Introduction: nature and extent of crime in India

The true extent of crime in a society is seldom known. In times when evidence-based policing
and data-driven policies are being advocated, the absence of exact data on crime could pose
serious problems. In India, crime is under-reported and under-registered.
The official picture with respect to crime in India is difficult to believe for several reasons.
While popular perception associates many cities and states in India with a crime, going by
official statistics, the country has one of the lowest incidences of crime in the world. India’s
crime rate is 379.3 per 1,00,000 persons. Cases of dacoity, attempt to murder, robbery, rape
and riot have gone down by 36.11 per cent, 16.26 per cent, 20.15 per cent, 0.78 per cent and
54 per cent respectively in 2018 as compared to the year before. Who will buy these
statistics?
A major source of the problem lies in the manner in which crime data are collected and
compiled. Crime data in India are collected and published by the National Crime Records
Bureau (NCRB). The data reported in this publication is based on the crime reported to local
police stations. Police stations getting information about crime is one thing and such incidents
being recorded as an FIR is another. This is in addition to all kinds of pressures and obstacles
on a complainant, especially when the nature of crime is that of sexual assault, domestic
violence or when it involves family members, relatives or powerful people. The resistance
put up by the police station personnel in registering such crimes or reducing the seriousness
of incident is well documented.
The NCRB data fall short of expectations in many respects. For instance, it is short on
information about crime victims and witnesses. The official statistics miss out on several key
areas: The profile of victims, their personal characteristics, victim-offender relationship, FIR
registration experiences, experiences of interacting with police, number of days and time
taken in getting FIR registered, instances of intimidation, pressure experienced from the
accused or associates including police, nature of injury, medical assistance, information about
legal aid, compensation.
A victimisation survey is often seen as a solution to such shortcomings. While many
countries have conducted victimisation surveys to supplement their official crime data, India
has yet to make a start. Such surveys reveal details that are missed out by the local police.
They describe how crime has impacted the lives of victims and convey their safety concerns.
These surveys gather information through personal or telephonic interviews with a set of
people who represent the geographical and social correlates of a city or state over a period of
time. The information thus collected may detail the victimisation suffered by a person but not
recorded by the police for a variety of reasons. The other data which are generally collected
in these surveys entail risk and vulnerability, perceptions about the local police and the views
of people about the criminal justice system.
The Crime Survey for England and Wales (CSEW) measures the amount of crime by asking
people about their experiences as crime victims. In the US, the National Crime Victimisation
Survey (NCVS) presents data that is collected from a nationally-representative sample of
about 2,40,000 interviews on criminal victimisation, involving 1,60,000 persons in about
95,000 households.
The data generated by such surveys are considered more reliable than the official statistics on
crime and this is frequently used for various policy objectives. Such surveys are conducted by
professionally-competent organisations and the state funds the processes involved in the
generation of data.
The European Crime and Safety Survey (EU ICS) is the most comprehensive analysis of
crime, security and safety in the European Union. In 1987, the United Nations Inter-regional
Crime and Justice Research Institute (UNICRI) launched the International Crime
Victimisation Survey (ICVS), which produces more comparable data across nations. These
data are available in the public domain. The public in general is encouraged in all these
countries by the state to participate in these surveys with an assurance about the
confidentiality of the information they provide.
The data generated by the state in India, in contrast, doesn’t inspire public confidence. There
are enough reasons to demystify crime and the people’s response to it in India. India-specific
yardsticks, which the NCRB does not cover, could be evolved. However, there could be
several challenges to such surveys. For example, people might not reveal more than what
they have divulged to the police. Even then, it is still an endeavour worth attempting. Today,
there are several methodological innovations to overcome the bottlenecks.

Nature of crime

In ancient time any act by a person or even an animal which caused harm to any other person
was considered as punishable crime. The punishments at earlier times were way different that
it is now. The wrongdoers were beheaded or thrown out of the country as per their acts. To
punish animals, stones were thrown at them. Crime is a changing concept dependent upon the
social development of people that is upon the fundamental interest and values dominating
their common beliefs. But as the time passed by and humans started to regularise themselves
the Nature and Definition of crime became clearer.

The nature of crime is changing due to the changes in the society and the environment. Today
one cannot view crime with a single perspective alone. Two of the common views that
explain the nature of crime are its condition as being a social construct and being an
individual criminality.

