PENOLOGY AND VICTIMOLOGY
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UNIT - I |
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UNIT - II |
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UNIT - III |
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UNIT - IV |
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American experience victim witness assistant programmes Restitution. |
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UNIT - V |
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UNIT - I
It has been generally accepted that the attitude towards crime and criminal at a given time in a society represents the basic values of that society. By and large, three types of reactions are discernible in various societies. The first is a traditional reaction which regards criminal as basically depraved and dangerous person for whom infliction of punishment is the only alternative to eliminative him from normal society. This punitive approach, however, represents the earlier stages of development of penology and no longer finds support in modern times. The second reaction treats criminal as a victim of his circumstances and a product of multiple factors operating within the society. Thus criminal is treated as a sick person requiring therapeutic treatment. The third and more recent reaction to criminal is to be found in preventive approach which lays greater emphasis on eliminating conditions which are responsible for criminality in the offender. It must, however, be stated that these reactions towards criminal are co-extensive and quite often overlap one another. The difference between them is to be found in their focus of attention.
According to the principle of utilitarian hedonism, punishment should not exceed more than what is absolutely necessary to produce the desired effect on the criminal and society. For this purpose, the personality of the offender in physio-psychological terms has to be understood in the background of his social surroundings. It has been realized that feeling of inadequacy, frustration and emotional insecurity often play a dominant role in giving rise to the criminal tendency. More recently, penological researches have evolved a new thinking based on the premise that crime is a social fact and human act, therefore the process of dealing with a criminal does not come to an end by imposing punishment on him in accordance with law. His after -care for resocialisation and reformation is equally important. This aspect of treatment of offenders must also be taken into account while drawing up any programme for the prevention of crime and treatment of offenders.
Recent developments in the field of penology are marked with rationalization of punishment and emphasis on clinical method of treatment of offenders and their rehabilitation through adequate after-care measures. The utility or futility of punishment is to be judged on the basis of utilitarian principles propounded by Jeremy Bentham. Modern tendency is to treat punishment as an evil which should be used only if it serves the ends of justice. Commenting on the desirability of punishment. Prof. H.L.A. Hart observed, "We do not live in society in order to condemn, though we may condemn in order to living. This is indeed a sound warning to modern penologist which suggests that punishment should respond to needs of social defence. In sum, the ultimate end of penal justice is to protect and promote the welfare of the State, society and the individual.
It is now well recognized that the ultimate object of punishment is prevention of crime and protection of the society. It is also widely agreed that no theory of punishment can achieve the real purpose of punishment singly. As rightly pointed out by Caldwell, "Punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the court and the offender but also of the values in which it takes place and in the balancing of these purposes of punishments, first one and then the other, receives emphasis as the accompanying conditions change.
Modern or New Penology
With new criminological developments, particularly in the field of penology, it has been generally accepted that punishment must be in proportion to the gravity of the offence. It has been further suggested that reformation of criminal rather than his expulsion from society is more purposeful for his rehabilitation. With this aim in view, the modern penologists have focused their attention on individualization of offender through treatment methods. Today, old barbarous methods of punishment such as , mutilation, branding, hanging, burning, stoning, flogging, amputation, starving the criminal to death or subjecting him to pillory or poetic punishment etc., are completely abandoned. Pillory was a method of corporal punishment under which the offender was subjected to public ridicule by exposing him to punishment in public places. Different poetic punishments were provided for different crimes. Thus cutting off hands for theft, taking off tongue for the offence of perjury, emasculation for rape, shaving off the head of a woman in case she committed a Sex-crime or whipping her in Public Street and similar other modes were common forms of poetic punishment during middle ages. Modern penologists have substituted new forms of penal sanctions for the old methods of sentencing. The present modes of punishment commonly include imposition of monetary fines, segregation of the offender temporarily or permanently through imprisonment or exterminate or compensation by way of damages from the wrong-doer in case of civil injury. Undoubtedly, it goes to the credit of eminent criminologists, notably, Beccaria, Garofalo, Ferri, Trade, Bentham, and others who formulated sound principles of penology and made all out efforts to ensure rehabilitation of the offender so as to make him a useful member of society once again. Garofalo strongly recommended "transportation'' or banishment of certain types of offenders who had to be segregated from society. Modern penal systems, however, limit the punishment of transportation within the homeland so that potentiality of prisoners is utilized within the country itself. Of late, open air jails, parole or probation are being intensively used for long-termers so that they can earn their livelihood while in the institution.
It was Beccaria who pioneered classical view of penology and raised voice against cruel and brutal punishments. He advocated equalized treatment for all criminals for similar offences and reiterated that it was not the personality of offender but his antecedents, family background and circumstances, which had to be taken into consideration while determining his guilt and punishment. This in other words, meant greater emphasis on the 'act' (crime) rather than the criminal. He was equally opposed to the discretionary power of the court and argued that the function of determining appropriate punishment for different offences must be confined to the legislators and law-makers along. The system of trial by jury is essentially an outcome of the classical thinking which treated 'act' and not the 'individual' as the object of punishment. The function jury is to determine the question of fact, i.e., Whether the crime has been committed by the offender or not, while it is for the magistrate to decide the guilt or innocence of the accused in accordance with the established principles of law, The central theme of penal policy advocated by adherents of classical school was equality of punishment for similar offences. However, the theory has fallen into disuse with the advance of knowledge through penological researches.
As a reaction to classical view, neo-classists voiced their criticism against equality of punishment on the ground that it did not respond well with the requirements of certain categories of criminals such as minors, idiots, mentally depraved offenders or those committing crime under extenuating circumstances. The adherents of neo-classical school, therefore, suggested that punishment should be awarded in varying degrees depending on the mental condition and intent of the criminal. Thus it was for the first time that an attempt was made to shift the emphasis from 'crime' to 'criminal'. The greatest contribution of this school in the field of penology lies in the fact that it emphasized the need for individualized punishment. This finally led to classification of criminals into different categories according to the genesis of their criminality. The object was to make the reformative methods of punishment more effective. Commenting on this change, Dr. P.K. Sen rightly observed that punishment is now divested of its retaliatory characteristic and is converted into a treatment method for bringing about reformation of the offender.
Among modern penologists the names of Raffaele Garofalo and Enrico Ferri deserve a special mention. Garofalo was an eminent criminologist of Italy who held distinguished positions as a judge, a professor of Law as also a Minister of Justice and, therefore, he was deeply involved in administration of criminal Justice and treatment of offenders. Out of his vast experience as a magistrate, he suggested that insane criminals should be treated leniently. In his opinion, vengeance had only a theoretical basis for penal sanctions. Surprisingly, Garofalo was a critic of reformative theory of punishment and believed that it has only a limited utility in cases of young or first offenders and it hardly served any useful purpose in case of recidivists and hardened criminals. He also rejected deterrent punishment since it failed to determine the exact quantum of punishment for a given offence under varying social circumstances. He, however, agreed with Beccaria that retention of punishment is necessary for recognition of individual rights and social co-existence.
1.2 TYPES OF PENOLOGY
Like criminology, penology may also be approached from various points of view, each giving rise to a particular kind of Penology. These may be called Administrative Penology. Scientific Penology, Academic penology and Analytical penology.
(1) Administrative Penology:- can also be called applied penology because it represents different penological systems in force in different countries. Its predominant feature is implementation of governmental penal policies and institutional treatment of offenders. Its prime functions are custody, Security and control. It addresses itself to the solution of penological problems.
(2) Scientific penology:- attempts to solve the problems arising in treatment of offenders under the aegis of specialists, particularly from the medico-psychological point of view. Its principal concern is to probe into the personality of offenders and not the offences. Criminal penology undoubtedly is a part of scientific penology. It is based on the conception that there is always a determinable relationship between cause and effect.
(3) Academic Penology:- is mainly descriptive in character, its main purpose being dissemination of penological knowledge through intensive teaching and research. It concerns itself with theoretical knowledge of penology.
(4) Analytical penology:- aims at ascertaining as objectively as possible, the adequacy of existing penal policies and methods and suggest measures for improving the system. Thus it makes a critical analysis of penal measures and offers solutions for efficient administration of penal justice.
Analytical penology is based on a broader reality and treats crime and criminals as social phenomenon. It needs the assistance of scientific penology to perform its functions by careful interpretation, comparison of relevant data and observation of the functioning of the existing machinery of criminal justice and penological system in an objective manner. The main task of analytical penology is to examine and evaluate the socio-economic and political values, amount which human rights play the most important role and the corresponding criminal policy of which penological policy is a part.
It must be stated that though these different kinds of penologies are intended to pursue different purposes, they are all directed to meet a common goal, namely, treatment of offenders through modern improvised scientific methods.
Some of the major questions which are engaging the attention of modern penologists are whether the traditional forms of punishment should remain the exclusive or primary weapons in restraining criminal behavior or should be supplemented and even replaced by a much more flexible or diversified supplemented and even replaced by a much more flexible or diversified combination of measures of treatment of reformative, curative and protective nature. And if so, to which categories of offenders should these improvised measures be applicable and how should their choice in particular cases be determined? And finally, how could the reintegration of offenders into society be placed so as to efface the penal stigma and to cut off the supply of potential recidivists at its source?
Punishing the offenders is a primary function of all civil States. The incidence of crime and its retribution has always been an unending fascination for human mind. However, during the last two hundred years, the practice of punishment and public opinion concerning it has been profoundly modified due to the rapidly changing social values and sentiments of the people. The crucial problem today is whether a criminal is to be regarded by society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refractory child to be disciplined? Or should he be regarded as none of these things but simply be punished to show to others that anti-social conduct does not finally pay.
It is in this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologist and penologists all around the world. A 'crime' has been defined by Salmond as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Thus "a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's family. Those who commit such acts, if convicted, are punished by the State. It is therefore, evident that the object of criminal justice is to protect the society against criminals by punishing them under the existing penal law. Thus punishment can be used as a method of reducing the incidence of criminal behaviour either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. It is this principle which underlies the doctrines concerning the desirability and objectives of punishment. Theories of punishment, therefore, contain generally policies regarding handing of crime and criminals. There are four generally accepted theories of punishment, namely, deterrent, retributive, preventive and reformative. It must, however, be noted that these theories are not mutually exclusive and each of them plays an important role in dealing with potential offenders.
Concept of Punishment:-
Before dealing with the theories of punishment, it would be pertinent to explain the concept of punishment. Sir Walter Moberrly, while accepting the definition of punishment as given by Grotious, suggests that punishment presupposes that:-
1. What is inflicted is an ill, that is something unpleasant;
2. it is a sequel to some act which is disapproved by authority;
3. there is some correspondence between the punishment and the act which has evoked it;
4. Punishment is inflicted, that is imposed by someone's voluntary act;
5. Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him and for his wrong doings:-
To punish criminals is a recognized function of all civilized States for centuries. But with the changing patterns of modern societies, the approach of penologists towards punishment has also undergone a radical change. The penologists today are concerned with crucial problem as to the end of punishment and its place in penal policy.
Though opinions have always differed as regards punishment of offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail. Modern penologists prefer to call them 'theories of punishment' which are as follows: -
A) Deterrent Theory:-
Earlier modes of punishment were, by and large, deterrent in nature. This kind of punishment presupposes infliction of severe penalities on offenders with a view to deterring them from committing crime. It is the fulfillment of one's vengeance that underlies every criminal act. The deterrent theory also seeks to create some kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders which keeps them away from criminality. Thus the rigour of penal discipline acts as a sufficient warning to offenders as also others. Therefore, deterrence is undoubtedly one of the effective policies which almost every penal system accepts despite the fact that it invariably fails in its practical application. Deterrence as a measure of punishment particularly fails in case of hardened criminals because the severity of punishment hardly has any effect on them. It also fails to deter ordinary criminals because many crimes are committed in a spur of moment without any prior intention or design.
Suffice it to say that the doctrine concerning deterrent punishment has been closely associated with the primitive theories of crime and criminal responsibility; in earlier times, crime was attributed to the influence of 'evil spirit' or 'free-will' of the offender. So the society preferred severe and deterrent punishment for the offender for his act of voluntary perversity which was believed to be a challenge to God or religion.
The punishment was to be a terror to evil-doers and an aweful warning to all others who might be tempted to imitate them.
B) Retributive Theory: -
While deterrent theory considered punishment as a means of attaining social security, the retributive theory treated it as an end in itself. It was essentially based on retributive justice which suggests that evil should be returned for evil without any regard to consequences. The supporters of this view did not treat punishment as an instrument for securing public welfare. The theory, therefore, underlined the idea of vengeance or revenge. Thus the pain to be inflicted on the offender by way of punishment was to outweigh the pleasure derived by him from the crime. In other words, retributive theory suggested that punishment is an expression of society's disapprobation for offender's criminal act.
As rightly observed by Sir Walter Moberly, the theory of retribution is based on the view that punishment is a particular application of the general principle of justice, that men should be given their due. Punishment serves to express and to satisfy the righteous indignation which a healthy minded community regards transgression. As such, it is sometimes an end in itself.
It must be stated that the theory of retribution has its origin in the crude animal instinct of individual or group to retaliate when hurt. The modern view, however, does not favour this contention because it is neither wise nor desirable. On the contrary, it is generally condemned as vindictive approach to the offender.
Retributive theory is closely associated with the notion of expiation which means blotting out the guilt by suffering an appropriate punishment. It is this consideration which underlies the mathematical equation of crime, namely, guilt plus punishment is equal to innocence.
Most penologists refuse to subscribe to the contention that offenders should be punished with a view to making them pay their dues. The reason being that no sooner an offender completes his term of sentence, he thinks that his guilt is washed off and he is free to indulge in criminality again.
Hegal opposed the theory of retribution and observed that is the manifestation of revenge for an injury. To quote him, he said,
"You hurt me so I will hurt you. Indeed that is the literal meaning of retribution. And if I cannot hurt you myself, I demand that you should be hurt by others. The desire to make the offender suffer, not because it is needed so that the guilt is purged, not also because suffering might deter him from future crime, but simply because it is felt that he deseres to suffer, is the essence of retribution''.
It must, however, be stated that Sir James Stephen defended the doctrine of retribution on the ground that "criminals deserved to be hated and the punishment should be so contrived as to give expression to that hatred, and to justify by gratifying a healthy natural sentiment''.
Thus modern penology discards retribution in the sense of vengeance, but in the sense of reprobation it must always be an essential element in any form of punishment.
C) Preventive Theory:-
Preventive philosophy of punishment is based on the proposition not to avenge crime but to prevent it. It presupposes that need for punishment of crime arises simply out of social necessities. In punishing a criminal, the community protects itself against anti-social acts which endanger social order in general or person or property of its members.
In order to present preventive theory in its accurate form, it would be worthwhile to quote Fichte who observed, 'the end of all penal laws is that they are not to be applied'' Giving an illustration he continued, when a land owner puts up a notice trespassers will be prosecuted; he does not want an actual trespasser and to have the trouble and expenses of setting the law in motion against him. He hopes that the threat will render any such action unnecessary, his aim is not to punish trespass but to prevent it. If trespass still takes place, he undertakes prosecution. Thus, the instrument or deterrence which he devised originally consisted in the general threat and not in particular convictions.
The real object of the penal law therefore, is to make the threat generally known rather than putting it occasionally into execution. This indeed makes the preventive theory realistic and humane. It is effective for discouraging anti-social conduct and a better alternative to deterrence or retribution which now stands rejected as methods of dealing with crime and criminals.
In England, utilitarian's like Bentham, Stuart Mill and Austin supported preventive theory because of its humanizing influence on criminal law. They asserted that it is the certainty of law and not its severity which has a real effect on offenders.
Reformative Theory:
With the passage of time, developments in the field of criminal science brought about a radical change in criminological thinking, there was a fresh approach to the problem of crime and criminals. Individualized treatment became the cardinal principle for reformation of offenders. This view found expression in the reformative theory of punishment.
As against deterrent, retributive and preventive justice, the reformative approach to punishment seeks to bring about a change in the attitude of offender so as to rehabilitate him as a law abiding member of society. Thus punishment is used as a measure to reclaim the offender and not to torture or harass him. Reformative theory condemns all kinds of corporal punishments. The major emphasis of the reformist movement is rehabilitation of inmates in peno-correctional institutions so that they are transformed into good citizens.
These correctional institutions have either maximum security arrangements. The reformists advocate human treatment of inmates inside the prison institutions. They also suggest that prisoners should be properly trained to adjust themselves to free life in society after their release from the institution. The agencies such as parole and probation are recommended as the best measures to reclaim offenders to society as reformed persons.
The reformative view of penology suggests that punishment is only justiciable if it looks to the future and not to the past. "It should not be regarded as settling an old account but rather as opening a new one''. Thus the supporters of this view justify prisonisation not solely for the purpose of isolating criminals and eliminating them from society but to bring about a change in their mental outlook through effective measures of reformation during the term of their sentence.
Many penologists have denounced 'rehabilitative ideal' or the 'reformist ideology' underlying individualized treatment model because in practice they are more punitive, unjust and inhumane than retribution or deterrence. Writing about the condition of prisons in Russia and France, Peter Kropotkin observed, "Prisons are seen as symbols of our hypocrisy regarding rehabilitation, our intolerance of deviants, or our refusal to deal with the root causes of crime such as poverty, discrimination, unemployment, ignorance, over-crowding'' and so on.
Yet another argument which is often advanced against reformative treatment is that there is no punishment involved in it in the sense of some sort of pain and, therefore, it cannot be regarded as punishment in true sense of the term. But it must be pointed out that though reformative treatment involves benevolent justice, yet the detention of the offender in prison or any other reformative institution for his reformation or readjustment is in itself a punishment because of the mental pain which he suffers from the deprivation of his liberty during the period he is so institutionalized. Therefore, it is erroneous to think that institutional detention for reformation is not a form of punishment. In fact, surveillance and close supervision is itself punitive though it involves no physical pain or suffering.
The authors of an American study also criticized reformist ideology stating that, "it never commended more than lip service from most of its more powerful adherents. Prison administrators, who embraced the rehabilitative ideal, have done so because it increased their power over inmates''?
It is known that punishment always carries with it a stigma in as much as it fetters the normal liberty of individual. It has become an integral part of law enforcement for securing social control. Punishment is inevitable for recidivists who are habitual law-breakers. The tendency among recidivists to repeat crime is due to their inability to conform to the accepted norms of society. Investigate researches reveal that it is the mental depravity of the offenders which makes them delinquent and, therefore, a system of clinical treatment seems inevitable for the correction of such offenders. However, there is a need for compartmentalization of offenders for this purpose on the basis of age, sex, gravity of offence and mental condition. This object is achieved by scientific classification of criminals into different categories such as the first offenders, habitual offenders, recidivists, juvenile delinquents, insane criminals and sex offenders. Thus punishment should be a sort of social surgery since criminal is essentially a product of conflict between the interests of society.
Besides the necessity for a change in legal attitude towards correctional services, there is a need for greater legislative participation in shaping of penal policies. The law should be flexible so as to adapt itself to the changing socio-economic needs of society. It is heartening to note that this principle has been fully recognized by the Indian law-makers. The liberalization of abortion law and the changes introduced by the criminal law first and second Amendment Acts, 1983, in law relating to rape and dowry deaths consequent to Mathura Bais Rape case, are some of the illustrations to support this contention. Relaxation in legal restrictions on gambling and liquor-consumption has not only reduced crime statistics relating to these offences but also eliminated other allied crimes which were closely linked with these illegal activities.
Recent trends in correctional measures have proved beyond doubt that only one-fourth of the total population of criminals consists of incorrigible offenders while the majority of them are corrigible and respond favorably to the treatment methods. It must be reiterated that treatment of offenders through modern clinical methods symbolizes society's preparedness to accept delinquents as trust worthy citizens. The concept of individualized treatment through correctional measures presupposes that offender is a deviant who can be redeemed to normal life in society if adequate opportunities for rehabilitation are offered to him. The system of parole, probation, indeterminate sentence and open prisons are some of the rehabilitative techniques which find place in the modern penal programmes of most countries of the world. Needless to say that these measures are intended to remove or reduce offender's disposition to repeat the offence or break the criminal law in any way. "The corrective devices inter alia include: -
(i) Custodial measures which deprive the offender of his liberty and test his responsiveness to self-control,
discipline, etc., within the institutional life, help him to live as a law abiding citizen after his release.
(ii) Semi - detention method is intended to restrict liberty without completely separating the offender from his
occupation or family.
(iii) Reformative measures such as probation and parole enable the offender to rehabilitate himself within the society.
Distinction between Crime Prevention and Control:
Though prevention of crimes and treatment of offenders, both are directed at the same end, i.e., elimination of crime and criminals from the society, the two differ in their approach and methodology. The chief points of distinction between prevention and control are as follows:
(1) Crime prevention is a stage prior to incidence of crime whereas control treatment follows the commission of crime and conviction of the offender.
(2) The object of crime prevention is to check the occurrence of crime while the purpose of control is to prevent repetition of crime.
(3) Crime prevention essentially involves elimination of conditions which are conducive to crime causation but control involves reformation of the offender to reclaim him as a useful member of the community.
(4) The crime prevention, it is the police which plays a major role and the courts and prison institutions have only an indirect role to play. At against this, in the control of offenders, the court and correctional institutions have a vital role to play and the police merely act as an assisting agency.
UNIT-II
It is well known that punishment is one of the oldest method of controlling crime and criminality. However, variations in modalities of punishment, namely, severity, uniformity and certainty are noticeable because of variations in general societal reaction to law- breaking. In some societies punishments may be comparatively severe, uniform, swift and definite while in others it may not be so. This accounts for the variations in use of specific methods of punishment from time to time.
An enquiry into the various forms of punishments which were in practice in different societies through ages would reveal that forms of punishment were mainly based on deterrence and retribution which have lost all significance in modern penology. The primitive societies did not have well developed agencies of criminal justice administration, therefore, settlement of private wrongs was entirely a personal matter and aggrieved party could settle the issue directly with the wrong-doer.
Blood - feud was one of the common modes of punishment in early societies which was regulated by customary rule of procedure. It was undoubtedly a retaliatory method which underlined the principle of lextalionis, meaning ear for an eye and tooth for a tooth. These blood-feuds sometimes led to serious clashes between the clans which made life extremely difficult.
2.2 KINDS OF PUNISHMENT
The History of early penal systems of more countries reveals that punishments were tortuous, cruel and barbaric in nature. It was wards the end of eighteenth century that humanitarianism began to assert it influence on penology emphasizing that severity should be kept to a minimum in any penal program me. The common modes of punishment prevalent in different parts of the word included corporal punishments such as flogging, mutilation, branding, pillories, chaining prisoners together etc., simple or rigorous imprisonment, forfeiture of property and fine.
1) Flogging:
Of all the corporal punishments, flogging was one of the most common methods of punishing criminals. In India, this mode of punishment was recognized under the Whipping Act, 1864, which was repealed and replaced by similar Act in 1909 and finally abolished in 1955. The English penal law abolished whipping even earlier. In Maryland (U.S.A) Whipping was recognized as late as 1953 although its use was limited only to "Wife-beating''. Flogging as a mode of punishment is being used in most of the middle-east countries even to this day.
The instruments and methods of flogging, however, differed from country to country. Some of them used straps and whips with a single lash while others used short pieces of rubber-hose as they left behind traces of flogging. In Russia, the instrument used for flogging was constructed of a number of dried and hardened thongs of raw hide, interpersed with wires having hooks in their ends which could enter and tear the flesh of the criminal. It has now been discontinued being barbarous and cruel in form.
