THE THEORY OF CRIMES IN THE LIGHT OF RETRIBUTIVE THEORY AND SOCIOLOGICAL THEORY OF CRIMES CONCERNING VIOLATION OF HUMAN RIGHTS OF CHILDREN BY - KAJAL PRIYA
THE THEORY
OF CRIMES IN THE LIGHT OF RETRIBUTIVE THEORY AND SOCIOLOGICAL THEORY OF CRIMES CONCERNING
VIOLATION OF HUMAN RIGHTS OF CHILDREN
AUTHORED BY
- KAJAL PRIYA
LL.M
Chanakya National Law University, Patna (Bihar)
Abstract
The word
“Criminology” was originated in the year 1890. Criminology is a branch of criminal science that treats crimes and
their prevention and punishment[1]. Criminology
is concerned with conduct of human behaviour that are prohibited
by society. It is, therefore, a socio-legal study that seeks to discover the
causes of criminality and the remedies. The school of criminology,
as explained by Prof.Sutherland is the theory dealing with causation of crime
and measures to curb it. Each school focuses on different aspects to delve into
the causation of crime and remedies. In an endeavour to search for an
explanation for crime, several theories have been propounded. Many factors ranging
from heredity to economics, have been emphasized. Criminological Theories are an integral
part of the subject matter of criminology. Theory “is a term used to describe facts on which right of action is claimed
to exist”[2]. Therefore,
a theory is presented as possibly true, but that is not known to be true. The
article underlying the exemptions provided in IPC throws light that the
rationale of the exemption is to a significant extent, that a child becomes
recidivist due to sociological factors and not because of their deliberate
intent. The focus is on different theories of sociological school vis-à-vis
retributive theory. Finally, after analysis, it concludes on the note that
reformation theory is best for children in the light of sociological school.
Keywords: Criminology, Theory, Recidivist, Sociological Factors, Retributive
Introduction
Laws, theories are made with the aim
to make society a more civilised place. In a society people of different age
reside and among them the most vulnerable class, is a child. A child is a
priceless asset of any society and plays an inevitable role in building a
developed nation. The future of a country depends on how its children are being
brought up to become the future torchbearers. However, some children have to
borne the brunt of poor socio-economic environment and later on going off track
from the mainstream society. The Indian Penal Code, 1860 Section 82 entails
that children below seven years of age are exempted from any kind of criminal
liability. The article discusses about that whether punishing
individuals because they have acted wrongly address the underlying causes and
social conditions that have led to criminality in the first place, and that whether
punishment needs to incorporate a more rehabilitative approach and secondly is reformative
theory better than retributive within all age groups!
Chapterization
First section
deals with retribution theory. Followed by sociological theory, including
strain and labelling theory. The subsequent parts are related to human rights,
Juvenile Justice Act. At the end recent approach by highlighting the current
judgments and finally conclusion.
Significance
of Study
The
association between crime and age group is a major discussion, as the theories
of criminology relies on this data. According to reports, the majority of crime
is committed by young adults and teenagers. For example, 45% of those arrested
in U.S.A were in the age gap of 15- 25 years old in the year 1990[3].
Figure 1: Age Distribution of
Homicide Offenders Across Three Historical Periods, United States
Source: Jeffery T. Ulmer, Darrell
Steffensmeier, The Age and Crime Relationship, Sage Publication.
The above graph depicts that
irrespective of the year, the maximum crime is committed by the people in the
age group below 25.
Therefore, it is an attempt
to venture the analysis of crimes committed by people coming under the age
group below 25 years and the possible theory of punishment suitable to bring
them back on mainstream.
Retribution
Theory
Retribution
theory is based on two principles, desert and proportionality. According to the retributivists,
the punishment has to be proportional to the crime committed. Retributivism is
backward-looking. Retributivists do not punish a criminal for the act they
might do in future, but only punish for the crimes one has committed and to the
extent a person deserves. The principle on which this theory lies is we are doing
injustice if we are not punishing as what they deserve[4] to
be punished. The punishment meted out should remove the unfair advantage.
Retribution
theorists asserts that individuals are rational beings, capable of making
informed decisions, and therefore rule breaking is a thoughtful decision. It has
also been suggested that punishing individuals because they have acted wrongly
does not address the social conditions and that punishment needs to incorporate
a more rehabilitative approach[5].
