Concept of Deviance and

UNIT 1 CONCEPT OF DEVIANCE AND Crime

CRIME
Structure
1.1 Introduction
1.2 Objectives
1.3 Defining ‘Deviance’ and ‘Crime’
1.4 Technical Connotations of ‘Crime’ and their Essential Components under
Substantive and Procedural Laws
1.4.1 Essential Elements of Crime
1.4.2 Crime, “Offence” and its Variants
1.5 Typologies and Patterns of Crime
1.6 Functions of Deviationism and Criminalisation
1.7 Summary
1.8 Terminal Questions
1.9 Answers and Hints
1.10 References and Suggested Readings

1.1 INTRODUCTION
The concept of ‘Deviance’ and ‘Crime’ are central to the understanding of criminal
justice in any society. All societies that are constituted by the individual members –
men and women – lay down certain ground rules for guiding and regulating the
freedoms of thought and actions of its members. Thus, a liberal and permissive
society may accord to its members greater freedom, while as a conservative and
authoritarian society may concede limited freedom to its members in matters of
thought and action. As a consequence human behaviour and action is routinely
labeled as ‘deviant’ or a kind of deviation from the expected or normal behavioural
standards. What constitutes ‘deviation’ is in turn influenced by the nature of the
society (primitive, traditional or modern), stages of its development
(underdeveloped, developing or developed), evolution of systems for dealing
with deviations and regressive ness and progressiveness of its outlook etc. ‘Crime’
constitutes a distinct kind of deviation that is backed by the dominant political
power that has far reaching consequences like serious stigmatication, formal
prosecution and punishment etc. This makes deviance and crime a multi-faceted
and multi issue enquiry. The foregoing pages are devoted to an issue-wise
discussion of the core theme with a view to giving to the readers a comprehensive
understanding of the complex and inter-disciplinary theme.

1.2 OBJECTIVES
After reading the unit, you should be able to:
• know the concept of “Deviance” and “Crime”;
• know the essential components under substaintive as well as procedure laws;
and
• the different functions of deviationsim and criminalization. 5
Basic Issues
1.3 DEFINING ‘DEVIANCE’ AND ‘CRIME’
Sociologists define human behaviour in terms of infraction of some agreed upon
rule. Thus, according to Cohen (1966) deviant behaviour is:

Behaviour which violates institutionalised expectations, that is, expectations,

which are shared and recognised as legitimate within a social system [p. 1]

The same normative conceptualisation is followed by Clinard (1963) who

describes deviant behaviour as:

Behaviour in a disapproved direction from the norms and sufficient in degree to

exceed the tolerance limit of the community, [p. 22]

Sociologists, whose main concern is to capture the social reality as closely as

possible, remain pre-occupied with an analysis of institutionalised expectations
of normative standards of the community, which tends to bring an element of
non-criticality in their approach. Unlike this the lawyer’s concern with ‘crime’,
a special form of deviation, has been subjected to much greater analysis that is
reflected in the wideness of crime discourse itself. The distinctively of crime
type deviation lies in:
a) involvement in acts or omissions which are proscribed by law, and
b) infraction of norm entailed by imposition of penal sanction or punishment.

Thus, involvement in Crime leads triggering a set of consequences, ultimately

leading to imposition of punishment. An authority on Criminal Law, Kenny
(Outlines of Criminal Law), identifies the following three characteristics of Crime:
i) that it is a harm brought about by human conduct which the sovereign
power in the State desires to prevent;
ii) that among the measures of prevention selected is the threat of punishment;
iii) that legal proceedings of a special kind are employed to determine the guilt
of the accused before being punished.

This way both the Sociologists’ and Lawyers’ conception of deviance and crime
have two common features. First, both treat institutionalised expectations or
community norms and Law as a “good thing” or a desirable social entity that is
assumedly for the larger happiness of the society. However, while emphasizing
the fact of normative fidelity one has to be aware of emerging, though held by a
few, trend of those who perceive norms or law “neutrally” as a set of “power
resource” that can be used for bad or repressive purposes aswell. Second, deviance
and crime are premised on an implicit subscription to a consensus model in
regard to ‘harmful’ behaviour. The consensus model constitutes the strongest
basis for legitimisation of the criminal justice systems in the modern societies.
However, the consensus view is also critiqued by a few who subscribe to a conflict
model that views deviance and crime in terms of conflictual relations between
the dominant and subservient sections in the society. The conflict view is best
reflected in the ideas of left wing sociologists and criminologists such as
Chambliss (1975) Richard Quinney etc.

