The Pre-Classical School of Criminology

Introduction

The Pre-Classical School of Criminology refers to the period before the emergence of the
Classical School in the 18th century. During this time, crime was primarily viewed through the
lens of religion, superstition, and divine punishment. Criminal behavior was often attributed
to evil spirits, demonic possession, or supernatural forces, leading to harsh and irrational
punishments.

Core Beliefs of the Pre-Classical School

1. Crime is Caused by Supernatural Forces

○ Criminal acts were seen as the result of demonic possession, witchcraft, or
divine wrath.
○ Offenders were believed to be under the influence of evil spirits.
2. Harsh and Arbitrary Punishments
○ Punishments were often severe, cruel, and public to serve as a deterrent.
○ Common punishments included torture, burning at the stake, hanging, and
exile.
3. Lack of a Rational Legal System
○ Laws were unwritten and based on religious or feudal traditions.
○ The legal system was dominated by religious leaders and rulers, who
imposed punishments at their discretion.
4. Trial by Ordeal and Superstition-Based Justice
○ Accused individuals were subjected to ordeals (e.g., trial by fire or water) to
determine their guilt.
○ Guilt was determined through divine intervention—survival meant innocence,
while failure meant guilt.

Forms of Justice in the Pre-Classical Period

1. Theocratic Justice – Crime was seen as a sin against God, and punishments were
prescribed by religious texts.
2. Feudal Justice – Lords and monarchs held absolute power, and justice was often used
to maintain control.
3. Ordeal-Based Justice – Trials involved supernatural tests, such as walking on hot
coals or drowning tests.

Criticism of the Pre-Classical School

● Lack of Rationality – No consideration of human reasoning or intent.

 ● Arbitrary and Inhumane Punishments – No proportionality between crime and
punishment.
● Religious and Superstitious Bias – Ignored scientific or logical explanations for crime.
● No Legal Consistency – Justice depended on the ruler or religious leader, leading to
widespread corruption and injustice.

Transition to the Classical School

● Enlightenment thinkers like Cesare Beccaria and Jeremy Bentham rejected

supernatural explanations of crime and emphasized rationality, deterrence, and
proportionate punishment.
● The Classical School replaced the superstitious and arbitrary approach of the
Pre-Classical era with rational legal principles.

The Classical School of Criminology

Introduction

The Classical School of Criminology emerged in the 18th century as a reaction against the
harsh and arbitrary justice system of the time. It was founded on the principles of free will,
rationality, and deterrence, arguing that people commit crimes out of rational self-interest
and should be punished accordingly. The Classical School laid the foundation for modern
criminal law by emphasizing fair and proportionate punishment.

Core Principles of the Classical School

1. Crime is a Product of Free Will and Rational Choice

○ Individuals weigh the costs and benefits before committing crimes.
○ Crime can be deterred if the costs (punishments) outweigh the benefits.
2. Punishment Should Be Proportionate and Just
○ Punishments should fit the severity of the crime, not the identity of the offender.
○ Excessive or cruel punishments are unjust and ineffective.
3. Laws Should Be Clear and Known to All
○ Citizens must understand the laws and consequences of crimes.
○ Legal processes should be transparent and predictable.
4. Deterrence Over Retribution
○ The primary goal of punishment is to prevent crime, not to seek revenge.
○ Certainty, swiftness, and severity of punishment are key deterrents.
5. Equality Before the Law
○ All individuals should be treated equally under the law.
○ Social status, wealth, or personal connections should not influence legal
outcomes.
Major Contributors and Their Theories

1. Cesare Beccaria (1738–1794) – The Father of Classical Criminology

Beccaria’s work On Crimes and Punishments (1764) was revolutionary. His key ideas include:

● Laws should be designed to prevent crime, not punish unnecessarily.

● Punishment should be proportionate to the crime and applied consistently.
● Capital punishment is ineffective and should be abolished.
● Torture is unjust and does not produce reliable confessions.
● The legal system should prioritize fairness and human rights.

2. Jeremy Bentham (1748–1832) – Utilitarianism and the Panopticon

Bentham expanded on Beccaria’s ideas with his utilitarian philosophy, which argues that:

● Punishment should aim for the greatest happiness of the greatest number.
● Crime can be reduced by making punishment certain, swift, and appropriately severe.
● The Panopticon prison design (allowing constant observation) could promote
self-discipline in prisoners.

Contributions of the Classical School

● Introduced the concept of proportionate and standardized punishment.

