Abstract

Exploring sexuality is a normative feature of adolescent development. The age of attaining puberty has substantially reduced with time, which collaterally has also impacted the age of sexual maturity amongst teenagers. The psychocultural reality of adolescent sexuality is in complete contrast with the legal framework, which criminalizes consensual sexual intimacy involving a minor girl. The statutory rape law is primarily centered around the objective of protecting the ‘young’ from early exposure to sexual acts (consensual or non-consensual) which potentially is contended to adversely impact not only their reproductive health but also overall development. Thus, in consequence the resultant legal matrix conflates the distinction between “exploitative sexual practice” and “general sexual expression” by an adolescent.

The statutory rape law has far-reaching consequences which are mitigated by the Romeo-Juliet provisions (close-in age exemption) in some jurisdictions. It is being chronicled in academic and judicial discourse that this provision in India, in particular, is being excessively abused by the parents of the girl child to implicate her paramour for the offence of rape/penetrative sexual assault. Additionally, the offence of kidnapping from lawful guardianship also doesn’t consider the agency of the minor female, and gives credence only to the consent of the guardian (Indian Penal Code, 1860, § 361). Resultantly, the instances of elopement of a minor girl child are labeled as kidnapping from lawful guardianship and the related criminal sanctions are invoked.

The legal framework on consensual adolescent sexuality is dragging minors into the criminal justice system in the guise of protection by the State (parens patriae). This over-criminalization is leading to traumatic experiences for minors and also over-burdening the State machinery. The trauma is exacerbated by denial of bail and long pre-trial incarceration due to cautious and stringent judicial approach in cases pertaining to POCSO Act, 2012. This Chapter is an attempt to understand the approach of the court in balancing the paradoxical ends of protecting/prosecuting youth by analyzing the select bail cases and how such a measure is a classic case of overcriminalization.

Abstract

Recently India witnessed an upsurge in criminalization. As per the Crime in India Report, the crime rate registered per lakh population increased from 385.5 in 2019 to 445.9 in 2021. Justifying criminalization in the name of protecting women and instilling patriotism, the government overlooked the innumerable repercussions associated with it. One of them is the lifelong harm inflicted on the children of those incarcerated. The adverse effects of parental incarceration include behaviour problems (Foster & Hagan, 2015, p. 387–429), deteriorated physical health (Sukhramani & Gupta, 2020, p. 199–203), stigmatization (Arditti, et al, 2003, p. 195–204), worsened prospects (Myers, et al, 2004, p. 11–25), delinquency (Trice & Brewster 2004, p. 27–35), poor academic performance (Arditti, et al, 2003, p. 195–204), school drop-out (Raghavan & Nair 2011), disruption of family (Snyder, et al, 2001, p. 33–61) and material hardships. The present article aims to present this new dimension of over criminalization, i.e., its effects on the children of those incarcerated.

Abstract

The chapter delves into the intricate issues surrounding lynching in India, particularly focusing on the lack of formal recognition of lynching as a separate crime under the Indian Penal Code. It explores the varied effects and reactions of this legal loophole on public perception and attitudes towards punitive measures. Through empirical research, the chapter analyzes the opinions of individuals from diverse backgrounds, shedding light on the prevailing trend towards stricter punitive measures and its implications for lynching cases. The study highlights the need to understand overcriminalization and punitive justice not only from expert perspectives but also from the viewpoints of the general populace. By examining the awareness and attitudes of the Indian population towards lynching, the chapter provides valuable insights into the societal response to this pressing issue. Furthermore, it presents findings suggesting a positive relationship between the pro-deterrence perspective and the preference for stringent punishment for lynching. The chapter concludes with a legislative analysis, emphasizing the significance of aligning legal developments, such as Bharatiya Nayaya Sanhita (BNS), with public perceptions and empirical data to effectively address the menace of lynching in India.