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David Matza (1969) provides a reconciliation between consensus and conflict Concept of Deviance and
Crime
models by suggesting a dynamic frame for conceptualising deviance. He conceives
deviance in terms of the problematic empirical complexity of the society; for
there inevitably exists, particularly in industrial societies, not one commonly
shared and consensually agreed-to-culture, but plurality of cultures, which do
not co-exist without considerable tensions and conflict. The competing cultural
entities constantly strive to legalise and transform their cultures into dominant
culture. But despite legalisation of culture, legitimisation may still be lacking
and non-dominant cultural groups may continue to follow their own cultural
practices and standards. This makes the issue of legitimisation a source of constant
tension: because some groups press for their cultural practices to be recognised
by law and turned into crimes, while as other cultural groups press for abolition from
the legal code certain behaviour patterns, thereby to resort to be decriminalisation.
Certain interesting examples of positive and negative legitimisation demands can
be found in current Indian Social controversies as well. The first relates to
legitimisation demands of fundamentalist religious groups that demand according
primacy to religious sensibilities and press for creation of a stern law against
blasphemy in India, (former Union Law Minister Mr. Arun Jetley and Mr. Chandan
Mitra, a Rajya Sabha MP. subscribe to this view). In a recent ‘test-run’ this
religious cultural group slapped five criminal cases against the veteran art icon
Mr. M. F. Hussain for his surrealistic nude paintings of various Hindu Gods and
goddesses. The Delhi High Court found no justification the criminal proceedings
and quashed them by its Order in 2006. The Supreme Court recently dismissed
the appeal of the petitioner; finding that the artist is fully within freedom of
artistic creativity and there is no justification to accord primary to religious
sensibility as espoused by the particular religious group.

As against this the legislative and judicial initiatives to abolish out dated crimes
of attempt to commit suicide (Section 309) and sex against natural order (Section
377) are instances of certain progressive groups pressing for decriminalisation
in these areas. In respect of suicide offence both the Law Commission of India
(42nd Law Commission Report) and the Supreme Court of India (Rathinam v.
Union of India (1994) 3SCC 394) have categorically opined for a change in the
law. But some-how the conservative views underlying the otiose law continues
to prevail. Some what similar treand is visible in respect to a crime that
criminalises all forms of homosexuality and bestiality mainly with a view to
enforcing the Victorian morality of recognising only heterosexual relationship
and limited sexual freedom. The constitutionality of S. 377 is under challenge
and the Court has still to lay down the law on the point.
Self Assessment Questions
1) Why is it necessary for the societies to carve-out institutionalised
expectations or community norms?
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Basic Issues
2) Why consensus model fails to provide complete explanation of deviance
or crime for every society?
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3) In what way crime can be treated as superior to other forms of deviance?
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4) Do you agree with Matza’s conceptualisation of deviance?
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1.4 TECHNICAL CONNOTATIONS OF ‘CRIME’

AND THEIR ESSENTIAL COMPONENTS
UNDER SUBSTANTIVE AND PROCEDURAL
LAWS
Under the codified criminal law system crime means an act punishable by the
Indian Penal Code, 1860 or other penal statutes. We shall now, endeavour to
explain the elementary ideas involved in the concept of Crime and its peculiarities
that distinguish it from other civil wrongs. Austin distinguishes civil injury from
crimes in terms of the party that initiates action and has the discretion in the
matter. In civil injury the injured party has the privilege and discretion to pursue
action while as in crimes the action against wrongs is pursued by the sovereign
or his subordinates. According to Blackstone crimes are public wrongs that affect
the whole community. But in fact public and private wrongs are not exclusive of
one another.

In civil wrings the normative transgressions are visited by restitutive compensation

to the victim party. But in cases of crimes, punishment alone is considered as the
8 adequate restoration of transgressions. In these cases full restitution to the wronged
individual and to the society is often impossible and the law instead of proceeding Concept of Deviance and
Crime
on remedial lines punishes the offender partly as a measure of prevention and
partly out of retribution. Punishment, however, to be effective as a measure of
prevention deals with deliberate acts directed by an evil mind and therely aims at
eradication of evil will.

