A crime has been defined in black’s legal dictionary as, “an act committed or omitted, in violation of a public law, either forbidding or commanding it.” This highlights the changing nature of crime. The qualifying criteria of an act to be regarded as a crime directly depends on the law prevalent in society. Hence, crime is a changing notion which depends on the place, values of the society, customs, faith, religion, and other socio-political circumstances.
Harm is an important feature of crime. However, it is a vague term and its meaning has changed over time, initially it was “necessarily experienced.” Later this understanding broadened and it denoted a sense of loss. ‘Experiencing’ was not necessary for one to suffer ‘harm’ anymore. Eventually, it narrowed down and became something which was inflicted by people. Thereafter, inanimate objects could only cause hurt, not harm. The last and current understanding of ‘harm’ inculcates a legal principle, wherein harm is assumed to be a legal fiction encompassing the rights vested in an individual.
Hence, when rights are interrupted, harm is assumed to occur which provides a rational ground for legal interference. John Stuart Mills introduced the ‘harm principle’ in criminal law, he defined the limit for restricting an individual’s actions in a free society, “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” This principle protects the autonomy of every individual, in the sense that their actions cannot be restricted unless they pose a threat to the society or any other individual.
The principle of social defence lays down the foundation of ‘punishments’, i.e. social actions, which are both theoretically and practically balanced, designed specifically to address and prevent antisocial behaviour that manifests as crimes. This principle provides a valid rationale for punishing those who commit crimes. It supports the hypothesis that punishments act as a deterrence, which suppresses crimes and establishes a safer society. Further, this theory also provides supporting evidence for the doctrine of deterrence which states that the pain caused by punishments acts as a rational deterrent as it offsets the motivation for a crime to be committed. Crimes are legally wrong and/or morally abhorrent. This classification stems from the difference between positive and natural law, the prior dictates rules and laws created by man depending on societal morality.
These laws are certain and unambiguous as opposed to natural law which follows an ‘inherent’ understanding of acts being ‘moral’ or ‘immoral’ based on laws of God. This is based on feelings and sense of morality of the individual. These laws leave a lot of scope for ambiguity and uncertainty. The crimes that are inherently wrong and immoral without needing the force of law to make them so are “mala in se” like Murder. While acts that become crimes because the law prescribes them as such are “mala prohibita.” An example of Mala prohibita is the practice of hunting animals in preserved areas. While hunting animals is not a crime per se, it becomes illegal inside these areas because the law dictates it.
The legal maxim of ‘Nulla poena sine lege’, which roughly translates to no penalty unless the law commands it, serves as the backbone of criminal law. This maxim also supports the public’s confidence in the law of the land wherein, no man shall be punished for anything which the law does not prohibit and vice versa. He shall not go free after doing an act which the law explicitly prohibits him from doing. The scope of criminal law in a democratic society is rather limited as compared to another institution such as a monarchy or a dictatorship. In the sense that, while such authoritative regimes would overlook basic principles like respecting the human and fundamental rights of the populace, democracy wouldn’t. Thus, to limit the scope of criminal law, such principles stand tall in a democracy.
In India, codification began very early for Hindu Law. A lot of material existed on the subject in the form of regional manuscripts, religious texts, and commentaries by scholars when the British first arrived in India. Muslim law was not far behind, and a lot of sources were available in the form of the Quran, sunnah and hadiths. This plurality of sources was addressed up to a certain level by an English Lawyer by the name of Thomas Babington Macaulay who later came to be known as ‘Lord Macaulay’ for his feat in ‘straightening out’ this “unwieldy and confusing system.”
However, one would argue why so much effort has been put into codifying laws all around the world. This need arose gradually due to lack of comprehensibility, inaccessibility and uncertainty in uncodified law. Codified law, on the other hand, addressed these issues rather easily. When the law was written down it became easier for the public to grasp the concept of laws and their applicability, such codified law also became readily and easily accessible to all as opposed to previously being a collection exclusively available to legal experts. Codified law also addressed the issue of uncertainty which was a key element of uncodified law, now laws became concise and precise.
Interpretation of codified law was also easier for all, as opposed to uncodified law. In cases of uncodified law, the interpretation of law and decision of a case solely depended on the discretion of the judge and his whims. However, once laws became codified, this practice was limited to a large extent and the codified letter of law became the standard for deciding cases. The scope of interpretative liberty also reduced to a desirable amount. Although limited, this interpretative liberty still plays a significant role in broadening the scope of criminal law.
For any legal procedure to be fair, it is necessary that consistency be maintained across trials of different procedures while giving due weightage to the unique aspects of each case. This is done with a healthy balance maintained between the codification and interpretation of a code. The need for codification and interpretation of criminal law has for decades been a debate among legal scholars. However, one principle that has been settled is that this need for codification arises solely out of the necessity of such a law being unambiguous, free of loopholes, and clear. Codification successfully covers these aspects to a degree which is substantially higher than uncodified laws. However, one drawback of codification arises when such a law becomes exhaustive and unable to address unique issues which might appear in real life.
This is addressed to a certain degree with a liberal interpretation of such laws. This interpretation is done keeping in mind, that should the need arise, it is necessary to look beyond the ‘black letter of the law’ and into the motive and intention behind creating the law. This liberal interpretation is done within courts of law and forms the basis of judge-made law or case law. This is different from legislative and codified law in nature as it is usually made when a unique circumstance arising in a case is well-reasoned out in the stare decisis of a judgement. This further provides stability and certainty to the law of the land by being consistent with previously decided cases and setting precedents for the cases to come.
The nature of liability in criminal law plays a large role in determining whether or not it would be a viable law in not only punishing those who commit crimes but also limiting the occurrence of crimes. This nature of liability becomes explicit in the different aims of assigning punishments in criminal law. The legal doctrine of “Jus Equivalence or Doctrine of proportionality” is an important aspect of assigning punishments in criminal law. According to this doctrine, a wrongdoer should be sentenced according to the gravity of the crime committed by him, and taking into consideration all the circumstances under which the crime occurred, etc.
There are many different aims with which punishments are given depending on the gravity of the crime and the presence or absence of extenuating circumstances, punishments may be retributive, deterrent, reformative, punitive, denunciative and preventive in nature. It might even be a mixture of these, making it a multiple approach punishment. A retributive punishment aims at getting even with a criminal, such as capital punishment for the crime of murder, this is the most criticised form of punishment among scholars. While a deterrent punishment aims at setting an example for the society by punishing a wrongdoer harshly, generating fear to prevent the commission of crimes.
A reformative punishment on the other hand aims at rewarding correctional behaviour by allowing such criminals to re-enter society once they have been reformed. Punitive punishments aim at punishing people for their crimes and are a usual form of punishments awarded for heinous criminal behaviour under the Indian Penal Code. Denunciation is another classic type of punishment, this aims at ostracisation from society, where a wrong-doer is socially condemned and denounced for his criminal behaviour. A preventive punishment on the other hand is a precautionary step taken to prevent a crime from ever occurring when there is a risk of such a crime. In India, preventive detention is allowed for up to 3 months which can be increased by the parliament of India in accordance with the provisions of the Preventive Detention Act, 1950.