P. Rathinam v. Union of India - Cornell University

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an Organisation called "Suicide Prevent". May it be reminded that a law which is cruel violates Article 21 ofthe Constitution, a la, Deena v. Union of India29. (4) Why is a particular act treated as crime? What acts areso treated?49. Earliest reference to the word "crime" dates back to 14th century when it conveyed to the mind somethingreprehensible, wicked or base. Any conduct which a sufficiently powerful section of any given communityfeels 29 (1983) 4 SCC 645 : 1983 SCC (Cri) 879: AIR 1983 SC 1155 414to be destructive of its own interest, as endangering its safety, stability or comfort is usually regarded asheinous and it is sought to be repressed with severity and the sovereign power is utilised to prevent themischief or to punish anyone who is guilty of it. Very often crimes are creations of government policies andthe Government in power forbids a man to bring about results which are against its policies.50. In a way there is no distinction between crime and tort, inasmuch as a tort harms an individual whereas acrime is supposed to harm a society. But then, a society is made of individuals, harm to an individual isultimately harm to society.51. A crime presents these characteristics: (1) it is a harm, brought about by human conduct which thesovereign power in the State desires to prevent;(2) among the measures of prevention selected is the threat of punishment; and (3) legal proceedings of aspecial kind are employed to decide whether the person accused did in fact cause the harm, and is, accordingto law, to be held legally punishable for doing so. (See pp. 1 to 5 of Kenny's Outlines of Criminal Law, 19thEdn., for the above propositions.)52. Protection of society is the basic reason of treating some acts as crime. Indeed it is one of the aims ofpunishment. Where there is no feeling of security, there is no true freedom. What is the effect of the samecannot be described better than what was stated by Hobbes in Leviathan, which is:"There is no place for industry, because the fruit thereof is uncertain; and consequently no culture of the earth;no navigation nor use of the commodities that may be imported by sea; no commodious building; noinstrument of moving and removing such things as require much forces; no knowledge of the face of the earth;no account of time; no arts, no letters; no society; and which is worst of all continual fear and danger ofviolent death; and the life of a solitary, poor, nasty, brutish and short."53. As constitutionality of Section 309 has been assailed as being violative of Article 21 which protects lifeand personal liberty, it would be in fitness of things to note what J.S. Mill had to say about making an actrelatable to personal liberty punishable. This is what Mill had said in this connection in his famous tract OnLiberty : "The object of this Essay is to assert one very simple principle, as entitled to govern absolutely thedealings of society with the individual in the way of compulsion and control, whether the means used bephysical force in the form of legal penalties or the moral coercion of public opinion. That principle is that thesole end for which mankind are warranted individually or collectively, in interfering with the liberty of actionof any of their number, is self- protection. That the only purpose for which power can be rightfully exercisedover any member of a civilised community, against his will, is to prevent harm to others. His own good, eitherphysical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because itwill be better for him to do so, because it will make him happier, because, in the opinions of415P.Rathinam vs Union Of India on 26 April, 1994others to do so would be wise, or even right. These are good reasons for remonstrating with him or reasoningwith him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil incase he does otherwise. To justify that, the conduct from which it is desired to deter him must be calculated toIndian Kanoon - http://indiankanoon.org/doc/542988/ 12
produce evil to someone else. The only part of the conduct of anyone, for which he is amenable to society isthat which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.Over himself, over his own body and mind, the individual is sovereign." (emphasis supplied)54. The very definition of 'crime' depends on the values of a given society. To establish this what has beenstated by Justice Krishna Iyer in his book Perspectives in Criminology, Law and Social Change (1980) at pp.7 and 8 may be noted:"What is a sex crime in India may be sweetheart virtue in Scandinavia. What is an offence against property ina capitalist society may be a lawful way of life in a socialist society. What is permissible in an affluenteconomy may be a pernicious vice in an indigent community. Thus, criminologists must have their feet all thetime on terra firma."55. Not only this, crimes can also be created or abolished with the passage of time, as stated at p. 7 of R.S.Cavan's Criminology (2nd Edn.). This has been elucidated by the author by stating that in democracy whereindividual opinion can express itself freely through speaking, writing and elections, public opinion becomesthe final arbiter in placing the opprobrium of crime upon a specific type of behaviour and when a law is notaccepted the police may attempt to enforce it against public opinion, but gradually the police yield to thepressure of public opinion, which they perhaps share. The law may remain on the statute books but be ignoredby all. Whereas when the public opinion supports the law, many pressures of an informal nature are broughtagainst the violators to aid and lessen the police action.(5) How can crimes be prevented ?56. The aforesaid subject is too wide and cannot be discussed meaningfully within the parameters available tous in this judgment. The treatise on Crime and its Prevention edited by Stephen Lewin, Editor, World WeekMagazine, would show how complicated the subject is. At p. 217 of the 3rd printing (1973) mention has beenmade about seven steps for combating a crime. We may not go into the details. Sufficient to say that the stepsrelate to different disciplines.57. Professor Dr N.V. Paranjape, Professor and Head of the Department of Postgraduate and Research in Lawand Dean Faculty of Law, Jabalpur University, in his book Criminiology and Penology has something to sayin Chapter VI about causes of crime, knowledge of which is necessary to combat and prevent the same. DrParanjape states that in the absence of a single theory of crime-causation, criminologists have offered differentexplanations to justify their own theory as an explanation of delinquent behaviour. There are, however, somewriters who seem to be convinced that416P.Rathinam vs Union Of India on 26 April, 1994no single theory of crime can fully explain the causes of crime. They therefore prefer a multiple approach tocriminal behaviour which suggests that crime is generated not as a result of one solitary factor but as aconsequence of a combination of such factors.58. Justice Krishna lyer also in his aforesaid book has dealt with this aspect in Chapter 2 captioned "ThePathology of Indian Criminology". In his usual inimitable style, he has painted the crime scenario on a broadcanvas and has mentioned about various factors which lead to commission of crimes.59. Reference may also be made to the White Paper presented to the Parliament by Her Majesty's Governmentin 1990 on the subject of "Crime, Justice and Protecting the Public", published as Cm. No. 965. The WhitePaper has summarised main proposals as below:Indian Kanoon - http://indiankanoon.org/doc/542988/ 13
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