Role of Government and Society

Development of crime can largely be due to the role of laws and the government itself in the
society. The punishment when a crime takes place is left on the hands of the government. The
government is guided by policies and rules that have been promulgated to protect the welfare
of the majority or the greater good.

Very Often crimes are creation of government policies and the government in power forbids a
man to bring about results which are against its policies. The very definition of crime depends
upon the values of a given society There is a division created by the morals that tends the
government to make rules which outlaws certain acts which wouldn’t have been a crime
otherwise. For instance, the non-violent drug offences are considered as crimes because it is
declared by the government. Indeed, it wouldn’t be a crime the government didn’t categorise
drugs something as illegal. In such context people turn as ‘moral entrepreneurs’. By believing
that drugs are evil, or adultery is bad or even bigamy is evil, they try to convince their
society’s authority to make violating their mores a crime.

Also in this form of government construction of crime, public play an important role in the
prohibition or in the process of making something illegal. For terms of Sec. 377 of IPC were
decriminalised due to the changing in the minds of the public in general and all the people it
was effecting. Also like the prohibition of alcohol drinking or smoking at certain places, the
coalition of the public is necessary.

The Elements of a Crime

To convict a person of most criminal offences the two elements are very important to prove:
Actus Reus and Mens Rea. Actus Reus refers to the physical act involved in committing the
offence described by the criminal law. Mens rea means that the accused person had the intent
to commit an offence or knowledge of what he or she did was against the law. The intention
of a person to commit a criminal act means that the person meant to do something wrong and
knew or should have foreseen the results of the wrongful act. Intent is not the same as motive.
A motive can be understood as the reason that a person commits a crime, while intent refers
to that person’s state of mind and willingness to break the law.

Just indicting that a person had knowledge of certain facts is enough to ascertain the presence
of Mens Rea. Sometimes Mens Rea is not necessary to ascertain the act as an offence. Such
as matters relating and dealing with environment protection and workplace safety, these are
meant to protect the public welfare. Here Strict Liability and absolute liability comes into
picture. Strict liability means when a person may prove that they had the knowledge of the
facts and consequences and with due diligence tries to avoid it but it was out of their power.
Absolute liability is such driving without a driving license, there is no defence possible.

A crime, therefore, involves:

 harm, brought about by human conduct which the sovereign power in the state
desires to prevent.

 Legal proceeding of a special kind that are employed to decide whether the person
accused is guilty of the harm caused, and is, according to law, to be held legally
punishable for doing so.

Involvement of people in crime

In order to establish an act as a crime against a person, the involvement of certain parties is
essential. The Perpetrator is the person who actually commits the crime/ offence. If there are
more than one persons involved then it is known as “co-perpetrators.” To be involved in a
crime it is not necessary to be directly being involved in the crime. There can be other, non-
participating “parties to a crime.” The victim is the one against whom the crime actually took
place. There can be multiple victims for an act by one or more perpetrators.
Illustrations

1. If a person uses the internet to commit crimes is considered as cyber-crimes. For

example hacking into other’s accounts or systems, identity theft, sharing or
downloading pirated data, pornography etc. all are considered as cyber-crime. Anyone
using the internet can be a victim to an act of cyber-crime.
2. If a person is involved in taking the life of some other person willingly with a guilty
intent then it is a crime as it is covered under the definition of Murder or Culpable
Homicide under.
3. In a case where X person shoots another person Y, resulting in his death, such a
situation cannot be covered under the definition of crime as the action of the X are not
criminal but necessary as per the circumstances for self-defence.

Crime prevention and control

Crime prevention has become an increasingly important component of many national

strategies on public safety and security. The concept of prevention is grounded in the notion
that crime and victimization are driven by many causal or underlying factors. These are the
result of a wide range of factors and circumstances that influence the lives of individuals and
families as they grow up, and of local environments, and the situations and opportunities that
facilitate victimization and offending. Determining what factors are associated with different
types of crime can lead to the development of a set of strategies and programmes to change
those factors, and prevent or reduce the incidence of those crimes.

