PureSociology

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Arvind

The debate over citizen vs person surfaced in the recently passed three acts (by Indian Parliament), namely, The Bhartiya Nyaya Sanhita, 2023, The Bharatiya Sakshya Adhiniyam 2023, and The Bharatiya Nagrik Suraksha Sanhita 2023 to provide for a novel criminal manual repealing the previous criminal manual which embodied the Indian Penal Code 1860, Criminal Procedure Code 1973, Indian Evidence Act 1872.

The Bharatiya Nyaya Sanhita, 2023 is set to replace the Indian Penal Code and The Bharatiya Nagrik Suraksha Sanhita is set to replace The Code of Criminal Procedure Code,1973, and the Bhartiya Sakshya Adhiniyam, 2023 is set to replace the Indian Evidence Act, 1872.

While a great deal of criticism surrounds the assignment of Hindi nomenclature to the new laws as an attempt to assert linguistic domination a great deal of appreciation surrounds the same for the attempt made at erasure of the colonial origins of the previous criminal manual. The nomenclature of one of the three acts namely, The Bhartiya Nagarik Suraksha Sanhita, 2023 is flawed in its very nomenclature and carries within itself its possible unconstitutionality.

To, enable a contextual understanding of the same, it is crucial to delve into the jurisprudence running through the Procedural codes and the constitutional grounding of these procedural codes.

Constitutional Grounding of the Procedural Codes

Every law passed must stand the test of constitutionality to qualify as a valid law for which every law must trace back its origins to the constitution. Id est, it is the constitution that gives birth to the origin of any law, only because the constitution provides that such a law must exist, the law indeed exists’.

To state it in the words of Hans Kelson, ‘it is the grundnorm (constitution) which grants validity to all other norms (other laws)’. Having established that, the natural question that should crop up is the question Which provision in the constitution grants provides for criminal procedure codes and validates them?

The answer to the question is Article 21 which runs as follows, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

A criminal procedure deprives a person of his or her life ( in cases of imposition of the death penalty) and in an abundant of cases, it robs a person of his personal liberty (for example – to arrest someone is a procedure provided for in the code of criminal procedure, chapter VI, is essentially an act depriving a person of his/her liberty).

Thus, most criminal procedure is essentially an antithesis to Article 21 (as it deprives a person of his or her personal liberty). But they still stand the test of constitutionality by virtue of the following employed in Article 21 – ‘except according to procedure established by law’.

The procedure that is (Criminal procedure) depriving the personal liberty of a person itself has been provided for by the very Article 21. A reproduction of the draft article of Article 21 at the time of framing of the Constitution is essential to comprehend its true intent. The draft Article of Article 21 read as follows

Article 15, Draft Constitution of India 1948 (Draft article of Article 21)

‘No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.’

A perusal of the reproduced article makes it amply clear that the intent of Article 21 is the protection of a person from being deprived of his/her personal liberty by any other procedure not provided for by the law’.

Thus, the law providing such deprivation prescribes the manner or procedure in which it seeks to deprive the person of his/her personal liberty and the deprivation of same in any other manner or procedure is unconstitutional.

For instance, To arrest a person is a procedure – depriving a person of his personal liberty , now the same may be done in numerous ways, any person may forcibly lock a person- (way-1) or may chain a person (way-2) and may arrest by production proper id proof of the fact of his being police officer, the production of arrest warrant and carrying other procedure as laid down under Chapter VI of CRPC,1973 ( way-3).

Of the three aforementioned ways to deprive a person of his/her personal liberty, the first two are unconstitutional as they have not been provided for by law and the 3^rd way is validated and constitutional as the same has been provided for by a law which is CRPC,1973.

Thus, Article 21 while providing for a procedure to deprive the personal liberty of a person (CRPC,1973, WAY-3) simultaneously protects a person against the deprivation of his/her personal liberty by any other ways (way-1 and way-2 from the illustration).

Now the next question is To, whom does the protection against deprivation extend to? Does it extend to just the citizens or does it extend to all persons? It is at this juncture, that there is an apparent contradiction between the Bharatiya Nagarik Suraksha Sanhita and Article 21.

Article 21 Vs. Bharatiya Nagarik Suraksha Sanhita, 2023

To, whom does the protection against deprivation extend to? does it extend to just the citizens or does it extend to all persons?

Article 21 answers the question unequivocally as ‘The protection is extended to all persons’ as the word employed in Article 21 is ‘Person’.