Sociological
Theory
This
theory assumes that criminals are product of society. The result of societal
factors is so immense that the people embrace criminality or keep away from it.
Prof. Sutherland according to his studies, drew the following conclusions:
1. Criminal
behaviour is learnt and not genetic.
Ambition
+ resources = Results in fulfilment of ambition, that gives lot of prestige
We
humans want to reach higher echelons, and when this cannot be fulfilled the
deviance, as an alternative method of achieving goal can be observed. In
Maslow’s theory, which is a psychological theory can be here related. The
theory depicts in a pyramidical structure the wants of humans and it’s
increasing nature. First, people achieve their basic needs, then slowly goes on
scaling pyramid with finally reaching self-fulfilment needs. Self-fulfilment
need is fulfilled when meet all their life’s desire. By comparing the Maslow’s
theory and sociological theory it can be deduced that it is when a person
fulfils all their basic needs that they achieve self-fulfilment, highlighting
that it takes efforts and time in finally reaching top most of the pyramid. If
in situation a person couldn’t reach up they might go off-track. As, Maslow believed that people have a desire to
be self-actualized.
Figure
2: Maslow’s theory
The criminality is also
learned from “multiple-factor” approach. Multiple factor approach emphasizes
that when factors cumulatively result in influencing a person to commit
unlawful acts, example Mobility: It is due to rapid growth in urbanisation that
led to increase in movement through the ease in travel facilities, that people
come across strangers, and gives rise to new opportunities to commit crime, culture
conflict: The impact of old values, new values may create culture conflicts, family
background.
Strain
Theory
Robert
k. Merton argues that deviance results from society itself and not from
pathology. Aspiration and opportunity disjunction create strain theory of
deviance. He states that there are institutionalised means and cultural defined
goals. Institutionalised means are the ways of attaining success, it is institutionalised
because the ways are accepted everywhere. Cultural defined goals are the
success. It adds that if success is given undue importance it paves ways of
achieving through any means and normlessness arises. Therefore, as the strain
theory suggests that there lies a disjunction between aspiration and
opportunity and that leads to deviance, and failure leads to being labelled as
not successful people. This culminates into deviant behaviour, and the person wants
easily earned success to get recognition in society.
Prof.
Becker discussed two types of deviance:
Primary
deviance: First act of deviance. It is sometimes normalised also.
Secondary
Deviance: When the individual accepts the label and this results in occurrence
of criminal behaviour frequently.
Process of
labelling
Primary
Labelling
Secondary
deviance, Recidivism
Therefore,
if prior to secondary deviance there is a scope of rehabilitation then that can
be taken help from.
Prof. Lemert
a sociologist from university of California, studied the coastal areas of Canada,
to search for an answer, why the specific area has chronic problem of stammering.
He suggested that the problem arised because of given undue importance to
ceremonial speech-making. Failure to speak well was considered as humiliation.
Children with the slightest speech problem used to be so conscious of their
parents’ expectation to perform well in front of masses that it resulted in
children becoming over anxious about their own abilities. It was this anxiety leading
to chronic stuttering.
Prof. Lemert
concluded by this analogy that it was the social pressure to speak well that
had the implication of developing problems related to stuttering. In this example, chronic stuttering
(secondary deviance) is a response to parents’ reaction to initial minor speech
defects (primary deviance)[6].
American
sociologist Howard S. Becker asserts in the light of the labeling theory that, “Deviance is not a quality of the act the
person commits, but rather a consequence of the application by others of rules
and sanctions to an offender”[7].
Human
Rights
Human
rights are basic rights. They are universal, applicable to every person
irrespective of age, that is from the time a person is born to burial. Manifold
reasons, like transformation of the family structure, globalization, mass migration,
etc all have strong impacts on children. Because they are still developing,
children are especially vulnerable. The effects of disease, and poverty
threaten the future of children[8].
The
Universal Declaration of Human Rights (UDHR), 1948, it defines human rights as “rights
derived from the inherent dignity of the human person”. Some of the features of
human rights are:
I.
