What do you mean by offence? Enlist the functions of deviationism and criminalization.
Q.1. What do you mean by offence? Enlist the functions of
deviationism and criminalization.
The Penal Code and the Code of
Criminal Procedure, 1973 have used the term offence instead of crime. The
rationale for such a change of terms is that: First, crime is a generic
term and “Offence” relates to specific prescribed conduct covered by each
offence, and second, establishment of the elemental requirement of a specific
offence leads to justifications for imposing the prescribed punishment. Section
40 of the Indian Penal Code lays down: Except in the [chapters] and sections
mentioned in clauses 2 and 3 of this section, the word “offence” denotes a
thing made punishable by this code. In a similar vein, section 2 (n) of the
code of criminal procedure lays down: “Offence” means an act or omission made
punishable by any law for the time being in force and includes any act in
respect of which a complaint may be made under section 20 of the
“Caltle-Trespars Act, 1871”. The Criminal Procedure Code further classifies
offences for the purposes of different criminal justice processes, as follows:
a) For the purposes of arrest and
investigation “cognizable-offence” (S. 2 (c) Cr. PC.) and “non-cognizable
offence” (S. 2 (b) Cr P.C.) – Cognizable offence are generally more serious
offences as per the First Schedule of the Cr. P. C. In view of their
seriousness, the Code provides for distinct first information, investigation
and arrest procedure in regard to them. Non-cognizable offences are less
serious and therefore investigation and arrest in regard to them requires a
direction from the appropriate judicial authority
b) For the purposes of Bail
“Bailable offence” and “non-bailable offence” (S. 2 (a) like cognizable offence
and non-cognizable offence, use the categorization conveying the seriousness of
the offence in terms of the scheme of the First Schedule of the Code. In
bailable offence, bail is a matter of right, but in cases of non-bailable
offence, it is a matter of judicial discretion.
c) For the purposes of
“compounding” Proceedings Section 320 of the Code provides an elabourate scheme
for the compoundable offence, which are treated more like civil wrongs that can
be compromised with the permission of the court.
d) For the purposes of Plea-bargaining
and sentencing Though the Code does not explicitly use the terms “Petty
offence” and “serious offence”, but there are several provisions in the Code
which implicitly categories offences into two categories, namely (a) offences
punishable with less than seven years imprisonment, and (b) those that are
punishable with more than seven years imprisonment. Such a classification is
relevant for the purposes of claiming Plea-Bargaining (S. 365A) and reformative
sentencing (S. 360 and the Probation of Offenders Act, 1958) benefits.
FUNCTIONS OF DEVIATIONISM AND
CRIMINALIZATION
Social contract thinkers such as
Thomas Hobbes had envisaged long back that to get away from the state of nature
in which men lived a life that ‘was nasty, short, brutish, solitary and poor’,
the Leviathan had to enact strict rules of behaviour for its members. The same
kind of unquestioning faith in rules is reflected in the writings of later
thinkers like, Beccaria and Jeremy Bentham for whom ‘behavioural rule making’
became an essential attribute of a good sovereign. Sociologists and researchers
on deviance have analysed the diverse functions/ dysfunctions of rule making or
‘deviationism’ and criminalization in the contemporary societies as follows:
i) As a measure of Solidarity and
Stability Durkheim in his work Division of Labour in Society (1893) considered
the social integrative abilities of crime in these terms: Crime brings together
upright consciences and concentrates them. We have to notice what happens,
particularly in a small town, when some moral scandal has been committed. They
stop each other on the street, they visit each other, they seek to come
together to talk of the event and wax indignant in common.
ii) As a measure of Social Defence
According to those, who subscribe to the views of Hobbes that emphasise the
dysfunctions of deviance and crime, individual who break the law need to be
controlled and punished as they threaten the security and stability of the
society. There is a whole school of new-classicalist or conservative revivalist
thinkers who emphasise on a more law-and-order society. Wilson (1975) prefers
to clearly demarcate between wicked and non-wicked people this way: Some
persons will shun crime even if we do nothing to deter them, while others will
seek it out even if we do everything to reform them. Wicked people exist.
Nothing avails except to set them apart from innocent people. And many people,
neither wicked nor innocent, but watchful dissembling and calculating of their
opportunities ponder our reaction to wickedness as a cue to what they might
profitably do. We have trifled with the wicked, made sport of the innocent and
encouraged the calculators. Justice suffers, and so do we all. (pp. 21-22)
According to those, who argue for
social defence the rise of crime beyond historically recorded levels, can
create a break-down of community ties, and a rise in informal, vigilante-type
protective responses which further tear a community apart (this is almost opposite of what Durkheim or Marx
thought about crime). Such functional measure assumes special significance in
the wake of rise in crime of terrorism that demands that the society needs to
be protected and secured at any cost, both by stringent anti-terror laws and
rigorous implementation of interrogation, arrest and preventive detention
measures.
iii) As a measure of Social Ranking and
Exclusion Deviance and crime often serve the function of stigmatizing and
social exclusion of the lower caste, low-ranked professional groups. During
British rule, the labeling of certain tribal population as criminal tribes and
depriving them from land and other property rights is a case on point. Garland
(1985) has made the following observation in the context of special section of
population for penalty as follows: When we talk of the population of criminals
dealt with by penalty, we should not mistake for a drivers amalgam of
individuals randomly distributed throughout the general population. Penalty
deals, and has always dealt, with a population overwhelmingly drawn from the
working classes. Foucault (1979) has expressed similar function performed by
the disciplinary rules within prisons.
iv) As a measure to preserve
ideological and social hegemony According to Steven Box (1983): “For too long
too many people have been socialized to see crime and criminals through the
eyes of the state. The crime problem defined by the state is not the only crime
problem, or that criminals are not only those processed by the state. There is
more to crime and criminals than what the state reveals. But most people cannot
see it.” (pp. 14-15). The aforesaid makes it abundantly clear that deviance and
crime are meant to convey a particular ideology or to maintain the hegemony of
the dominant sections of the society. This explains why the concept of crime
undergoes changes with the ideological positioning of the state itself
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