Types of Crime Prevention

Various approaches to preventing crime have been developed over approximately the past
two decades on the basis of a considerable amount of research and evaluation. The various
prevention approaches and programmes are grouped into four main categories. These are:

 Crime prevention through social development includes a range of social,

educational, health and training programmes, such as those that target at-risk children
or families when the children are very young, to provide them with support and child-
rearing skills. Some early intervention programmes are also referred to as
developmental crime prevention, since they try to intervene to develop resilience and
 social skills among children and their families. Programmes may also target groups of
children in areas where children and young people are at particular risk, such as street
children or children living in informal settlements or disadvantaged areas. Other
examples include education projects in schools, or recreation and skills training
projects for children and young people in the community, also in an attempt to
increase awareness and resilience as they grow up and develop.

The prevention programmes of this type: Promote the well-being of people and
encourage pro-social behaviour through social, economic, health and educational
measures, with a particular emphasis on children and youth, and focus on the risk and
protective factors associated with crime and victimization.

 Community, or locally-based crime prevention, instead of targeting individuals,

targets areas where the risks of becoming involved in crime or being victimized are
high. This includes areas with high levels of deprivation, both in terms of
infrastructure, services and wealth, or lack of community cohesion. This can include
slums and informal settlements, or inner-city or suburban housing projects, often
areas with a concentration of economic and social problems.

Community crime prevention often involves the active participation of local residents
and organizations in those communities and neighbourhoods. They may be involved
in identifying local priorities as well as implementing responses.

 Situational crime prevention covers approaches that aim to reduce the opportunities
for people to commit crimes, to increase the risks and costs of being caught and to
minimize the benefits. For example, such techniques include designing public spaces
or housing to make it more difficult for people to break equipment or enter buildings
without permission, or marking products so that they can be identified if they are
stolen.
 Reintegration programmes. Crime prevention through reintegration refers to all
programmes that work with children, young people or adults already involved in the
criminal justice system, including those in custody and returning to the community.
Programmes may take place in the community, sheltered homes that provide safe
accommodation and in-house support and advice, and may include apprenticeship
programmes, job-creation schemes, life-skills training, microcredit facilities and long-
 term support. Programmes that teach conflict resolution skills or use restorative
justice approaches, such as victim-offender mediation or family or community group
conferencing, are other examples of ways in which offenders can be assisted in
returning to civil society. These are all examples of crime prevention focusing on re-
integration, with the overall aim of preventing re-offending.

The role of police in Crime Prevention and Control

From the perspective of society as a whole, the best and most useful activity that law
enforcement agencies can carry out is crime prevention. If crimes are successfully
(and justly) prevented before they occur, the societal costs and suffering associated
with the effects of crime are completely avoided.

Crime prevention, relies on some key partners, including the police. Countries vary
considerably in terms of the characteristics of their policing, the number and types of
police forces they have, their history and orientation, and distribution of
responsibilities. In post-conflict settings, they may be highly centralized and
militaristic in their style and training, and in many countries there may be a lack of
trust in the police on the part of the public. Nevertheless, the police have an important
but not exclusive role in strategic prevention at national and State levels, especially at
the local government level. It is not uncommon for the police to be seen as having the
main responsibility for crime prevention and as the natural lead institution in all
questions of safety, rather than as a partner with other institutional sectors. Police
carry part but by no means all of the responsibility for crime prevention.

Crime prevention activities are also one of the more controversial parts of police
work. Because of their potential impact on a broad citizenry, such activities often
raise civil liberty questions. In addition, the interdependence of all the institutions and
activities that go into crime prevention make it difficult to unambiguously assess the
effectiveness of any individual component. In spite of the difficulty in rigorously
determining what prevents crime, several police activities are at least partially
justified by the assumption that they contribute to crime prevention. Here, we discuss
three such functions: surveillance, crime analysis, and offender tracking

SURVEILLANCE
 Police surveillance is one activity justified by its potential effect on crime prevention.
Proponents of surveillance claim that it prevents crime by deterrence, especially when
overt surveillance activities remind potential criminals of police presence and
observation. Critics contend that surveillance may simply displace crime to
unobserved locations, rather than prevent it. Regardless, it is the case that if an area
under surveillance becomes a crime scene, the surveillance can both alert police to the
need for an operational response and/or provide evidence for subsequent criminal
investigation and prosecution.