Penological researches have shown whipping as a method of punishment has hardly proved effective. Its futility is evinced by the fact that more of the hardened criminals who were subjected to whipping repeated their crime. There is a general belief that whipping may serve some useful purpose in case of minor offences such as eve-teasing, drunkenness, vagrancy, shop-lifting, etc., but it does not seem to have the desired effect on offenders charged with major crimes.
2) Mutilation:
Mutilation was yet another kind of corporal punishment commonly in use in early times. This mode of punishment was known to have been in practice in ancient Indian during Hindu period. One or both the hands of the person who committed theft were chopped off and if he indulged in sex crime his private part was cut off. The system was in practice in England, Denmark and many other European countries as well.
The justification advanced in support of mutilation was that it serves as an effective measure of deterrence and retribution. The system, however, stands completely discarded in modern times because of its barbaric nature. It is believed that such punishments have an inevitable tendency to infuse cruelty among people.
3) Branding:
As a mode of punishment, branding of prisoners of prisoners was commonly used in oriental and classical societies. Roman penal law supported this mode of punishment and criminals were branded with appropriate mark on the forehead so that they could be identified and subjected to public ridicule. This acted as a forceful weapon to combat criminality. England also branded its criminals till 1829 when it was finally abolished.
The System of branding was not uncommon to American Penal systems also. The burglars were punished by branding letter "T" on their hand and those who repeated this offence were branded "R'' on the forehead. In Maryland (U.S.A) blasphemy was punishable with branding the letter "B" on the forehead. In India, branding was practiced as a mode of punishment during the Moghul rule. This mode of corporal punishment now stands completely abolished with the advent of humanitarianism in the field of penology.
4) Stoning:
Stoning the criminals to death is also known to have been in practice during the medieval period. This mode of sentencing the offender is still in vogue in some of the Islamic countries, particularly in Pakistan, Saudi Arabia etc., The offenders involved in Sex-crimes are generally punished by stoning to death. The guilty person is made to stand in a small trench dug in the ground and people surround him from all sides and pelt stone on him until he dies. Though it is a punishment barbaric in nature, but due to its deterrent effect, the sex crimes particular, the crimes against women are well under control in these countries.
5) Pillory:
Pillory was yet another form of cruel and barbaric punishment which was in practice until the end of the 19th century. The criminal was made to stand in a public place with his head and hands locked in an iron frame so that he could not move his body. The offender could also be whipped or branded while in pillory. He could be stoned if his offence was of a serious nature. At times, the ears of the criminal were nailed to the breams of the pillory. Restraining physical movements of the criminal had the most agonizing effect on him and it was believed that the deterrence involved in this mode of punishment would surely bring the offender to books.
The system of pillory existed slightly in different form during the Moghul rule in India. Hardened criminals and dangerous offenders were nailed in walls and shot or stoned to death, The punishment undoubtedly was more cruel and brutal in form and, therefore, it finds no place in modern in modern penal systems.
Hanging condemned prisoner to death in a public place was common mode of pillory punishment in more part of the world until the middle of the twentieth century. This mode of punishment is still in vogue for execution of death sentence, but handing of a condemned convict to death in public is strictly prohibited and it has to be carried out in closed jail premises.
6) Fines:
The imposition of fine was a common mode of punishment for offences which were not of a serious nature and especially those involving breach of traffic rules or revenue laws. This mode of punishment is being extensively used in almost all the sentencing systems of the world even today. Fines by way of penalty may be used in case of property crimes and minor offences such as embezzlement, fraud, theft, gambling, loitering disorderly conduct etc., and other forms of financial penalty include payment of compensation to the victim of the crime and payment of costs of the prosecution. Financial penalty may be either in shape of fine or compensation or costs. The Indian penal Code provides for imposition of fine:-
(i) as the only disposition method;
(ii) as an alternative to imprisonment;
(iii) as a punishment in addition to imprisonment;
(iv) The actual amount of fine to be imposed is left to the discretion of the sentencing court.
Fine as an alternative to imprisonment is used only against short-term imprisonment i.e., imprisonment up to 2 or 3 years.
Foreiture of Property:
Section 53 of the Indian Penal Code provides forfeiture of property as a form of punishment. There are two offences specified under Sections 126 and 169 of IPC which provide for confiscation of property besides the punishment of imprisonment with or without fine. These sections are as follows:-
Section 126 provides that a person committing depredation of territories of power at peace with the Government of India shall be punished with imprisonment of either description for a term which may extend to seven years and also liable to fine and the property so used or intended to be used in committing such depredation or acquired by such depredation shall be liable to forfeiture.
Security Bond:
A security bond for good behavior though strictly speaking not a punishment, may serve a useful purpose as a form of restraint on the offender. This may entail compulsory treatment or supervision of the offender. The court may 'defer' sentence on some offender conditionally subject to his normal behavior. This 'conditional disposal' of offender is increasingly being recognized as an effective mode of corrective justice in modern penology.
The purpose of this nominal measure of punishment is to offer an opportunity to the offender to become a law-abiding citizen and chances of his reformation are better than those who are imprisoned or subjected to institutional sentence. That apart, the family members of the offender are not adversely affected by this mode of punishment as they are not deprived of their bread winner.
Banishment:
The practice of transporting undesirable criminals to far-off places with a view to eliminating them from society has been commonly used in most parts of the world for centuries. In England, war criminals were usually transported to distant Austro-African colonies. The terms transportation, banishment, exile and outlawry though similar, have different connotations. The difference, however, seems immaterial for the present purpose. Exile as a device merged into outlawry with earlier religious element largely supplanted by a political motive.
French criminals were transported to French colonies in Guiana and New Caledonia during nineteenth century. This mode of punishment was used only for hopeless criminals, political offenders and deserters. There was no question of these criminals returning alive as they were sure to die laboring in dense fever-infested forests of the African island. The French system of deportation was most brutal, cruel and inhumane. The system was abolished after the World War II when free French Government was installed in that country.
Solitary Confinement:
Confining the convicts in solitary prison-cells without work was a common mode of punishment for hardened criminals in medieval times. Solitary confinement was intended for elimination of criminals from society and at the same time incapacitating them from repeating crime. The deterrence involved in this mode of punishment was deemed necessary for prevention of crime. The monotony involved in this kind of punishment had the most devastating effect on criminals. Man by nature is known to be a social being hence he cannot bear the pangs of separation of living in complete isolation from his fellowmen. Therefore, segregation of convicts into isolated prison cells under the system solitary confinement resulted in disastrous consequences and the prisoners undergoing the sentence either died untimely or became insane. Besides, they became more furious and dangerous to society if at all they chanced to come out of the prison alive after completing their term of solitary confinement. As a result of these ill-effects on prisoners the system of solitary confinement soon fell into disuse and it was finally withdrawn as a measure of punishment.
The problem of judicial sentencing is closely related to the forms of punishment. It is difficult to say that a Judge is guided single particular criterion in imposing a sentence. A day light bank robbery involving one or two murders may be treated by some judges as an act of warfare against the community touching new depths of lawlessness justifying severely deterrent sentences for they want society to be protected, law to reassert its authority and villains to get their deserves. Similarly, in case of a few youths attacking a couple in a car and raping the woman, the Judge may be convinced that the perpetrators of such a crime must be denounced and awarded the sentence of imprisonment for a term of few years totally denying them the benefit of probation or borstal in view of the heinousness of the offence.
Judicial authorities all over the world have been struggling hard to establish a coherent set of principles for judicial - sentencing but the fundamental question is as to which of the four, namely, deterrence, retribution, prevention or reformation, should take precedence in the process of sentencing. It is on this point that the judges, the lawyers, the magistrates and the people in general disagree. The Crucial problem in context with judicial sentencing is whether it is the protection of society, or the prevention of crime, which should gain primacy in awarding the sentence. However, in the absence of any specific criterion, it would be worthwhile to suggest some general guidelines relating to judicial sentencing: -
1) The personality of the offender rather than the gravity of the offence should be the guiding factor in judicial sentencing. The age, antecedents, past criminal record, responsiveness and prospects of reformation of the offender as also the circumstances in which he committed the crime, should be taken into consideration while deciding the quantum of punishment. As rightly pointed out by Bentham, quantum of punishment should vary according to the offender's capacity to suffer. He enumerated as many as thirty-two invariables of capacity for suffering some of which are sex, age, physical and mental health, religion, lineage etc., The Use of individualized methods of punishment such as probation, parole suspension of sentence, etc., may achieve some element of rationality in the penal policy.
2) Humanity, consciousness about societal values and frugality are some of the limitating factors in judicial sentencing. Disparities in sentencing may be due to disparities between individual Judges, disparities between offenders convicted for the same offence under similar situations, disparities due to locational comparisons or disparities due to racial or class prejudices etc. These are rather inevitable in the modern complex society.
It must be noted that sentencing is the most critical stage in the administration of criminal justice. As Tappan rightly pointed out, "disparity in sentencing not only offends principles of justice, but also affects the rehabilitative process of offender and may create problems like indiscipline and riots inside the prison.'' Expressing a similar view the Supreme Court in Asgar Hussain v. State of U.P., observed that disparity in sentencing creates hostile attitude in the mind of the offenders and reduces the chances of their re-socialization as the offenders react strongly against the discriminatory treatment meted out to them.
3) The discretion of the Judge in matters of sentencing is limited by the penal law itself which sets a legal maximum sentence for a particular offence. However, there may be mandatory penalties for certain offences where the law gives the court no choice. Thus for example, the offence of murder carries the minimum sentence of life imprisonment under section 302 of the Indian Penal Code.
4) For professional criminals or political terrorists that indulge in ruthless violence and are a potential danger for the community, an extended period of preventive detention after serving the penal sentence may prove appropriate keeping in view the public safety and security against these dangerous hardened offenders. For this purpose, a distinction has to be drawn between hardened criminals and the recidivists. The former are 'positive danger' to society whereas the latter are a nuisance rather than a threat.
5) The offences committed by public servants should be severely dealt with and deserve no leniency in sentencing. Particularly, a public servant found guilty of accepting or obtaining illegal gratification or persons guilty of food adulteration or any other socio-economic offence such as hoarding, profiteering, black marketing, tax evading etc., must be sternly punished as they are a menace to society.
6) Judicial sentencing is a personal responsibility of the Judge a matter for his conscience alone. Any intrusion into his decision should be considered most unreasonable. But things have now considerable changed. It is said that today 'even judges are judged' they are expected to be fair and free from prejudices in pronouncing sentences. A Judge should also be aware of the various issues involved in the crime and the factors influencing the criminal who is standing involved in the crime and the factors influencing the criminal who is standing trial before him. Though maturity and experience are great merits of a sentence, but his decisions should not be out of tune with the advancing society. In other words, he should command public confidence through his pragmatic pronouncements. Needless to say, those despite legal training and limitations of criminal law, personal backgrounds and attributes of the Judge do play a vital role in judicial sentencing.
7) Though remotely, the judicial sentencing is likely to be influenced by the manner and mode of appointment of the Judges, particularly in countries where the judges are elected like legislators and are answerable to the electorates, they are prone to fall an easy prey to unjust local prejudices and pressures. Therefore, political element should not be allowed to enter into the powers of appointment of judicial magistrates.
In this context working of the criminal courts in USA wherein the prosecutor or the prosecutor Attorney plays a quadruple role as an investigator, magistrate, solicitor and an advocate, deserves a special mention. It is purely a political appointment and in fact a stepping stone for a high political office. Obviously, the political nature of the prosecutor's office does more harm than good to the community because he cannot afford to overlook the interests of politicians who have been instrumental in getting, him appointed to this prestigious office.
8) The standards of sentencing are bound to differ depending on whether the Judges are drawn from among the lawyers or laymen from public. It is generally presumed that lawyers with adequate legal training are better sentences for the reason that they are able to take an account of genuinely relevant factors, can weigh arguments and reach conclusions and beyond all, they are rigid and less vulnerable to pressures. On the other hand, the yard-stick for lay-judges is often the robust common sense guided by genuine human problems and they are fallible to pressures from those around them. The general trend today is to have the criminal courts staffed by well qualified lawyers.
9) Sentencing by the Judge largely depends on the way and the manner in which the case is presented before him by the police or the prosecutor. Therefore, conviction or acquittal shall inevitably depend on the evidence put forth by these personnel which may be biased or mistaken thus jeopardizing the interests of criminal justice. Miscarriage of justice is generally due to distortion or manipulation of evidence or the witnesses turning hostile due to pressure or threat exercised by the dreadful offender.
Sheldon Glueck has suggested that a pre-sentence report may provide a useful information and guidance to the sentencing authority in taking decision regarding the guilt of the accused and sentence or treatment to be accorded to him. It may enable the magistrate to seek advice from experts like psychiatrists or probation officers regarding antecedents of the offender and desirability of appropriate sentence keeping in views the possible impact of that sentence on the offender. The importance of pre-sentence report has been realized by most progressive penal systems of the world and they have incorporated relevant provisions to this effect in their penal laws.
10) In order to eliminate chances of injustice to the accused due to miscalculated sentencing, the law provides for appeal in higher courts. The Appellate courts not only remove individual injustices but also formulate precedents which the subordinate courts are bound to follow in their verdicts. This is indeed an effective method of eliminating possibilities of miscarriage of justice.
The Supreme Court in Adu Ram V/s Mukna and others highlighted the principle of proportionality between crime and punishment and held that social impact of crime cannot be lost sight of and the offence of murderous assault under section 300 read with sections 149,304, part I of I.P.C. per se require exemplary treatment. The criminal law adheres to the principle of criminal liability according to the culpability of each kind of criminal conduct. Though the judges must affirm that punishment always fits to the crime but in practice sentences are generally determined by other considerations. Sometimes correctional needs of the perpetrator justify leniency in sentencing. The court lamented that the practice of punishing serious crimes with equally severe punishment is now unknown to the civil societies and there has been a departure from the principle of proportionality in recent times. The court noted that imposition of sentence without considering its effect on the social order that imposition of sentence without considering its effect on the social order leads to some undesirable practical consequences. Particularly, crimes against women, children, dacoits, treason, misappropriation of public money and offences involving moral turpitude have great impact on social order, and per se require exemplary punishment in public interest. Any liberal attitude by imposing lenient sentences or taking sympathetic view on account of lapse of time in respect of such offences will be counter-productive in the long run and will jeopardize the "social interest which needs to be strengthened by the string of deterrence inbuilt in the sentencing system''
In the instant case the appellants were charged of murderous assault in course of a quarrel. They had used lathes' and axes and beaten the deceased who succumbed due to grievous injuries. They were sentenced to six years for the offence under section 300 read with sections 149 and 304 Part I. The Supreme Court dismissed the appeal and held that the case ought to have been covered under section 304, part II of I.P.C.
As a rule punishes ability, by and large, depends on the degree of culpability of criminal act and the danger posed by it to society as also the depravity of the offender. The risk of penalty is the cost of crime which the offender has to pay. When this cost (suffering) is high enough as compared to the benefit which the crime is expected to yield, it will deter a considerable number of people. This is true with crimes punishable with death sentence as well.
A dispassionate analysis of criminological jurisprudence would reveal that capital punishment is justified only in extreme cases in which a high degree of culpability is involved causing grave danger to society. It must, however, be added that a mere objective consideration of act's dangerousness to society by itself would not be enough to assess perpetrator's culpability but his personal attributes and circumstances and gravity of the offence have also to be taken into consideration to decide whether or not he deserves capital punishment. Thus the punishment should be commensurate among other things, with the gravity of offender's act and societal reaction to it.
Experience has shown that despite fullest consciousness about the desirability of reformative justice, at times unequivocal stand is unavoidable in extreme cases where offender has been fully aware of the fatal consequences of his gruesome and brutal crime and there were no mitigating circumstances. In such aggravating situations, though un want only, law must take a firm stand ant not hesitate even to award the extreme sentence of death to the offender. These situations have found expression in the penal law of India as also of other countries.
Retrubutive Effect of Death Penalty: -
Death sentence has been used as an effective weapon of retributive justice for centuries. The justification advanced is that it is lawful to forfeit the life a person who takes away another's life. A person who kills another must be eliminated from the society and, therefore, fully merits his execution. Thus the motive for death penalty may indeed include vengeance which is a compensatory and reparatory satisfaction for an injured party, group or society. When regulated and controlled by law, vengeance solidifies social solidarity against law-breakers and
Probably is the only alternative to the disruptive private revenge of those who feel harmed.
Connecting on the effectiveness of death penalty, Thorsten Sell in observed that it has failed as a measure of social protection, so also as an instrument of retributive justice. Citing illustrations from United States to support this contention, he argued that the numbers of executions are far less than the number of murders committed annually which clearly indicates that death sentence is no longer looked with favour and is falling into disuse rapidly. Another argument which needs attention regarding declining effect of death penalty is that even after the award of this sentence, in most case, it is either commuted or pardoned in the last resort and its final execution is seldom carried out.
Modes of Execution:
An appraisal of the administration of criminal justice of ancient times reveals that death penalty was commonly used in cases of heinous crimes. However, there was great divergence as to the mode of its execution. The common modes of inflicting death sentence on the offender were crucification, drowning, burning, boiling, beheading, throwing before wild beasts, flaying or skinning off alive, hurling the offender from rock, stoning, strangling, impelling, amputating, shooting by gun or starving him to death. Hanging the offender till death in public places has been a common mode of putting to an end to the life of an offender. These draconian and barbarous methods of punishing criminals to death were justified on the ground that they were the quickest and easiest modes of punishment and at the same time carried with them an element of deterrence and retribution. They have, however, fallen into disuse with the advance of time and modern humanitarian approach to penology.
Deterrence has been defined by Dr. Johnson as discouraging the offender by terror or naked fear from repeating his crime and at the same time preventing others from following his path. It must, however, be remembered that deterrence is a relative term, its seriousness depending on the category of the offender. Thus the stigma attached to arrest, trial, conviction and sentence may have little effect on habitual offenders or hardened criminals but may act as a powerful deterrent to an average law-abiding citizen. Undoubtedly, of all the punishments, death penalty appears to be the strongest deterrent for there can be nothing for which a man would be willing to give his life.
2.5 CAPITAL PUNISHMENT IN ANCIENT ROME AND GREECE
In ancient times, the law administrators unflinchingly executed murderers because they believed that "the life of each man should be sacred to each other man''. They realized that it is not enough to proclaim the sacredness and inviolability of human life, it must be secured as well, by threatening with the loss of life of those who violate what has been proclaimed inviolable-the right of innocent to live. Murder, being the worst of crimes, must deserve the highest penalty which is death sentence. This shall also be in accordance of the principle that punishment must be in proportion to the gravity of the crime.
Ancient Romans accepted the deterrent value of death penalty. Under the Roman criminal law, the offender was put to public ridicule and his execution took the form of a ceremony. Death was caused to the condemned person in a most tortuous manner. For example, one who killed his father was sewn in a sack along with a live dog, cat and a cobra and thrown into river. The object was to make him die most painfully. The sentence of death could be awarded even to a debtor who was unable to pay off the debt of his creditor. Thus a creditor, who found that his debtor was unable to pay off the debt, could vent his wrath upon the debtor by marching him up the Tragedian rock and hurling him from there to death.
The Greek penal system also provided death sentence for many offences, the offenders were stripped, tarred and feathered to death publicly. Execution of death penalty in public places was favoured because of its deterrent effect.
Continental View on Death Penalty:-
The history of crime and punishment in England during the medieval period reveal so that infliction of death penalty was commonly practiced for the elimination of criminals. Henry VIII who reigned in England for over fifty years was particularly infamous for his brutality towards the condemned prisoners. He used to boil the offenders alive. His daughter Queen Elizabeth, who succeeded him, was far stiffer in punishing the offenders. The offenders were not put to death at once but were subjected to slow process of amputation by bits so that they suffer maximum pain and torture. The condemned offenders were often executed publicly. These brutal methods of condemning the offenders were, however, abandoned by the end of eighteenth century when the system of transporting criminals to distant American colonies at their option was firmly established.
Dr. Fitzerald observed that the history of capital punishment in England for the last two hundred year recorded a continuous decline in the execution of this sentence. During the later half of the eighteenth century as many as two hundred offences were punishable with death penalty. The obvious reason for the frequency of execution was the concern of the ruler to eliminate criminals in absence of adequate police force to detect and prevent crimes. The methods of putting offenders to death were extremely cruel, brutal and torturous.
As the time passed, the severity of capital punishment was mitigated mainly in two ways; firstly, this sentence could be avoided by claiming the 'benefit of clergy' which meant exemption from death sentence to those male offenders who could read and were eligible for holy Order. Secondly, the prisoners who we awarded death sentence could be pardoned if they agreed to be transported to American colonies. Thus, by 1767 condemned felons could be transported for seven years in lieu of capital sentence. In course of time, death punishment for felony was abolished, and in 1853 the system of transporting criminals also came to an end and a new punishment of penal servitude was introduced.
Commenting on the frequency of executions during the eighteenth century Donald Taft observed that during no period in the history of western civilization were more frantic legislative efforts made to stem crime by infliction of capital punishment as in that century. In his opinion, the growing importance of this punishment was owing to the agrarian and industrial changes in the English society resulting into multiplicity of crimes which had to be suppressed by all means. Supporting this view Radzinowicz observed that more than 190 crimes were punishable with death during the reign of George III in 1810.
In nineteenth century, however, the public opinion disfavoured the use of capital punishment for offences other than the heinous crimes. Bentham and Bright, the two eminent English law reformers opposed frequent use of capital punishment. Sir Samuel Romilly also advocated a view that the use of capital punishment should be confined only to the cases of willful murder.
Death Sentence In U.S.A:-
Available literature on capital punishment in United States testifies that in modern times the sentence of death is being sparingly used in that country. This however, does not mean that capital punishment is altogether abolished in United States. The retention of death penalty is still considered to be morally and legally just though it may be rarely carried into practice. American penologists justify the retention of capital punishment for two obvious reasons. Firstly, from the point of view of protection of society death penalty is needed as a threat or warning to deter the potential murderers. Secondly, it also accomplishes the retributive object of punishment inasmuch as a person who kills another has perhaps forfeited his claim for life. It is, however, generally argued that the risk of being executed in fact serves no deterrent purpose because the murderer often plans out his crime in such a way that the chances of his detection are Rae and he is almost sure of his escape without being punished.
The safeguards provided under the law to eliminate any possibility of erroneous judgment regarding award of death sentence which may briefly be stated as follows:-
Firstly, death penalty is awarded very sparingly only in cases of murder and offences against the State:
Secondly, it is now an exceptional punishment requiring the sentencing judge to record in writing why he considers alternative punishment of life-imprisonment as inadequate in the case before him.
Thirdly, the conferment of right of pre-sentence hearing under Section 235(2) to the accused person offers him an opportunity to put-forth his plea for award of life-imprisonment as an alternative punishment for death sentence;
Fourthly, the cumulative effect of the provisions contained in Sections 354(3) and 235(2) is that sentencing is completely individualized and there is hardly any scope for error of judgment in sentencing the accused person;
Fifthly, the sentence of death passed by the Court of Session has got to be sent for confirmation to the concerned High Court under Sections 366-370 Cr.P.C. along with entire evidence material so that the High Court may scrutinize the same. The High Court has also the power to direct further enquiry or additional evidence to be taken if necessary;
Sixthly, the provision of appeal to the Supreme Court under Section 379 Cr.P.C. and Article 136 of the Constitution; and
Seventhly, president's / Governor's power of pardon or commutation of sentence Under Article 72 or 161 of the Constitution, as the case may be. It is quite often argued that death penalty "brutalizes'' human nature and cheapens human life. "Thus it vitiates the humanitarian sentiments concerning the sacredness of human life. It is for the reason that David Pannick strongly argues that death penalty should be declared per se unconstitutional as cruel and violative of due process of law.