Therefore, crimes are comparatively graver wrongs than civil injuries. They are
graver because they constitute greater interference with the happiness of others
and affect the well being not only of a particular individual but of the whole
community. They are graver because the impulse to commit them is often very
strong or because the advantage to be gained by the wrongful act and the facility
with which it can be accomplished are often great. They are also grave because
they are ordinarily deliberate act directed by an evil mind and hurtful to society
by the bad example they set. Thus crime is an act done with malice or criminal
intent. This is called the condition of criminality or the state of imputability,
which may include both positive and negative states of mind such as intention,
knowledge, likelihood, rashness or heedlessness and even negligence.

1.4.1 Essential Elements of Crime

After understanding the exclusion of many forms of injuries form the ambit of
crime, it may be useful to identify the peculiarities of crimes in terms of its basic
elements such as:
a) A willed human action that results in evil consequences that is known as
actus-reus element.
b) Guilty mind on the part of the wrong doer to indulge in a proscribed act or
omission leading to harmful consequence to an individual or to the society
that is known as mens-rea element.
c) Requirement of prohibited act being done with the proscribed guilty mind
that is known as the concurrence element.
The elements of each specific crime are elaborately provided for in the codified
law of crime, the Indian Penal Code, 1860 and other special and Local Laws
relating to crimes. The Penal Code spells out the exact nature of actus-reus
(prohibited act or omission) and mens-rea of each offence as the positive
requirement to establish criminality. There is also an enumeration of liability
exempting conditions by virtue of Section 6 of the Penal Code. In this way the
dominant judgment relating to crime is subject to pre-determined elemental
framework that ensures uniformity and minimum moral content in the law of
crimes.

1.4.2 Crime, “Offence” and its Variants

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 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
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Basic Issues 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 “cognisable-offence” (Section
2 (c) CrPC) and “non-cognisable offence” (Section 2 (b) CrPC)- cognisable
offence are generally more serious offences as per the First Schedule of the
CrPC. In view of their seriousness the Code provides for distinct first
information, investigation and arrest procedure in regard to them. Non-
cognisable 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” (Section 2 (a) like cognisable
offence and non-cognisable offence, use the categorisation 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 elaborate 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 these 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 (Section 365A)
and reformative sentencing (Section 360 and the Probation of Offenders
Act, 1958) benefits.

1.5 TYPOLOGIES AND PATTERNS OF CRIME

Deviance and crime are broad categorisations to demarcate the ‘right’ from
‘wrong’ or normal from sub-standard behaviour at a macro level but within these
broad categorisation are sub-sumed a wide range and diverse types of specific
deviant behaviours, which are described as specific crimes or offences by diverse
criminal statutes. The principal criminal code in India is the Indian Penal
Code,1860 that serves as a omnibus code for different categories of offences.
The Penal Code provides for offences grouped into twenty-two clusters classified
on the basis of invasion of a cherished social interest that are titled as ‘Offences
Against the State’, ‘Offences Relating to Army, Navy and Air Force’, ‘Offences
Against the Public Tranquility’, ‘Offences by and Relating to Public Servants’,
‘Offences Relating to Elections’, ‘Contempt of Lawful Authonty of Public
Servants’, ‘False Evidence and Offences Against Public Justice’, ‘Offences
Relating to Weight and Measures’, ‘Offences Affecting Public Health, Safety,
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Convenience, Decency and Morals’ ‘Offences Relating to Religion’ ‘Offences Concept of Deviance and
Crime
Affecting the Human Body’, ‘Offences Against Property’, ‘Offences Relating to
Documents and Property Marks’, ‘Offences Relating to Marriage’, ‘Defamation’,
‘Criminal Intimidation, Insult and Annoyance’, ‘Abetment’, ‘Conspiracy’ and
‘Attempt to Commit Offence’. Within these broad clusters are grouped individual
offences that are directed to protect a particular type of interest. For example,
‘Offences Affecting the Human Body’ (Ch. XII Penal Code) envisages eight
diverse ways of invasion of human broadly interest such as ‘Affecting Human
Life’, ‘Causing Miscarriage etc’, ‘Causing Hurt’, ‘Wrongful Restraint and
Confinement’, ‘Using Criminal Force and Assault’, ‘Kidnapping, Abduction,
and Forced Labour’, ‘Sexual Offences and Unnatural Offences’. These eight
sub-heads comprise individual offences like Murder, Culpable Homicide causing
Death by Rash and Negligent act etc. At the operational level the lawyer to has
be concerned with each specific offence or the has to smallest denominator of
deviance. Apart from the Penal Code there are several other special and local
criminal law statutes for dealing with proscribed behaviour on the basis of special
interest group like the SC or ST, women and children etc. Also, at times, special
crimes are created for the protection of vital economic interests of the society.
There are also some special category of strict liability statutes that create crimes
which do not require explicit proof of guilty mind element for the creation of
liability.

