executed.

Pregnant Women
Clemency must be granted to a pregnant woman sentenced to death according to a 2009
amendment.

Intellectually Disabled

According to the Indian Penal Code, a person while committing a crime who was mentally ill or
is not able to understand the nature of the act or the act is wrong, then that person can be
held liable under the law and can be punished with the death penalty.

Constitutional law

Article 21 of the Constitution guarantees the right to life and personal freedom to all, including
the right to live with human dignity. The state may take away or abridge even the right to live
in the name of law and public order. But this procedure must be “due process” as held in
India’s Maneka Gandhi v. Union.*3+ The procedure that takes away a human being’s sacrosanct
life must be just, fair and reasonable. Our constitutional principle can be stated as follows

Only in rarest of rare cases, the death penalty should be used.

Only on special grounds, the death penalty can be sentenced and should be treated as
exceptional punishment.

The accused shall have the right to hear.

In the light of individual circumstances, the sentence should be individualized.

The death penalty shall be confirmed by the High Court. Under Article 136 of the Constitution
and under Section 379 of the Cr.P.C., there is a right to appeal to the Supreme Court.

The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and
434 of the Cr.P.C. and to the President or the Governors under Articles 72 and 161. Articles 72
and 161 contain, apart from the judicial power, discretionary power for the President and
governor to interfere with the merits of the matter; however, there is a limited authority for
judicial authorities to review it and it must ensure that the President or the governor has all
relevant documents and material before them.

However, the essence of the governor’s power should not rest on race, religion, caste or
political affiliations, but on a rule of law and rational issues.

In accordance with Articles 21 and 22 of the Constitution, the accused has the right to a
prompt and fair trial.

The accused is not entitled to be tortured under Article 21 and 22.

Under Articles 21 and 19 of the Constitution, the accused has freedom of speech and
expression under custody.

INSTITUTIONAL TREATMENT OF OFFENDORS

A prison is something that can be defined as a kind of accommodation that is meant for
individuals who have committed an offence and are undergoing trial for having committed that
offence. The prisons and prisoners’ law in India are one of those laws that are constantly unnoticed
and forgotten. They are not given sufficient importance as they should be for reform in todays’
scenario. There is a constant lacuna and gap as there is a lack of stringent legislations for people
staying in the prisons who also have the right to live a life with all dignity and basic respect which
all the citizens of the country are entitled to. There have been many instances wherein the
prisoners have been subject to inhuman conditions and have been deprived of amenities such as
balanced sanitary conditions and proper food.

There are special orders that have been issued by the State Governments that looks into the
detention of prisoners and includes the land and the property that has been attached thereto. The
administration of Prisons is mentioned in the State Lists as part of item 4 in the seventh schedule of
the Constitution of India. The process of administration and management of prisons comes under
the powers of the state in consonance with the Prisoners Act 1894 and the Prison Manuals that
individual states would have individually drafted by states.

The Central Government provides certain rules and regulations with regards prison rules to the
State Government to ensure an effective administration and making sure of the safety within the
fore walls of the prison.

The Supreme Court of India, through various judgments that encapsulate several rules relating to
prison administration. Some of them have been enlisted below-

 Every person is entitled to his very own personal liberty. This means just because a person is
incarcerated or is in prison does not mean that the person becomes a non-person.
 A person who has committed an offence becomes entitled for the enjoyment of all different
kinds of human rights but within the confinement and limitations of imprisonment.
 As the person is already suffering for the commission of his offence by incarceration, there
should be no further aggravation of his suffering.

The Supreme Court has paid heed to various prison issues such as lack of proper healthcare and
medical facilities, overcrowding, provision of proper facilities for the inmates as well as free legal
aid which is explicitly provided under the Constitution of India.

TYPES OF PRISONS-

Prisons have been established under three different levels, as enlisted below-

 The Taluka level

 The District Level; and
 The Central Level

These different jails and prisons are alternatively known as- Sub Jails, District Jails and Central Jails.
The infrastructure and various prisoner facilities like various medical, rehabilitations and security
are seen to be better from that of the Sub Jails to the Central Jails.