The arguments for and against death sentence may be summarized as follows:-
Sl. No |
Retentionist's Arguments |
Abolitionist's Arguments |
1 |
Elimination of murderers by Execution is fair retribution and Saves potential future victims. |
An execution arising out of miscarriage of justice is Irreversible. |
2 |
Punishments must match the gravity of offence and worst crimes should be severely Punished. |
Capital punishment is lethal vengeance which brutalizes the society that tolerates it. |
3 |
Societies must establish deterrents against crime. Death sentence as an effective deterrent. |
Capital punishment does not have deterrent effect. Hired murderers take the risks of criminal justice System whatever the penalties thus it has no rational purpose. |
4 |
Death is a just punishment and death penalty has been held constitutionally valid to ensure justice for condemned offenders. |
Death penalty is unjust and often discriminatory against poor who cannot defend them Property. |
A perusal of arguments for and against the retention of capital punishment in a penal system makes it abundantly clear that at least its retention, in the statute book would better
Serve the ends of justice, though in practice it may be used sparingly. This approach to capital punishment is well reflected in the judicial pronouncements handed down by the Supreme Court ever since the historic Bachan Singh's case, Where the court laid down the 'rarest of rare case' Principal.
2.6 CAPITAL PUNISHMENT IN INDIA
The ancient law of crimes in India provided death sentence for quite a good number of offences. The Indian epics, viz, the Mahabharata and the Ramayana also contain references about the offender being punished with vadhadand which meant amputation by its. Fourteen such modes of amputating the criminals to death are known to have existed which included chaining and imprisonment of the offender.
Justifying the retention of death penalty Kind Dyumatsena observed. "If the offenders were leniently let off, crimes were bound to multiply''. He pleaded that true ahimsa lay in the execution of unworthy persons and, therefore execution of unwanted criminals was perfectly justified. His son Satyaketu, however, protested against the mass scale executing and warned his father that destruction of human life can never be justified on any ground. But Dyumatsena ignored the advice of his son and argued that distinction between virtue and vice must not disappear and vicious elements must be eliminated from society.
Retention of Capital Punishment-how far Justified:
The History of human civilization reveals that during no period of time death penalty has been discarded as a mode of punishment. This finds support in the observation made by Sir Henry Maine who stated, "Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of self-banishment or exile and the procedure of quarantine. Nor does the ancient Indian civilization know of abolition of death sentence although its disuse at some point of time in history has been effected because "the people were most truthful, soft-hearted and benevolent and to them vocal remonstrance sufficed. But in the event of failure of these measures, corporal punishment and death sentence were invoked to protect the society from violent criminals''.
Penologists in India have reacted to capital punishment differently. Some of them have supported the retention of this sentence while others have advocated its abolition on humanitarian grounds. The retention of this sentence while others have advocated its abolition on humanitarian grounds. The retentionists support capital punishment on the ground that it has a great deterrent value and commands obedience for law in general public. Those who support capital punishment feel that death of the killer is a requirement of justice. They believe that death of victim must be balanced by the death of the guilty party, otherwise, the victim will not be avenged and the anguish and passions aroused by the crime in society will not be allayed.
The abolitionists, on the other hand, argue that enormous increase in homicide crime-rate reflects upon the futility of death sentence. Another argument generally put forth by abolitionists is that hardened criminals commit most cold-blooded murders in a masterly manner. They proceed with their criminal activity in such a way that even if they are caught, they are sure to escape punishment due to one or the other procedural flaw in the existing criminal law.
2.7 ROLE OF JUDICIARY
Supporting the aforesaid view of the Law commission, the Supreme Court in Bachan Singh v. State of Punjab, inter alia observed:
"Notwithstanding the views of the abolitionist to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society. The parliament has repeatedly in last three decades, rejected all attempts to abolish death penalty. Death penalty is still recognized as legal sanction for murder or some types of murder in most of the civilized countries in the world. It is not possible to hold that the provision of death penalty as an alternative punishment for murder in section 302 of IPC is unreasonable and not in public interest''.
Statistics on homicide in various countries suggest that the incidence of this crime has not fallen despite increased risk of execution. This in other words, means that the deterrent effect of capital punishment is vanishing in modern times. It has been vehemently argued that deterrence does not work against the majority of offences which are crimes of passion.
The foregoing analysis clearly indicates that neither retention nor abolition of death sentence can be justified in absolute terms. The desirability of this punishment, by and large, depends on the nature of the crime and the circumstances associated therewith. The following generalizations may, however serve a useful purpose in deciding the desirability of capital punishment.
1. The retention of death penalty seems desirable in cases of hardened murderers who are incorrigibles and commit cold blooded murders in a calculated manner.
2. Particularly, in agricultural countries like India, the real problem of death penalty arises in case of murders committed during agrarian riots and disputes relating to possession or ownership of land-property. In such cases, the offenders are well aware of the consequences of their act but they fall a prey to criminality due to passion, excitement or anger for the victim whom they want to put out of their way once for all. Thus these persons, though aware of the consequences, in fact do not intend those consequences to follow, hence they cannot be categorized as professional killers and death penalty can hardly serve any useful purpose in such cases.
3. Experience has shown that quite a large number of murders and homicides which occur in this country are due to permeance of racial, ethnical, and religion-political cultures. The offender often falls a prey to his surroundings and in a fit of passion commits homicide without thinking about its gravity and consequences. Such cases are more common in the Indian society where sex taboos are too strict and the marital relationships are likely to be disturbed on slightest suspicion or provocation.
4. Dr. Sethna carried out an intensive study of cases tried at the criminal sessions of the Bombay High Court and concluded that out of 507cases of homicides only 26.28 percent were premeditated murders while remaining 73,72 percent were cases of unpremeditated murder. Thus most of the homicides are due to ill-will, emotion, irresistible temper or manic excitement and capital punishment serves no deterrent purpose in such cases.
5. The person generally advanced for retaining the death penalty is protection of society. It means that the criminal is exterminated and got rid of once for all. But it must be remembered that it is not by the fear of death but by generating in the community a sentiment of horror against killing that we can hope to deter offenders from committing that act.
The above generalizations suggest that classification of different types of homicides can be made on the basis of social environment and personality of the offender. Therefore, the efficacy of death penalty in such cases should be judged in the light of the surrounding conditions. Considered from this stand point, the habitual offenders and sex psychopaths are abnormal persons who develop a kind of mania for their crime without bothering about is gravity or evil effects. There is yet another category of criminals who take pleasure in killing human life without any apparent reason. They commit murder one after another only for the sake of fun. When interrogated, these men-killers have boldly confessed that they commit homicides because they derive some kind of pleasure in watching their victim dying in pain and torture. Needless to say that death sentence is perhaps the only appropriate punishment for such beastly offenders.
Rention preferrd to Abolition:
The current wave of reformation in the field of criminal justice system has inspired. Parliamentarians in India to launch a crusade against capital punishment. They have been constantly struggling to repeal the provisions relating to death penalty from the Panel code for the past several years. The first proposal on this issue was tabled in Lok Sabah in 1949 but it was subsequently withdrawn at the instance of the then Home Minister Sardar Vallabhbhai Patel who characterized it as the most in opportune proposal. The matter came up for debate again in Rajya Sabah in 1958 but it again met the same fate. The subject was however, accepted for discussion, in Rajya Sabha in 1962 but the general opinion of the House favoured retention of death penalty realizing that time had not yet come when its repeal from the statute book could be justified. Consequently, the proposal was dropped. The retentionists in the House opposed abolition of death sentence on the ground that its retention in the Statute Book acted as an effective deterrent for hardened and habitual murderers and dangerous criminals whose elimination from the society was inevitable. The members also pleaded that the Government was already lenient in commuting death sentence to that of life imprisonment whenever it was possible.
The Report of the convention of International Congress of Criminal Law which was held in New Delhi on 8, 9, and 10th February 1982. Concluded that the general consensus was clearly in favour of retention of death penalty though its use may to be restricted to "rarest of rare cases'' Despite strong plea for abolition by justice V.R. Krishna Iyer, the former Judge of the Supreme Court of India, the convention justified retention of capital punishment, though to be used sparingly. Inaugurating the congress, Mr. M. Hidayatullah, the then vice-president of India and former Chief Justice of the Supreme Court of India.
Law commission's Report on Capital punishment: -
In response to the resolution moved in the parliament in 1962 on the abolition of capital punishment, the Government of India referred the question to the Law commission. The commission decided to take up this subject separately for the revision of the general criminal law in view of its importance. The commission presented its report to the Lok Sabah on November 18, 1971, in which it inter alia observed:
"Even after all the arguments in support of abolition of capital punishment are taken into account, there does not remain a residium of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal. The commission further expressed a view that 'retribution' involved in capital punishment does not connote the primitive concept of 'eye' for an eye' but it is an expression of public indignation at a shocking crime, which can better be described as 'reprobation'. Therefore, the commission did not recommend any material change in the offences which are at present punishable with death under the Indian penal code.
As regards the question of exempting certain categories of persons from death sentence, the Law commission in its 42nd Report published in June 1971 suggested that;
(1) Children below 18 years of age (at the time of commission of the crime) should not be sentenced to death.
(2) It is not necessary to exempt women generally from the death penalty.
(3) It is unnecessary to insert a statutory provision relating to "dismissed responsibility'' in the statute book.
(4) An attempt to commit suicide should cease to be an offence in India. The present law in this regard is "harsh and
unjustifiable and it should be replaced''.
The court placed reliance on the Supreme Court decision in olga Tellis and others v. Bombay Municipal Corporation popularly known as pavement Dweller's case wherein it was held that right to life includes right to livelihood. The Bombay High Court, however, clarified that mercy-killing or euthanasia is not suicide and hence would not be covered under section 309 IPC. The reason being that suicide by very nature is an act of terminating one's own life by one's own act without the aid and assistance of any other human agency.
The Supreme Court in P. Rathinam Nagbhusan Patnaik V. Union of India has distinguished suicide from euthanasia and observed that the legal and other questions relatable to euthanasia are in many ways different from those raised in suicide. Therefore, justification for allowing persons to commit suicide cannot be played down or cut down because of any encouragement to persons pleading for legislation of mercy killing, the court further clarified that self-killing is conceptually different from abetting others to kill themselves.
The Supreme Court's ruling in P. Rathinam's case has however, been overruled by a subsequent case, i.e. smt. Gyan Kaur and her husband Harbans singh were convicted by trial court under section 306, I.P.C. and sentenced to 6 years R.I. and fine of Rs. 2,000/- or in default R.I. for 9 months for abating commission of suicide by Kulwant Kaur. The conviction of both was maintained by the High Court except that the sentence of Gyan Kaur was reduced to 3 years R.I. This appeal was against the conviction and sentence of appellants under section 306, I.P.C. The Supreme Court held that right to life under Article 21 does not include right to die, because extinction of life' is not included in 'protection of life'. Therefore, penalizing for an attempt to commit suicide under section 309 I.P.C. is not violative of Article 21 and is not unconstitutional consequently, provision contained in section 306, I.P.C. is also not unconstitutional, and it is perfectly valid. Hence the appeal was disallowed.
In Rajendra Prasad v. State of U.P. that where the murder is deliberate, premeditated, cold-blooded and gruesome and there are no extenuating circumstances, the offender must be sentenced to death as a measure of social defence.
In Bachan Singh, the Supreme Court upheld the death sentence of the accused in Machi Singh and others v. state of Punjab, on the ground that the murder committed was of exceptionally depraved and heinous in character and the manner of its execution and its design, would put if at the level of extreme atrocity and cruelty. The accused in the instant case had killed two innocent and helpless women. Their Lordships of the Supreme Court opinion that the 'rarest of rare cases' doctrine was clearly attracted in this case and that the sentence of death was perfectly justified.
The Supreme Court in its decision in T.V. Vatheeswaram v. state of Tamilnadu, once again ruled the prolonged delay in execution exceeding two years will be a sufficient ground to quash death sentence since it is unjust, unfair and unreasonable procedure and only way to undo the wrong, is to quash the death sentence. The court further observed that the cause of delay is immaterial when the sentence is that of "death'' and a person under sentence of death may also claim fundamental rights, i.e. procedure under Article 21 must be just, fair and reasonable.
But soon after in Sher Singh v. State of Punjab, the Supreme Court overruled its earlier ruling in vetheeswaran's case. Delivering the judgement in this case chief justice Mr. Y.V. Chandrachud observed that death penalty should only be imposed in rare and exceptional cases but any death sentence upheld by the Supreme Court should not be allowed to be defeated by applying any rule of thumb.
In Kanta Tiwari V/s State of M.P. the accused committed the rape on a seven year old girl and strangulated her to death. He threw her body in a well and caused disappearance of evidence. The accused was convicted for the offences under sections 363,376,302and 201, I.P.C. and was sentenced to death by the trial court and the sentence was maintained by the High Court also. In appeal the Supreme Court upheld the decision of the lower courts and held that this is a rarest of rate cases' where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes. The court, inter alia, observed.
In Karan Singh and another V/s State of Uttar Pradesh the accused killed five members of a family one by one in a very dastardly manner by butchering them with axes and other weapons on 12th March, 1998. After killing three of them the accused went to the house of the deceased and killed the children who were in no way involved with the property dispute which was the cause of enmity between the deceased and the accused persons. The Supreme Court after reappraisal of the entire facts and circumstances of the case declined to commute the death sentence imposed on the appellants (accused) and confirmed it as a result of which the interim stay granted by the Apex court on 2nd March 2004 on the execution of the death sentence was vacated.
In the case of Govindaswamy V. State of Tamil Nadu, the Supreme Court speaking through Mukerjee, J. observed that, "in case of murder committed in a gruesome, brutal and calculated manner, declining to confirm death sentence will stultify the course of law and justice. The commutation of death sentence to life imprisonment in such case will be yielding to spasmodic sentiment, unregulated benevolence and misplaced sympathy".
In the case of Laxman Naik V. State of Orissa, it was conclusively proved on the basis of circumstantial evidence that the accused committed rape on his brother's daughter aged 7 years in a lonely place in forest and thereafter murdered her. The evidence on record indicated how diabolically the accused had conceived of his plan and brutally executed it, and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of rare case attracting no other punishment than the capital punishment.
2.8 CONCLUSION
It may be reiterated that capital punishment is undoubtedly against the notions of modern rehabilitative processes of treating the offenders. It does not offer an opportunity to the offender to reform himself. That a part, on account of its irreversible nature, many innocent persons may suffer irredeemable harm if they are wrongly hanged. As a matter of policy, the act of taking another's life should never be justified by the State except in extremes cases of dire necessity and self-preservation in war. Therefore, it may be concluded that though capital punishment is devoid of any practical utility yet its retention in the panel law seems expedient keeping in view the present circumstances when the incidence of crime is on a constant increase. Time is not yet ripe when complete abolition of capital punishment can be strongly supported without endangering the social security. It is no exaggeration to say that in the present time the retention of capital punishment seems to be morally and legally justified. It serves as a reminder to everyone that in case of unpardonable crime one has to forfeit has own right to life and survival.
In the ultimate analysis, it will be seen that considered from the angle of social justice and protection of society from hard-core criminals, death sentence is not unreasonable or unwarranted or obsolete type of punishment. The noted Italian criminologist Garofalo, while disapproving the abolition of death sentence from the statute Book commented, "When state abolishes the sentence of death, it authorizes murderer and says to the criminal the risk you run in killing a human being is a change of abode, the necessity of spending your days in my house (i.e. prison) instead of your own. Will it be proper to do so?
The death penalty is no doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably, discriminatorily, freakishly or wantonly, but if it is administered rationally, objectively and judiciously it will enhance people's confidence in criminal justice system.
UNIT-III
Prisonisation symbolizes a system of punishment and also a sort of institutional placement of under trials and suspects during the period of trial. Since there cannot be a society without crime and criminals, the institution of prison is indispensable for every country.
This history of prisons in Indian and elsewhere clearly reflects the changes in society's reaction roc crime from time to time. The system of imprisonment represents a curious combination of different objectives of punishment. Thus prison may serve to deter the offender or it may be used as a method of retribution or vengeance by making the life of the offender miserable and difficult. The isolated life in prison and incapacity of inmates to repeat crime while in the prison fulfills the preventive purpose of punishment. It also helps in keeping crime under control by elimination of criminals from the society. That apart, prison may also serve as an institution for the reformation and rehabilitation of offenders. It, therefore, follows that whatever be the object of punishment, the prison serves to keep offenders under custody and control.
The origin of prison is inter-linked with the system of imprisonment which originated in the first quarter of nineteenth century. Initially prisons were used as detention houses for under-trials. Persons who were guilty of some political offence or war crime or who failed to pay their debts or fines we lodged in prison cells with a view to extracting confession from them or securing the payment of debts or fines. Subsequently, with the march of time and advancement of knowledge and civilization, the conditions of prisons also improved considerably. Since the present day penology centers round longer mere detention houses for the offenders but they seek to reform inmates for their future life. The modern techniques of punishment law greater emphasis on reformation, correction and rehabilitation of criminals.
International penal and penitentiary commission prison Reforms:
As stated earlier, the International penal and penitentiary commission made an endeavor in 1929 work out standard minimum Rules for the treatment of prisoners which could be uniformly applicable throughout the world, but is attempt failed because of the variations in geographical, physical and political conditions of different countries. Thereafter, in 1949 the United Nations convened a meeting of the group of experts to consider the problem of crime prevention and to frame standard minimum rules for this purpose. Consequently, a draft of standard minimum rules for the treatment of prisoners was submitted by the First congress on prevention of crime and Treatment of offenders, U.N.O. Geneva in 1955. Modern prison reforms of most of the countries are mainly based on these standard minimum rules. The rules sought to eliminate undue torture and suffering to prisoners and narrowing down the gap between the prison life and the free-life.
3.2 PRISONS IN INDIA
A well-organized system of prisons is known to have existed in India from the earliest times. It is on record that Brahaspati laid great stress on imprisonment of convicts in clised prisons. However, Manu was against this system. Kautilya in his Arthashastra has stated that rulers in ancient India made frequent use of fortresses to lodge their prisoners. He was personally of the view that as far as possible prisons should be constructed by the road-side so that monotony of prison life is reduced to a considerable extent, in ancient India, greater emphasis was laid on the spiritual aspect of human life and therefore, the prisons were so modeled as to provide sufficient opportunity for penance and remonstrance. It was a common practice to keep the prisoners in solitary confinement so as to afford them an opportunity of self-introspection.
The object of punishment during the Hindu and Mughal period in India was to deter offenders from repeating crime. The recognized modes of punishment were death sentence, hanging, and mutilation, whipping, flogging, branding or starving to death. Particular, during the Mughal rule an India the condition of prisons was awe fully draconic. The prisoners were ill-treated, tortured and subjected to most inhuman treatment. They were kept under strict surveillance and control. Thus the prisons were places of terror and torture and prison authorities were expected to be tough and rigorous in implementing sentences.
The British colonial rule in India marked the beginning of penal reforms in this country. The British prison authorities made strenuous efforts to improve the condition of Indian prisons and prisoners. They introduced radical changes in the then existing prison system keeping in view the sentiments of the indigenous people. The prison Enquiry committee appointed by the Government of India in 1836 recommended for the abolition of the practice of prisoners working on roads. Adequate steps were also taken to eradicate corruption among the prison staff. An official called the Inspector-General of prisons was appointed for the first time n 1855, who was the chief Administrator of prisons in India. His main function was to maintain discipline among the prisoners and the prison authorities. With his appointment, the jailor and other petty officials of prisons could no longer abuse their power and authority.
Indian Jail Reform Committee: 1919-20.
The Indian Jail Reforms committee 1919-20 which was appointed to suggest measures for prison reform was headed by Sir Alexender Cardew. The Committee visited prisons in Burma, Japan, Philippines, Honkong and Britain besides the Indian jails and came to the conclusion that prisons should not only have deterring influence but they should have a reforming effect on inmates. The committee underlined the need for reformative approach to prison inmates and discouraged the use of corporal punishment in jails. It recommended utilization of prison inmates in productive work so as to bring about their reformation. The committee also emphasized the need for after-care programme for the released prisoners for their rehabilitation.
As a measure of prison reform, the jail committee further recommended that the maximum intake capacity of each jail should be fixed, depending on its shape and size. In the meantime there was a movement against retention of solitary confinement as a method of punishment. Taking a lead in this direction, the State of Bombay abolished solitary cells from its prisons. Other provinces followed the suit and reformed their prisons on humanitarian principle.
In 1949 pakwasa committee accepted the system of utilizing prisoners as labour for road work without any intensive supervision on them. It was from this time onwards that the system of payment of wages to inmates for their labour was introduced. Certain good time laws were also introduced in jails under which the inmates who behaved well during their term of imprisonment were rewarded by suitable reduction in the period of their sentence. The ultimate object of these reforms was to protect the society from criminals, to reform the offenders, to deter them and to extract retribution for criminal acts to the satisfaction of the society.
After the Indian Independence, the Constitution of India placed "Jail'' along with police and law and order in the state list of the seventh schedule. As a result of this, the Union Government had literally no responsibility of modernizing prisons and their administration. Unfortunately, even the Five year plans offered a very low priority to prison administration.
The treatment of prisoners on psychological and psychiatric basis received some attention as a measure of prison reform during 1950.As G.B. volt rightly observed, "the rehabilitative activities of the modern prison are generally of two kinds, namely: (1) psychological and psychiatric treatment; and (2) Educational and vocational training programmes. The case-work service is the operating instrumentality that makes these more specialized forms of treatment effective in practice.
The Government of India invited Dr. W.C. Reckless, a technical expert of the United Nations on crime prevention and treatment of offenders, to make recommendations on prison reforms in 1951. Later on, a committee was appointed or prepares an all India Jail Manual in 1957 on the basis of the suggestions made by Dr. Walter Reckless. An All India conference of Inspector General of Prisons of the provinces was also convened. Consequent to these efforts, following major policy guidelines regarding reformation and rehabilitation of prisoners were unanimously accepted:-
1. The correctional services should form an integral part of the Home Department of each State and a Central Bureau of Correctional services should be established at the centre.
2. The reformative methods of probation and parole should be used to lessen the burden on prisons.
3. State After-Care units should be set up in each State.
4. Solitary confinement as a mode of punishment should be abolished.
5. Classification of prisoners for the purpose of their treatment was necessary.
6. The State Jail Manuals should be revised periodically.
As suggested by pakwasa committee, a Model Jail was established at Lucknow in 1949 where the prisoners were made to work on handloom machines and engaged in various other home industries. The first women jail was established in Maharashtra at Yarwada. During the last fifty years, several notable changes have been introduced in the system of prisons in India.
3.3 ROLE OF PRISONS IN MODERN PENOLOGY
The utility of prison as an institution for rehabilitation of offenders and preparing them for normal life has always been a controversial issue. Stressing on the need for retaining the institution of prison Dr. Paripurnanand Verma observed that "a prison symbolizes evil and, therefore, evil doer find themselves in perfect harmony inside the house of evils this assertion for all categories of criminals. There are quite large numbers of offenders who are otherwise well behaved and are persons of respectable class of society but they fall a prey to criminality on account of momentary impulsiveness, provocation that are otherwise innocent but have to bear the rigours of prison life due to miscarriage of justice. Obviously, such persons find it difficult to adjust themselves to the prison surroundings and find life inside the prison most painful and disgusting.