● Laid the foundation for modern legal systems based on rationality and deterrence.
● Abolished cruel punishments and introduced humane treatment of offenders.
● Promoted legal equality, ensuring that justice is applied consistently.

Criticism of the Classical School

● Ignores Individual Differences – Treats all criminals as equally rational, overlooking

factors like mental illness or social environment.
● Assumes All People Act Rationally – Some crimes are impulsive or driven by emotion,
not rational calculation.
● Rigid Punishment Model – Fixed punishments may not be effective for every individual.

The Neo-Classical School of Criminology

Introduction

The Neo-Classical School of Criminology emerged in the 19th century as a modification

of the Classical School. While it retained the Classical School’s belief in free will and
rational choice, it acknowledged that not all individuals have the same capacity to make
rational decisions due to factors such as age, mental illness, and external circumstances.
This school introduced judicial discretion and individualized punishment, paving the way
for modern legal systems.

Core Principles of the Neo-Classical School

1. Crime is a Rational Choice, But Circumstances Matter

○ Criminals still act out of free will, but some individuals lack full rationality
due to external or internal factors.
2. Mitigating Factors in Criminal Responsibility
○ Certain individuals (e.g., juveniles, mentally ill individuals, and coerced
offenders) have a diminished capacity for rational decision-making.
○ Punishments should consider intent, background, and mental state.
3. Flexibility in Sentencing and Punishment
○ Unlike the Classical School’s fixed punishment model, Neo-Classical
thinkers argued for judicial discretion.
○ Courts should have the authority to reduce or increase sentences based on
individual circumstances.
4. Combining Deterrence with Rehabilitation
○ Punishment should still deter crime, but reform and rehabilitation should
be prioritized for certain offenders.
○ Prisons should include rehabilitative programs, especially for juveniles and
mentally ill offenders.

Major Contributors and Their Theories

1. Jeremy Bentham (1748–1832) – Utilitarianism and Judicial Flexibility

Bentham, initially a Classical theorist, later recognized that not all individuals are equally
rational. He suggested:

● Laws should be based on the "greatest happiness principle" (i.e., maximizing

societal well-being).
● Judges should consider extenuating circumstances when sentencing offenders.
● Punishments should still be proportionate but flexible.

2. Gabriel Tarde (1843–1904) – Psychological Factors in Crime

Tarde introduced the idea that crime is influenced by social learning and psychological
factors. His contributions include:

● Criminal behavior is learned through interaction with others (precursor to modern

learning theories).
● Imitation and environment play a key role in criminal tendencies.
 ● Punishments should be individualized based on the offender’s psychological
makeup.

3. François-Etienne de Romilly – The Need for Judicial Discretion

Romilly emphasized the role of judges in adapting punishments based on intent, mental
state, and personal circumstances. His ideas influenced modern criminal justice systems
by:

● Introducing mitigating and aggravating factors in sentencing.

● Advocating for leniency for juveniles and mentally ill individuals.
● Encouraging a balance between deterrence and fairness.

Contributions of the Neo-Classical School

● Introduced judicial discretion, allowing courts to consider individual

circumstances.
● Led to the development of juvenile justice systems that separate young offenders
from adults.
● Recognized the impact of mental health on criminal behavior, influencing modern
forensic psychology.
● Balanced the rigid Classical approach with a more humane and individualized
system.

Criticism of the Neo-Classical School

● Subjectivity in Sentencing – Judicial discretion can lead to inconsistent

punishments.
● Ambiguity in Determining Criminal Responsibility – No clear criteria for deciding
when rationality is diminished.
● Did Not Develop a Scientific Method – Unlike the Positivist School, it did not
establish empirical methods for studying crime.

The Positivist School of Criminology

Introduction

The Positivist School of Criminology emerged in the 19th century as a response to the
Classical School's focus on free will and rational choice. The Positivist School argued that
crime is not merely a product of individual choice but is determined by external and internal
factors such as biology, psychology, and society. This school laid the foundation for modern
scientific criminology by emphasizing empirical research and objective analysis.

Core Principles of the Positivist School

 1. Crime is Determined, Not a Choice
○ Unlike the Classical School, which saw crime as a rational decision, positivists
believed that criminal behavior is influenced by factors beyond an
individual’s control.
2. Scientific Approach to Crime
○ Criminals should be studied through observation, experimentation, and
analysis.
○ The causes of crime should be empirically tested, rather than relying on
abstract theories.
3. Focus on the Criminal Rather Than the Crime
○ The Classical School focused on the act of crime and punishment.
○ The Positivist School focused on the individual criminal, seeking to understand
the causes behind their behavior.
4. Rehabilitation Over Punishment
○ Punishment alone is not enough; criminals should undergo reform and
rehabilitation.
○ Prisons should serve as correctional institutions rather than merely places of
punishment.