Apart from these, there are various other types of jails such as the Women’s Jails, Open Jails,
Special Jails and Borstal Schools.

1. Central Jails- The criteria enlisted for being categorized as a central jail is different and
varies from one state to another. But something that has been noticed as a trend in India is
that persons who commit offences that are entitled to a punishment for a long period (that
is, a period more than two years) are more often confined to Central Jails and these jails
have a larger capacity and occupancy than those of other jails. These jails have additional
facilities such as rehabilitation.

The largest number of Central Jails are situated in Delhi (16) followed by Madhya
Pradesh(11).
 2. District Jails- They serve as the primary prisons in the states and the union territories where
there is no availability of Central Jails. Uttar Pradesh has about 57 District Jails, Madhya
Pradesh has about 39 District Jails and Bihar has about 31 District Jails.
3. Sub Jails- These jails are smaller in sized and are placed at a sub-divisional area of the
states. There are states that have implemented a relatively higher number of these kinds of
jails and have a very well-organized set-up of prisons even though it is of a lower level than
the other jails. For example, Maharashtra has 100 sub jails, Andhra Pradesh has about 99
and Tamil Nadu has 96sub jails.
4. Women’s Jails- These are those prisons that look forward to housing exclusively female
prisoners. These prisons may be existing at a sub-divisional, central and district level. India
has a total of 20 Women’s Jails in India with capacity of 5200 women and has an occupancy
rate of 60%. As Women’s Jails have a very limited capacity, women prisoners in India are
often housed in other prisons. Maharashtra has about 5 women’s jails, whereas Kerala and
Tamil Nadu have about 3 jails each.
5. Borstal School- They are a type of a youth detention centre and are used for incarcerating
and housing minors and juveniles. Borstal schools make sure that juveniles and other
young offenders are ensured sufficient care, welfare and rehabilitation. This is to ensure
that they are kept in an environment that is volatile and safe. The juveniles in such schools
are provided with reformational training, education and moral influence that conducive
and prevent crime rates. Tamil Nadu is known as having the highest occupancy with about
678 inmates.

FUNCTIONS-

The socio-legal system of India is always based on non-violence, mutual respect for each other
and treating other humans with dignity. The major lesson that Indian laws seek to implement that
just because a person commits a crime, that does not mean that the person stops exists being a
human or can be deprived from personal liberty. The prisoners are also entitled to have human
rights, because prison torture is a confession to the failure of the justice system.

This has been established through Article 21 of the Constitution of India that guarantees
personal liberty and hence prohibits all kinds of inhuman, cruel and degrading treatment towards
any person whether an Indian National or an alien. Any violation of this article would attract Article
14 of the Indian Constitution that encapsulates the right to equality and equal protection under the
law. Further, the rights of a prisoner is also dealt with under Prison Act, 1894. Any excess treatment
that is committed to a prisoner by the Police would attract the wrath of the legislature and the
judiciary. Therefore, the Indian Judiciary especially the Supreme Court has been increasingly
efficient and vigilant against possible encroachments on the rights of the prisoners.

Prisons have the function of upholding the rights of the prisoners as enlisted below-

 Right to Legal Aid- Human rights and personal liberty would see no use if a person isn’t
provided with appropriate legal aid to enable that they have access to justice in case of any
gross violation of their rights. Legal Aid has become something that is no longer a matter of
charity but is something that constitutes a legal right. The basic notion that Legal Aid
underlines is that justice should be administered properly and that it should be easily
available and accessible. It should be made sure that it is within the reach of everyone who
wishes to enforce their legal rights. Legal Aid seeks to offer an opportunity to the Indian
society for the redressal of grievances of the poor and the needy and thereby establish the
foundation of Rule of Law.

Judiciary has played a very vital role in the development of the concept of legal aid and
thereby leading to the expansion if its scope.

In the case of M.H. Wadanrao Hoskot v. State of Maharashtra, the Court has held that the
right to legal aid is one of the basic necessities of fair trial.
  Right to Speedy Trial- This is one of the most important fundamental right of a prisoner that
is implied through Article 21 of the Indian Constitution. This aspect covers social interest as
well as public interest.