3.4 THE PROBLEM IN PRISON SYSTEM
The Problem of overcrowding Prisons:-
It is known fact that prisons in most parts of India are overcrowded. For instance there were 8500 prisoners in Tihar Jail of Delhi in 1995 as against the capacity of 2500 persons. The baneful effect of overcrowding is that it does not permit segregation among convicts-those punished for serious offences and for minor offences. As a result of this, hardened criminals may spread their influence over other inmates. The juvenile offenders, who are kept in jails because of inadequacy of alternative places where they can be confined, come into contact with hardened criminals and are likely to become professional offenders. It is in this back drop that the problem of overcrowding in prisons needs to be tackled in right earnest.
The Law commission in its 78th Report made some recommendations for easing congestion in prisons. These suggestions include liberalization of conditions of release on bail, particularly release of certain categories of under trials on bail. Other methods of reducing overcrowding in prisons may include extensive use of fine as an alternative punishment for imprisonment, civil commitment and release on probation. Overcrowding may also be reduced by release on parole a prisoner after he has served part of the sentence imposed upon him. It is a conditional release of an individual from prison. The system of remission leave and premature release may also be useful in tackling the problem of overcrowding in prison institutions. The All India committee on Jail Reforms, headed by Justice A.N. Mulla has in its Report (`1980-83) mentioned about various types of remission and made useful recommendations to streamline the remission system in India.
The Problem of Prison Discipline:
The problem of prison discipline has always been engaging the attention of penologists throughout the world. The main object of prisonisation is undoubtedly negative insofar as it aims at generating a feeling of dislike for prison life among the members of society, the object being to dissuade people from doing acts which may lead them into prison. Expressing his view about the prison administration, Donald Taft commented that prisons are deliberately so planned as to provide unpleasant compulsory isolation from general society. A prison according to him, characterizes rigid discipline, provision of bare necessities, strict security arrangements and monotonous routine life. The prison personal are usually untrained without any specialized training in their field. Although with the modern facilities available to inmates, the rigors of prison-life are considerably mitigated nevertheless they are likely to become respective if not kept under proper discipline. There is yet another reason to justify the need for strict discipline in prison. One might be imprisoned either for the purpose of custody, control and discipline or from being prevented to escape or being sent to a correctional institution for treatment. Whatever be the object, it is certain that the life inside prison necessarily pre-supposes certain restrictions on the liberty of inmates against their free will. This consciousness of subjection to compulsive forces of the State through the agency of prison often leads to scuffle between prison officials and the inmates. The custody of prisoners should, therefore, ensure their safety and security as also minimize the chances of conflict with prison administrators.
Another problem which is so often faced by the prison authorities is to guard against the possibility of prison-riot which is essentially an outcome of the combined venture of inmates. In early times when prisoners were lodged in separate cells, this possibility was completely ruled out as they had no chance of communicating with each other in the modern sense. Today, the difference between the prison life and free life is reduced to such an extent that even the prisoners have become conscious of their rights and obligations of prison authorities towards them. Their free intermingling with the outside world provides them opportunities to unite and raise a common front against the prison administrators and slightest provocation is sufficient to stimulate unrest. The general causes of such riots and disturbances are political instigations, crude disciplinary incidents, monotonous routine of prison life, separating from members of the family, differences with the prison staff and step-motherly treatment of wardens and guards towards certain inmates.
The Problem of Prisoner's Health:
The state of Health of prisoners is also an important issue which needs attention of prison authorities. The term "state of health'' includes the description regarding past and present suffering of the disease of the new entrants and its duration and treatment taken etc., sections 37,39-A,39-B, and 39-C,of the prisons Act deal with sick prisoners and require that prisoners at the time of their entry in prison be asked about their health, particularly relating to Tuberculosis and AIDS etc., and the treatment which they have undergone for the disease, so that such prisoners apart from being given special treatment may be segregated from rest of the inmates. It is the duty of the State to ensure that such type of serious diseases are cured and not allowed to spread, not only to other prisoners but also the other persons living outside the prison.
In order to tackle the problem of prisoners suffering from serious diseases, volunteers may be trained in prison for nursing so that they effectively help the suffering inmates and develop among them a system of self-help for protection against diseases like T.B. or AIDS etc.,
The High court of Madhya Pradesh, in Anil Kumar S .State of M.P. (decided on November 30, 1999) enumerated the factors which account for increase in the number of prisoners exposed to infection of tuberculosis in prisons. They are as follows:-
1. Delay in diagnosis, neglect of prisoner's health problems, insufficient health services in prison and inadequate sputum
smear microscopy facilities;
2. Failure of medical services to refer. T.B. suspects for diagnosis or to initiate timely treatment;
3. Transfer of prisoners with infections tuberculosis between and inside prisons;
4. Overcrowding and prolonged confinement inside cells;
5. Failure to segregate infectious cases from other prisoners;
6. Sub-standard treatment resulting in failure to cure patients and prolonged infectiousness;
7. Poor ventilation and poor nutrition may also lead to cause of disease.
The court issued directions to the State Government to initiate adequate steps to control spread of diseases in prisons.
The Problem Of Criminality In Prisons:
Yet another problem relating to prison discipline concerns criminality among inmates inside the prison. The continuous long absence from normal society and detachment from members of the family deprives the inmates of their sex gratification which is one of the vital biological urges of human life. Not being able to control this sex desire, the prisoners quite often resort to unnatural offences such as homosexuality, sodomy etc., Therefore, such offences and personal assaults are common inside prison walls. To suppress this menace, some of the advanced countries have permitted periodical conjugal visits for inmates so as to offer them a legitimate opportunity to pacify their sex urge and thus eliminate crimes of this nature in prisons. Some penologists have, however, opposed the idea of 'conjugal visits' on the ground that sexual deprivation must continue as one of the inevitable suffering of imprisoned life. That apart, conjugal visits seem unnecessary for three obvious reasons, namely, most prisoners are imprisoned for six months or less, quite a large number of them are unmarried or separate from their wives; and the provision of "home leave'' and parole offers a much better and more natural solution than conjugal visits in the unfamiliar and embarrassing atmosphere of a prison.
3.5 CLASSIFICATION OF PRISONERS:
At the time when reaction to crime was purely punitive, there was no need for classifying prisoners and all of them were flocked together in a single prison. This system of singular treatment of criminals, however, turned the prisons into a living hell on earth with all sorts of vices. The sole object of prisonisation in those days was to subject the inmates to maximum torture and pain and therefore there was no need to classify them. With the evolution of penal science during the late eighteenth and early nineteenth century, the offenders were classified into different categories according to their sex, age and gravity of offence. Even at this time, objective approach to prisoners was not known. It was towards the end of 19th century that the idea of individualization of prisoners drew attention of penologists and this principle has since then been firmly established into practice. Individualization of offender as a method of his rehabilitation has now become the cardinal principle of modern penology. Evidently, in the changed circumstances the earlier classification of criminals on the basis of their physical differences serves no useful purpose. Therefore, modern penologist has worked out an objective classification of prisoners according to differential treatment. In spite of being lodged in maximum security prisons, the modern prisoners are placed in quasi-penal and even non-penal institutions for their reformation. The prisoners are now classified according to the treatment to which they are likely to respond most favorably. In the modern context, social-defence, namely, the protection of society from criminals is the prime object of punishment while classification of prisoners for treatment is the method of it. To achieve this end, the criminals are classified into two broad categories, viz., (1) hardened criminals who are fit for treatment in a conventional jail, and (2) casual criminals, who are fit for treatment in a medium custody jail or even fit to be sent to a Borstal or Reformatory or released on probation.
Under the present correctional system in United States the task of classifying inmates for their rehabilitation is performed by the following agencies:
(1) The Central classification center;
(2) The classification committee; and
(3) The Reception Centre.
All the convicted persons are first brought before the Central Classification Centre where their antecedents, past history and mental attitude etc., are thoroughly examined by the expert psychologists and psychiatrists. If in the opinion of these experts the inmate is considered responsive to reformation, he is sent to an appropriate correctional institution as recommended by the central Classification Centre.
3.6 OVERALL STATISTICAL VIEW OF INDIAN PRISONS
The Report on prison statistics as on December 31, 2005 was replaced by the Ministry of Home Affairs, Government of India in March 2006, during the All India Conference of Directors / IG's and secretaries (Prisons) in New Delhi, contained details regarding various prisons and different categories of inmates as indicated below:
JAILS:
Total Jails in India - 1138.
Central Jails - 101
District jails - 276
Sub-Jails - 676
Open Jails - 21
Special Jails - 23
Women Jails - 18
Other Jails - 23
The total staff manning these jails numbered 44901 of which 2416 were women at the end of year 2005.
INMATES:
Total Inmates in Indian Jails is - 356653
Mentally ill - 368
Convicts - 65391
Undertrials - 210623
Detenues - 5689
Others - 12341
Total Women Inmates - 9463
Total Foreign Inmates - 2478
As many as 75663 inmates were convicted prisoners of which 53.4% were convicted prisoners of which 53.4% were convicted for the offence of murder. The number of under-trails detained in jail for more than 5 years during the year 2005 was 1379.
3.7 JAIL REFORM COMMITTEE'S (1980-83) VIEW ON CLASSIFICATION OF PRISONERS;
While agreeing that segregation of offenders on the basis of sex, age, criminal record, social background is an essential feature of modern prison system, the Jail Reforms Committee of 1980-83 observed that even today the under trial prisoners, prisoners sentenced to short, medium and long terms of imprisonment, habitual offenders, lifers, hard and dangerous prisoners, juvenile or young offenders, women offenders, civil and political prisoners, détenues under National Security Act, FERA, TADA, NDPS Act etc., are all kept together and in reality segregation has become a provision only on paper'. The Committee, therefore, recommended a variety of institutions for catering to the needs of different categories of offenders.
They are as follows: -
1. Separate prisons or annexes for under trials:
2. Separate prisons or annexes for women;
3. Separate Semi-open institutions for juveniles and young offenders with minimum security arrangements:
4. Maximum security prisons for professional and hardened criminals and gangsters who indulge in organized
criminality;
5. Separate camps for offenders courting arrests in connection with social or political movements or participating in
strikes, hurtles, protests etc.,
These recommendations have been accepted in principle by the Government but the major problem is about the resources needed for setting up these different institutions. The State Governments must tackle the problem on priority basis.
Prison Reforms:
Undoubtedly, the condition of modern prisons is better than that in the past but still much remains to be done in the direction of prison reforms for humane treatment of prisoners. The treatment of prisoners should be in accordance with the constitutional mandates to secure them the basic rights. Emphasizing the need for change in the attitude of jail authorities towards the prison-inmates, the Supreme Court in Mahammad Giassudin V. State of Andhra Pradesh, observed:
"Progressive criminologist across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prison as hospitals-mental or moral-is the key to be pathology of delinquency and the therapeutic role of punishment. The whole man is a healthy man and every man is born well. Criminality is a curable deviance. Our prison should be correctional houses, not cruel iron arching the soul''.
The following modifications in prison administration may be suggested for improving the efficiency of these institutions;
(1) The maintenance of prison establishment is an expensive affair. It is in fact an inevitable burden on the pubic exchequer. Therefore, the offenders should be confined to prison for only a minimum period which is absolutely necessary for their custody. The elimination of long term sentences would reduce undue burden on prison expenditure. It is further, suggested that where the term of imprisonment exceeds one year, a remission of one month or so per year be granted to the inmate so as to enable him to go to enable him to go to his home town and meet his near relative. This will help in his rehabilitation and after his release he can face the outside world courageously casting aside the stigma attached to him n account of prisonisation. The periodical furlough granted to prisoners in India under the prison Act and the rules framed thereunder is intended to achieve this objective.
(2) The women prisoners should be treated more generously and allowed to meet their children frequently. This will keep them mentally fit and respond favorably to the treatment methods. A liberal correctional and educational programme seems necessary in case of women delinquents because they need lesser control and custody due to their feminine temperament. Particularly, the women who fall a prey to sex offence should be treated with sympathy and their illegitimate children should be assured an upright life in the society. Women prisoners should also be allowed to meet their sons and daughter more frequently; particularly the attitude in this regard should be more liberal in case of under trial prisoners. Women offenders should be more liberal in case of under trial prisoners. Women offenders should be handled only are women police or prison officials. The idea of setting up separate women jails exclusively for women prisoners, however, does not seem to be compatible keeping in view the huge expenditure involved in the process.
The Supreme Court in R.D. Upadhyaya v. State of Andhra Pradesh and others expressed its concern for the children living in jail with their prisoner mother and laid down detailed directives as regards adequate food, shelter, medical care, clothing, education and recreational facilities for such children which are declared to be child's right. The court further directed that in case of a child born out of a prisoner mother, his birth place should not be recorded as 'prison' in the birth certificate. A child above the age of 6 years should not be kept with female prisoners. The court issue directives to the States to amend their jail manuals accordingly. The court opined that these directives were necessary keeping in view the fact that jail environment is certainly not congenial for the development of the children and for securing children their inherent right to enjoy happy childhood.
The co-ordinator of women's Action Research & Local Action for women (WARLAW) had filed a petition before the court stating that more than 70% of the women prisoners are married and have children. At the time of arrest of the women / mother prisoners but such arrest is automatically extended to these children who are of tender age and there is no one to look after them without the mother.
On the basis of various affidavits submitted to the Apex Court, there were 6496 under trial women with 1053 children and 1873 convicted women with 1053 children and 1873 convicted women with 206 children as on 23rd January 2002.
The court finally directed that compliance report stating steps taken by the Union of India, State Governments and Union Territories and Legal Services Authorities shall be filed in four months where after matter shall be listed for further directions.
(3) The under trials, minors, recidivists and first offenders should be kept separated from each other. Similarly, political offenders who are not guilty of violence should also be kept separate and not be housed in the same premises in which other criminals are lodged. It is inhuman and unreasonable to throw young boys to sex starved prisoners or to run menial jobs for hardened and affluent prisoners. The young prisoners should be separated from adults.
(4) There is need for scientific classification of prisoners based on the nature of the crime committed, age, sex, character and propensities of the offender including his educational level and likely response to prison treatment.
(5) The prisoners belonging to peasant class should be afforded an opportunity to go to their fields during harvesting season on temporary ticket on leave so that they can look after their agriculture. This would enable them to keep in touch with their occupation and provide means of living to the members of their family. Thus the unity of family life can be maintained which would help rehabilitation of the prisoner after his release from jail.
(6) Though the prisoners are allowed to meet their near relatives at fixed intervals yet there is a further need to allow them certain privacy during such meetings. The meetings under the supervision of prison guards are really embarrassing for inmates as well as the visitors and many thoughts on both sides remain unexpressed for want of privacy. The rights of the prisoners to communicate and meet friends, relatives and legal advisers should not be restricted beyond a particular limit.
It must be stated that frequent jail visits by family members go a long way in acceptance of the prisoner by his family and small friendly group after his release from jail finally, as the visit continue the personal relationship during the term of imprisonment which brings about a psychological communication between him and other members of the family.
(7) The present system of limiting the scope of festivals and other ceremonial occasions merely to delicious dishes for inmates needs to be changed. These auspicious days and festivals should be celebrated through rejoicings and other meaningful programmes so that the prisoners can at least momentarily forget that they are leading a fettered life.
(8) The existing rules relating to the restrictions and scrutiny of postal mail of inmates should be liberalized. This shall infuse trust and confidence among inmates for the prison officials.
(9) The prison legislation should make provision for remedy of compensation to prisons that are wrongfully detained or suffer injuries due to callous or negligent acts of the prison personnel. It is gratifying to note that in recent decades the Supreme Court has shown deep concern for prisoner's right to justice and fair treatment and requires prison officials to initiate measures so that prisoner's basic rights are not violated and they are not subjected to harassment and inhuman conditions of living.
(10) The Education in prisons should be beyond three R's and there should be greater emphasis on vocational training of inmates. This will provide them honorable means to earn their livelihood after release from jail. The facilities of lessons through correspondence courses should be extended to inmates who are desirous of taking up advanced studies. Women prisoners should be provided training in tailoring, doll-making, embroidery etc., The prisoners who are well-educated should not be subjected to rigorous imprisonment, instead they should be engaged in some mental-cum-manual productive work.
(11) In order to make inmates discipline-conscious, good time laws should further be liberalized. A general policy to cut-short inmate's sentence in case of good behavior will offer them an early opportunity to join the community and at the same time relieve the burden of the State on their maintenance, The introduction of 'honour system' in prisons can also attain a similar goal.
(12) On completion of the term of sentence, the inmates should be placed under an intensive 'After care'. The process for 'After care' will offer them adequate opportunities to overcome their inferiority complex and save them from being ridiculed as 'convicts'. Many non-penal institutions such as Seva-Sadans, Nari-Niketans and Reformation Homes are at work in different places in India to take up the arduous task of 'After care' and rehabilitation of criminals.
(13) There is dire need to bring about a change in the public attitude towards the prison institutions and their management. This is possible through an intensive publicity programme using the media or press, platform and propaganda will. It will certainly create a right climate in society to accept the released prisoners with sympathy and benevolence without any hatred or distrust for them. The media-men should be allowed to visit the prison institutions frequently so that their misunderstanding about prison-administration may be cleared.
(14) Last but not the least, the existing prisons Act 1894, which is more than a century old, needs to be thoroughly revised and even re-stated in view of the changed socio-economic and political conditions of India over the years. Many of the provisions of this Act have now become obsolete and redundant. The National Human Rights commission has also endorsed this view.
3.8 CUSTODIAL TORTURE IN PRISONS
The victims of prison injustice, particularly those who are poor and helpless and cannot afford legal representation have been protected against torture and harassment. A victim of custodial torture can move the court directly through a writ petition for protection of his fundamental rights, specially the right of life and liberty guaranteed by Art 21 of the constitution. The Supreme Court's judicial activism for protecting the rights of prison inmates and detunes is discernible from a series of cases decided by the court. Thus in prabhakar pandurang v. State of Maharastra the Apex Court ruled that detention in prison cannot deprive the detune of his fundamental rights .In the same breathe, the Supreme court in D.B.M. patnaik V. State of A.P. Held that mere detention is no ground for suspension of detenu's fundamental rights. In its historic judgments
In Sunil Batra v. Delhi Administration, the Apex court held that prisoners are entitled to all fundamental rights which are consistent with their incarceration.
Emphasizing the need for humane treatment of prisoners and protection of their basic human rights , the Supreme Court in Sunil Batra II, observed as follows: -
"Fundamental rights to not free the persons as he enters the prison although they may suffer shrinkage necessitated by incarceration''.
Outlining the substantive and procedural rights to which the prisoners are entitled the Apex Court said.
"Infliction may take many protean forms apart from physical assaults. Pushing the prisoner into a solitary cell, denial of necessary amenity, and more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affiliation or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained.''.
The court concluded that torture is a tradition in many penal institutions, That is why as a matter of policy, Articles 8 and 9 of the Declaration of the protection of all persons from torture and other cruel, inhuman and degrading treatment of punishment adopted by UN General Assembly should be implemented by all nations.
In Hussainara Khatoon, the Supreme Court observed that a procedure which does not make legal services available to a poor under trial person cannot be regarded as just, fair and reasonable and, therefore, violative of right to legal aid of the poor accused as contemplated b Art. 21 of the Constitution. The Court in this case ordered release of those under trials who were languishing in jails for an inordinately long period.
In Sheela Barse V. State of Maharashtra, the Supreme Court on a complaint of custodial violence to women prisoners in jails directed that those helpless victims of prison injustice should be provided legal assistance at the State cost and protected against torture and maltreatment.
In Sanjay Suri, the Apex Court held that the prison authorities should change their attitude towards prison inmates and protect their human rights for the sake of humanity.
With a view to improving the plight of women prisoners in jail the Supreme Court's directives stead in Sheela Barse V. State of Maharashtra, deserve particular mention. They are briefly stated as follows:-
1. Female prisoners and suspects should be guarded by female guards or constables. Obviously, they should be separated
from male wards.
2. Interrogation of women should be carried out in presence of women officials.
3. Intimation regarding arrest of a woman offender must be immediately given to her relatives.
4. Information of such arrest must be immediately sent to the nearest Legal Aid Committee.
Finally, it need not be stressed that efforts for rehabilitation of an offender begin from the time he enters the prison. A comprehensive prison programme is, therefore, essential to cater to the needs of different categories of inmates. The prison-life should be so regulated that the prisoner is able to overcome all his psychological strains and adapts himself as a law abiding citizen after his release from jail. It is always preferable to place the released prisoner under the supervision and guidance of a probation officer for his after-care and rehabilitation in the free community. The welfare officers appointed in prisons can also play an important role in providing adequate counseling, legal help and financial assistance to the prisoners at the time of their release so that they are properly rehabilitated in society.
3.9 JUDICIAL MANDATES REGARDING PRISONERS AND DETENUES
The supreme Court in its endeavor to ensure distributive justice in prisons has upheld the fundamental rights of detunes and prisoners in prison settings. The judicial mandates dealing with some of these aspects are as follows:-
a) The prison administrators have no power to add additional punishment to the punishment imposed by the court; even though it could have been solely imposed by that court itself, but has in fact, not been so imposed.
b) A prisoner sentenced to capital punishment might be kept in separate cell only "after the sentence becomes executable''. But even in the separate cell, unless there are special circumstances, he must be kept within the sight and sound of other prisoners and be able to take food in their company.
c) Prisoners 'under sentence of death' shall not be denied amenities of games, newspapers, moving around and meeting prisoners and visitors subject to reasonable regulation of prison management.
d) Solitary confinement cannot be inflicted except in extreme cases of necessity specifically made out by the jail authorities. A prisoner under the sentence of death can be inflicted and imposed solitary confinement only in view of the safety of the prisoner and the security of the prison.
e) If a Prisoner desires loneliness for reflection and remorse, for prayers and making peace with his maker, or opportunities for meeting family or friends such facilities should be liberally granted''.
f) Undertrials should be accorded more relaxed conditions, than convicts. They are not under sentence of imprisonment, but only under custody.
g) An under trial prisoner, when transported from the prison to the court should not be handcuffed. In extreme cases, where the hand-cuffs have to be put on the prisoner the escorting authority must record reasons for doing so''.
h) The hard lab our has to receive a humane meaning. The punishment of rigorous imprisonment obliges the inmates to do hard labour, but not harsh labour. The prisoner cannot demand soft jobs, but may reasonably be assigned congenial jobs.
i) The right to the society of fellow men, partners and other family members cannot be denied in the light of Article 19. However, it is subject to search discipline and other security reasons''
j) An Accused has the right to sit down in the court during the trial especially in long and arduous case, unless it is necessary for the accused to stand up for identification. This facility is not against the established practice that everyone in the court should stand when the presiding officer enters.
k) Under trials are not being kept in leg-irongs, nor can be asked to work outside the jail walls. This would be in flagrant violations of prison regulations and contrary to I.L.O. conventions against forced labour.
l) The press should be allowed to interview prisoners sentenced to death if they are willing to do so, unless weighty reasons to the contrary exist''.
m) The commutation of the sentence of death into life imprisonment cannot be demanded by the condemned prison as a matter of right.
n) A prisoner whether under trial or convict has a right to legal assistance and that must be made available in jails''.