It is here, that the Bharatiya Nagrik Suraksha Sanhita, which literally translates as – ‘Indian Citizen Protection Code’ stands in an apparent contradiction to Article 21. The attention here is to be drawn to the word – ‘Citizen / Nagarik’ as against the word ‘Person’ employed in Article 21.

Stricto sensu, ‘Every human being is a person, but every human being is not a citizen’. This much of it is pretty much clear at least from the citizenship protests witnessed by our country in recent years. The distinction between the two classes of human beings runs in the Part-III of the Indian Constitution which confers ‘Fundamental Rights’.

While, Article 14, Article 18(3)(4), Article 20, Article 21, Article 22, Article 25, 27, 28(3) employs the word ‘Person’. Articles 15, 16, 18(2), 19, employs the word ‘Citizen’.

The implication of the existence of a clear distinction between ‘Persons and Citizens’ is made even more conspicuous in Article 18(3) which runs as under:

Article 18(3) states ‘No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State’.

A bare perusal of the article implies that all persons are not citizens and it goes without saying that certain rights wherein the word ‘citizen’ is employed pertain exclusively to them but, certain rights wherein the word ‘person’ is employed pertain to all human beings and other legally recognized persons’ which is precisely, the word employed by Article 21.

While the intent of Article 21 is to extend Protection against unprescribed and unlawful deprivation of personal liberty to all the ‘Persons’. The Bharatiya Nagarik Suraksha Sanhita, 2023, which literally translates as – ‘Indian Citizen Protection Code’ (strives to protect against unprescribed and unlawful deprivation of personal liberty by prescribing a procedural path to that effect and mandating the observance of that only prescribed path), the code by employing the word ‘Citizen’ has done great injustice to Article 21 which to the contrary mandates the extension of such protection to all ‘Persons’.

The mandate of such Extension of the protection by Article 21 to all ‘ Persons’ is perfectly in consonance with certain Articles of the Universal Declaration of Human Rights (UDHR) which strives for the grant of equal protection to all persons from any deprivation of the personal liberty by procedures or manner not being the one provided for by law itself.

Thus, the nomenclature of the ‘Bharatiya Nagarik Suraksha Sanhita’ is flawed, restrictive, and apparently unconstitutional and the same needs to be re-named to be in tune with the nomenclature of the grundnorm, which is Article 21 of the Indian Constitution.

The views and opinions expressed by the author in this article are his personal opinions and do not represent the views of PureSociology. You can contact the author/s at [email protected]. The details of the author:

Mr. Arvind is a Law student at Chandigarh University (CU), Punjab (India).

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Arvind

Cyber Crimes, also known as virtual or online crimes are ever-increasing and to understand its roots we need to start with an understanding of virtual society and the actual society. Virtual Society or Cyber-society, as the name suggests, is an inter-objective and an inter-subjective society emanating out of our web of Virtuo-social relationships. As MacIver and Page (1950) rightly propounded, a timeless definition of Society “as a web of Social relations, a complex system of usages and procedures, of authority and mutual aid, of many groupings and divisions, of control of human behavior, and of liberties”. The virtual Society rightly stands in consonance with this definition as the Virtual society is nothing more than a web of social relations forged through interactions, the medium of such interactions being Virtual, leading to the generation of what we call ‘A Virtual or Cyber Society’.

While one might argue that the ‘Virtual Society’ is not a distinct entity from the ‘Society’ itself, as it is the Society in which the virtual society exists. Anything which is part of the Society is also the Society itself. This argument, though convincing, nevertheless, stands defeated owing to several distinctions between the ‘Virtual Society’ and the ‘Society’. It is the non-acknowledgment of these very distinctions and attempts made at the elimination of these distinctions to bring the ‘Virtual society’ on the same footing with the ‘Society’, rather than an acknowledgment of these distinctions and developing a suitable instrumentality to deal with the distinctions, that serves as the ‘Source of virtual crimes’. The root source of online crime or virtual crime is the non-acknowledgment of the distinctions between the ‘Virtual Society’ and the ‘Society’.

Had the ‘Virtual Society’ been one and the same as the ‘Society’ itself, the crimes in it would not be any different from the Societal Crimes, and the existing law enforcement agencies and laws would be capable of combating the virtual society. To better understand, it is crucial at this juncture to ascertain what a Crime is? ‘A crime is any deviance recognized by the state.’ Put this way, any deviance presupposes the existence of a prescriptive order. For it is any behavior that is in non-conformity with this Prescriptive order that is called ‘Deviance’.

Consequently, for deviance to exist, the existence of a ‘Prescriptive order’ is a precondition. However, mention is to be made of the fact that ‘every deviance is not a crime, but every crime is deviance’.