Apart from the traditional crimes Offences classification provided by the Penal
Code and special and Local Laws, deviance or crime are also identified by non-
traditional labels such as ‘Organised Crimes’, ‘White Collar Crimes’, ‘Privileged
Class Deviance’, ‘Cyber Crimes’, ‘Terrorism’ and ‘Extremism’ etc. These non-
traditional patterns of criminality are posing greater threat to the individual and
community interest in the contemporary societies.

The incidence of crime is measured through official and non-official statistics

about crimes in the society. In India the National Crime Records Bureau has
been coming out with an annual Crime in India report for over three decades
now. The Crime in India categories the individual offence statistics under two
broad heads, namely (a) IPC Crimes, and (b) Special and Local Law Crimes.
The IPC crimes are further sub-classified into Violent Crime, Property Crime,
Economic crime and Other miscellaneous crimes.

However, the official crime statistics often under states the actual magnitude of
crime reality in a society, therefore, the true crime reality can be understood only
by taking into account the hidden figure of crime that are contained in individual
researchers and media crime surveys.
Self Assessment Questions
5) Why Penal Code/statutes use the term ‘Offence’ to define a crime?
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Basic Issues
6) Try to re-capitulate the different variants of offence under the Code of
Criminal Procedure?
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7) Why the generic term crime is not good enough for operational purpose?
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8) Why is there a need to identify new patterns of criminality?
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9) How is the reality of crime estimated officially and unofficially?
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1.6 FUNCTIONS OF DEVIATIONISM AND

CRIMINALISATION
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 Jermy Bentham for whom behavioural
rule making’ became an essential attribute of a good sovereign. Sociologists and
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researchers on deviance have analysed the diverse functions/dysfunctions of rule Concept of Deviance and
Crime
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 Labor in Society (1893) considered the social
integrative abilities of crime in these terms:

Crime brings together upright consciences and concentrates them. We have only
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.
(1947; p. 102)

Writing in the same vein Durkheim (1938) advocated the idea of normality of
crime by showing its presence in every society and by underscoring the functions
it performed for the society in these words:

Crime, we have shown elsewhere, consists of an act that offends certain very
strong collective sentiments. In a society in which criminal acts are no longer
committed the sentiments they offend would have to be found without exception
in all individual consciousnesses and they must be found to exist with the same
degree as sentiments contrary to them. Crime is then, necessary; it is bound up
with the fundamental conditions of all social life, and by that very fact it is
useful, because these conditions of which it is a part are themselves indispensable
to the normal evolution of morality and law.

Like Durkheim, Karl Marx also subscribed to the functionalist view of crime
and deviance. But for Marx crime aroused the pro-capitalist society moral and
aesthetic sentiments of the public.

ii) As a measure of Social Defence

According to those who subscribe to the views of Hobbes that emphasize the
disfunctions of deviance and crime, individual who break the law need to be
controlled and punished for 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 every thing 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
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Basic Issues 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.