Judicial Mandates for General Administration of Prisons:
Besides protecting the fundamental rights of prisoners and detunes, the Supreme Court has expressed its consciousness to eradicate the unhealthy atmosphere in prison settings full of mal-administration and torture. To restore distributive justice, the court stipulated certain mandates for the general administration of the prisons which are given below:-
(1) Lawyers nominated by the District Magistrate, Sessions judge, High Court and the Supreme Court should be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the vistatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to the legal grievance.
(2) District Magistrates and sessions Judges should personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities to the prisoners for ventilating their grievances; and should make expeditious enquiries there in and take suitable remedial action. In appropriate cases report should be made to the High Court to initiate, if found necessary, habeas corpus action.
(3) Grievance Deposit Boxes should be maintained under the orders of the district Magistrate and the sessions Judge and such boxes should be opened as frequently as is deemed fit and suitable action should be taken on complaints. Access to such boxes should be afforded to all the prisoners.
(4) Necessary steps should be taken to prepare in Hindu and other regional languages a prisoner's Handbook and circulate copies of it to bring legal awareness among the prison inmates. Periodical jail-bulletins should also be introduced stating how improvements and re-habilitative programmes are being carried out into prison. This may create a fellow ship amongst prisoners easing their tensions. A prisoner's wall paper, ventilating their grievances should also be introduced''.
(5) The prisoner's rights should be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoners should be promoted by professional organistaions recognized by the courts, such as, Free Legal aid (Supreme Court) society. The District Bar should keep a cell for prisoner's relief. The government of India and the State Governments were also recommended by the Supreme Court to introduce comprehensive legal service programme.
The Repartiation of Prisoners Act-2003.
With the rising incidence of international crimes and Indian citizens committing crime outside the country and aliens indulging in crimes in India, the repatriation of convicted persons posed a serious problem before the criminal law administrators in the absence of any specific law on this subject. The Government of India therefore brought out the Repatriation of Prisoners Act 2003 with a view to providing for transfer of certain prisoners from India to country or place outside India and reception in India, of certain prisoners from country or place outside India. The Act came into force with effect from 1st January 2004.
The Act provides that Government of any country or place outside India in respect of which arrangement has been made by the Indian Government for transfer of persons undergoing a sentence of imprisonment under an order passed by a criminal court, from India to such country or place or vice-versa, shall by notification by the Central Government in the Official Gazette transfer his custody from India to that country or vice-versa. . The prisoner's record shall be transferred to such country under Section 10 of the Act. Every order of repatriation of prisoner from outside country to India or Vice-versa shall be laid before each House of Parliament as soon as required by Section 16(2) of the Act.
Before concluding, it must be conceded that the great majority of individuals sentenced to imprisonment want to return to society as law-abiding citizens and only few are definitely anti-social and have no intention of changing their lawless ways after their discharge. Therefore, in order to make the prison life less abnormal and provide better opportunities for rehabilitation of those prisoners who behave well and who are not believed to be dangerous to their fellow-men, they should be granted regular furloughs in order to visit their families frequently. It must be realized that cure for crime lies not in incarceration of prisoners but only in speedy criminal justice by ensuring certainty of punishment rather than its severity.
INTRODUCTION:
Alternative to imprisonment ideas for moving away from the notion of imprisonment are not new-they have been Advocated far generations but seldom acted upon-far decades we have been aware that decriminalizing harmless. Behavior could save unfold numbers of individuals from the cage community of dispute and conflicts outside of the criminal justice systems process have long been proposed to keep the settlement of specific complaints at a time when overcrowding had produced a crisis in nations prison system.
Prison system alternative sanctions are viewed as a new form of corrections that falls some where between probation and incarceration these alternatives are imprisonment is morally responsible and indefensible.
Harsh punishments like imprisonment are not always. Proportional to the security of the crime committed.
A person who hasn't eaten anything since May odd days may resort the theft as an easy means amount of admonition fear this is not possible through imprisonment and therefore there is a need for alternatives remedies.
There is a general reluctance on the part of the criminal court regarding the use of the criminal law process for alternative purpose coupled with the indifference and even ignorance on the part of lawyers and clients and many opportunities are lost because of their default.
The courts are reluctant to impose fines along with substantial imprisonment in serious offences and the scope of fine in any case in very limited in terms of quantum in minor offences.
3.11 PROBATION AS AN ALTERNATIVE
Introduction:
The problem of easing pressure on prisons has been engaging the attention of penologist throughout the globe. Undoubtedly, probation is one of the measures which may be used to courts as an improved form of non-custodial alternative in place of incarceration. This correctional device is being increasingly used by the magistracy in modern times.
The age old custodial measure and institutional incarceration presents two crucial problems, namely, it increases the dependence of offender and at the same time decreases his capacity to readjust to normal society after release. Conformity with the strict prison discipline is no guarantee that the prisoner has really transformed into a law abiding citizen. Other inevitable consequences that flow from prison of offender are loss of job, separation from family and contamination due to association with to their professional delinquents. On the other hand, reformative treatment measures in the form of guidance and supervision have proved effective in meeting the needs of delinquents for their rehabilitation in the community. Probation of offenders has been widely accepted a one of the non-institutional methods of dealing with corrigible offenders, particularly the young offenders and the first offenders. It aims at rehabilitation of offenders by returning them to society during a period of supervision rather than by sending them into the unnatural and socially unhealthy atmosphere of prisons. The offender is allowed to remain in the community and develop as a normal human being in his own natural surroundings. With the help of advanced techniques of social case-work, the probation officer endeavors to bring about the desired change in offenders' attitude to life and his social relationship with the community.
Concept And Definition of Probation;
The release of offenders on probation is a treatment device prescribed by the court for persons convicted of offences against the law, during which the probationer lives in the community and regulates his own life under conditions imposed by the court or other constituted authority, and is subject to supervision by a probation officer.
The term 'probation' is derived from the Latin word 'probate' which means 'to test' or 'to prove' etymologically probation means I prove may worth' Homer S cunnings observed, "Probation is a matter of discipline and treatment. If probationers are carefully chosen and supervision work is perfumed with care and caution it can work miracles in the field of rehabilitation.
Don M. Gottfried son observed probation as "a procedure by which a convicted person is released by the court without imprisonment subject to conditions imposed by the court. Thus probation is part of the decision - making process of judges at the time of sentencing''. The object of probation, as of all methods of treatment, is the ultimate rehabilitation of the offender in the community.
Donald Taft defines probation as the postponement of final judgment or sentence in a criminal case, giving the offender an opportunity to improve his conduct and to readjust himself to the community, often on condition imposed by the court and under the guidance or supervision of an officer of the court. In case of juvenile-probationers, non-criminal procedure is adopted and it is less formal. Thus the system of probation involves restrictions on the liberty of probationer and refrains him from disapproved behavior, or conversely, compels him to perform certain required acts which may be irksome or even painful to him. The basic purpose is to keep the delinquent away from evil consequences of incarceration and offer him an opportunity to lead socially useful life without violating the law.
According to Howard Jones, the following conditions must be fulfilled before allowing the benefit of release on probations to an accused person:-
(1) No punishment should be imposed initially;
(2) The offender should be given a definite period to redeem himself;
(3) During this period, delinquent should be placed under supervision of a probation officer for two obvious reasons; -
Object of Probation:-
The Supreme Court has spelt out the object of the probation of offenders Act, 1958, in the following words:-
"The purpose of the Act is to stop conversion of youthful offenders into stubborn criminals as a result of their association with hardened criminals of mature age in case of youthful offenders are sentenced to undergo imprisonment in jail. Modern criminal jurisprudence recognizes that no one is born criminal and that a good many crimes are the result of Socio-economic milieu. Although not much can be done for hardened criminals, yet a considerable emphasis has been laid on bringing about reform of young offenders not guilty of very serious offences by preventing their association with hardened criminals. The Act gives statutory recognition to the above objective.
Origin of the Probation Systems:
The history of probation can be traced back to the medieval concept of "benefit of clergy'' surviving in England and America until the middle of the nineteenth century. The privilege of "benefit of clergy'' permitted clergy and other literates to escape the severity of the criminal law''.
It meant suspension of the execution of sentence for sometime which cold gradually be extended to suspension of sentence for an indefinite period as long as the delinquent behaved well.
Probation In U.S.A. & U.K.:
It is generally said that great ideas often have modest beginning. This is true with the origin of probation as well. In America John Augustus, a shoe-maker of Boston in 1841 volunteered to stand bail for a person charged with drunkenness in al local court. The defendant showed signs of reform. The judge ordered a nominal fine and released the offender. Fascinated by this incident, John Augusts started standing bail for more and more offenders and took upon himself the duty of helping and supervising them during the period of bail. Subsequently, he helped delinquent women and children also in their rehabilitation.
Probation in European Countries:
Probation as a measure of treatment of delinquents is practiced n several other countries of the world indifferent forms. It is being extensively used as an effective After-care remedy for the treatment of juvenile offenders. In France, Germany and Russia, probation has been adopted as a measure of social defense. In Austria, Probationers remedies are mandatory for offenders under eighteen years of age. Greece accepted probation as a correctional measure in 1951. Similar system is adopted in Ireland, Israel, Italy, Switzerland and Netherland also.
Probation in India:
In India, probation is used an institutional method of treatment which is a necessary appendage of the concept of crime. The western view disfavors the use of institutional methods in a legal system because it is likely to create problems. In their opinion probation service should be exclusively administered. By voluntary organizations and welfare boards comprising sociologists, psycho lists, psychiatrists, etc., and the judges should not be associated in the functioning of these agencies. The objective of the institutional treatment through probation is to correct the effects of the causative factors of criminality in the controlled atmosphere of probationary supervision, utilizing the helpful factors in the offender's personality, his family situation, attitude etc., This approach helps the probationer to restructure his life-partner with renewed vigor and adjust himself in the community through healthy inter-personal relationships. The Indian probation law provides that judicial power should be solely vested in the judiciary.
Historical Perspective of Probation Law in India;
In India, probation received statutory recognition for the first time in 1898 through Section 562 of the code of criminal procedure, 1898. Under the provision of this section, the first offender convicted of theft, dishonest miss-appropriation or any other offence under the Indian Penal Code punishable with not more than two years imprisonment could be released on probation of good conduct at the discretion in of the Court. Later, the children Act, 1908, also empowered the court to release certain offenders on probation of good conduct. Similar provisions existed in the Children Act, 1908, also empowered the court to release certain offenders on probation of god conduct. Similar provisions existed in the Children Act. 1960 which now stands repealed consequent to passing of the Juvenile Justice Act 1986.
Legislative History of Probation Law in India:
Consequent to the Report of the jail Manual committee (1957-59) the Government of India decided to have a comprehensive legislation on probation of offenders. To accomplish this objective, a Bill on probation was introduced in Loksabha on November 11, 1957. The motion for consideration of the Bill was moved in the House by late shri. B.N. Datar on November 14, 1957. The Bill was referred to a Joint select committee to the Loka Sabha on February 25 1958. The Bill was referred to a Joint Select Committee of the Houses headed by Sardar Hukum singh as Chairman.
The Joint committee held seven sittings in all. The first sitting was held on December 18, 1957 while the last sitting was held on Frbruary 1958. The Bill was handed over by the Joint Committee to the Loka Sabha on February 25, 1958. Which passed it and it became an Act after President Assent on May 16, 1958.
The Probation of Offenders Act 1958;
The Probation of offenders Act (Act No. 28 of 1958) contains elaborate provisions relating to probation of offenders which are made applicable throughout the country. The Act provides four different modes of dealing with youthful and other offenders in lieu of sentence subject to certain conditions.
These include:-
1) release after admonition
2) Release on entering a bond on probation of good conduct with or without supervision, and on payment by the offender the compensation and costs to the victim if so ordered, the courts being empowered to vary the conditions of the bond and to sentence and impose a fine if he failed to observe the conditions of the bond;
3) Persons under twenty-one years of age are not to be sentenced to imprisonment unless the court calls for a report from the probation officer or records reasons to the contrary in writing; and
4) The person released on probation does not suffer a disqualification attached to a conviction under any other law.
Section 11of the probation of offenders Act 1958 widens the scope of probation by adding an enabling provision regarding the competence of the courts to make order under the Act in appeal and revision and powers of the appellate and provisional courts in this regard. The higher courts have been empowered to grant probation in appropriate cases, which was denied to the accused by the lower court. They may also cancel probation granted by the trial court, where it is expedient in order to prevent the misuse of probation.
The Supreme court in Municipal corporation, Delhi V. State of Delhi and Mother, inter alias held that the High Court before extending the benefit of probation of offenders Act to the accused did not call for a report from the authorities to check upon the conduct of the accused as required by Section 4 of P.O. Act, therefore, his release on probation without such a report is wholly illegal. Moreover, the accused had also concealed the fact that he was convicted on earlier occasion as well.
The Code of Criminal Procedure, 1973.
360 Order to release on probation of good conduct or after admonition -(a) When any person not under twenty-one years of age is convicted of an offence punishable with fine only with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in the meantime to keep the peace and be of good behavior.
Section 4 Power of court to release certain offenders on probation of good conduct:-
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior.
The Supreme Court (J.M. Shelat and H.R. Khanna, JJ) in Ishwer Das v. State of Punjab, AIR 1972 S.C. 1295: 1972 CrLJ 874, held that the operation of provision of Section 4 of the Act was not excluded in the case of persons found guilty of offence under the prevention of Food Adulteration Act, 1954 where under a minimum sentence of imprisonment for a term of six months and a fine of Rs. 1,000/- was prescribed. The Supreme Court referred to the non-obstante clause of section 4 of the Act will have overriding effect and shall prevail if the other conditions prescribed are fulfilled. The underlying object of the Act providing for probation is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates himself with hardened criminals. So far as persons below 21 years of age are concerned,
Public Welfare Offence:
Section 12 of the probation of offenders Act, 1958 provides that a person found guilty of an offence and admitted to the benefit of release on probation under Section 3 or section 4 of the Act, shall not suffer disqualification, if any, attached to the conviction of an offence under such law. It is indeed a salutary provision which facilities the rehabilitation of the released probationer.
In Kehar Singh v. Regional Employment Officer, Chandigarh, the peritioner was convicted for theft under section 380 of IPC and was dealt with under section 4 of the probation of offenders Act 1958. He was removed from service consequent to the decision of the court. On appeal, he was reinstated on the ground that phraseology of section 12 of the probation of offenders Act is express, explicit and mandatory and seeks to remove disqualification attaching to conviction in probation cases.
In Salem Govinda Chetty v. state of Andhra Pradesh, the accused was convicted under section 16(1) read with sections 7 and 2 (1) (g) of the prevention of Food Adulteration Act, 1954 for selling "Mysore Pak'' adulterated with metanil yellow coaltar dye and kesari dal which was prohibited. Keeping in view the advanced age of the accused who was a petty shopkeeper over sixty years, the learned Judge set aside the order of the sentence of the trial court and released him on probation''.
3.12 FINES AS AN ALTERNATIVE
The imposition of fine was a common mode of punishment for offences which were not of a serious nature and especially those involving breach of traffic rules or revenue laws. This mode of punishment is being extensively used in almost all the sentencing systems of the world even today. Fines by way of penalty may be used in case of property crimes and minor offences such as embezzlement, fraud, theft, gambling, loitering disorderly conduct etc., and other forms of financial penalty include payment of compensating to the victim of the crime and payment of costs of the prosecution. Financial penalty may be either in shape of fine or compensation or costs.
The Indian Penal Code provides for imposition of Fine:
(1) As the only disposition method;
(2) As the alternative to imprisonment;
(3) As a punishment in addition to imprisonment;
(4) The actual amount of fine to be imposed is left to the discretions of the sentencing court.
Fine as an alternative to imprisonment is used only against short-term imprisonment i.e., imprisonment up to 2 or 3 years.
The real problem involved in imposition of financial penalties is the quantum of fine or costs and enforcement of its payment. The usual methods of enforcement are forfeiture of property, and threat of incarceration. Recovery of fines from the source of income of the offender may also be one of the methods of enforcing this penalty.
The Requirement for a New Approach to Punishment:
From time immemorial certain actions have been dis-appeared of by society and have therefore been branded as wrongs and crimes. It has also been accepted that the duty of the state extends to the control and restriction of these acts. In most cases, this task of the state in achieved by means of punishment. This punishment is of varying forms, and depends on the society operates. Thus punishments have changed their objectives from deterrence to retribution and from prevention to reform. However, as will be explained later, none of these have served to achieve society's aims in totality.
This is illustrated by a number of factors visible within society. Today we are forced with a crime pattern which confounds most traditional theories of criminology and penology. The phenomenon of white-collar crime, corruption in politics cannot be explained by conventional explanations and require a new approach to their study in order to acquire a complete understanding of them. This is very true of penology as well. It is exceedingly difficult to devise a mode of punishment for such crimes, where the physical element is lacking, further, in many of the present day crimes, what is of greater importance than the punishment of the offences is the compensation of the victim.
Fines - Concept and Advantages:
Fines are the most common form of punishment around the world. The advantages of such a system of financial penalties are obvious and many and are penal in an uncomplicated sense. The may be in addition to or in the place of imprisonment or any other form of penal sanction. The practice itself is of ancient origin and references to fines can be observed in many ancient texts (e.g. manusmriti) Today, fines are used in a number of offences, but visible areas of operation includes traffic, petty crimes, etc.,
The advantages of a fine are numerous, from the sentences point of view; fines may be seen close to the ideal penal measure. According to Bentham, fines had the advantage of being capable of regulation according to the means of the offence, implied no disgrace, and was remissible in case of unjust convictions as discovered subsequently Fines can be adjusted to reflect variations in the seriousness of cases and in the ability of offenders to pay. As such, they do not involve imprisonment or the threat of it, though this can be imposed in its default. Fines, further, do not subject the offender to the elements of control and obligation, which form part of probation. The main advantage of fine is the convenience factor, Due to lack of any long terms factors being involved, this particular means of punishment is remarkable easy to improve and collect. In this respect, it is also very economical. The costs of imprisonment are not involved. Thus this is one of the most economical punishments.
Due to this factor, fines have the unique ability to feed the system that imposes them. Due to the economical gain, the Costs of imposition are far exceeded by the quantum of fine, and therefore, unlike imprisonment, which places the burden on the citizen to pay for the well being of the prisoners, even the costs of imprisonment if imposed, can be recovered from the sentence. Fine also performs all the conventional functions of punishment, without many of their disadvantages.
Problems and Solutions:
The disadvantages of fines are many but, most of these are not impossible to solve. Firstly, it is contended that paying a fine amounts to buying a punishment. A fine is mostly imposed so that a default in its payment will lead to imprisonment. Such being, the case, a rich man can pay the fine and escape, while, a poor man would have to undergo imprisonment. The solution to this lies in the imposition of a fine after considering the economic status of the offender. This would amount to an equal quantum of punishment imposed on both. Further, a fine must not be viewed as anything less than a punishment. The payment of money is as much of a penalty as any other.
Legislative Provisions With Respect To Fines:
Several provisions with regard to fines have been made both in the Cr.P.C. and I.P.C. The Indian Penal Code (IPC) prescribes a fine for almost every offence. In certain cases specific limits are placed on the amount of fine, while I most, no limit is placed. In such cases, courts are expected to impose fines, which are not excessive. In default of a fine, terms of simple imprisonment are laid down; Fines are even permissible in the case of a death sentence. For certain offences fines are the only punishment. Among them are the offence of allowing, through negligence, an army deserter on board a ship, not informing the police when an unlawful assembly takes place on a person's land, proposals in relation to illegal lotteries, etc.,
Focus-Use of Fines for Victim Compensation;
The concept of paying compensation to the victims of criminal offences is of ancient origin preferences to this can be found in the Manusmriti, Homer's Iliad and the Code of Hammurabi.
In the modern day, however, this aspect has received little attention, since with the state administering justice and justice and punishment, little comes to the victim. The ration ale behind victim compensation is relatively simple. The social contract theory suggests that individuals enter into a contract whereby the state is formed. Individuals give up their rights is order that the state may provide them protection. To do this, the state takes over the administration of justice.
Fines as a Technology of Freedom:
In the twentieth century, the rise of the fine to the status of the principle sanction of criminal justice outside India was in no small measure linked to the belief that short terms of imprisonment were not corrective, while at the same time were expensive for the state and disruptive or even criminals in the lives of most minor offenders. Discrediting the correctional rationale of short-term incarceration left it as no more than a punishment, and opened up an equation between prison time and the fine. In this respect, therefore, it could be argued that the Marxists and law and economics scholars were right to equate prison time and penal money. However, these econometric accounts cannot be sustained, at least not in any straight forward sense. Only where prison was evacuated of correctional content, only where penal modernism reached its limit, could such an equation be made between penal time and money penalties?
Sentence of Imprisonment for Non-Payment of Fine;
In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable within imprisonment or fine, or with fine only, in which the offender is sentenced to a fine.
It shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of may be liable under a State of Maharashtra v. Krishnarao Dudhappa Shinde 5/2/2009.
Prevention of corruption Act 1947- section 5(1) (e) - conviction under - respondent a government servant was inspector of police Enquiry was conducted in his house - was sentenced to undergo minimum sentence of one year and was directed to pay a fine of Rs. 2, 50,000 the High Court did not examine the other aspects and only dealt with the applicability of section 5(1) of the Act on the actual position matter remitted to the High Court.
3.13 COLLECTIVE FINES AS AN ALTERNATIVE:
Introduction:
Meaning of collective fines concept of collective fines object of collective fines phenomenon has been interpreted as a mechanism by which prison doctors and prison administrators control inmates (the chemical straitjacket) even chough complementary studies have shown that the level of consumption is often a function of the specific characteristics and demands of the incarcerated population.
Indeed, there have been, there are, and there still will be, some attempts at organizing if not collusive, at lease complementary connections between the prison administration and medicine. But in the beginning the logic for a medical presence in prison, just like alms and charity, was part of the maintenance function. It helped to facilitate the daily activities of the inmates and particularly their contribution to the prison-factories of the nineteenth century. The picture became more complex, when, with the hygienists and later on with the alienists, specialized knowledge was established which aimed at transforming the prison into a privileged site where these theories could be applied. If hygienists and alienists became interested in the prison, it was because they believed that their particular skills where of some importance to it, as body and soul would be cared for in a joint effort to fight for public welfare. This involved the struggle against contamination on the one hand and caring for mental and moral health on the other. In the course of discussions on solitary confinement, social hygiene has become a partner to forensic medicine. The same is true for newly-born psychiatry which soon joined up with the new discipline of criminology through the establishment of social defense.
3.14 THE COLLECTIVE FINES ORDINANCE, 1942
(Ordinance no. xx of 1942)
An ordinance to provide for the imposition of collective fines:
Whereas an emergency has arisen which makes it necessary to provide for the imposition of collective fines in connection with offences prejudicially affecting the defense of Bangladesh, the Public safety, the maintenance of public order, the efficient prosecution of war, or the maintenance of supplies or services necessary to the life of the community.
NOW, THEREFORE, in exercise of the powers conferred by section 72 of the Government of India Act, as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor General is pleased to make and promulgate the following ordinance.