In the case of Hussainara Khatoon v. State of Bihar, it was seen that a large number of men,
women and juveniles are still in prison awaiting trial. Therefore, this case laid down the
foundation for ensuring speedy justice.

In the case of Mathew Areeparmtil and other. v. State of Bihar, it was seen that a large
number of people who have committed offences were still awaiting trial for trivial
offences. In this case, directions were passed to release such persons.

The application for bail was allowed and the Supreme Court issued the following
directions-

1. If the trial for the offence committed is punishable with an imprisonment for a period that
exceeds 7 years, it does not matter if the accused is in jail or not, the court would close the
prosecution evidence within a period of two years from the date of the record of the plea.
2. If the accused has been in jail for a half of the period of punishment as mentioned in the
offence, the trial court has been vested with the power of releasing the accused on bail on
certain conditions.
3. If the offence has been under trial that is punishable with an imprisonment for a period
that exceeds 7 years, it does not matter if the accused is in jail or not, the prosecution must
close the evidence when three years end from the date of recording of the plea.

 Right against solitary confinement and Protection from torture- Separate or solitary
confinement of the prisoner, or the complete isolation of the prisoner from the entire
human society is prohibited. Torture is something that is considered normal by an
investigating agency for the extraction of confession. This morally shows the imposition of
the stronger over the weaker.

Non INSTITUTIONAL TREATMENT OF OFFENDORS

Parole
Parole is thus a grant of partial liberty or lessening of restrictions to a convicted prisoner,
but released on parole does not, in any way, change the status of the prisoner. Parole is a
penal device which seeks to humanize prison justice. It enables the prisoners to return to
the outside world on certain conditions. The main objects of the parole as stated in the
Model Prison Manual are:

a) To enable the inmate to maintain continuity with his family life and deal with family
matters
b) To save the inmate from the evil effects of continuous prison life.
c) To enable the inmate to retain self-confidence and active interest in life.[26]
Fine
Fines are a common punishment for an assortment of violations, particularly for less
serious offences committed by first-time offenders. Offences that are normally rebuffed
with fines incorporate minor drug possession, fish and game violations, traffic violations,
first-time drunken driving cases. In more serious offences or where the litigant has a
criminal record, many judges combine fine with other punishment, for example,
detainment, community service, suspended sentence and probation.

Suspended Sentence
As another option to detainment, a judge can issue a suspended sentence where he or she
either forgoes passing on a sentence or settles on a sentence yet avoids doing it. This is by
 and large saved for less serious offences or first-time offenders. Suspended sentences can
be unconditional or conditional.

Probation
Another alternative to prison is probation. Like a suspended sentence, probation
discharges a defendant back into the community, but he or she does not enjoy the same
level of freedom as a normal citizen. Courts normally allow probation for first-time or low-
risk offenders. Statutes decide when probation is conceivable, yet it is up to the
condemning judge to decide if to really allow probation.

Probation accompanies conditions that confine conduct, and if the probationer disregards
one of those conditions, the Court may repudiate or change the probation. Courts have a
great deal of watchfulness while probation conditions.
Open Prisons in India