CRIME ANALYSIS

Analysis of crime data can reveal patterns that are helpful not only in preventing and
operationally responding to crime but also in increasing accountability to police
leadership and the public. Most departments do some type of crime analysis, most
commonly preparation of crime statistics. The analysis shows the incidence and forms
of crime. Thus, it plays key role for the police officials and other concerning legal
bodies to launch various crime prevention activities.

EDUCATIONAL

Police also play significant role by creating awareness to the mass about the
destructive effect of crime and other illegal acts as well as different prevention
strategies. So as to raise the awareness of the people it uses different ways like TV
programs and teachings in institutions like school, court etc.

The criminal Justice System: System or Collection of Agencies?

The phrase criminal justice system invites much conjecture. Each term may be queried, and
this leaves the validity of the phrase in doubt. All commentators agree that the various
agencies that comprise the system are only loosely coupled. Although they are connected to
each other and share certain objectives, they also have their own agendas. A more accurate
term for system would be a collection of interdependent agencies, each having its own
function.
As Davies, Croall and Tyrer (2005, p 10) observe, the criminal law does not enforce itself.
Rather people working in particular agencies enforce it: that is, the police, prosecutors, and
judges etc.

Definition of criminal justice system

Several definitions are forwarded by different scholars with regard to the definition of
criminal justice system. As a result, there is no single universally accepted definition.
Criminal justice system refers to the agencies of government charged with enforcing law,
adjudicating crime, and correcting criminal conduct.

What is the Criminal Justice System (CJS)?

 The Criminal Justice System (CJS) includes the institutions/agencies and processes

established by a government to control crime in the country. This includes components
like police and courts.
 The aim of the Criminal Justice System (CJS) is to protect the rights and personal
liberty of individuals and the society against its invasion by others.
 The Criminal law in India is contained in a number of sources – The Indian Penal Code
of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
 CJS can impose penalties on those who violate the established laws.
 The criminal law and criminal procedure are in the concurrent list of the seventh
schedule of the constitution.

Correctional administration and treatment of criminals

Corrections in general refer to society's handling of persons after their conviction of a

criminal offense. The components of the criminal justice system that serve to punish criminal
offenders involve the deprivation of life, liberty or property after due process of law.
Sentences imposed upon offenders range from probation to serving time in prison, with
intermediate sanctions, including sentences to a halfway house or community corrections
program, home confinement, and electronic monitoring. Financial penalties may include
fines, forfeiture, and restitution.
Various correctional approaches developed in the wake of causation theories. As we have
discussed in section one of this course different schools of criminology have their own stand
with regard to correctional approaches. The old theological and moralistic theories
encouraged punishment as retribution by society for evil. This attitude, indeed, still exists.
The 19th-century British jurist and philosopher Jeremy Bentham tried to make the
punishment more precisely fit the crime. Bentham believed that pleasure could be measured
against pain in all areas of human choice and conduct and that human happiness could be
attained through such hedonic calculus. He argued that criminals would be deterred from
crime if they knew, specifically, the suffering they would experience if caught. Bentham
therefore urged definite, inflexible penalties for each class of crime; the pain of the penalty
would outweigh only slightly the pleasure of success in crime; it would exceed it sufficiently
to act as a deterrent, but not so much as to amount to wanton cruelty. This so-called calculus
of pleasures and pains was based on psychological postulates no longer accepted.

The Bentham approach was in part superseded in the late 19th and early 20th centuries by a
movement known as the neoclassical school. This school, rejecting fixed punishments,
proposed that sentences vary with the particular circumstances of a crime, such as the age,
intellectual level, and emotional state of the offender; the motives and other conditions that
may have incited to crime; and the offender's past record and chances of rehabilitation. The
influence of the neoclassical school led to the development of such concepts as grades of
crime and punishment, indeterminate sentences, and the limited responsibility of young or
mentally deficient offenders.

At about the same time, the so-called Italian school stressed measures for preventing crime
rather than punishing it. Members of this school argued that individuals are shaped by forces
beyond their control and therefore cannot be held fully responsible for their crimes. They
urged birth control, censorship of pornographic literature, and other actions designed to
mitigate the influences contributing to crime. The Italian school has had a lasting influence
on the thinking of present-day criminologists.