1. This Ordinance may be called the collective fines ordinance, 1942.
2. It extends to the whole of Bangladesh.
3. It shall come into force at once.
4. (Interpretation, - omitted by Article 2 and schedule of the central Adaption of Laws Order, 1964 (President's Order No. 1 of 1964)
5. If it appears to the Government that the inhabitants of any area are concerned in or abetting the commission of offences prejudicially affecting the defense of Bangladesh, the public safety, the maintenance of supplies or services necessary to the life of the community, or are harboring persons concerned in the commission of such offences, or are failing to render all the assistance in their power to discover or apprehend the offender or offenders, are suppressing material evidence of the commission of such offences, the Government may, by notification in the official Gazette, impose a collective fine on the inhabitants of that Area.
Collective labour as an alternative:
The prison management's ability to provide decent services is linked to the prison economy itself. Indeed, the necessary conditions to produce or provide resources in one of the basic functions of prison management. Just as in all organizations, these resources refer to financial inputs as well as to the use of human resources. Even if the objective is only to make sure that the vital functions of the captives are kept up, the questions of resources still remains. Thus the prison mangers should be able to creator or find resources whether they are allocated by the government or come from external contributions or are produced by the inmates themselves.
Historical prospective:
Nevertheless, the evolution of productive types of prison labour has not always followed external developments because of the peculiar characteristics of the prison labour market. Though the incarcerated labour force is defined by its low cost, its availability and its proximity, it is also characterized by its low qualification level, its high turnover and its lack of incentive. Moreover, the productive apparatus of prison labour is not easily adaptable to new technologies. In spite of the Utopias of the beginning of our industrial era, the prison has never been transformed durably into production units able to generate enough income to guarantee its autonomy. For the most part, the organization of labour inside the prison remains very archaic. All this has driven the prison system into seeking its main funding from public budgets.
Importance of Corrective Labours:
However, the important external logic of the market place has modified prison management irreversibly, thus making its more complicated and exceedingly bureaucratized. This is all the more difficult because the custody function still weighs heavily upon the prison managers. Indeed, this custody function remains the only symbol of state countries where we crossroads. Now a day, the restorative function by the functions of penalty and increasingly legitimized by notions of individual free will. Indeed, we are still dealing with another process of legitimizations but, without doubt, it attempts to be more respectful of the individual's autonomy than previous ones. Moreover, although the growth in the prison population has had a number of drawbacks there has been at least one positive result in India. It has forced the prison administration to become familiar with new styles of management and to increase external resources, while expanding the range of welfare services.
Management System of Corrective Labours:
Deprivation of the right to hold specified officers or to engage in specified activities consists of the prohibition to hold offices in the civil service and local self-government bodies, or to engage in a professional any other activity.
Epic ovation of the right to hold specified offices or to engage in specified activities shall be established for of one year to give years as a basic penalty or for term of six months to three years as an additional ovation of the right to hold specified offices or to engage in specified activities may be imposed as an oral penalty also in cases where it is not provided for by the relevant Article of the Special part of this. As punishment for the corresponding offence, if with due account of the nature and the degree of the danger of the crime committed and the personally of the convict, the court deems it impossible. Allow him to retain the right to hold specified offices or to engage in specified activities. In the event that this type of penalty is imposed in addition to compulsory or corrective work, and also in vent of conditional conviction, its term shall be counted from the time of the enforcement of the court's judgment. In the event that deprivation of the right to hold specified offices or to engage in specified cities in an additional penalty to the restriction of liberty, arrest, service in a disciplinary military unit, or ovation of liberty, this punishment shaft extend to the entire time of serving sold basic penalties, but It shall be counted from the time they have served Government conviction for a grave or especially grave crime, a court of law may deprive the guilty person of his special or military rank, or of his honorary title, class rank, or government decoration, with due account for personality compulsory work consists n the performance of free socially useful works by the convicted person during the more time.
Procedure:
Moon of property is established for grave and especially grave crimes committed for mercenary ties, may be imposed by a court of law only in cases provided for by the relevant Articles of the part of this code, remedies alternative to custody; bail, surety ship, house arrest and other. Putting in custody during preliminary investigation should be applied mainly to offenders who commit grave and especially grave crimes. In regard to suspects and defenders who commit crimes of little and medium gravity detention should be used in exceptional cases with special provision in the law.
3.15 COMPENSATIONS AS AN ALTERNATIVE
Introduction
Social Justice, being goal of law in action, has also been found under Indian Constitution like a golden thread. But justice itself is truth in action. Ignorance is the enemy of this truth. Victims of crime being component of criminal justice administration are entitled to share the promises of social justice contained out constitution. Novel concept of victim logy is a step towards fulfilling the avowed promises made by our constitution makers. The corpus juries of India are benefit of statutory awareness of victim-logy of social justice, equitable and effective reparation of victims through compensation becomes imperative.
So for the present law seemingly inadequate and fragmentary in nature, justice seems a distant possibility. The answer could lie in attributing a more active role to the State. It has been suggested that State compensation scheme be introduce, but such be confined to violent crimes only.
So the victim has to initiate separate suit to recover damages for the wrong that has been committed against him or her. 357 of criminal procedure code 1973 though an important provision is applicable only when the accused is convicted and sentenced. Isn't this a barrier to recover compensation?
The criminal procedure code particularly S. 357 is amended suitably so that courts may award compensation in any offence to victims to be paid by the offender or offenders.
There should be no fixed limit of compensation as in S. 358, Cr.P.C. It should be left to the discretion of the court considering circumstances of each case and capacity of the parties.
Where the offenders could not be identified provision for State compensation in deserving cases be provided through National as well as State Human Right Commission.
Every court is authorized to pay compensation to victims of crime out of fines collected by the respective court in cases victim claims compensation. The existing provisions in Criminal procedure Code concerning the compensation to victim and conferring discretionary power on the court should be concerted to mandatory provisions, requiring paying compensation in all suitable cases.
Role of Judiciary:
A comprehensive scheme for payment of compensation by offender, as well as by State, based on sound and certain legal premise should be evolved. The compensation to the victims of crime should be State responsibility and for implementing this welfare measure an appropriate body should be set up. A victim of an offence should be legally allowed to intervene in the criminal proceedings against the offender to claim compensation for loss or injury. Judicial Administrative Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
Separate Administrative Tribunals or Boards to be designated as "crime compensation Tribunal Board'' and set up at every divisional headquarter under the chairmanship of a Judicial officer of the rank of a District and Sessions Judge with a doctor and a Social worker of standing two other members. Of these three, one shall be a woman by State, based on sound and certain legal premise should be evolved''. The compensation to the victims of crime should be State responsibility and for implementing this welfare measure an appropriate body should be set up. A victim of an offence should be legally allowed to intervene in the criminal proceedings against the offender to claim compensation for loss or injury. Judicial Administrative Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
Most appropriate word by saying that the power to a award compensation is not ancillary to the other sentence but in addition thereto, of crime was evolved by Hon'ble S.C. on the ground that it is duty of the welfare state to protect the fundamental rights of the citizens not only against the actions of its agencies but is also responsible for hardships on the victims on the grounds of humanitarianism and obligation of social welfare, duty to protect its subject equitable justice etc. It is to be note that compensation by the state for the official was evolved by the Hon'ble Court against the doctrine of English law; King can-do wrong and clearly stated in the case of Nilabati Behar v. State of Orissa that doctrine of sovereign immunity if only applicable in the case to tortuous act of government servant and not where there is violation of fundamental rights and hence in a way stated that criminal matters (of course if there is violation of fundamental rights) this doctrine is not applicable.
Rudal Sah v. State of Bihar is the most celebrated case where the Honorable S.C. directed the state to pay compensation of Rs. 35,000-00 to Rudal sah who was kept in jail for 14 years even after his acquittal on the ground of insanity and held that it is violation of Article 21 done by the State of Bihar. The case of Bhim Singh v State of J & K is another important case where Bhim Singh an MLA was arrested by the police only to prevent him to attended the Legislative Assembly, the
Hon'ble Court not only entertained the writ petition of his wife but also awarded the compensation of Rs. 50,000 to be paid by the State. The case of Meja Singh v SHO police station zira is another unfortunate case where this time High Court of P&H took the cause of victim and awarded the compensation of Rs. 25,000 for illegal detention of son of the petitioner. This time it was High Court Bombay, which took the cause of the victim in the case of Ravikant patil v DO Police State of Maharastra where the petitioner was taken handcuffed to court in clear violation of judgment of Hon'ble S.C. that is law as decided in the case of Prem Shanker.
Shukla v Delhi Administration Custodial Death is another burning issue where the courts have awarded compensation to the victims of crime and the most important case under this heading is of Mrs. Cardino v UOI where although the accused was arrested on the charge misappropriation of some plastic were and hospital; utensils worth Rs. 1500 but tortured like hard core criminal and hence torture Here when the matter was brought before the Hon'ble High Court of Bombay which gave the compensation of Rs. 2,00,000 to be paid by the State. In the case of Nilabati Behra v State of Orissa where the son of petitioner was arrested by the Police and next morning his body was found laying down with several injuries on the railway track, the Hon'ble S.C. awarded the compensation of Rs. 1, 50,000 that is to be paid by the State.
State Boards:-
This information was given by smt. Krishna Tirathu Minister of State for women and child Development in a written reply to a question in the Lok Sabha today.
(i) The applicant failed to co-operate with the police or other authority in attempting to bring the accused / assailant to justice; or
(ii) The applicant has failed to give all reasonable assistance to the authority or other body or person in connection with the application.
The code of criminal procedure 1973 as amended by the code of Criminal procedure (Amendment) Act 2008 (5 of 2009) has now an added provision in the form: of the section 357- A on victim compensation.
Section 357 - A
(1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents that have suffered loss or injury as a result of the crime and require rehabilitation.
(2) This added provision will now be an important tool in the hand of activist to push forward for victim compensation. This is strengthens the provision of victim protection in SAARC Protocal.
The author is practicing Advocate in the Supreme Court of India.
Victim Compensation in India:
Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her/him. Compensation can be sought through criminal, civil or administrative procedures, and can be awarded for material including unpaid wages and medical expenses and non-material such as for aim suffering and trauma damages. The victim of a criminal act can claimfor compensation from the offender as part of a criminal case compensation has to be ordered by the court and is part of a guilty verdict.
In criminal cases victims can directly apply for compensation and thus it is important that prosecutors are aware of the existence of this right to request the judge to make such order.
Institutional Frame Work;
The constitution of India provides for a judiciary independent of the executive. Efforts have been made to keep the judiciary independent, though they have not always been successful.
Of late however, there have been moves towards the greater exercise of executive control on the manner of appointment of Judges. The law Minister has been discussing a proposal to wrest control on the appointment and transfer of Judges from the Chief Justice of India.
The judiciary has concurred with the executive in dealing with alleged "national security'' measures. The writ petitions challenging the constitutional validity of the Terrorist and Disruptive Activities (Prevention Act) and the Armed Forces Special Powers Act are two cases in point.
The word 'victimology' was coined in 1947 by a French lawyer, Benjamin Mendelsohn, later a citizen of Israel, by deriving from a Latin world 'victima' and a Greek word 'logos' Victimology is basically a study of crime from the point of view of the victim, of the persons suffering from injury or destruction by the action of another person or a group of persons. In times of yore, the victims of crime were paramount figures on the stage of the criminal setting. There are references in Manusmriti, the Book of Exodus, and Homer's Iliad to compensation being paid to victims of criminal offences.Even in recent times, but before the Anglo-Saxon system of criminal justice was introduced in Indian, the victims was not completely neglected.
References to victim compensation are also found in the code of Hammurabi. It is said that it was quite common for the early civilizations to extract payments for the victims from the offenders, which process is now known as restitution.
Anthropologists believe that a similar interest in placating the offended and in deterring the possible offender in order to maintain harmonious social life underlies the almost ubiquitous provision in preliterate societies for payment of money or goods by the family an offender to the victim of violent depredation. It is presumed that, without such payment, a state of social unrest would be created, marked by unremitting vendettas.
However , the picture began to change with modern criminal justice in which the government assumed responsibility for dispensing justice by bringing the offender to book, but it also meant that, with the appropriation of the fines to the state coffers, the victim was left with ineffective remedies. Compensations were the means by which humanity moved slowly from the practice of private vengeance to the enforcement of public justice. As the modern state emerged and the government took on itself the responsibility of enforcing justice, the offender gradually became the central figure in the criminal arena. It is, of course, true that the evolution has not been uniform throughout the world; there are countries where eye for eye, tooth for tooth, cutting off the hand for committing theft, and death penalty for adultery still prevail, but they are the exceptions. The general tendency is the other way. Therefore, with the criminological theories becoming more and more sophisticated, the victim is getting almost forgotten. Victimology seeks to rectify this omission and resurrect the victim from oblivion. If looks at the crime from the victim's point of view.
The best raison d'être for victim compensation is the theory of the state. The state is a complex of rulers and ruled, politically conceived, territorially organized, and seeking by the conferment of powers on the rules the effective maximization of the individual and social welfare of the ruled. The state achieves its purpose through enactment and promulgation of laws and it enforces obedience to the laws by the exercise of power. Power is the capacity to produce intended effect. If the intended effect cannot be produced in respect of any law, the state has to assume responsibility for the loss pain, or damage caused to any law-abiding citizen by someone's disobedience of the law. The assumption of power by the state means the automatic deprivation of the citizen of his right to private vengeance or personal retributive action. Such deprivation is a sine qua non of modern society's civilized existence. But for that we would be reverting to the law of the jungle. In return for that deprivation the citizen gets the protection of the state. In cases in which the state fails in its obligation to protect the individual it has broken its agreement, and should thus be liable for the damage done to the victim of crime. Such a rationale will argue for the most liberal type of compensation programme, as all citizens, regardless of income or degree or type of loss, in principle have equal to place a claim against the state for its failure to protect him/her.
Another functional justification for victim compensation is the "Welfare'' theory arising from the assumption that the government exists and functions for the people. This approach holds that, just as the state has a humanitarian duty to the poor, the sick, the unemployed, the underprivileged, the disabled veteran, and so on, it has a duty towards the victims of crime also. However, this duty is based not on any contractual obligation on the part of the state, but on the social conscience of its rulers and its citizenry. Hardly any state victim compensation legislation admits of this orientation; yet, such provisions as financial need requirements or minimum loss requirements are clearly based on the theory of welfare state.
Benjamin Mendelsohn has constructed a typology predicated on the basis of the victim's contribution to criminality. He refers to:-
(a) completely innocent victims, such as children and people who are the victims of crime when they are unconscious
(the children of the Pandavas who were murdered by Ashwathama during the Mahabharata War, and people who
are killed when they are asleep or drunk typify these);
(b) victims with minor guilt and victims of ignorance, such as pregnant women who go to quacks for miscarriage, and
pay for it with their lives;
(c) voluntary victims, such as the ones who commit suicide or are killed by euthanasia;
(d) victims who are more guilty than the offenders, such as persons who provoke others to commit crime; and
(e) the most guilty type of victims who commit offences against others and get killed by others in self-defence (e.g.
rapist who gets killed by his victim who acts in self-defence)
The conventional means include:-
(a) The institution of civil proceedings against the offender.
(b) Participation as separate party in criminal proceedings against the offender.
(c) Indirect method such as obtaining an order from the court ordering the restitution of goods stolen or proceeds from
their sale,
(d) Allocating to the victim a part of the fine imposed on the offender, and
(e) Diverting to the victim any income earned by the offender in prison or elsewhere.
1. Many victims do not make a complaint. This in turn has its own reasons;
(a) Popular impression about the futility of making a complaint.
(b) The harassment to which a complainant has to subject himself/herself if a case is charge-sheeted in a court of law on
the basis of the complaint.
(c) The rigours of vexatious cross-examination in court.
(d) the inconvenience caused by numerous adjournments
(e) Fear of the offender's vengeance.
2. When a complaint is made, in many cases, the offenders are not either identified or found.
3. Even if identified and found, they are not convicted.
4. On conviction, the offender may not be in a position to afford compensation.
Civil proceedings are often too slow, complex, and expensive and are a source of harassment more to the victim than to the offender. Besides, many people are not aware that there is a provision for such proceedings. These and the following connected problems have not become live;
(a) The failure of the criminal justice systems in the various countries of the world to pay compensation to the victims.
(b) the thought that the state which lays down rules of behavior should not only punish violation thereof but also insure compensation to victims of such violation, and if the state prohibits all private revenge, it should compensate the victim of a crime the perpetration of which it failed to prevent, and if the state introduces new criminal measures, it should also shoulder the responsibilities if they prove ineffective,
(c) the emphasis on the theory that compensation and restitution are extremely desirable in the interests of equity and social solidarity and compensation helps liberate victims from feelings of injustice and from thoughts of revenge,
(d) the fact that existing social security schemes are inadequate for insuring payment of adequate compensation to the victims,
Law defines crime. It also lays down procedure for dealing with crime. The Indian Penal Code, special and Local Laws, the code of criminal procedure and the Indian Evidence Act are inter alia instruments devised by law to sub-serve its purpose. But they are not machinery capable of working on auto-pilot. To deliver goods they need activation by the functionaries of the Criminal Justice System. Though section 357 of the code of criminal procedure and section 5 of the probation of Offenders Act are powerful devices meant to ensure justice to victims of crimes they have been mostly remaining in the Statute Book with no benefit to the victims of crime. However, a recent land mark judgment the High Court of Kerala, apart from revivifying the principles laid down in an earlier Supreme Court Judgment, has made a wholesome attempt to active the subordinate judiciary and magistracy to become alive to the potentialities of this extant legal provision. It is judicial activism at its best. More of its later.
Crime is on the increase all over the world. India is no exception to this universal trend. It means that larger and larger segments of people are victimized, exposed to risk, anxiety, grief, trauma and despair. The perception of that suffering segment of humanity is that the criminal Justice System is callously impersonal, its components are at sixes and sevens, is callously impersonal, its components are at sixes and sevens, it has no functional accountability and is caters only to its own minions. This is an indictment of the system by the common man. It is not an impressionistic opinion expressed off the cuff. It is based on two victim logical surveys of victims of homicide conducted by the author as Director of the National Institute of criminology and Forensic science in New Delhi. In the first survey which covered cases of homicide in Delhi and Bangalore, exemption from the payment of fees for the surviving school-going children of the deceased or the provision of alternative employment to a grown up member of the family was found to be very limited. There were only 6 cases coming under the latter category in Delhi and they were the families of deceased who had been government servants.
The study indicated that the operation of the provision of third party insurance under the Motor vehicles Act left much to be desired, the procedural requirement mandated by law was found to be long-drawn and cumbersome and relief is totally denied to the victims or their next-of-kim in hit and run cases. The need for simplifying procedure was found to be imperative. Significantly, one judge presiding over a Motor Vehicle Accident-claims tribunal informed me that he was insisting on the persons concerned appearing before him and accepting compensation personally, since he had come across instances of unconscionable lawyers cheating their own clients who were ignorant of the law and their rights in the matter. Recurrent evidence was forth coming in the survey to indicate that most of the victims involved in motor vehicle accidents and their nest-of-kin were unaware of the legal avenues of relief and assistance available to them, indicating a dire need to utilize different means of mass media to educate the victims and their families on their fundamental human rights. The research on which these observations are made opens up a new vista in an unexplored area as far as fatal traffic accidents are concerned in Greater Delhi. Mutatis mutandis the same remarks should apply to other metropolises like Madras, Bombay, Calcutta, Bangalore, Ahmedabad and Hyderabad as well. It should be of advantage to ascertain how far fatalities among two-wheeler-drives have gone up in the cities of Tamil Nadu consequent on the orders of the State Government that they need not wear self-protecting helmets.
The studies mentioned in the proceeding paragraphs are but pilot projects and indicators of a tremendous amount of work that remains to be done in an area which is of vital concern to the citizen. Hence the imperative raison deter for the study of victimology without which it is impossible to rectify the existing horrendous imbalance in the criminal justice systems was of functioning. The methodology and other aspect of the two research projects are dealt with in the chapter on Research.
357 C.P.C :
Under Section 359 Cr.P.C. when any complaint of a non-cognizable offence is made to a court, the court may, on conviction of the Accused, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution, in additional to the penalty imposed on him.
359 C.R.P.C. :
Under Section 5 of the probation of offenders Act, 1958, the offender may be required on release on probation to pay compensation to the victim of his crime. Section 110(B) of the Indian Motor Vehicles Act, 1939 provides for the award of compensation to the injured or next-of-kin of the deceased. In this context, the comments of the Supreme court in awarding compensation of Rs. 50,000/- to a victim whose power of speech was impaired as a result of the injury sustained by him in Harikishen and the State of Haryana versus Sukhbit Singh forms a path finder (AIR 1988 SC 2127)
Section 5 Probation: 110 (B) of I motor vehicle. Act:
In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. We therefore recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way''.
The reasons for the inadequacy of the conventional criminal law the world over in providing adequate recompense to victims of criminality are the same and can be listed as follows:
1. Many victims do not bother to complain to the police because of:-
(a) the popular impression of the futility of complaining:
(b) the repeated questioning of the complainant and witnesses if the case is to be charge sheeted
(c) the rigours of vexatious cross-examination in court :
(d) unnecessary adjournments
(e) fear of vengeance from the offender
2. Failure of the investigating agencies to arrest the offender.
3. Failure of the victim to identify the offender.
4. Uncertainty of conviction of the offender in court.
5. Exiguous financial position of the offender.
So the thought has been gaining ground that:
(a) Society should overcome its indifference towards victims of crime,
(b) The failure of the criminal Justice system to award compensation to victim should be recognized,
(c) Emphasis on the theory of compensation and restitution is very much needed in the interests of equality and social
solidarity.
(d) Social defence will become more meaningful only under the recognition of the interests of the victim.
(e) criminal justice policy should be formulated on the bed-rock of such surveys (as it is, there is no policy worth the
name now and hocism is the rule)
(f) it is necessary to recognize in the tendency to report crime less and less the inadequacy of, and lack of the people's
faith in, the system.
(g) Victim-witness assistance programmes should be widely organized (there is an impression prevalent now that
witnesses are well looked after under the existing dispensation. As a matter of fact, they are not)
(h) Voluntary agencies should be encouraged and helped in the field to begin with (the Jayces of Palghat in Kerala have
blazed a trial in the area and deserve to be emulated by agencies like the Rotary, the Lions and so on)
(i) Special emphasis should be laid on helping victims of terrorism and custodial violence.
UNIT - IV
Most countries in Europe have enacted legislation and followed it up with administrative measures to bring the fruits of victimological thinking to the citizen. Only Greece and Cyprus are the two exceptions to this rule in Western Europe. It is not proposed to cover here the work done in every country in Europe, but an attempt is made to highlight the principal features in a few countries.
UNITED KINGDOM
The criminal injuries compensation scheme was first introduced in the United Kingdom in 1964 as an experiment on a non-statutory basis to provide ex gratia compensation to the victims of crimes of violence and to those hurt in their attempts to arrest the offenders and to prevent crimes. The scheme is administrated by an independent Criminal Injuries Compensation Board which consists of a chairman with wide legal experience and some lawyers who practice in the courts and give part of their time to the scheme. Although the members of the Board are appointed by the minister and the members of the Board are appointed by the minister and the government is responsible for providing the necessary money and staff to enable the Board to operate, only the Board is responsible for its decisions and they are is not subject to ministerial review.