Major Contributors and Their Theories

1. Cesare Lombroso (1835–1909) – The “Born Criminal” Theory

Lombroso, often called the “father of modern criminology,” argued that criminals are
biologically different from non-criminals. He believed that criminals could be identified by
physical traits such as:

● Asymmetrical facial features

● Large jaws
● Long arms
● Twisted noses

Lombroso classified criminals into three categories:

● Atavistic Criminals (born criminals, biologically inferior)

● Insane Criminals (mentally ill individuals committing crimes)
● Criminoids (occasional criminals influenced by environment)

Though later criticized, his work paved the way for biological studies in criminology.

2. Enrico Ferri (1856–1929) – The Law of Criminal Saturation

Ferri expanded on Lombroso’s ideas, arguing that crime is the product of three major factors:

● Physical (Geographical & Climatic) – Weather, population density, etc.

● Anthropological (Biological & Psychological) – Genetics, mental health, personality.
 ● Social (Cultural & Economic) – Poverty, education, unemployment.

Ferri advocated for crime prevention measures over punishment and supported rehabilitation
programs.

3. Raffaele Garofalo (1851–1934) – Natural Crime Theory

Garofalo believed that crime is a result of a lack of moral development and that criminals have
an inherent deficiency in moral instincts. He categorized criminals into:

● Murderers – Driven by lack of empathy.

● Violent criminals – Influenced by social conditions.
● Economic criminals – Motivated by financial gain.
● Sexual criminals – Committing crimes related to lust.

Garofalo suggested eliminating unredeemable criminals and focusing on reforming others.

Contributions of the Positivist School

● Scientific study of criminals using psychology, sociology, and biology.

● Development of criminal profiling and understanding criminal behavior.
● Introduction of individualized treatment for offenders (rehabilitation over
punishment).
● Influence on modern criminology, forensic science, and correctional policies.

Criticism of the Positivist School

● Deterministic Approach – Assumed that criminals have no free will and are solely
products of biological or environmental factors.
● Overemphasis on Biology – Lombroso’s early theories led to racial and genetic
discrimination.
● Neglect of Legal & Social Justice – Focused more on the criminal than legal fairness
and due process.
● Scientific Flaws – Many of Lombroso’s ideas were later debunked as being unscientific.

Conclusion

Despite its limitations, the Positivist School revolutionized criminology by introducing a

scientific approach to studying crime and criminals. It shifted focus from punishment to
rehabilitation, leading to modern correctional strategies. Today, criminology integrates
biological, psychological, and social factors in understanding and preventing crime,
continuing the legacy of the Positivist School.
1. Concept and Characteristics of Organized Crime
Organized crime refers to criminal activities conducted by structured groups that engage in
illegal enterprises to generate profits. Unlike individual crimes, these operations are highly
coordinated and continue over an extended period.

Key Features:

● Presence of Mens Rea & Actus Reus: Organized crimes involve clear intent (mens
rea) and the execution of illegal acts (actus reus).

● Profit-Oriented: The primary objective is financial gain rather than personal vendetta.

● Systematic and Regular: These crimes are not one-time offenses; they are repeated in
a structured manner, similar to a business.

● Large Networks: Often involve multiple individuals, including powerful figures,

intermediaries, and local enforcers.

2. Major Types of Organized Crimes in India

a) Money Laundering

● The process of disguising illegally earned money as legitimate income.

● Governed by the Prevention of Money Laundering Act (PMLA), 2002.

● Commonly linked with drug trafficking, human trafficking, and corruption.

b) Smuggling

● Illicit trade of goods, including gold, narcotics, and electronic items, bypassing legal
taxation and import restrictions.

● Controlled under the Customs Act, 1962.

c) Drug Trafficking

● India’s geographical location (between the Golden Triangle and Golden Crescent)
makes it a hub for drug smuggling.

● Governed by the Narcotic Drugs and Psychotropic Substances Act, 1984.

d) Human Trafficking

● Involves illegal trade of people for forced labor, prostitution, and slavery.

● Governed by Article 23 of the Indian Constitution and the Immoral Traffic (Prevention)
Act, 1956.

● India has a high number of victims, especially women and children.

e) Contract Killings and Kidnapping

● Hiring assassins to kill individuals for financial or political motives.