An open prison can be understood to mean any penal establishment in which the prisoners
serve their sentence with minimal supervision and perimeter security, and are not locked up in
prison cells. The concept is based on principles of self-discipline and “trust begets trust” which, if
managed properly, can reform the human resource. The philosophy on the basis of which the open
prison exists is reflected in the two dictums of Sir Alexander Paterson. First, a man is sent to prison
as punishment and not for punishment. Second, one cannot train a man for freedom unless
conditions of his captivity and restraints are considerably relaxed. (Paranjpe 2001).
The concept partakes of the best features of the concepts of parole, probation and closed prisons.
However, not all prisoners are to be transferred from closed institutions to open prisons. Neither a
routine process of prisoner transfer is envisaged. Invariably, a screening committee is tasked with
the job of ascertaining the mental and physical fitness, behavioural conduct, reformatory potential,
etc, of inmates who complete a minimum mandatorily prescribed period of incarceration in closed
prisons for eligibility for transfer to these semi-open/open institutions.
The Model Prison Manual (BPR and D 2003) classifies open prison institutions in India into three
types:
1. Semi-Open Training Institutions
2. Open Training Institutions/ Open Work Camps
3. Open Colonies
These institutions are graded in the increasing order of liberty granted to inmates and their
potential for reformation and reintegration into the society. All these institutions have a properly
demarcated area beyond which inmates are not allowed to go.
Semi-Open Training Institutions are generally attached to the closed prisons just beyond
the enclosed perimeter and are relatively more under security surveillance. Those prisoners who
show reformation potential are made eligible for further transfer to open prisons and colonies.
Open Training Institutions/Work Camps are started in places where activities, like digging
canals, water channels, construction of dams, roads, government buildings and prison buildings,
projects of land reclamation, land development and bringing uncultivated land under cultivation,
soil conservation and afforestation, can be organised.
In Open Colonies, inmates are allowed to bring their family members. Inmates and their
family members are given opportunities to work in agriculture or allied fields or in such cottage
industries or other allied suitable means of livelihood as can be conveniently organised. Wages paid
to the inmates and family members are at par with outside wages. The inmates are to maintain
themselves and their families with the wages earned by them in the colony.
Minimum standards, as prescribed for the closed institutions, regarding accommodation,
equipment, sanitation, hygiene, medical services, diet and welfare services, are maintained. Wages
at these places are higher than those at the closed prisons. Extra concessions like remission, leave
and review are granted to the inmates of these open institutions. There are no restrictions on the
prisoners in respect of reading materials and are allowed to pursue studies through open
universities. A programme that is suitable for inmate’s training is organised and cultural and
vocational facilities are also provided.
In independent India, the first ever open-air camp was set up and attached to the Model
Prison at Lucknow in 1949. The state of Uttar Pradesh further established an open prison camp in
1953 for the construction of a dam over Chandraprabha river near Varanasi. During the 1950s,
open prison camps were set up at various places such as Chakiya, Naugarh, and Shahgarh. In
Rajasthan, the first open prison camp was set up in Sanganer in 1963. These camps were popularly
called Sampurnanand camps after the reformist politician Sampurnanand who in his capacity as
chief minister of Uttar Pradesh in the 1950s and as governor of Rajasthan in the 1960s vigorously
promoted the idea (Paranjpe 2001).
These were early examples of the open model where prisoners were allowed to engage in
agriculture, forestry, cottage industry and public utilities related works. They were paid wages in
lieu of their labour. The inmates were called “mazdoor” instead of convicts.
With a view to appreciate the usefulness of open prisons as a correctional measure of treatment of
offenders, it shall be pertinent to look at the functioning of some of the successful open prisons of
India.
Concept of after-care:
The term ‘after-care’ refers to the programme and services organized for the rehabilitation
of inmates released from correctional institutions. It presupposes a period of stay and treatment in
an institution which may be reformatory, certified school, Borstal, home or a prison. The concept of
after-care has got widened with the passage of time and now measures taken to rehabilitate
persons suffering from physical or social disabilities also fall within its ambit. The report of the
Advisory Committee on After-care sponsored by the Central Social Welfare Board suggests that
after-care services should extend not only to ex-inmates but also to those suffering from physical
or social handicaps. Thus ‘after-care’ may be defined as any programme or services organized for
the rehabilitation of (a) inmates released from institutions or (b) persons suffering from physical or
social handicaps on account of circumstances beyond their control. It is voluntary when the
exinmate or the destitute can by his free volition accept or reject it. It is compulsory where the law
makes it obligatory upon an ex-inmate or a destitute to come under the supervision of the
aftercare organization. After-care has not been compulsory in India as there is no legal compulsion
for an ex-inmate or a destitute to accept the services provided by an after-care institution. The
position is, however, different in the United Kingdom where the law provides for compulsory after-
care for certain categories of offenders.

