John Austin considers an action to be a crime if the law states it as a criminal act.
A criminal act must have the capacity to negatively affect the social behaviour of others in the community. For example, people keeping guns at home due to murders in the area.
A wrong does not become a public wrong liable to criminal punishment because it is a wrong inflicted on the entire public but because it becomes the concern of every person as part of the community.
Crimes are public wrongs because it is the community who decides to impose punishment, and not because it is a wrong inflicted on the entire community.
It originates from the liberal ideology of John Stuart Mill that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
The ‘Harm’ Principle and determination of crime:
The ‘Harm’ Principle helps to determine which moral wrongs can be regarded as crimes, as it states that only those wrongs which can cause harm to other persons are subject to criminal punishment.
What is Harm?
The ‘Harm’ Principle does not mention what constitutes harm. Due to this ambiguity, the ‘Harm’ principle no longer acts as a principle to limit power exertion for enforcing morality.
The Minimalist Approach:
The principle of de minimis does support minimum criminal punishment, however also supports the idea of other non-criminal sanctions.
The Policy of Social Defence:
This policy of social defence takes the stance that the scope of criminalization should not be minimized, it should be open to new forms of crime over time.
Punishment and Compensation:
A punishable crime expresses collective disapproval by the community. On the other hand, certain conduct is considered to be wrong, but not completely condemned or prohibited, as long as there is a penalty given for that wrongful conduct.
Mala in se and Mala prohibita:
Apart from this moral distinction, the legal distinction between the two is that while mala in se requires criminal intent, mala prohibita requires no such intent unless expressly mentioned in the law.
Scope and Limits of Criminal Law
What is Criminalization?
Criminalization is a process which enables the State to enforce punishment. However, since punishment involves deprivation and stigma, it becomes important that punishment given by the state should be justified.
Section 309 provides for punishment for a person who attempts to take their life. This can come under overcriminalization as there seems to be no strong justification for the punishment.
Codification and Interpretation:
Standard of Proof:
As per Section 101 of the Indian Evidence Act 1872, the burden of proof is said to be on a person who approaches the Court for a judgement and asserts certain facts.
Proof beyond reasonable doubt:
As per Section 3(e)(2) of the Indian Evidence Act 1872, a fact is proved if the Court believes so or probability is so high that a prudent man believes that it exists. Until then, the accused is always considered innocent.
In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, it was said that since the liberty of an individual is in question in a criminal case, the standard of proof is higher than ‘mere preponderance of probabilities’.
The non-retroactivity principle has been adopted into Article 20 of the Constitution of India which essentially states that a person cannot be convicted for an offence if the law criminalising it is not in force at the time of the commission of the offence.
Section 53 of the Indian Penal Code at present lays down five types of punishments namely death, imprisonment for life, imprisonment, forfeiture of property and fine.
Imprisonment for life: In the Criminal Law (Amendment) Act 2013, life imprisonment has been described as imprisonment for ‘remainder of the person’s natural life’.
If this principle is not applied, then a convict may perceive it to be unjust as they have got more than what they deserved.