Human Rights are universal– The term universal means
all people irrespective where they live in the world are entitled to them. The
universality can also be found to be stated under Article 1 of Universal
Declaration of Human Rights (UDHR), “All human beings are born free and equal
in dignity and rights”.
II.
Human Rights are indivisible – It signifies human
rights are civil, political, economic, social or cultural in nature, and are
all inherent to the dignity of every human person.
III.
Human Rights are interdependent – It highlights the
nature of human rights being dependent on other requirements. An example can be
right to education dependence on right to health, if a person is uneducated,
unemployed the survival and existence also becomes a challenge, and maintenance
of proper health is difficult.
IV.
Human rights are not absolute - Like all rights, they
cannot be exercised in unfettered manner. They may be restricted in the
interest of public peace, security.
V.
Human Rights are dynamic – It means the ambit of human
rights cannot be curtailed or be limited, it’s scope always need to be
expanded, in tune with changes of time.
International
human rights law has made it clear that the best interests of the child are
paramount. The General Comment 10 to the United Nations Convention on the
Rights of the Child stresses on the need to provide special considerations
applicable to juveniles with respect to State’s justice system. For example,
children must be subjected to criminal procedures in conformity and taking into
consideration their age, children who are convicted of criminal offenses must
be separated from adults.
In
C.Johnson v. Jaimaica[9],
it was held by human rights committee that children who commit criminal offenses under the age of 18, may not be sentenced
to the death penalty.
In Assenov v. Bulgaria[10],
the European Court of Human Rights ruled that it is important for the
authorities to consider the tender age and in ensuring that child criminal
suspects are brought to trial within a reasonable time.
In S.C. v. the United Kingdom[11],
the European Court of Human Rights held special tribunals or criminal
procedures may be necessary
on account of the minor’s intellectual age, or of the nature of the penalty he
faced.
The
Inter-American Court has found violations of the rights of the child if State
fails to provide due process, and humane treatment
to arrested minors[12]
(Bulacio v. Argentina).
Juvenile Re-education Institute v. Paraguay[13], the Court also found that the State
is responsible for establishing a specific system which must include certain
characteristics such as the possibility of dealing with children without
resorting to judicial proceedings, and assessing the psychological well-being
of the child.
Juvenile
Justice Act, 2006
The Act is based on rehabilitation
and reform of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The Act provides that children in conflict with law need care and basic needs by
providing proper development, in the best interest of children and for their
rehabilitation.
Recent Judgments
Roshan Lal v. State of Himachal Pradesh[14] - In
this case it was stated that among various grounds on which parole is provided,
is that prisoner should be entitled to maintain their family ties. This is the
reason that time should be given to maintain their social contact. There are
many theories of criminology - deterrence, retribution, reformation. When
reformation is recognised, it provides justification for giving short periods
of leave, on parole underlying humanistic approach towards those languishing in jails. Those
who leave prison and not having link with network of support, without
employment prospects, and without resources, stand a significantly higher
chance of failure. When offenders go back to criminal activity upon release,
they often do so because they lack hope of merging into society as accepted
citizens. Every human being in a civilized society deserves it be treated with
dignity, and it being the crux of protection of human rights. However, it must
be noted that while granted parole, public interest has also to be considered like
those of habitual offenders.
Harjinder Singh v. State of Himachal Pradesh[15] – Defining who are hardened
criminal, it was said that for these people committing crime has become a way
of life and exhibit tendency to re-commit the offence. For an individual who
has committed a serious offence for which they are convicted, but it is also
found that it is the only crime he has committed, then they are not to be
treated as hardened criminal. The signs of reformation if is observed then mere
nature of the offence committed by him should not be a factor to deny parole
outrightly. However, stricter standards in mind while judging their cases on
the parameters of habitual offenders.
Conclusion
From
section 11 of the Indian Contract Act, 1872, it becomes
clear that a person will be competent to contract if he has attained the age of
majority. From section 10 and section 11 of the Indian
Contract Act, it is vivid that an individual by reason of infancy, is
incompetent to enter into contract, under the Indian Contract Act.
Consequently, a minor’s agreement is void
ab initio and cannot be enforced by either of the party to the contract.