Rights of Prisoners

The word prisoner means any person who is kept under custody in jail or prison because
he/she committed an act prohibited by law of the land. A prisoner also known as an inmate is
anyone who against their will is deprived of liberty. This liberty can be deprived by forceful restrain
or confinement. Prisoners rights deal with the rights of the inmates while behind bars. Prisoners
have basic legal rights that can't be taken away from them.[1]The basic rights include right to food
and water, right to have an attorney to defend himself, protection from torture, violence and racial
harassment. Section 1 of the Prison Security Act1992, defines the term prisoner. The word prisoner
means any person for the time being in a prison as a result of any requirement imposed by a court
or otherwise that he be detained in legal custody. This paper presents the rights of the prisoners in
detail with related case laws.

2. International Human Rights Law:

International human rights laws protect people from racial discrimination, from torture and from
enforced disappearances. They also recognise the rights of specific groups of people, including
women, children, and people with disability, indigenous peoples and migrant workers. Some of
these treaties are complemented by optional protocols that deal with specific issues or allow
people to make complaints.
a. UN Charter:
The charter of the United Nations was signed on 26 June 1945, in San Francisco, at the conclusion
of the United Nations conference on international organization, and came into force on October 24
1945.
Basic Principles For The Treatment of Prisoners[2] was adopted and proclaimed by General
Assembly resolution 45/111 of 14 December 1990. The principles are as follows:
#Prisoners shall be treated with inherent dignity and valued as human beings.
#No discrimination on the grounds of race ,sex, colour, language, religion, political, national, social
origin, property, birth, or other status.
#Respect the religious beliefs and cultural precepts of the group to which the prisoners belong.
#The responsibility of the prisons for the custody of the prisoners and for the protection of the
society against crime and its fundamental responsibilities for promoting the well-being and
development of all members of the society.
#All prisoners shall retain the human rights and fundamental freedoms set out in UDHR, ICESCR,
ICCPR and the optional protocol as well as such other rights as are set out in other United Nations
covenants.
#Right of the prisoners to take part in cultural activities and education aimed at the full
development of the human personality.
#Abolition of solitary confinement as a punishment, or to the restriction of its use, should be
undertaken or encouraged.
#Prisoners to undertake meaningful remunerated employment which will facilitate their
reintegration into the country#s labour market and permit them to contribute to their own
financial support and to that of their families.
#Access to health services without discrimination on the grounds of their legal situation.
#With the participation and help of the community and social institutions and with regard to the
interest of victims, favourable conditions shall be created for the reintegration of the ex-prisoner
into society.
#The above principles shall be applied impartially.
b. International Bill of Rights:
I. Universal Declaration of Human Rights:
In 1948 a movement was started in the United Nations in the form of Universal Declaration of
Human Rights which was adopted in the General Assembly of the United Nations. This organic
document is also called as Human Rights Declaration. This important document provides some
basic principles of administration of justice. Among the provisions in the document are follows:
#No one should be subjected to torture or to cruel, inhuman or degrading treatment or
punishment[3].
#Everyone has the right to life, liberty and security of person.
#No one shall be subjected to arbitrary arrest, detention or exile.
#Every one charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.
ii. The International Covenants On Civil And Political Rights, 1966:
The ICCPR remains the core instrumental treaty on the protection of the rights of the prisoners.
Following relevant provisions of the covenants are as:
#No one shall be subjected to cruel, inhuman or degrading treatment or punishments.
#Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest
or detention.
#All persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person[4].
#No one shall be imprisoned merely on a ground of inability to fulfil a contractual obligation.
C. UN Core Conventions And Specific Instruments:
# Standard Minimum Rules For The Treatment of Prisoners:
Amnesty International in 1955 formulated certain standard rules for the treatment of prisoners.
Some important relevant rules are as follow:
# Principle of equality should prevail; there shall be no discrimination on grounds of race, sex,
colour, religion. Political or other opinion, national or social origin, property, birth or other status
among prisoners[5].
# Men and women shall so far as possible be detained in separate institution;
# Complete separation between civil prisoners and persons imprisoned by reason of criminal
offence; young prisoners should be kept separate from the adult prisoners.
# All sorts of cruel inhuman degrading punishments shall be completely prohibited.
# Availability of at least one qualified Medical officer with the knowledge of psychiatry.
# Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment:
#State party has to take effective legislative, judicial and other measures to prevent acts of torture.
#No state party shall expel, return or extradite a person who is in danger of being subjected to
torture.
#State party should ensure that all acts of torture are offences under its criminal law.
3. Indian Law:
A. Constitution:
The rights guaranteed in the part III of Indian Constitution are available to prisoners; because a
prisoner is treated as a person in prison.[6]
Article 14 contemplated that like should be treated alike, and also provided the concept of
reasonable classification. This article provides the basis for prison authorities to determine various
categories of prisoners and their classification with the object of reformation. Indian constitution
guarantees six freedoms to citizens of India, among which certain freedom can#t be enjoyed by the
prisoners. They are #freedom of movement#, #freedom to residence and to settle# and #freedom
of profession#. But other freedoms conferred in this article are enjoyed by the prisoners.
Moreover, constitution provides various other provisions though cannot directly be called as
prisoner#s rights but may be relevant. Among them are Article 20(1), (2), and Article 21 and Article
22(4-7).
B. Enactments And Rules:
1. The Prisons Act, 1894:
This act is the first legislation regarding prison regulation in India. The following are some of the
important provisions regarding prisoner#s rights:
#Accommodation and sanitary conditions for prisoners.
#Provisions relating to mental and physical state of prisoners.
#Examination of prisoners by qualified medical officer.
#Separation of prisoners for male, female, criminal, civil, convicted and under trial prisoners.
#Provisions for treatment of under trials, civil prisoners, parole and temporary release of prisoners.
2. The Prisoners Act, 1990:
#It is the duty of the government for the removal of any prisoner detained under any order or
sentence of any court, which is of unsound mind to a lunatic asylum and other place where he will
be given proper treatment.
#Any court which is a high court may in case in which it has recommended to government the
granting of a free pardon to any prisoner, permit him to be at liberty on his own cognizance.
3. The Transfer of Prisoners Act, 1950:
This act was enacted for the transfer of prisoners from one state to another for rehabilitation or
vocational training and from over-populated jails to less congested jails within the state.
4. The Prisoners (Attendance in Courts) ACT, 1955:
This Act contains provisions authorizing the removal of prisoners to a civil or criminal court for
giving evidence or for answering to the charge of an offence.