● Organized groups also engage in kidnapping for ransom.

● Governed under Sections 300, 302 (murder), 360, 363, 364A (kidnapping) of the Indian
Penal Code (IPC).

3. Legal Framework Governing Organized Crime

a) Indian Penal Code (IPC)

● Criminal Conspiracy (Section 120A, 120B): If two or more people conspire to commit
an offense, they are liable.

● Murder (Section 302), Kidnapping (Section 364A), and Human Trafficking (Section
370, 370A): Specific provisions to punish organized crimes.

b) Special Laws
 ● Maharashtra Control of Organised Crime Act (MCOCA), 1999: Enacted due to high
crime rates in Mumbai. It allows stringent measures like enhanced surveillance and strict
bail conditions.

● National Security Act (NSA), 1980: Allows preventive detention of individuals involved
in activities that threaten national security.

● Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

1988: Aims to curb drug smuggling by allowing authorities to detain suspects for up to a
year.

4. Challenges in Combating Organized Crime

Despite various laws, India faces major challenges in tackling organized crime:

a) Absence of a Central Law

● There is no single nationwide law addressing organized crime, making enforcement

fragmented across states.

b) Slow Judicial Process

● Long trials result in delayed justice, leading to low conviction rates.

● Witnesses often retract statements due to threats.

c) Difficulty in Gathering Evidence

● Many organized crime networks have political connections, making investigations

difficult.

● Fear among witnesses prevents them from testifying.

d) Lack of Coordination Between States

● Criminals frequently shift operations across state borders, and law enforcement
agencies lack coordination in tracking them.
e) Limited Resources

● Many police departments lack modern technology to track organized criminals.

● Junior officers often have limited authority, weakening enforcement efforts.

5. The Way Forward

To effectively combat organized crime, India needs:

● A centralized law on organized crime.

● Strengthened law enforcement agencies with advanced technology.

● Faster judicial procedures to ensure swift convictions.

● Better coordination between states and international agencies.

● Public awareness to encourage reporting and cooperation with law enforcement.

Conclusion

Organized crime in India is a severe threat to national security and economic stability. While
multiple laws address different aspects, the lack of a unified legal framework weakens
enforcement. A combination of strong laws, better coordination, and modern policing strategies
is necessary to combat this menace effectively.
Capital Punishment in India: A Detailed Overview

1. Introduction

Capital punishment, also known as the death penalty, is the highest form of punishment
awarded in India for the most heinous crimes. It is legally sanctioned under various provisions of
the Indian Penal Code (IPC) and other special laws. While India has retained the death penalty,
its application is rare and follows the principle of awarding it only in the "rarest of rare" cases.

2. Legal Provisions for Capital Punishment in India

India follows a statutory framework for capital punishment, primarily governed by:

● Indian Penal Code, 1860 (IPC)

● Code of Criminal Procedure, 1973 (CrPC)

● Constitution of India

● Special Laws (e.g., POCSO Act, NDPS Act, UAPA, etc.)

A. Indian Penal Code (IPC)

The IPC prescribes the death penalty for certain crimes, including:

1. Murder (Section 302) – A person convicted of murder may be sentenced to death or life
imprisonment.

2. Treason (Section 121) – Waging war against the Government of India can attract the
death penalty.

3. Kidnapping with intent to murder (Section 364A) – If the victim is kidnapped and
murdered, the accused may face capital punishment.

4. Dacoity with murder (Section 396) – If a group commits dacoity and any one of them
commits murder, all may be sentenced to death.

5. Rape leading to the victim’s death or vegetative state (Section 376A IPC, Criminal
Law (Amendment) Act, 2013) – Introduced after the Nirbhaya case, this provision
mandates the death penalty in extreme cases of sexual violence.

B. Special Laws Prescribing Capital Punishment

 ● The Protection of Children from Sexual Offences (POCSO) Act, 2012 – Death
penalty for aggravated sexual assault on children.

● The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – Death
penalty for repeat offenders involved in drug trafficking.

● The Unlawful Activities (Prevention) Act (UAPA), 1967 – Death penalty for terrorist
activities resulting in death.

3. Doctrine of "Rarest of Rare" Cases

The Supreme Court of India, in Bachan Singh v. State of Punjab (1980), laid down the "rarest of
rare" doctrine, stating that the death penalty should only be awarded when:

● The crime is extremely brutal, heinous, and shocks the conscience of society.

● There is no possibility of reforming the accused.

