INTRODUCTION

The ‘loaf of bread’ example has frequently been employed in philosophical discussions of necessity. The classic problem is often posed as “Would you steal a loaf of bread in order to feed your family?” and is what is known as a moral dilemma. However, a legal solution to the moral conundrum is offered by the criminological theory of survival crime aiming at the decriminalization of acts committed out of poverty.

The global emergency presented by the spread of coronavirus has obligated almost all nations to undergo a period of complete lockdown. On 25th March 2020, India also entered the first phase of an indefinite nationwide lockdown. While crime rates reduced significantly, theft cases shot up in most countries and India is no exception. Despite the government’s efforts of providing low-cost essential commodities to people at their doorstep, countless reports of provision shops being looted in cities like Delhi, Mumbai, Vadodara, Bhopal, etc. flooded the news. Almost after a month of staying indoors, people from the lower strata of the society took to the streets with the end to find food using any means possible. Whereas such cases can prima facie be considered theft under the Indian Penal Code, an in-depth analysis of the situation exposes the need for adoption of the ‘theory of survival crime’ into the Indian criminal law particularly in the era of an emergency with the purpose of dealing with the situation of the deprived using humanitarian measures.

THEFT UNDER THE INDIAN PENAL CODE

The Latin maxim, “actus non facit reum nisi mens sit rea”, elucidates that all crimes have two elements – actus reus or a guilty act and mens rea or guilty mind; the crime of theft is no different. As per Section 371, whoever, intending to take dishonestly any moveable property out of the possession of any person without that per­son’s consent, moves that property in order to such taking, is said to commit theft. A bare reading of the Section evidently shows that under Indian criminal law a conviction for theft also takes into account two things – mens rea (The dishonest intention to take away any movable property) and actus reus (The actual act of taking away any movable property). Thus, for an act to be considered as a theft, the intention of the taker must be looked into. It is the intention of an individual which will determine whether the act of taking away the property indeed classifies as theft.

An overview of the present case would plainly exhibit that both the elements of mens rea and actus reus are present. Upon close scrutiny, however, the dishonest intention of the accused is disputable. In a situation where lowly crimes are committed by the impoverished solely for survival and purely out of necessity, can the element of mens rea be considered to be present? Subsequently, should the acts of the underprivileged be considered a crime?

THE SURVIVAL CRIME THEORY AND THE INDIAN CRIMINAL LAW

Economic theory suggests that in developing countries, in the absence of social safety net, people falling into poverty during an economic crisis might be pushed to commit a crime to survive. For an act to classify as an act of “survival crime”, two vital elements must be present, (1) The act is a low-level crime committed by a destitute; and, (2) The act was committed out of necessity.

The criminological theory proposes that laws against the crimes of an insignificant nature committed by the deprived people of a society to ensure their survival must be relaxed. The demand for relaxation is made after judicious consideration of the social conditions and circumstances that force people to commit inconsequential crimes. It is suggested that the social conditions of poverty coupled with dire necessity lead to the inevitability of petty crimes by the poor in order to ensure their survival. In such cases, it is of utmost importance that the basic human rights of the deprived are respected and food and assistance are offered rather than prosecuting them for petty crimes.

The rationale behind the demand is the higher status accorded to the right to life of a person (including the right to survival) in comparison to a personal right to property of another. Further, such petty crimes show an apparent absence of mens rea. For example, in times of emergencies such as the one posed by the outbreak of coronavirus, underprivileged workers are being forced to stay at home with negligible means for an unspecified period of time. Taking into account their limited resources, the acts are undoubtedly done with an intention to survive or an intention to not starve and not with pleasure motives. Such an intention cannot be termed as a guilty intention to cause wrongful loss thereby leaving the element of mens rea unfulfilled.

The need for adoption of the theory of survival crime and decriminalization of poverty in India, a nation characterized by hunger and poverty, can be justified on three basis –

Firstly, the Indian Constitution guarantees a fundamental right to life under Article 21. Another substantive right flowing through Article 21 is the right to food as has been recognized by the Supreme Court in PUCL v. Union of India in 2001. Unquestionably, the fundamental and basic human right of food and survival must be protected by the government. In a situation where the Government is unable to provide nourishment to the deprived, they must not be punished for enforcing their fundamental and human right even if some insignificant acts of crime are committed.

Secondly, the concept of private necessity has been derived from the Latin maxim “necessitas inducit privilegium quod jura private” which roughly translates to “necessity induces a privilege because of a private right.” While such a defence is available to accused in all criminal cases, the defence seldom succeeds especially in cases of survival. There exists an immediate need to broaden the concepts of necessity and employ newer principles and theories to ensure humane treatment to the poor in times of need.

Thirdly, the theory finds an even greater application during the time of emergencies. In her essay titled “The Ethics of Emergencies”, Ayn Rand explains that an emergency is an unchosen, unexpected event, limited in time that creates conditions under which human survival is impossible – such as a flood, an earthquake, a fire, a shipwreck. She clarifies that it is important to differentiate between the rules of conduct in an emergency situation and the rules of conduct in the normal conditions of human existence. The world is currently facing a period of extreme emergency posed by the widespread of the deadly coronavirus and due to the sudden halt of operations, the economy has suffered immensely and the poverty-stricken are left dependant on the government for food and finances. In such circumstances, it would be inhuman to prosecute their inconsequential acts of crime committed to ensuring survival as an alternative to offering assistance.

CONCLUDING REMARKS

While most countries in the world have not implemented the theory of survival into their criminal law systems, Italy has set a leading example and decriminalized poverty through an exceptional judgment in 2011. The Italian Court of Cassation decided in that particular case that stealing small quantities of cheese and sausage to satisfy a vital need for food in the face of the immediate and essential need for nourishment did not constitute a crime. In a rather recent example in Aurangabad, Maharashtra, a few tribals were arrested for theft in grocery stores. However, upon realizing that the theft was committed for supplies like edible oil and grains to feed their families, the police distributed ration kits to over a hundred tribal families in the area. The heroic feats of the Italian Supreme Court and Maharashtra police bring to light the indispensable need to understand the circumstances behind a crime of survival and to employ the theory of survival crime into the Indian criminal justice system more than ever in a time of emergency.

The article has been written by Sezal Mishra

This article was first published in the Blog namely The Criminal Law Blog