Meaning and Scope of Victimology

Victimology?

The term “Victimology” was first used by French lawyer Benjamin Mendelsohn in the year
1947. Victimology is the study of a crime from the point of view of the victim or the sufferer. A
varied view exists as to what should come under the concept of Victimology. Some people are of
the view that victimology is a subfield of Criminology itself. Another view is that victimology should
be considered as a separate field of inquiry, independent in itself. One more question which is
posed now and again is, what is the scope of victimology and how many victim related concepts
can be placed under victimology. Some people are of the view that only the relationship between a
victim and the offender should fall within the scope of victimology. Others believe that apart from
the relationship between the victim and the offender, concepts like needs of the victim, the
function of the institution which respond to these needs and the role of a victim should also fall
within the purview of victimology. One more issue which has not been given the attention it
deserves is the breadth of the definition of term “victim.” One approach is to limit the definition to
victims of only traditional crimes like rape, murder, robbery, etc. Others believe that since the field
is specifically focusing towards the victims, the definition should be broader which even covers
various groups like immigrants, prisoners, people who are charged with a crime but proved guilty,
prisoners, etc.
The concept of victimology is rather new in the realms of the legal field. One of the major roles of
victimology is to increase the understanding regarding impacts of a crime on a victim. The aim of
this field is to study the crime in a manner which gives importance to responsibility and role of the
victim and his offender.
Today, the definition of a victim more or less includes any person who suffers any loss or injury due
to the action of any other person. The exact meaning of victimology can be said to be the
relationship between the victim and the offender.
According to Viano, there are several terms which are related to the victims and as a whole to
victimology.
 Victimhood- the state of being a victim
 Victimization- the action of victimizing a person
 Victimizer- the offender or the person who victimizes other
As victimology is the relation between the offender and the victim, there can be two major sub-
areas in the field of victimology.
 The first is based on the nature of the relationship between the victim and the offender
and it relates to the scientific study criminal behavior.
 The other sub-area deals majorly with the role of the system of compensation and
restitution to the victim.
Scope of Victimology
Shinder, 1982– “…it investigates the relationship between the offender and the victim in crime
causation. It deals with the process of victimization, of becoming a victim, and in this context
directs much of its attention to the problem victim-offender, sequence, i.e., the question of
whether or not victimization can have criminogenic effects or can encourage crime”.
The definition given above makes it amply clear that the primary focus is on the victim.
They are predominant figures in the field of the study. The main subject matter of the study of
victims is the legal relationship which the victim has with the legal system of the country.
Victimology has come of age. At least in words, the needs and rights of the victims are being
acknowledged, if not in deeds. The victims have been in most cases been used as a political tool
depending on the circumstances in which the crime was committed. But in a very short time, the
concept of victimology has gained momentum and moved from the field of a few pioneers to the
glittering chambers of the United Nations.