Abstract

This chapter examines the principles guiding the criminalization of conduct, focusing on the concepts of harm and offence, and critiques the recent blanket prohibition of alcohol consumption in Bihar, India. It discusses the complexities of defining harm, both individually and collectively, and evaluates the offence principle’s role in preventing societal offences. The legislation’s indiscriminate use of penal power is scrutinized, highlighting concerns about overcriminalization and its implications for individual autonomy and the justice system. The paper explores the practical impacts of the prohibition legislation, including burdens on the courts and unintended consequences such as the incarceration of innocent individuals. It analyzes recent legal and policy responses, critiquing provisions such as requiring individuals caught drinking to provide information on liquor suppliers. The conclusion calls for caution in the use of criminal law, advocating for alternative approaches to addressing social issues and a reevaluation of the prohibition legislation to ensure effectiveness and fairness. Overall, the chapter provides a comprehensive examination of criminalization principles and their application in the context of alcohol prohibition in Bihar.

Abstract

This chapter draws on the experience of Prayas, a field action project of the Tata Institute of Social Sciences (TISS), Mumbai, working towards facilitating legal aid and bail for poor undertrial prisoners through a collaborative approach of social workers and lawyers, working across six prisons in Maharashtra. The chapter is written based on my experience of being associated with Prayas as a Research and Documentation Officer since October 2019. The data on the undertrial prisoners are maintained in the Management Information System (MIS) based on demographics, case-related information and services provided (intervention) by the respective social work and legal fellow working on the case. My role entailed monitoring the MIS database and the findings of the chapter are based on the analysis of data procured in the form of an excel sheet downloaded from the MIS to generate quantitative reports. Qualitative experiences are drawn based on internal reports and my interaction with Prayas social workers and fellows working with undertrial prisoners across six prisons The chapter captures undertrials’ marginalised backgrounds and related difficulties in accessing free legal aid, the crucial role of social workers and lawyers in facilitating the release of undertrials on bail. The chapter concludes with suitable suggestions to decongest the overcrowding of undertrials in prisons and the need for criminal justice social work i.e., placement of trained social workers in prisons to rehabilitate and reconstruct the lives of the marginalized groups coming in contact with the criminal justice system.

Abstract

The decolonization of the Indian legal system is a felt necessity in the present context by the Government of India. The Indian Government is commemorating the “Azadi Ka Amrit Mahotsav” which is an initiative of the Government of India to celebrate and commemorate 75 years of Independence and the glorious indigenous history of its people, culture, and achievements (Azadi Ka Amrit Mahotsav, 2023). Under this “Azadi ka Amrit Mahatosva” one of its salient commitments is to decolonize the Indian legal system by removing the colonial mindset, and practices, or in other words seeking the Indianization of legal system. It is estimated that around 250 to 290 British colonial-era legislation still exists and is effective in the Indian Legal framework. By enacting the Repeal Act, the Executive, through its Ministries, Law Commission through its successive reports, the legislature recommends that colonial Law which is obsolete and outdated, should be repealed. This decolonization is pertinent for reasons related to the colonial laws manifest the notion of slavery, suppression, inferiority of the existing indigenous system, and population to the Colonial rulers. Besides, decolonization is imperative for the British era colonial laws which are rendered irrelevant and do not suit the needs of the democratic and constitutional governance strengthening socio-economic and legal rights of the citizenry. India has been under British colonial rule for almost 90 years, from the year 1858–1947. During this long British colonial rule, Indian legal system has been immensely influenced. This is testified as the Constitution of India itself is taken after the Government of India Act of 1935. Further, the major criminal manuals, including the Criminal Procedural Code and Indian Penal Code, represent the English common law system present in England, and the Victorian era, Judeo-Christian era concepts of offences and crime. Most of the existing Indian laws are not only a piece of colonial inheritance but also these regulations are representative of colonial vestiges, colonial conventions, and colonial relics. This has been the subject of condemnation by Judges and policymakers as redundant. Under British colonial rule, some sections of society suffered negatively under this harsh colonial rule being denied their basic rights, liberties, and freedom over all their right to life. By invoking the concept of transformative constitutionalism, the judiciary seeks to break away from the adverse impact of colonial rules and archaic practices. The plight of homosexuals or same-sex relationships is still regulated by Victorian-era morality, which is implicit in the Indian Penal Code (IPC) as addressed by the Supreme Court in Suresh Kumar Koushal & Anr, v. Naz Foundation & Ors, 2013. The offences of “sodomy” and “buggery” exist in the criminal manual, which has the colonial era definitions borrowed from the English Law as The Buggery Act of 1533, re-enacted in 1563.