In Mohri
Bibi v. Dharmodas Ghose[16] (1903) - The court held that unless the parties have
competence under section 10, no agreement is a contract. According to Section 30
of the Indian Partnership Act, 1932,
a minor cannot be a partner but can get the benefits of partnership. In a 2021 case law, Priya Roche D/o Ronald Roche v G. R. Shet
S/o Late K. R. K. Shet and others[17],
though the main issue did not deal with minor entering into a contract.
However, in the case law it was mentioned that a minor entering into a contract
is void ab initio. According to T.Sivakumar
v. Inspector of Police Trivullar[18] –
The child marriage is voidable. According to Prohibition of Child Marriage Act,
2006 (Hereinafter, PCMA) being a special legislation for the purpose of
preventing the evil practise of child marriage. According to Section 3, PCMA a
child marriage is a voidable marriage. These all, precedents highlight the
inclination in favour of minors, as they being incapable of ascertaining the
practices which can be detrimental to them. The question that gives us a food
for thought is can’t this inclination towards protection of minors, be
reflected in theories of criminology. An American writer, Mr. August Drahms, in
his book “The Criminals”, was the first to provide a lucid classification of
classification of criminals[19].
Giving a glance to the Journal he points out that if a person who is a habitual
offender and post thirty years of age, must be brought to books, not with the
expectation of reformation. Adding to it, it has also been emphasised that it
is usually observed that offenders post thirty years, have been guilty of
serious offences. Therefore, they must be given strict punishments. Imprisonment
effects relationships and weakens social bonding, since the maintenance of such
bonding is based on long-term relationships. When a member of a family is
imprisoned, the disruption of the family structure affects relationships.
Finally, in the case of Jitendra Jatav v. State of UP[20] –
The High court relied on Halsbury’s Laws of England[21],
for taking reference to the object of punishment. In it, it was stated the
object of punishment encompass retribution, deterrence, reformation. The
concept of justice as an aim of punishment means both that the punishment
should fit the offence and also that offences should receive similar punishments.
Every theory of crime has it’s own significance and is an integral part of
criminal justice system. The facts and circumstances are relevant to ascertain
which principles to be incorporated. For example, Deterrence and sentences are aimed
at deterring not only the actual offender from further offences but also
potential offenders from breaking the law.
Finally, it can be concluded that all
theories of criminology have their role to play. However, sociological theory,
labelling theory serves the purpose for answering the question why children
acts as a habitual criminal and the theory which is suitable for awarding
children punishment, is reformative theory.
[1] HENRY CAMPBELL, BLACK LAW’S
DICTIONARY, 4th Ed.-29, 1968.
[2] Supra.
[3] Thomas B.Marvell, Carlisle E.
Moddy, 7,Age Structure and crime rates:
The conflicting Evidence, JOURNAL OF QUANTITATIVE CRIMINOLOGY (1991).
[4] THOM BROOKS, PUNISHMENT 20 (1st,
Taylor & Francis, 2012).
[5] Supra.
[6] Karl Thompson, Labelling Theory of Crime, REVISE
SOCILOGY, November 17, 2021. https://revisesociology.com/2016/08/20/labelling-theory-crime-deviance/
[7] HOWARD BECKER, OUTSIDERS: STUDIES
IN THE SOCIOLOGY OF DEVIANCE, (New York free Press, 1963).
[9] (592/1994), ICCPR, A/54/40 vol. II
(20 October 1998).
[10] 90/1997/874/1086, Judgment of 28
October 1998.
[11] No. 60958/00, Judgment of 30 September 2003.
[12] Judgment of Sept. 18, 2003, (Ser.
C) No. 100 (2008)
[13] Judgment of September 2, 2012,
(Ser. C) No. 112.
[14] 2021 Indlaw HP 110.
[15] 2021 Indlaw HP 117.
[16] (1903) 30 Cal 539.
[17] Appeal No.554 OF 2019.
[18] AIR 2012 Mad 62.
[19] Charles A. Ellwood, Classification
of Criminals, 1, JOURNAL OF CRIMINAL AND CRIMINOLOGY, 536-548 (1911).
[20] 2021 Indlaw ALL 1.
[21] HALSBURY LAW OF ENGLAND, 482 (4th
Edition: Vol.II, 2013).