Rights of Victims of crime

In general, a victim's rights can be classified in to following classes:
Right to be treated with self-respect
Right to notification.
Right to be present.
Right to be heard.
Right to rational protection from terrorization and injury.
Right to restitution.
Right to information.
Right to compensation especially for crimes of violent nature.
Right to speedy proceedings
Rights to privacy

In our Indian criminal justice system, a victim suffers everyday as the crime is committed
against him/her and also because he/she has to undergo a lot of manipulation of the
existing system. Whereas, the person who is found guilty is sheltered, nursed, lighted, and
entertained in prison for which the state gives the expenditure from the taxes that the
victims of crime are not provided with.

Constitution Of India-Rights To Victims:

Our Constitution of India is considered to be the supreme law of the land and the
mother of all existing laws. The Indian Constitution includes some provisions for victim's
rights, their protection, and respects the idea of victim compensation. Article 14 and Article
21 inculcates some vital fundamental rights that are to be read with Directive Principles of
State Polices mentioned in Articles 39A, 41, 46, and 51C.

As per Article 39A the state offers free legal assistance and guarantee for promoting justice
on the grounds of equal opportunity. Article 41 of the Indian Constitution is relevant to the
concept of victimology in a very broad manner as it commands inter alia so that the state
might start making provision to secure public support in cases of incapacitation and also in
cases of unjustifiable want.� If one empathetically interprets and imagines creatively one
can discover the early stages of constitutional victimology. Moreover, Article 21 assures
against unfair deprivation of life and liberty by compelling the state to compensate victims
of criminal violence.

Victim's Rights Under Indian Penal Code:

The Indian Penal Code is applicable to all Indian citizens who commit crimes within
the Indian Territory. It is a list of offences and its punishment. The Code describes offence
as an act or omission punishable by law. One of the major advantage to victims protection
was received by the Criminal Law Amendment Act, 2013 since, for the first time, it had
introduced a number of new crimes for protection of women against acid attacks (Sec.
326A20 and 326B21), sexual harassment (Sec. 345A), voyeurism (Sec. 345C) and stalking
(Sec. 345D) and it also widened the scope of definition of rape (Sec. 375) in IPC.

The two significant remedies of criminal justice system are compensation and restitution
which now, have become civil remedies during the modern period. This invited the
attention of various jurists to analyze the problems of victims from a different perspective
to improve their position and bring them on equivalence with the accused.

Victim's Rights Under Code Of Criminal Procedure:

Indian criminal law in a broad sense includes both the substantive criminal law and
the procedural criminal law. Here, the Substantive criminal law describes offences and
punishments for each of those offences, whereas the procedural criminal law manages the
substantive law. In any circumstance where the procedural criminal law is absent, the
 substantive criminal law would be considered as almost worthless.
The basis of the process that consists plea bargaining are found in Section 206(1) and
206(3) of the CrPC. Plea Bargaining as a concept was introduced by The Law Commission of
India in its 142nd, 154th and 177th reports. In these reports, the Committee advocated
that the concept of plea-bargaining should be introduced into the Indian criminal justice
system to enable the past resolution of criminal cases and lessen the burden on the courts.