Foncault (1979) has expressed similar function performed by the disciplinary

rules within prisons. Alan Norrie (1993) has rationalised the function performed
by prisons this way:

They cannot be deterred but they can be removed from circulation for a period of
time. The prison thereby acts as a cordan sanitaire, between the relatively law
abiding and the rest. While containing the one group it acts as a symbol to the
other of the dangers of crossing the line between criminality and respectability,
(p. 202)

Steven Box (1983) views the ‘problem population’ comprising of able bodied
unemployed and unemployable as those who can create a legitimacy criers by
distancing themselves from consent to be governed.

iv) As a measure to preserve ideological and social hegemony

According to Steven Box: “For too long too many people have been socialised
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.
Self Assessment Questions
10) Why do Durkheim and Karl Marx consider deviance and crime as normal
and ‘useful’?
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 Concept of Deviance and
11) Do you agree with those who consider deviance and crime as a measure Crime
of social defence?
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12) Why most of the deviance and crime judgments directed against the
poor and powerless sections only?
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13) How deviance and crime become a powerful tool of social education?
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1.7 SUMMARY
• This unit elaborates the concept of “deviance” and “crime”, the various
elements of crime, typologies and patterns of crime and functions of rule
making.

• What constitutes “deviant behaviour” and “crime” in any particular society

depends on various underlying factors in any given society like nature of
society, stages of its development, evolution of system for dealing with
deviations etc. Crime and deviance are multifaceted and multiissue discipline.
Sociologists have defined these two concepts in term of infractions of some
agreed upon rule. Sociologists as well as lawyers’ conception depend on
two basic premises that firstly law is desirably social entity that is assumed
for the larger happiness of the society and secondly, deviance and crime are
impliedly based on consensus model in respect of “harmful” behaviour.

• David Matza envisages deviance in term of legitimisation demand of

competing cultural entities e.g. the case in India, cultural clashes occurred
between the religious sentiment of a particular group of people and artistic
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Basic Issues expression (M.F. Hussain case) more progreesive cultural clash can be traced
in the whole debate relating to Section 377IPC (sex against naturral order),
Section 309 (attempt to commit suicide).
The basic elements have been discussed in this unit, which are as:
• Human being who is under legal obligation
• Mens rea or guilty mind on the part of the wrong doer
• Act committed or omitted in accordance of intention
• Injury to one man or to society.
• Further light has been thrown on the classification of crime depending on
the various purposes it serves, e.g. for the purpose of arrest and investigation,
for the purpose of bial, for the purpose of compounding proceedings etc.
• Various sociologists like bentham, Durkheim, and Hobbes have studied the
diverse fuctions/dysfunctions of rule making or “deviationism”. Durkheim
commented on the social integrative abilities of crime. Some other social
thinkers had observed that deviance and crime often serve the functions of
stigmatizing and social exclusion of the lower caste, lower ranked
professional groups this aspect has been discussed at the last part of the
unit.

1.8 TERMINAL QUESTIONS

1) Describe the essential elements of crime
2) Discuss the functions of deviationism and criminalization in detail.

1.9 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 1.2
2) Refer to Section 1.2
3) Refer to Section 1.2
4) Refer to Section 1.2
5) Refer to Section 1.3
6) Refer to Section 1.3
7) Refer to Section 1.3
8) Refer to Section 1.3
9) Refer to Section 1.3
10) Refer to Section 1.4
11) Refer to Section 1.4
12) Refer to Section 1.4
13) Refer to Section 1.4
Terminal Questions
1) Refer to Sub-section 1.2.1
2) Refer to Section 1.4
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 Concept of Deviance and
1.10 REFERENCES AND SUGGESTED READINGS Crime

1) Box, Steven, (1983), Power, Crime and Mystification, Tavistock Studies

in Sociology, N. Y.
2) Chamibliss, W. J., (1995), Whose Law? What Order? , Wiley, N. Y.
3) Clinard, M. B., (1963), Sociology of Deviant Behavior, Holt, Rinehart and
Winstion N. Y.
4) Cohen, A. K., (1966), Deviance and Control, Prentice Hall, New Jersey.
5) Durkheim, E., (1947), Division of Labour in Society, Free Press, N. Y.
6) Foucault, M., (1949), Discipline and Punish, Harmondsworth,
Peregrine.
7) Garland, D., (1985), Punishment and Welfare, Aldershot, Gover.
4) Matza, D., (1969), Becoming Deviant, Prentice Hall, New Jersey.
8) Norrie, Alan, (19?3), Crime, Reason and History, Weidenteld and Nicholson,
London.
9) Wilson, J. Q., (1975), Thinking About Crime, Basic Books, N. Y.

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