The modern approach to the treatment of criminals owes most to psychiatric and case-study
methods. Much continues to be learned from offenders who have been placed on probation or
parole and whose behavior, both in and out of prison, has been studied intensively. The
contemporary scientific attitude is that criminals are individual personalities and that their
rehabilitation can be brought about only through individual treatment. Increased juvenile
crime has aroused public concern and has stimulated study of the emotional disturbances that
foster delinquency. This growing understanding of delinquency has contributed to the
understanding of criminals of all ages. During recent years, crime has been under attack from
many directions. The treatment and rehabilitation of criminals has improved in many areas.
The emotional problems of convicts have been studied and efforts have been made to help
such offenders. Much, however, remains to be done. Parole boards have engaged persons
trained in psychology and social work to help convicts on parole or probation adjusts to
society. Various states have agencies with programs of reform and rehabilitation for both
adult and juvenile offenders.
Many communities have initiated concerted attacks on the conditions that breed crime.
Criminologists recognize that both adult and juvenile crime stem chiefly from the breakdown
of traditional social norms and controls, resulting from industrialization, urbanization,
increasing physical and social mobility, and the effects of economic crises and wars. Most
criminologists believe that effective crime prevention requires community agencies and
programs to provide the guidance and control performed, ideally and traditionally, by the
family and by the force of social custom. Although the crime rate has not drastically
diminished as a result of these efforts, it is hoped that the extension and improvement of all
valid approaches to prevention of crime eventually will reduce its incidence.

Background of the Criminal Justice System in India

 The Criminal Justice System in India is an age-old system primarily based upon the
Penal legal system that was established by the British Rule in India.
 The system has still not undergone any substantial changes even after 70 years of
Independence. The biggest example could be Section 124A of the Indian Penal Code
(IPC) that defines sedition and provides for its punishment.
 The entire Code of Criminal Procedure (Cr.P.C.) was amended in 1973.
 The appointment of the Vohra Committee was the very first attempt towards reforming
the Criminal Justice System in India. Vohra Committee report (1993) made an
observation on the criminalisation of politics and of the nexus among
criminals, politicians and bureaucrats in India.
 In 2000, the government formed a panel headed by Justice V.S. Malimath, the former
Chief Justice of Kerala and Karnataka, to suggest reform in the century-old criminal
justice system.
  The Malimath Committee submitted its report in 2003 with 158 recommendations but
these were never implemented.
 The Committee felt that the existing system “weighed in favour of the accused and did
not adequately focus on justice to the victims of crime.”

Why there is a need for reform in the Criminal Justice System in India?

 The system has become ineffective: The state has constituted the CJS to protect the
rights of the innocent and punish the guilty but the system, based on century-old
outdated laws, has led to harassment of people by the government agencies and also
put pressure on the judiciary.
 Inefficiency in justice delivery: The system takes years to bring justice and has ceased
to deter criminals. There is a lack of synergy among the judiciary, the prosecution and
the police. A large number of guilty go unpunished in a large number of cases. On the
contrary, many innocent people remain as undertrail prisoners as well. As per NCRB
data, 67.2% of our total prison population comprises of undertrials prisoners.

 Complex nature of the crime: Crime has increased rapidly and the nature of crimes
are becoming more and more complex due to technological innovations.
 Investigation incapability: It led to delay in or haphazard investigation of crimes
which greatly contribute to the delay in dispensing prompt justice.
 Inequality in the justice: The rich and the powerful hardly get convicted, even in
cases of serious crimes. Also, the growing nexus between crime and politics has added
a new dimension to the crime scenario.
 The lowered confidence of common man: The judicial procedures have become
complicated and expensive. There is a rise in cases of mob violence.

Recommendation of the Malimath Committee

Some of the important recommendations of the committee were:

 Courts and Judges: There is a need for more judges in the country.