The victim is represented by the Public Prosecutor who is appointed by the state. A proviso has
been added to Section 24(8) which allows the victim to choose an advocate of his choice for
assisting the public prosecutor according to the amendment of 2008.

However the Code identifies few rights that favor the victims but they are not as operative as those
of rights of accused. For example, the code grants a right to victim to choose his own private lawyer
but the authority given to that lawyer is limited to appoint where he can only submit the written
arguments after the evidence is recorded and only after the court permits.

Rights Of Victims During Filing Fir:

The police, being the primary authority plays an important since they are the first
authority to examine the case from a victim's perspective. Regrettably, in India the victims
are still provided with the treatment as mentioned in the United Nation Handbook on
Justice for Victims. The police, despite of being the primary authority to investigate into the
case, are totally unaware of the international developments in areas such as victimology
and well treatment that should be given to the victims.

Negative and ill treatment by police themselves will form a wrong perception of Indian
criminal justice system in the eyes of victims because as stated by United Nation
Declaration, treatment with compassion and respect for their dignity is no doubt found
missing at this stage. Section 25 of the Indian Evidence Act, No confession made to a police
officer shall be proved as against a person accused of any offence, is not taken seriously
and the government and the police department end up following the policy of sanitizing
the police to a better treatment of victims.

Rights Of Victims During Judgement:

In a criminal case, after the judgment is pronounced, the victim's role in that case ceases to
exist. But the victim should be offered with some rights after the judgement in order to ensure
complete justice.

Compensation to victim:
while pronouncing the judgement, the victim should be given the right to get compensation.
According to section 357(3) of the Code of Criminal Procedure, the court has the right to grant
compensation for any loss or injury suffered by the victim, even in cases where fine was not levied
upon on the accused.

The Supreme Court of India in Harikishan & State of Haryana v. Sukhbir Singh observed that courts
in India rarely make use of section 357 of CrPC to grant compensation to victims of crime. Keeping
in mind the recommendations given by the Malimath Committee and the Law Commission, the
legislature inserted a provision in section 372 of the Code through the Amendment Act of 2008 to
provide victims their right of appeal.
Compensation under the Indian Constitution
The Apex Court has continuously interpreted the Constitution of our country in a way to protect life
and liberty of people and uphold their rights in the society. One of the most important Articles of
our Constitution is Article 21. It has been interpreted in numerous ways by the Courts in India. The
Supreme Court has interpreted Art. 21 in a manner which also includes compensation to victims
under its purview. In a landmark case, the Supreme Court suggested that the National Commission
for Women should come up with a new scheme which provides a compulsory compensation to
victims of sexual offenses.

The Law Commission of India has also supported the concept of compensation to victims, through
its many Law Commission reports like the 142nd, 144th, 146th, 152nd, 154th, and the 156th Report,
which are of prominence in the field of victimology and victim compensation. Following various
judicial pronouncement and Reports, the legislature added Section 357A to the Code of Criminal
Procedure Code in the year 2009. In its 42nd Report, the Fifth Law Commission dealt with three
patterns of compensating a victim of crime as reflected in the Criminal Codes of countries like
Germany, France, and Russia. The three patterns are:

1. Compensation by the State.

2. Compensation by the offender by imposing some sanctions.
3. Duty to repair the damage caused by the offender, i.e., restitution.
The concept of Victimology is gaining importance in the field of Criminal Justice System slowly but
surely. The Judiciary and the Legislature also need to put in a little more efforts to help the growth
of the concept, because though rules and provisions exist, the plight of the victims, not only in India
but all over the world has not improved much (especially in underdeveloped and developing
countries). The victim is scarred for life as their position in the society changes due to the impact of
the crime. It is the state’s duty to counter-balance the sufferings of various victims all over the
country. If the status of victims is alleviated, it would be the first step in the reduction in crime and
hence will lead to a certain amount of control over the crimes.