A ‘deviance’ becomes or qualifies as a ‘crime’ only when it is recognized by the State. To illustrate, the act of not touching the feet of an elderly is regarded as deviant behavior, but the same is not a crime, for the state has not, by way of any law, made this deviance punishable. However, the act of murdering an individual is prima facie deviant behavior, which has been recognized by the state and subsequently qualified to the status of crime. Thus, all those ‘Deviances recognized by state qualify as a Crime’. With that necessary differentiation, it is amply clear that ‘A crime is a deviance which presupposes the existence of a Prescriptive order’.

However, it is the absence of this very prescriptive order in the ‘Virtual society’ that results in – ‘Virtual Crimes’. How is the Prescriptive order learned? The State’s laws are effective only because it just express the majorly-existent and majorly-compliant prescriptive order in place (minor non-compliances are what we call crime). In other words ‘A majority of the society already regards human life as sacred and valuable and already refrains from depriving such life (killing), and the state’s laws are merely an explicit expression of that existent prescriptive-order (we do not kill for human life is valuable) which is already majorly-compliant when it, by way of a law, makes the act of killing punishable. It is because of such a reason that State’s laws are effective as the implementation is already in place, and what is to ensure is the status quo or maintenance of such a prescriptive-order.

The successful existence of the prescriptive order owes a great debt to the Agents of Socialization who, from the birth of a new being, are set on the process of instilling the ‘Prescriptive order into the new being’.

It is the ‘Absence of these two, namely, the ‘Prescriptive order’ and the ‘agents of socialization’ in the virtual world that results in the major distinction between the ‘Virtual Society’ and the ‘Actual Society’. It is the attempts made at bridging the distinctions rather than acknowledging the distinctions and taking a suitable course of action that becomes the source of Virtual Crimes.

How do the attempts to bridge the distinctions become the source of virtual crimes? As already been stated that a crime is a deviance that presupposes the existence of a prescriptive order. The prescriptive order as such is absent in the virtual society, but rather such a ‘prescriptive order’ is incorporated or borrowed from the ‘Actual society’. Ergo, what is actually present in the ‘Virtual society’ to measure deviance is a ‘Borrowed Prescriptive order’ from the ‘Actual society’. Virtual crimes are in fact and in effect – ‘A deviation from this Borrowed prescriptive order which has been recognized by the state as punishable’.

Such being the case, it is crucial to ask whether the term virtual crime is itself an appropriate term as it is indeed a breach of the prescriptive-order of the actual society which has been borrowed into the virtual society and how can there be crime in the virtual society when it does not possess a prescriptive order in place to begin with.

Thus, whatever happens in the ‘virtual society’ is the consequence of a borrowed prescriptive order. Why is the Borrowed Prescriptive Order a source in itself for the so-called virtual crimes?

– The Socialization by the agents of socialization was solely with respect to the observance of the ‘prescriptive social order’ in the actual society, and as such, the observance of the prescriptive order in the virtual society was never instilled by the Agents of socialization;

– Certain norms of the prescriptive order if observed in the virtual society are mocked at;

– The Agents of Socialization are themselves not well-acquainted with the virtual society and are not successful in enforcing compliance with the prescriptive order;

– The automatically developing virtual order is often in contradiction with the borrowed prescriptive order that is thrust upon the virtual society.

Thus, the Borrowed prescriptive order thrust upon the virtual society is the major source of virtual crimes arising out of the non-acknowledgment of the existing distinction between the ‘virtual society’ and the ‘actual society’.

The contemporary society, especially the formal organizations are working to deal with cybercrime in traditional ways. Like Government agencies setting up portals to report cyber crime online, where people can lodge cyber crime complaints. There are also toll-free phone numbers to report cyber crimes. But these traditional ways prove to be ineffective due to the absence or proper informal socializing agents and informal means of social control. Thus, the formal agents of socialization and formal means of control of the ‘Actual society’ are functioning or at least making some efforts to deal with cyber crime of the ‘virtual society’ but the informal agents of socialization and means of control are lagging behind. These are not able to properly externalize the norms and institutions of the virtual world and also failed in prescribing the tools of proper internalization of the virtual society and its institutions. In such situation formal agencies also face issues in framing the effective laws to deal with cybercrime, or online, or virtual crime in absence of a prescriptive order.

The views and opinions expressed by the author in this article are his personal opinions. You can contact the author/s at [email protected]. The details of the author are:

Mr. Arvind is a Law student at Chandigarh University (CU), Punjab (India).