Compensation is calculated on the same basis as damages in civil procedure and is paid in lump sum rather than a periodic pension. Compensation includes payment for the pain and suffering caused and out-of-pocket expenses. Where the victim has died, the compensation for the loss of earnings or the earning capacity by the injury and for the loss of earnings or the earning capacity and out-of-pocket expenses. Where the victim has died, the compensation for the loss of income, for the funeral and other expenses is payable to the widow/widower or to the dependents of the victim. The descendants may benefit only if they are dependant. A sum of money as solatium for bereavement is payable under the scheme in Scotland but not in England and wales. In calculating the loss of income to the victims or the dependants, account is taken of the social security benefits and pensions (though not in non-fatal cases) but not of payment under personal life insurance arrangements. The Board may also reduce the amount of compensation or reject the application if the conduct of the victim before or after the incident, his character, or way of life makes it inappropriate that he should be granted a full award.
The claims are investigated by the staff of the Board and the compensation is assessed by one member of the Board. If the victim does not accept the first assessment, he may appear personally before three other members of the Board. Although there is normally no appeal against the decisions of the Board, a claimant may seek the intervention of the High Court where the has been a substantial error in law on the part of the Board. Compensation is payable only for personal injury and expenses arising directly from the injury. It is not payable in respect of loss of property. The enormous budgetary commitment which the compensation of property offences will entail and the fact that insurance takes charge of the bulk of such loses as far as the victim is concerned are the reasons for this exclusion.
In the financial year ending 31 marches 1976, take Board received more than 16,000 applications. The number is said to be growing at an average annual rate of approximately 15 percent. The total amount of compensation paid in the year ending 31 March 1976 was more than $6 million. The average award is at present approximately $600. The highest award paid by the Board up to March 1976 was $55,000.
A comprehensive review of the scheme was started in 1973to see what changes were necessary in order to incorporate it into a statute. Matters which were examined included the definition of the types of crime which should attract compensation, whether compensation should be paid to those injured in crimes of violence occurring within the family, the extent to which it is reasonable to take into account the conduct of the applicant or his character and way of life, and whether it should be possible to appeal against the decisions of the Board to the courts.
The Government of U.K. has introduced a revised Criminal injuries compensation scheme giving effect from 1st October 1979 to nearly all the recommendations of an official working party which reported in 1978. At the same tie it announced a central government grant of $ 15,000 to the National Association of victims support schemes and a revision of guidance to the courts relating to the payment of compensation by young offenders.
4.2 CRIMINAL INJURIES COMPENSATION SCHEME
The major change in the scheme is in the scheme is in its extension to the victims of violence within the family. The limit on the amount of earnings which may be taken into account when assessing compensation for loss of earnings is also raised to insure that full compensation is paid to the great majority of policemen.
The scheme had previously excluded victims who were living in the same family as the offender, partly because of the difficulties of establishing the facts in such cases and partly because of the risk of the offender benefiting from any award. The working party agreed with the Board that in view of the considerable public concern about the number of women and, in particular, children who suffered violence within the family, some effort should be made to overcome these difficulties.
The safeguards suggested by the working party, which have been accepted by the government, are that applications should normally be considered by the Board in cases of family violence only where the offender has been prosecuted for the relevant assault; that the injuries should be sufficiently serious to justify compensation of at least $500; and that the Board should be satisfied that the offender would not benefit from the award.
The extension of the scheme is on an experimental basis. It is expected that an assessment can be made of the effect of these safeguards before any attempt is made to include them in legislation.
At the same time, the Home secretary announced the acceptance of the recommendation of the Royal Commission on Civil Liability and Compensation for personal injury, that the scheme should be made statutory, but said that legislation would be delayed until there had been sufficient experience of the revised provisions to identify and solve any problems.
4.3 NATIONAL ASSOCIATION OF VICTIMS SUPPORT SCHEME
The National Association of victims support schemes consists of representatives of local victims support schemes elected on a regional basis. The chairman of the Association is Christopher Holton, of the Bristol victims support scheme which is one of the pioneers in this field. There are now over 30 local victims' support schemes in the country and about 20 are in the course of establishing themselves. The government grant is to enable the National Association to employ staff to establish common standards are methods of operation for existing and future schemes and to help coordinate their interests and activities.
Compensation payable by young offenders; The earlier Home office advice to the courts suggests that were a young offender sentenced to borstal training or detention in a detention centre has a compensation order outstanding against him, the person to whom the compensation order outstanding against him, the person to whom the compensation is owed should be asked to agree that it should not be enforced so that the offender has a clean sheet on release, The revised guidance, which has been issued recently, makes it clear there need no longer be any presumption against leaving a compensation order outstanding but that the courts should consider each case on merits with emphasis on the need for ongoing payments to be made to the victim. This is in accordance with a recommendation made by the Magistrates' Treatment of offenders committee in a report on compensation recently sent to the Home secretary.
The criminal injuries compensation scheme was set up experimentally in 1964 with parliamentary approval by the Home Secretary and the Secretary of State of Scotland as a non-statutory compensation scheme to provide ex gratia payments of compensation in any case where the applicant (or where the applicant is a dependant, the deceased) sustained personal injury directly attributable to a crime of violence (or to attempt to arrest an offender or prevent an offence) The schedule applies to incidents arising in Great Britain (England, Wales, and Scotland)or on a British ship, aircraft, or hovercraft, It does not apply to Northern Ireland where separate statutory arrangements are in force. Since its introduction about $50.5 million has been paid in compensation to the victims of crime.
The Board is funded by a grant-in-aid out of which payments for compensation are awarded in accordance with the principles set out below.
The Board is responsible for deciding what compensation should be paid in individual cases and its decision is not subject to appeal or to ministerial review. The general working of the scheme is, however, kept under review by the government and the Board submits annually to the Home Secretary and the Secretary of State for Scotland a report on the operation of the scheme, together with its accounts. The report and the account's are subject to parliamentary control.
The Board entertain applications for ex gratia payment of compensation in any case where the applicant or, in the case of an application by the spouse or a dependent, the deceased sustained in Great Britain, or on a British vessel, aircraft, or hovercraft or on, under, or above an installation in a designated are within the meaning of section 1, sub-section (7) of the Continental shelf act, 1964, or any waters within 500 meters of such an installation, or a lighthouse off the coast of the United Kingdom, personal injury directly attributable: -
(a) To a crime of violence (including arson or poisoning) or
(b) To the apprehension or attempt apprehension of an offender or a suspected offender or to the prevention or attempted prevention of an offence or to the giving of help to any constable who is engaged in any such activity.
Compensation is not be payable unless the Board is satisfied that the injury is one for which the total amount of compensation payable after deduction of social security benefits, but before any other deductions under the scheme, would not be less than the minimum amount of compensation. This shall be $150 except for cases of violence within the family, as defined under these rules, where the minimum shall be $150. The application of the minimum of the minimum level does not affect the payment of funeral expenses as laid down by these rules.
The Board is empowered to withhold or reduce compensation if it considers that; -
(a) the applicant has not taken, without delay, all reasonable steps to inform the police, or any other authority considered by the Board to be appropriate for the purpose, of the circumstances of the injury and to co-operate with the police or other authority in bringing the offender to justice, or;
(b) the applicant has failed to give all reasonable assistance to the Board or other authority in connection with the application; or
(c) having regard to the conduct the applicant before, during or after the events giving rise to the claim or to his character and way of life-and , in applications for funeral expenses to the character , conduct, and way of life of the deceased and of the applicant - it is inappropriate that a full award, or any award at all, be granted.
4.4 FURTHERMORE, COMPENSATION IS NOT PAYABLE
(d) in the case of an application where the injury was sustained accidentally in helping the police, unless the Board is satisfied that the applicant was at the time taking an exceptional risk which was justified in all the circumstances.
In order to determine whether there is any responsibility either because of provocation or otherwise, on the part of the victim, the Board is expected to scrutinize with particular care all applications in respect of sexual offences or other offences which arise out of a sexual relationship or where the relationship between the victim and the offender is such that there may be difficulty in establishing the facts or it seems possible that the offender might benefit from any award of compensation made to the applicant. In such cases the Board will especially have regard to any delay that has occurred in submitting the application. Compensation will not be payable unless the Board is satisfied that the offender will not benefit from an award.
The Board takes into consideration applications for compensation arising out of acts of rape and other sexual offences both in respect of pain, suffering, and shock, and in respect of loss of earnings arising from consequent pregnancy, and, where the victim is ineligible for a maternity grant under the National Insurance Scheme, in respect of the expenses or childbirth. Compensation is not payable for the maintenance of any child born as a result of a sexual offence.
Applications for compensation for personal injury attributable to traffic offences are excluded from the scheme, except where such injury is due to a deliberate attempt to run the victim down.
4.5 COMPENSATION IS LIMITED AS FOLLOWS:
(a) the rate of net loss of earnings capacity to be taken into account shall not exceed twice the gross average industrial earnings at the date of assessment (as published in the Department of Employment Gazette and adjusted as considered appropriate by the Board).
(b) There shall be no element comparable to exemplary or punitive damages. Where the victim has died in consequence of the inquiry, no compensation other than funeral expenses for the benefit of his estate, but the board is able to entertain applications from his spouse and dependants.
The cost of private medical treatment is payable by the Board only if the Board considers that, in all the circumstances, both the private treatment and the cost of it are reasonable.
Compensation is reduced by the full value of any present or future entitlement to;
(a) U.K. social security benefits;
(b) Compensation awards under the criminal injuries (compensation) (Northern Ireland) Order 1977.
(c) social security benefits, compensation awards, or similar payments whatsoever from the funds of other countries, or
(d) Payments under insurance arrangements except as excluded below.
Which may accrue, as a result of the injury or death, to the benefit of the persons to whom the award is made? In assessing this entitlement, account is taken of any income-tax liability likely to reduce the value of such benefits, and in the case of an application the value of such benefits is not reduced to take account of prospects of remarriage. If, in the opinion of the Board, an applicant may be eligible for any such benefits the Board may refuse to make an award until the applicant has taken such steps as the Board considers reasonable to claim them. The Board has the option to disregard money paid or payable to the victim or his dependents as a result of or in consequence personally effected, paid for and maintained by the personal income of the victim or, in the case of a person under the age of 18, by his/her parent.
Procedure for determining applications: Every application is to be made to the Board in writing as soon as possible after the event on a form obtainable from the Board's Office. The initial decision on the amount of any compensation awarded is made by one member of the Board and where an award is made the applicant is given a break-up of the assessment of compensation, except where the Board considers this inappropriate, and where an award is refused or reduced the reasons for the decision will be given. If the applicant is not satisfied with the decision, he is entitled to a hearing before three members of the Board other than the member who made the initial decision. An application for hearing has to be made within three months of notification of the initial decision; however, the Board may waive this time limit where an extension is requested with good reason within the three-month period, or where it is otherwise in the interests of justice to do so. A decision by the chairman not to waive the time limit is final. It is also open to the single member where he considers that he cannot make just and proper decision himself to refer the application to three other members of the Board for a hearing. An application has no title to an award offered until the Board has received notification in writing that he accepts it.
The procedure at hearings is informal consistent with the proper determination of applications and the hearings are not open to the public. The Board has discretion to permit observers such as representatives of the press radio and television, to attend the hearings provide that they give written undertakings that the anonymity of the applicant and other parties will not in any way be infringed by subsequent reporting. The Board has powers to publish information about its decisions in individual cases; this power is limited only by the need for preserving the anonymity of the applicants and other parties.
This scheme came into operation with effect from 1st October 1979 in the United Kingdom.
Side by side the Home Office Research Unit has been making a study of all the factors relate to the ordering by courts of law of compensation loss or damage to various persons. In 1974, a national study by magistrates' courts "use of compensation or orders'' was undertaken by Home Office Research Unit with the cooperation of the police and magistrates and judges. In that study they were able to correlate;
(a) the extent to which magistrates court made us of their power to order compensation, and
(b) Aspects of special cases relating to the orders of compensation and the effectiveness of compensation orders is being yielding payment of the stipulated amount.
Property offences such as burglary or theft especially were the subjects for study. Compensation for thefts amounted to 59 percent of the total loss, and for offences of obtaining property by deception and burglary compensation covered50 percent and 45 percent respectively of the loss.
It is seen that in each type of offence some courts ordered to pay compensation while others did not. So the reason for the variation in the orders of the courts was explored. Some other factors other than the nature of the offence that were associated with the variation in court's decision whether or not to order compensation are analysed below.
There was a slight correlation between the decision to order compensation and the value of the loss of the loss or damage. Sixty-six percent of the offenders who caused loss or damage up to #20 were ordered to pay compensation, while 77 percent of those who caused loss or damage greater than $50 were ordered to pay compensation.
(They should be interest to Developing Countries which may be on the threshold of enacting victim compensation legislation since they highlight problems these countries are likely to confront when they come to the nifty - gritty of enforcement)
1) The suggestion that experts in various non-legal fields like medicine, social science, trade unionism, psychiatry and so on should be made full time members of the compensation Board has been turned down.
2) The decision s of the compensation Boards should not be subject to Ministerial Review, but it is considered that the general working of the scheme should be kept under review by the Government and Ministers will be responsible to parliament for ensuring that the scheme is working in the way it is intended to work.
3) It has not been possible (surprisingly) to the define what constitutes a "crime of Violence''.
4) Report of a crime to the victim's employer, principal or other authority in institutional establishments is considered equivalent to a report to the police.
5) In cases involving violence in the family, compensation should be paid only when it is quite clear that the offender will not benefit.
6) Compensation to children injured in familial violence is most difficult to decide. Children over 17 years old caught & injured in the cross-fire of familial violence at home do not present a problem since compensation given to them is not likely to profit the offending parent. Children below 10 are not considered eligible for compensation except in very exceptional cases of injuries leaving a lasting up effect on the child's entire future life. But those between 10 & 17 do present a problem. The solution to it is sought in the recommendation that compensation Boards should keep "the interest of/the child'' as the guiding beacon in such cases.
7) It is significant that babies born out of on offence of rape are not especially cared for in the scheme. It is held that they are not different from the children of unwed mothers, divorces and widows and so it will be unfair to differentiate them one from another, though the problem of the single parent family is realized.
8) Inflation is not to be taken into consideration in awarding compensation. Lump sum payments are (to be)preferred over staggered payments over a period of time, mainly because of administrative convenience and to resist the temptation on the part of victims to capitalize on the injury over a period of time.
9) It is agreed in principle that the compensation Board would have to use subjective criteria to determine the eligibility of violent crime. The general character and way of life of the victim is permitted to be taken into account.
10) If a girl who thumbs for a hitch-hike and accepts a lift in a vehicle is raped by the vehicle-driver, she is eligible for compensation.
11) Information contained in Police investigation records; medical certificates etc., relevant to the issues of compensation should be made available to the victim complaint or his/her next-of km if they call for it.
12) Proceedings of the compensation Boards are informal and private. Media representatives are permitted to be present at hearings, by previous arrangement, on the specific understanding that the privacy of the applicant and other parties is not violated.
13) Insanity plea of the offender is irrelevant as far as compensation claim is concerned.
14) The experience of the British magistrates who have ordered compensation is worthwhile noting. In the case of assault victims who were awarded compensation, courts assault victims who were awarded compensation, courts based their assessment largely on financial loss directly based their assessment largely on financial loss directly attributable to the offence and did not quantify the injury, pain and suffering, Secondly, victims of violence were not aware of this whereas those who lost property were. Thirdly, the time lag between an offence and the award of compensation was a source of dissatisfaction with the functioning of the system.
15) Another interesting development is that guidelines have been issued to the Metropolitan Police in London on Victim Support Schemes. They include training methods, vetting of volunteers by police, identification of volunteers through the issue of cards, consent of the victim for the support scheme and so on.
In the United States, California was the first federating State to legislate on victim compensation in the year 1965. Since then 28States followed suit as indicated below:
state |
year |
state |
year |
Alaska |
1972 |
Montana |
1977 |
California |
1965 |
Nevada |
1969 |
Connecticut |
1978 |
New Jersey |
1971 |
Delaware |
1975 |
New york |
1967 |
Florida |
1978 |
North Dakota |
1975 |
Georgia |
1967 |
Ohio |
1975 |
Hawali |
1967 |
Oregon |
1977 |
Illinois |
1973 |
Pennsylvania |
1976 |
Indiana |
1978 |
Rhode Island |
1976 |
Kansas |
1978 |
Tennessee |
1976 |
Kentucky |
1978 |
Texas |
1979 |
Maryland |
1968 |
Virginia |
1976 |
Massachusetts |
1968 |
Washington |
1974 |
Michigan |
1976 |
Wisconsin |
1976 |
Minnesota |
1974 |
|
|
The thinking on the subject of victim logical research surveys and crime victim compensation received a fillip in the United States when the victim compensation legislation became a fait accompli in New Zealand in 1963 and in the U.K. in 1964. The main planks on which the American Victim compensation schemes rest are:
(a) Public support as revealed by the public opinion;
(b) Appreciation of the fact that traditionally the criminal justice system has been insensitive to the victims and the witnesses, and
(c) As means to reduce the fear of involvement on the part the citizen in playing his role in the social task of crime prevention.
The interplay of three variables and their suffusion determines the efficacy of the schemes in the States. The variables are the availability of public or private funds, the extent of financial need brought about by criminal victimization in individual cases, and the availability of political support for public compensation to crime victims. The remedies to persons involved in criminal cases as victims include civil remedies, private insurance, public assistance, and restitution.
4.7 CIVIL REMEDIES
Under the Anglo-American system of law, the state gradually assumed many of the "function'' of the victim in legal proceedings. In criminal matters this resulted in the "gradual elimination of the victim from the criminal law proceeding, while the state assumed responsibility for action against the offender and relegated the victim's interest to common-law procedures'. Thus, the state assumed the obligation to discover, apprehend try, and punish the offender for criminal offences; as a result, the victim yielded his right to seek additional satisfaction for the criminal offence, but retained the right to sue the offender in civil court for any wrongs that he might have committed against the victim. While in principle this theory is sound, it has proved to be most impractical as a means of attaining financial assistance or reparation for the victim of crime. The most obvious drawback of such a system is the relatively low percentage of offenders apprehended; the latest published crime figures indicate that only 21 percent of all index crimes are detected by the arrest of the offender in U.S.A. It is obviously not possible for an aggrieved victim to institute legal action against an offender who remains an apprehended.
Even if the offender is apprehended, three, however, remain major impediments in the path of winning a civil action against him. The offender generally has few, reserves of funds, and most of these would be expended in the process of his defence against the criminal charges. If sentenced to prison, the offender has little chance of earning an income which would serve as the basis for a civil award. Finally, the civil court process itself is extremely time-consuming for the victim's own funds. Richard J.Cross, Administrator of the North Dakota victim compensation programme, cites a study by the National Commission on the causes and prevention of violence in which it was reported that "only 1.8 percent of the victims of crime ever collect damages from the prepetrator''. It would thus seem that the avenue of civil remedies has been effectively blocked for the victims of crime in the United States.
4.8 PRIVATE INSURANCE
In many cases, private insurance offers the best protection against serious financial loss as a result of crime. Certainly, it is best protection against property loss, as the victim compensation programmes generally do not offer systematic reparation of lost property. The popularity and effectiveness of insurance are cited as reasons why property and effectiveness of insurance are cited as reasons why property offences are not covered by the victim compensation legislation in the U.K. However, reliance on private insurance as the sole means of victim reparation raises a number of troubling issues. The first of these is, of course, equity. Should the person unable to afford comprehensive medical insurance or the person temporarily without insurance due to a change in employment status be penalized? Should society allow the lower income classes to bear the brunt of their victimization because they are not able to obtain insurance? According to a 1979 study of the health care coverage, an estimated 11 to 18 million people were without healths are coverage in 1978, representing some 5 to 8 percent of the total U.S. Population. The majority of them were young, lower-income, and unemployed individuals. It is precisely these people who are most likely to be victimized. Finally, the insurance companies themselves may pose significant barriers for certain classes of individuals. Health insurance may be difficult to obtain or extremely costly for the chronically ill, the elderly, or the poor. Even those individuals who maintain some form of health care insurance may find that their coverage is inadequate for catastrophic expenses of the type which may be incurred by very seriously injured crime victims.
4.9 PUBLIC ASSISTANCE
Welfare, social security, Medicaid, Medicare, and other forms of public assistance may provide some measure of financial relief to the crime victims. Because the administrative structures for these programmes are already established in every community, these forms of assistance maybe among the most readily available for many victims. Unfortunately, public assistance also presents several drawbacks for the crime victims. Most of the programmes limit the availability of benefits to individuals meeting certain levels of financial need age, or disability, and these limitations could bar substantial members of the victims from public assistance benefits. In addition, the level of benefits provided may not fully compensate the victims for the true amount of loss they experienced as a result to the crime.
RESTITUTION:
The concept of offender restitution is appealing to many, and is often linked with victim compensation for example, a number of State victim compensation statutes specifically require that the State be empowered to exact restitution payments from the offenders as a means of offsetting the financial burden of victim compensation. The victims of crime Act of 1978, which narrowly missed passage in the House of Representatives and the Senate in the closing hours of the 1978 congressional session, also required that the States should provide for offender restitution in order to gain eligibility for federal support for their compensation programmes.
The proponents of restitution often cite as advantages the possible rehabilitative function of restitution, the inherent justice of letting the punishment fit the crime, and the fact that restitution would return the victim's right to exact punishment from the offender himself. The Law Enforcement Assistance Administration has sponsored a number of pilot restitution programmes. For example, in Georgia some offenders may be diverted to the restitution programmes instead of being placed in prison. The offenders are allowed to work in the community during the day, and return to the Restitution Centre in the evening. Their paychecks are forwarded to the Restitution centre, where appropriate sums are deducted for the restitution payment. While the programme appears to be successful to date, not enough is yet known about its cost-effectiveness or suitability for other jurisdictions.
4.10 PUBLIC CRIME VICTIM COMPENSATION
Although victim compensation also offers several drawbacks as the principal form of financial aid for the victims of crime, it is felt by many to be the most equitable and consistent method of "making the victim whole''. Unlike restitution payments, if is available even when the offender is not apprehended. The victim's ability to receive reparation does not reply on the offender's ability to make the payment. In addition the programme does not carry the strong bias against the indigent, sick, or high-crime area resident that may be found under an insurance scheme for victim reparation.
The major drawbacks of victim compensation are the costs of the programme and the legislators' fears concerning the possible expense of the programme if eligibility for compensation is not restricted to certain limited situations and individuals. These concerns for cost have resulted in several major restrictions on the progrmme such as financial need requirements, minimum claims, maximum award limits, and restrictions on the types of loss compensated. This latter area contains the almost universal restriction against payment for property loss found in existing compensation programmes. The effect that these restrictions may have on the availability of victim compensation is dramatic. Harland notes that on a national scale 90 percent of all victims are excluded from compensations by the property loss restrictions alone. He also notes that the current restrictions on eligibility would allow compensation for only 8 percent of those qualifying as injured victims of violent crimes. The use of eligibility criteria and restrictions is discussed in greater detail in the next section.
Based on data obtained in the 1974 National Crime Survey the study points out a number of findings which may have some bearing on the need for crime victim compensation. For example, the study has found that the economic resources of the crime victims are often very limited;
Nearly one-third of the victims of personal crimes were not employed at the time of commission of the crime. "It is the lowest income group which suffers both the greatest incidence and risk of total personal victimization..''
Political support for victim compensation legislation has been easily forth coming in many States in the U.S.A., It is one of the programmes which readily fetches votes. Whatever opposition exists, it is on the ground of expense.