Similarly, the concept of “adultery” is viewed from the age-old common law doctrine of “Coverture”, imbibed in the definition of adultery in IPC discussed by the Supreme Court in Joseph Shine v. Union of India, 2018. The condition of criminal tribes, the transgender’s community, are still battling the social stigma under the colonial era repressive rules of the Criminal Tribes Act, 1876, amended 1924 and now known as Habitual Offenders Act, 1958. Hence, in view of the above, this article articulates the progressive approach of decolonization of the legal system through transformative constitutionalism and repeal, and modification of colonial Law, towards the Indianization of the legal system.

Abstract

The Indian epic Mahabharata showcased the presence of Shikhandi and Bruhannala, who were portrayed as trans people, were given key responsibilities in administration and war management, managing the education of royal children and who went on to influence the entire epic in significant ways. Ancient Indian societal setup shaped by ancient texts like Artha Shastra, Manu Smriti, etc., have acknowledged the presence of people belonging to LGBTQ including transgender communities and they had been entrusted with the duties of providing security to women and children, working as a spy police etc. With the passage of time, LGBTQ people became unacceptable in society. The mediaeval European criminal justice system largely influenced by the orthodox Christian religious verses considered LGBTQ people as sinners as they had apparently breached the assigned biological gender which is a per the command of God. This colonial British government in India also reflected this mind-set. The draftsmen of Indian Penal Code, 1860 penalised several human behaviours and prescribed strict punishment for the execution of such behaviours: it included homosexuality and it was acknowledged as unnatural sexual behaviour under S.377 of the Indian Penal Code. Centuries after the Supreme Court of independent India acknowledged this as historic wrong and suggested the revision of S.377. Presently S.377 addresses non-consensual homosexual abuse and it extends its scope to include sexual abuse of children by adults and children of same sex. The same concept has also been acknowledged by the Protection of Children from Sexual Offences (POCSO) Act, 2012. But this chapter argues that the colonial ghost of homophobia still exists in the policing system in India. Bad policing, police brutality on LGBTQ people and abuse of power to humiliate and harass such people need a deeper victimological and legal understanding and this chapter aims to fill this gap.

Abstract

This chapter will explain why we need to raise the age to try, sentence, and punish people as adults in our criminal justice system. I will discuss how a person is considered an adult in America and how fluid it has been. This paper focuses on the history of our criminal justice system and how charging people as adults has fluctuated, highlighting that the age of trying people as adults was not always 18 but rather 21. It will focus on the biological and scientific reasons we need to raise the age of trying people as adults at a higher age – mainly focusing on brain development. Lastly, it will focus on theoretical and psychological reasons we should raise the age as well as its impacts on society, mixed with anecdotal evidence to support the claims.

Abstract

The chapter will debate about Probation and Community Service Work and also about Restorative Justice practices in Italy, both in adults and minor’s fields, using the socio-legal approach. The author presents some of the data collected by a research programme held in collaboration with Social Work Officers in a district of northern Italy. The essay will suggest some questions, especially related to the Probation scheme and its purposes, used in Italy not only for rehabilitation purposes, but also for restorative ones. The light and shadows of this application are a good key to explore and discuss the meddling paths of restorative justice and criminal justice.