● Life imprisonment would be inadequate for justice.

Courts must consider mitigating and aggravating factors before awarding the death penalty.

4. Judicial Process of Capital Punishment

The process of awarding and executing a death sentence involves several stages:

1. Trial Court Judgment – The Sessions Court may award the death penalty.

2. High Court Confirmation – The High Court must confirm the death sentence.

3. Supreme Court Appeal – The convict can appeal to the Supreme Court.

4. Review and Curative Petitions – The convict can file a review or curative petition in the
Supreme Court.

5. Mercy Petition to the President – Under Article 72 of the Constitution, the President
can pardon or commute the sentence.

6. Execution – If all remedies are exhausted, execution takes place via hanging (as per
the CrPC).

5. Methods of Execution
India primarily uses hanging (Section 354(5) CrPC). The Army Act, 1950 also allows shooting
as a method of execution in military cases.

6. Notable Cases of Capital Punishment in India

1. Nirbhaya Case (2012) – Convicts were executed in 2020 for the brutal gang rape and
murder.

2. Yakub Memon (1993 Mumbai Blasts) – Executed in 2015 for financing the bomb
blasts.

3. Afzal Guru (2001 Parliament Attack) – Hanged in 2013 for his role in the attack.

7. Debate on Capital Punishment

Arguments in Favor

● Acts as a deterrent for heinous crimes.

● Provides justice to victims and society.

● Reserved for extreme cases to prevent misuse.

Arguments Against

● Risk of wrongful conviction (e.g., posthumous acquittals).

● Lack of deterrence – Studies show no direct impact on crime rates.

● Violation of human rights – Many argue that it is a cruel and irreversible punishment.

8. Global Perspective

● Abolished: Over 140 countries have abolished the death penalty.

● Retentionist Countries: India, USA, China, Iran, Saudi Arabia still have capital
punishment.

Pros (Arguments in Favor of Capital Punishment)

1. Deterrence Against Heinous Crimes

● The fear of the death penalty can discourage individuals from committing serious crimes
like murder, terrorism, and rape.

● Supporters argue that capital punishment sends a strong message that severe crimes
will result in the most extreme punishment.

2. Justice for Victims and Closure for Families

● The death penalty ensures justice for victims and their families, particularly in brutal
cases like rape and murder.

● It provides a sense of closure and relief to those affected by the crime.

3. Prevention of Repeat Offenders

● Life imprisonment can allow criminals to commit crimes again, either in prison or upon
release.

● Executing criminals ensures that dangerous individuals do not get a second chance to
harm society.

4. Used Only in "Rarest of Rare" Cases

● The Supreme Court of India follows a cautious approach in awarding capital punishment,
making it a last resort.

● Judicial safeguards like appeals and mercy petitions prevent arbitrary use.

5. Stronger Punishment for Terrorists and Extreme Criminals

● In cases involving terrorism and mass killings, execution is often seen as necessary to
maintain national security.

● It prevents terrorists from regrouping if released in prisoner exchanges.

 Cons (Arguments Against Capital Punishment)
1. Risk of Wrongful Conviction

● The legal system is not infallible, and wrongful convictions have occurred in the past.

● Once a person is executed, there is no way to reverse the punishment if new evidence
emerges.

2. No Proven Deterrence Effect

● Studies show that the death penalty does not significantly reduce crime rates compared
to life imprisonment.

● Countries that have abolished the death penalty (like Canada and the UK) have not seen
an increase in serious crimes.

3. Violation of Human Rights

● Many human rights organizations argue that the death penalty is inhumane and cruel.

● It goes against the fundamental right to life guaranteed by the Constitution and
international human rights treaties.

4. Delays and High Costs

● The process of awarding and executing the death sentence is extremely slow due to
multiple appeals and mercy petitions.

● Maintaining death row prisoners is often more expensive than life imprisonment due to
prolonged legal proceedings.

5. Risk of Political and Judicial Bias

● The application of the death penalty may be influenced by socioeconomic status,

religion, or political pressure.

● Wealthy and influential people often escape the death penalty, while marginalized
individuals are more likely to be executed.
Final Verdict: Should India Retain the Death Penalty?
● Supporters argue that the death penalty is necessary to punish extreme criminals,
deter heinous crimes, and provide justice.

● Opponents believe it is prone to errors, violates human rights, and does not effectively
deter crime.

India continues to maintain capital punishment but applies it only in "rarest of rare" cases,
balancing both perspectives. The debate, however, remains ongoing.