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Arvind

Relationship between Sociology and Law

There is an indispensable significance or relationship between Sociology and Law. The significance of sociology in legal discipline can be understood by answering the question – “Is law a reflection of society”? The question is a surmounting authority for establishing the indispensable inter-relationship between the two disciplines of “law” and “sociology”.

It has been a common notion among academicians and sociologists that if you are to understand a society, then, a plain reading of its laws is the first step in the process. The existence of a law pertaining to a certain subject matter implies the existence of such a subject matter in society or a reasonable apprehension about the coming into existence of such a subject matter in society. For instance, the existence of a law regulating fast-food consumption is either indicative of the existence of such fast-food consumption in the society (drugs- the subject matter) or indicative of the coming into being of such a fast-food consumption culture in the society with large scale establishment of fast food stalls.

For Ergo, “All laws are indeed made from the society and for the society”. When we say, “Laws are made from the society”, what we imply is that laws are a reflection of society or a mirror image of society. However, the same may not hold true, when we say “Laws are made for the society” as making laws for the society is an attempt of law to go beyond being a mere reflection of the society into altering the very society and moulding the society into being a reflection of the dictates of law rather than it (law) being the reflection of the society. Id Est., “Instead of law being the reflection of the society, the society is made to become a reflection of law”.

On that fulcrum, it is natural for one to perceive the act of “making laws for the society” as meddling with the society. However, what is to be understood is that had it not been for such action of making laws for the society, then, we would not have eliminated the age-old social evils of – “Sati”, “Dowry deaths” etc. Thus, making laws for society is necessary to give direction to how a society is to shape itself and appear as a whole.

Law cannot play a passive role of being a reflection of society and perfunctorily give recognition to everything in existence in society. Rather it has to and indeed plays an active role in selecting what in the society is to be given recognition and what is not to be given recognition and “shape the reflection of society”.

Thus, on that account, “Law is a reflection of the society but it is more a shaper of the reflection of a society” as the law is certainly made from the society, but it need not always be made for the society and law as a tool giving recognition to what a society must reflect must be very cautious of to what it gives recognition as what it gives recognition indeed reflects on the society. A perusal of the above lines is indicative of the relationship between the two disciplines.

Sociology equips lawyers with lenses to analyze any social issue

The three prime schools of thought in Sociology namely – “Functionalist”, “Conflict” and “Symbolic-interactionist” are equally significant in legal studies.

The entire legal process works on the primary ideology of the “Conflict School of Sociology” as it envisages any social process (including the legal process) as a struggle between two opposites or polar.

The legal process too, involves a struggle between two parties in whatsoever name called – (Petitioner Vs. Respondent), (Plaintiff Vs. Defendant) etc. is essentially a struggle between two opposites.

The functional school steps into action in the legal process, when the judge applies his mind to the case (conflict) before him and decides the merits of the conflict, that is – The judge has to decide whether the issue (conflict) before him is functional for the society or not? If yes, the case is heard or if not, the case is dismissed. While, deciding the same the judge indeed put on the thinking that of the functionalist school.

All the interactions between a client and legal professionals demand the understanding of the client’s self, his attributions, and the client’s symbols through which a legal professional can discern the client’s psychology. As, “Every client is a product of society” an understanding of a client’s interaction (symbols used by him including culture, language, etc.) is crucial for a successful legal practice.

Sociology and Law are two interrelated disciplines that study social order and human behavior. Law is a system of rules and norms that regulate the interactions and conflicts among individuals and groups in a society. Sociology is a science that analyzes the patterns, causes, and consequences of social phenomena, such as culture, class, gender, religion, and power.

Sociology and Law influence each other in various ways. For example:

Law can shape the social structure and culture of a society by defining the rights and obligations of its members, enforcing social norms and values, and resolving disputes and conflicts.
Sociology can provide insights and explanations for the origins, functions, and effects of law on society, as well as the social factors that influence the creation, interpretation, and implementation of law.
Law can be a subject and a tool of sociological research, as sociologists can examine the legal system and its actors, such as judges, lawyers, and police, as well as the legal issues and problems that affect society, such as crime, justice, and human rights.
Sociology can also be a source and a resource of legal reform, as sociologists can propose and evaluate policies and programs that aim to improve the legal system and its outcomes, as well as to promote social change and justice.

Thus, “Legal discipline devoid of sociology is akin to a chair without its legs as it is the sociology which is the foundation upon which the superstructure of law is erected”.

The views and opinions expressed by the author in this article are his personal opinions. You can contact the author/s at [email protected]. The details of the author are:

Mr. Arvind is a Law student at Chandigarh University (CU), Punjab (India).