 National Judicial Commission: The Constitution of a National Judicial Commission
to deal with the appointment of judges to the higher courts and amending Article 124 to
make impeachment of judges less difficult.
 Separate criminal division in higher courts: The higher courts should have a
separate criminal division consisting of judges who have specialised in criminal law.
 The inquisitorial system of investigation: The Inquisitorial system is practised in
countries such as Germany and France should be followed.
 Power for court to summon any person: Court’s power to summon any person,
whether or not listed as a witness if it felt necessary.
 Right to silence: A modification to Article 20 (3) of the Constitution that protects the
accused from being compelled to be a witness against himself/herself. The court should
be given freedom to question the accused to elicit information and draw an adverse
inference against the accused in case the latter refuses to answer.
 The right of accused: A schedule to the Code be brought out in all regional languages
to make accused aware of his/her rights, as well as how to enforce them.
 Presumption of Innocence: The courts follow “proof beyond reasonable doubt” as the
basis to convict an accused in criminal cases which is an unreasonable burden on the
prosecution and hence a fact should be considered as proven “if the court is convinced
that it is true” after evaluating the matters before it.
 Justice to the victims: The victim should be allowed to participate in cases involving
serious crimes and also be given adequate compensation. If the victim is dead, the legal
representative shall have the right to implead himself or herself as a party, in case of
serious offences. The State should provide an advocate of victim’s choice to plead on
his/her behalf and the cost has to be borne by the state if the victim can’t afford it.
 Victim Compensation Fund: A Victim Compensation Fund can be created under the
victim compensation law and the assets confiscated from organised crimes can be made
part of the fund.
 Police Investigation: Hiving off the investigation wing of Law and Order
 National Security Commission and State Security Commissions: Setting up of a
National Security Commission and State Security Commissions.
 SP in each district: Appointment of an SP in each district to maintain crime data, an
organisation of specialised squads to deal with organised crime.
 Director of Prosecution: A new post, Director of Prosecution, should be created in
every state to facilitate effective coordination between the investigating and
prosecuting officers.
  Witness protection: The dying declarations, confessions, and audio/video recorded
statements of witnesses should be authorised by law. There should be a strong witness
protection mechanism. Witnesses should be treated with dignity.
 Arrears Eradication Scheme: To settle those cases which are pending for more than
two years through Lok Adalat on a priority basis.
 Offences classification: It should be changed to the social welfare code, correctional
code, criminal code, and economic and other offences code instead of the current
classification of cognisable and non-cognisable.
 Substitution of death sentence: Substitute with imprisonment for life without
commutation or remission.
 Central law for organized crime and terrorism: Though crime is a state subject, a
central law must be enacted to deal with organised crime, federal crimes, and terrorism.
 Periodic review: A Presidential Commission was recommended for a periodical
review of the functioning of the Criminal Justice System.

Key issues in the recommendations

 Malimath Committee report recommends making confessions made to a senior police

officer (SP rank or above) admissible as evidence. Confessions to police have
repeatedly come under scrutiny because of allegations of custodial torture, instances of
custodial deaths, fake encounters and tampering with evidence.
 The report recommends diluting the standard of proof lower than the current ‘beyond
reasonable doubt’ standard. It means that if a proof is enough to convince the court that
something is true, then it can be considered as a standard proof. Such a measure would
have adverse implications on suspects and requires considerable deliberation.

Reforms undertaken by the Government

 The government has implemented a number of recommendations like permitting

videography of statements, the definition of rape has been expanded and new offences
against women have been added. The victim compensation is now a part of the law.
 The Government is in the process to draft a new Memorandum of Procedure (MoP) for
the appointment of High Court and Supreme Court Judges.
  The government has removed more than 1000 obsolete laws which came in the way of
smooth administration.
 The Government has given its approval for implementation of an umbrella scheme of
‘Modernisation of Police Forces’ with proper use of technology.
 The Gram Nyayalayas and Lok Adalats were established to provide access to justice to
the citizens at their doorsteps.
 The Legal Service Authority Act was enacted by the Parliament with an object to
provide free and competent legal service to the weaker section of society.

Way Forward

It is a good idea to revisit the committee recommendations with a view to considering their
possible implementation. However, the reforms should be made with care and after proper
debate. The provisions like diluting the standard of proof or considering confession to senior
police as evidence must be properly debated.

Supreme Court had already set guidelines for how the prosecution and the police should
function to get justice to the victims and punish the guilty.

Revamping the CJS should not undermine the principles on which the justice system was
founded. The rules and procedures are needed to be simplified to make it convenient for the
common man. The primary focus must be on police reforms, appointing more judges,
deploying scientific techniques, beefing up forensic labs, and other infrastructure investments
are the need of the hour.