Eligibility Criteria:
Polices concerning eligibility are generally formulated with a view to specifying the intended beneficiaries, to minimize the possibility of spurious claims, to promote the victim cooperation with the criminal justice system, and to contain the potential costs of providing compensation. Apart from the persons who are injured or killed as a result of crime, those acting to prevent a crime or to apprehend a criminal or to help a victim or going to the aid of a law-enforcement officer, become automatically eligible for compensation. In fact, the persons who intervene, as mentioned in the four categories above, are afforded greater scope for compensation since their action is a significant factor in crime prevention and control.
The issue of residential requirements with regard to eligibility for compensation has provoked considerable debate in the U.S.A., some states extend compensation to the victims irrespective of the States in which they reside; some others confine it to their residents; still others have reciprocal arrangements with the other states. Much of the concern over residential requirements is expected to be remedied by federal legislation on victim compensation towards which the public opinion is slowly but perceptibly veering round.
The victims related to the offenders (such as parents, children, brother, sisters, wives) are excluded from the eligibility criteria. The over-riding concern prompting this exclusion is that the offender should not unjustly benefit from the award to the victim. If a victim has partially or fully contributed to his own victimization, the law provides for the reduction or a complete denial of compensation. This is one of the functions performed by the investigation or the verification agencies.
4.11 ADMINISTRATION OF THE PROGRAMMES
The administration of the victim compensation programmes is done in one of three ways:
(a) through a new administrative agency created specifically for the purpose;
(b) through an existing administrative agency such as the workmen's compensation board whose original jurisdiction is
expanded to include victim compensation; or
(c) Through the courts.
In general, the machinery of the courts for administering victim compensation programmes is viewed with less enthusiasm than the other two agencies.
There is considerable difference of opinion on the use of volunteers for the administration of victim compensation programmes in the United States. Those who are in favour of their utilization point out the increase in the volume of work and the finances available if it is to be administered entirely by regular paid staff. Those who are opposed to it point out that accountability and motivation which are so essential for performing sensitive duties of the victim compensation programmes are not conspicuous among the volunteers.
The fact that some states have yet to take legislative action strengthens this need in states where the programmes has become a fait accompli.
Verification or investigation of the compensation claims is a fairly laborious process. It includes the following;
(a) Scanning the police reports to ascertain the details of actual occurrence, the victims contribution in the crime, the identify of the offender, and possible victim-offender relation-ship.
(b) Scrutiny of the hospital records with a view to determining seriousness of injury, the extent of disability, and the estimated duration of disability.
(c) Perusal of the insurance documents with a view to ascertaining the details of payments to the victim for medical treatment or loss of earnings.
(d) Examination of the financial assistance programme records with a view to ascertaining the payments that are to be made or have been made from other funds such as workmen's compensation, insurance, and so on :
(e) Ascertaining the information regarding the employment of the victim.
(f) Scrutiny of the personal finances of the victim.
(g) Perusal of the court records to determine the course of criminal case on the particular offence and the outcome of the prosecution, if any.
Every attempt is made to insure that the investigation or the verification process eschews delay and its handmaid, viz, corruption and the resultant hardship to the victims. How far such attempts are effective, it is perhaps too early to say.
Mode of Payment:
Payment is of two kinds. One is the lump sum payment and the other is payment on installment basis. The latter is generally employed in death or disability cases. It is reckoned that the installment payments entail higher cost of administration than the lump sum payments. There is a provision for a periodic review of these payments with a view to determining if the claimant is still eligible and whether the amount is appropriate. Protracted payments can be modified, reduced, or discontinued if the victim is finally able to return to work or if the dependency status of the claimant changes or if the victim dies of causes unrelated to the injury. Naturally enough, this sort of an option is not available when lump sum payment is made.
Cost of the Programmes:
Cost has been an inhibiting factor in the victim compensation programmes. At least one state has repealed the compensation programme enactment in the statute book for two years and the argument is that the federal government has not offered any help from the national exchequer.
The expenditure on victim compensation programmes consists of administrative costs and benefit payments. The administrative costs include facilities, staff salaries, materials and supplies, travel and maintenance expenditure of the staff. Some States such as California and Maryland are able to keep their administrative costs as low as 9 percent of the total compensation budget whereas other states such as Oregon and Pennsylvania spend as much as 30 percent on administration, and Florida 79 percent. No through investigation into the causes of this variation from State to state has been made. Benefit payments include compensation for losses of support and earnings, medical expenses, and funeral expenses in cases involving death.
UNITED STATES
Latest Developments:
Victim of Crime Act became part of Federal Law in the United States in 1984. A copy of the text of the legislation appears at appendix "E''. In chapter 232, provision has been made for special forfeiture of collateral profits of crime.
Other progressive steps taken in the United States include the following:
The U.S. Department of Justice in its Report to the Nation on Crime and Justice includes inter alia (a) an examination of the relationship between fear of crime and actual risk of criminal victimization (b) the effect of crime on its victims (c) enquiry into the groups of people who are likely and least likely to be victimized or victim-prone (d) examination of the risks of becoming a victim of rape, robbery, murder etc., (e) assertion that victims of murder are more men than women, more young than elderly, more among lower income groups, more than among higher ones, more city dwellers than rural groups, more unemployed than employed people (f) Crime prediction method adopted by the citizens. The report goes in detail over the reasons for the fact that only one third of the total number of offences in the United States are reported to the Police-they include unwillingness to report when the offender is known and when minor thefts and are considered too insignificant to be reported. The economic impact of violent crime like cost of medical attention, loss of work pay are sought to be assessed.
4.12 VICTIM WITNESS ASSISTANCE PROGRAMMES
Democracy pre-supposes self-help. This is true of every aspect of life in a democratic society. The more initiative and social consciousness a people have, the greater will be their capacity to influence decision-making at the highest levels. It is precisely for this reason, it is said, that crime prevention is too important a matter to be left either to the makers of law or to the functionaries of the criminal justice systems. That is why in western countries community crime prevention programmes have been receiving more and more attention in recent years.
When a crime is reported to the police and is registered, the preoccupation of the police is to meet the requirements of the law on the subject, to take the case to 'court wherever possible, and to bring the offender to book. The personal traumatic aspects of the crime as far as the victim or his next-of-kin is concerned hardly get any attention from the first functionary of the criminal justice system with whom the victim comes in contact. The immediate reaction of the victim to the matter-of-fact approach on the part of the police and the equally impersonal attitude of the court, if the case is charge-sheeted, is one of revulsion towards the entire system. There is hardly anybody in the system who has the time or who makes an effort to assess the emotional, familial, traumatic, financial, and other impact of the crime on the victim.
They function at the local and state levels. They supplement the dispensation of justice by satisfying the personal, traumatic, and social needs of the victims of crime and the witnesses and by motivating the people to cooperate with the law-enforcement agencies. With this end in view, they undertake to perform the following services;
(a) to enlighten the citizen on the law on the subject of any particular crime and the available services;
(b) to help overcome the difficulties caused by the ignorance of the languages;
(c) to advise the victims on most of the problems and try to alleviate as many of them as possible,
(d) to provide the basic information on how the system works:
- where the court will take up a particular case at the appointed time;
- whether there will be adjournment;
- how to find transport;
- if the victim has his own transport, how to find the parking place;
- if the victim is a woman and has small children, how to get baby-sitting assistance;
- if the victim is employed, how to get leave and how to minimize the loss of pay for absence from work;
- how to prepare for the case
- how to fill up the forms; and how to claim compensation;
- How to meet the subsequent problems of adjustment in life, and so on.
Another important function perfumed by these agencies is that they arrange for the protection of the witnesses who are in danger of being victimized by the offenders. This is done in close cooperation with the police and the prosecutor's office.
They have crisis Intervention Centres which provide immediate attention to the victims of crime all the 24 hours of the day. The Centres establish contact with the Police departments and their work has come in for so much of appreciation that several police departments in the various States have their own officers trained in crisis intervention techniques. They learn to handle the situation till fully trained personnel arrive on the scene. They help escort the victims from the spot of occurrence and spend a lot of time with them, allowing the enforcement agencies who arrive at the sport to do their investigations and preparation for handling the case as laid down by the law. They help reduce the response time when calls go from the sport of crime or an accident.
4.13 RESTITUTION
Restitution is the term applied when the offender makes amends to his victim in a criminal offence by paying a sum of money or by service. Its benefits are two folds- the offender is made more responsible for the crime and the victim receives attention and benefit directly from the offender. It gives an opportunity to both the victim and the offender to feel that a wrong is being righted. When restitution involves service to the community, the whole society receives reparation from the offender. Since it is one of the alternatives in sentencing policy, it is a flexible means limited by the Judge's imagination, the offender's willingness to participate, and the readiness of the victim to accommodate him to the arrangement. Restitution is said to be punitive and rehabilitative. It is also said to serve the purposes of deterrence and criminal therapeutics.
All segments of the population in the United States strongly support restitution as a method of crime prevention, but the police have their own reservations about its utility. Many states in the U.S.A., have enacted legislation in this respect. The programmes are portrayed as earnest attempts at meeting the needs of the victims of crime. However, in actual practice most of the programmes get drowned on rational principles and are encountered by extensive restrictions on their ability to meet the real needs of the victims. One criticism offered against them is that they exclude the victims of non-violent crime and so a large segment of victims of crime are automatically removed from these benefits. Another criticism is that restitution depends on the offender's capture and his ability and willingness to co-operate. Despite all the publicity it has received, it would appear that victim restitution has a low priority in the hierarchy of traditional goals of the criminal justice system, namely, punishment, deterrence, rehabilitation, and incarceration. In the U.K. 90 percent of the offenders convicted in criminal cases were ordered to pay restitution in 1974 (this was the result of a study made by the random sampling method)
Restitution is a positive measure and particularly appropriate for use in respect of juvenile offenders. It traces its origin to the Middle Ages and is more penal than compensation paid by the state since it does not merely offset the victim's losses but makes the offender pay for them. The rationale for the restitution programme is that the offender is made to recognize his responsibility to the victim, it maintains the dignity of the offender unlike imprisonment, it saves the society and the offender unlike imprisonment, it saves the society and the offender from the deleterious effect of incarceration, and, above all, it contributes to a sense of justice. Many criminologists feel that restitution as one of the alternative available to a sentencing judge helps the society and the criminal justice system overcome problems such as overcrowding in jails, and is an effective supplement to probation.
The evolution of the criminal justice system has reached a stage in which the general trend of thinking is that except in extreme cases where imprisonment should be resorted to because of the recidivist proclivities of the offender, sentencing alternatives should be sought. Imprisonment is seen as a punishment and as an infliction on the offender. Diagnostically, it is known and seen to harm the offender and the society, and therapeutically, it certainly does not serve the purpose of correction or rectification of the offender's attitude to society. Besides, punishment of the offender offers no incentive for the victim to involve himself in the criminal justice system.
The proponents of restitution argue that it helps refocus the image of criminality. In this context, two types of restitution are suggested- the punitive and the pure. Punitive restitution is a mere supplement to the other punishment that is imposed. It would come from the offender's own work either in prison or out of it or from a fine by the court. Thus, it will necessarily have to be governed not by the quantum of harm done by the offender but by his capacity to pay. Pure restitution, on the other hand, is commensurate with the actual damages caused by the criminal act.
Restitution is said to have a special advantage when used against white-collar criminals. It improves crime-reporting and helps in rehabilitation. If it functions properly, it gives the offender an opportunity to shorten the length of his own confinement, for the harder he works, the faster he can make good the restitution payment. It reduces the burden on the state exchequer. To be effective as treatment, restitution should involve payments that represent an extra effort on the part of the offender, as sacrifice in time or of convenience. These arguments should not be accepted in to by the developing countries. White-collar criminals, unlike conventional criminals, are capable of purchasing remission from jail terms on the strength of their ill-gotten wealth. Restitution may help them find out the escape value which they may be in search of. Besides, victimization in white-collar criminality affects either the entire society or a large segment of it. It may be an impossible task to recompense all those affected by the offence by restitution. Perhaps a possible solution is in using the funds obtained by restitution, to strengthen the infrastructural arrangement for the enforcement of anti-white-collar laws or expend them on measures meant to benefit the entire community or the society.
Community service as a form of restitution represents a sentencing alternative for the offenders who are not dangerous, since it helps them perform work which is useful to the community and to themselves. In the United Kingdom, the theory that the people who have committed minor offences would be better occupied doing service to their fellow-citizens than in a crowded jail has gained ground. The British researchers have examined the effect of restitution, its use by courts of law, the type of offenders to whom it is applied, the help given by the local voluntary and official agencies in making suitable types of work available, the reaction of some of the offenders and the practical difficulties, and have come to the conclusion that the scheme is viable; its effect on offenders as a group is not known; the penal theory underlining the scheme is uncertain; its impact on the prison population has not yet been assessed; and it is not yet time to express an opinion on the type of offender to whom it is suitable.
The practical impediments in working the restitution programmes will be among the criteria which would enable their being judged as effective alternative to other punishments in sentencing policy. First of all, they are time-consuming; secondly, a lack of suitable types of work for juveniles is seen. Thirdly, many offenders lack the earning ability to make the restitution adequate. Fourthly, often times the victim suspects the soundness of the programmes. Less importantly, the need for supervision of work-or service-oriented restitution and the liability on the part of the offender to accidents occurring during restitution periods thereby interrupt the operation of the programme and having to resort to alternatives also present problems.
Several States in the U.S.A. are considering or have already enacted legislation bringing into operation a mechanism by which the offender can compensate the victim for the loss caused by his crime. The regulations fall under three categories;
(a) restitution as a component in the normal sentencing of adult offenders,
(b) restitution as a specific condition of dealing with juvenile offenders, and
(c) Restitution as a goal to be achieved through special programmes administered.
The programmes generally discourage any relationship between the victims and the offender during the period of restitution. Often restitution is in addition to parole or probation. A notable omission is that orders of imprisonment have no provision to collect restitution from the offender's earnings. It is too early to assess the impact of the restitution legislation on the criminal justice system. The researchers are currently working to describe the manner in which and the extent of the provision for restitution, to determine the popular attitude towards the practice and to evaluate the special programs from the point of view of the community. It is seen that restitution has more often resulted in many property crimes when it takes the form of monetary payment instead of service.
The restitution programme in Tasmania put into operation in the form of a Saturday Work Orders Scheme for a period not exceeding 25 Saturdays on any one charge is said to have effectively reduced the prison population in that Australian State.
UNIT -V
Having suffered primary victimization in the form of physical, financial or emotional impact of crime, the crime victim, more often than not is also subjected to secondary victimization from tiresome court proceedings and also the society as a whole. The victim suffers from secondary victimization if his/ her human or legal rights are refused by the court due to manipulated evidence put forth by the criminal and the court gives its decision against the victim on the basis of that evidence.
The institutionalized victimization is more painful for the victim. Even at the investigation and trial stage of the case, the victim may have to suffer Secondary victimization at the hands of police and investigation personnel. It is mainly due to procedural processes and procedure of the criminal justice system which shows little concern for the mental torture and suffering of the victim and concentrates more on the prosecution of the offender.
Other agencies which may cause secondary victimization may be hospital procedures, especially in case of victims of rape and sexual offences and the relatives and friends of the deceased in murder cases. The victim is generally refused immediate medical care and treatment until the matter is taken up by the police and they approach the hospital authorities. Obviously the victim's treatment is delayed for this reason.
The Society's attitude towards the crime victims also accounts for his secondary victimization. Instead of sympathizing and helping the victim, his relatives, friends, neighbors etc., may squarely put the entire blame on the victim himself. They attribute victim's own behavior to the occurrence of crime, of which he is the victim.
5.2 RESTORATIVE JUSTICE FOR CRIME VICTIMS
Gone are the days when retributive and preventive theories of criminal justice were holding the field in dealing with crime and criminals. In recent decades, the rehabilitative approaches in penology have given rise to emergence of the concept of restorative justice. It represents a paradigm shift in dispensation of criminal justice by involving the offender, the victim and the community as a whole, to ensure a balance between offender's punishment and protection of victim's rights. Compensatory relief to victim is the 'Key-feature' of restorative justice system.
The concept of restorative justice is woven around four major themes, namely: (1) Restoration (2) Accountability (3) Community protection and (4) Skill development.
(1) Restoration:- It implies help and support to victim of crime, whether the offender is apprehended and arrested or not. The victim is restored to normal life in society by community's restorative efforts. Similar restoration of offender to community is also a part of restorative process where in the offender is made to realize and acknowledge the harm or injury caused by him to the victim and show willingness to be accountable for his wrongful action and redress the harm or sufferings of the victim.
(2) Accountability:- The process of victim-offender mediation leads the offender to accept accountability for harmful consequences of his criminal act on the victim and he makes amends to the victim and also to the community.
(3) Community protection:- Community surveillance provides best opportunities to the offender to rehabilitate and reform himself and channelize his energy into productive activities.
(4) Skill Development:- Vocational training provides opportunities for the offender so also the victim to develop new skills which may help in his restoration and rehabilitation. Competency of development programmes constitutes a vital segment of the restorative justice system.
In order to attend to the needs of victims in a particular area, the U.N. has suggested establishment of formal or informal advisory groups having understanding and knowledge of interest of crime victims. These groups should include representatives from police, prosecution, health, psychologists' professionals, academicians and of course, peoples representative from the locality. The groups should interact with victims to solve their problems and work in close liaison with other voluntary social service agencies. The system would facilitate collection by the law-makers.
The advisory group should be truly representative in character and include both males and females of varying ages and persons from different geographical areas, cultures, religions, races and economic status:
The functions of the Advisory Group may include:
(1) to collect information regarding incidence of victimization;
(2) to conduct surveys and interviews with victims of crime;
(3) to initiate measures to provide redress and relief to victims on the basis of police report, medical reporter media
reports etc.,
(a) To survey social service institutions and community leaders for assisting the victims and solving their problems.
(b) To participate in the criminal justice process to represent the cause of victims.
However, while interacting with the victims and fighting for their cause, the representatives of the Advisory Group should maintain confidentiality regarding victim's details subject to legal requirements. The identity of the victim should not be disclosed with a view to preventing his stigmatization.
Ever since the adoption of the Declaration of Basic principles of Justice, for victims of power Abuse and Crime in 1985, considerable progress has been made by many nations including India, to provide assistance to victims of crime. However, there has been general lack of support services and counseling as a legal measure for the crime victims and whatever assistance is provided to them, it is more or less in the form of family support or reimbursement of medical treatment expenses or litigation costs etc., Therefore, it has to be admitted that this vital issue has not received the attention of criminal law administers, which it deserves, and there is general lack of adequate policies sensitive to victims. It may be because of the lack of sense of commitment or want of political will to ameliorate the woes and problems of victims of crime. There is need to mobilize public opinion and sensitize criminal Justice administrators to persuade the Government and law-makers to provide a comprehensive legal framework for assistance and compensatory relief to victims on the lines suggested by the World Society of Victimology and the United Nations in its handbook on 'justice for victims'.
The legislative policy and law reform on victim's redressal and their assistance should be based on certain fundamental principles' which are as follows:-
1. Victims of crime deserve respect for their dignity, privacy and personal liberty;
2. Victims need assistance and support to cope with the aftermath of their victimization and their alienation from the
Society should be prevented;
3. The costs of policing , criminal justice, corrective measure and of course, the reparation for loss of property or injury
to person including medical treatment cost etc., should be recoverable by the victim from the offender or the state or
from both;
4. Victim being the first hand witness and the main source of information about crime and criminal, his version
(Statement) is of crucial importance for police, prosecutors and courts. Therefore, the testimony of victims should be
properly weighed and evaluated and not easily discarded;
5. While accepting the plea bargaining under section 265-A of the code of criminal procedure, 1973, the claims of
victim(s) should not be ignored in an anxiety to dispose of the case promptly;
6. The constitutional and human rights of the victim of crime should be legally safeguarded.
The legislative framework regarding compensatory relief to victims of crime I India may be traced to the Code of Criminal Procedure. The probation of Offenders Act, 1958 and the Motor Vehicles Act, 1988 also contain provisions for award of compensation to victims of crime. Besides these legislations, the constitutional scheme for compensatory victims is to be found in the form of decisions of the Supreme Court while interpreting fundamental rights or directive principles of State Policy or Articles 32, 136 and 142, when the court may direct payment of compensation to victims of crime.
Compensatory Provisions in Cr.P.C:
Sub-sections (1) and (3) of Section 357 of Cr.P.C. vest power in the trial court to award compensation to victim of crime whereas similar power is conferred to the appellant and revisional Court under Sub-section (4). The court may appropriate the whole or any portion of fine recorded from the offender to be paid as compensation to the victim of crime.
The compensation ordered to be paid under Section 357(1) may be for costs, damage or injury suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property etc.,
Sub-Section (3) further empowers the court, in its discretion, to order the accused to pay compensation to victim of his crime, even though no fine has been imposed to him.
It is significant to note all that a new section 357-A has been inserted by Cr.PC. (Amendment) Act, 2008 (5 of 2009) with effect from December 31, 2009, which envisages 'Victim compensation Scheme'. The section reads as under:-
"357-A, Victim compensation Scheme:- (1) Every State Government in coordination with the Central Government, shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever recommendation is made by the Court for compensation, the District Legal Services Authority or the State Legal Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-Section. (1)
(3) If the trial Court, at the conclusion of trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
Compensation under Probation of Offenders Act:
The Probation of offenders Act, 1958 also contains provision for compensatory relief to victim of crime under Section 5 (1) of the Act. The section provides that the court directing the release of an offender under Section 3 or Section 4 of the Act, may if it deems fit, further direct the accused to pay such compensation to the victim, as the court thinks reasonable for the loss or injury caused to the latter, as also the costs of the proceedings;
Compensation to Victim under Motor Vehicle Act:
The victims of vehicular accidents or their legal representatives in case of death of the victim are entitled to claim compensation from the offender under Section 5 of the Motor Vehicle Act, 1988. However, the power in this regard is vested only with the trial court and none else.
The contribution of judiciary to redress the claims of victims of crime are no less significant. The higher courts have played a dominant role in assuring compensatory justice to the victims of crime. While awarding such compensatory relief, they have exercised due care and caution to ensure that people's faith in judicial process is not shattered and the victims protective rights are not denied to them. Some of the landmark judgments of the Supreme Court ensuring restorative justice to victims to of crime the growing concern of judiciary to protect the rights of victims.
Elaborating the scope of award of compensation to victim of crime under Section 358 of Cr.P.C. Justice V.Y. Chandrachud CJI (as he then was) in Rudal Shah v. State of Bihar, observed that a person is entitled to compensation for the loss or injury caused by the offence, add it includes the wife, husband, parent and children of the deceased victim.
The Apex court in Sarwan singh v. state of Punjab, enumerated the factors which the courts should take into consideration while ordering award of compensation to the victim of crime. These factors include capacity of the accused to pay, nature of the offence and the nature of injury suffered by the victim as also the overall effect of crime on the victim's familial and social life and emotional or financial loss caused to him/her. The Court ruled that the quantum of compensation must be reasonable, depending upon the of facts, circumstances and justness of victim's claim. The accused must be given reasonable time for payment of compensation and if necessary, it may be ordered to be paid n instatements.
In Bhim Singh v. State of J & K the Apex Court observed that doctrines pertaining to compensatory jurisprudence in India. In this case, the appellant was a Member of the J & K. Legislative Assembly who was arrested by the police in connivance with the local A.D.M., while on his way to attend the assembly session. He was maliciously and deliberately arrested and detained in police custody in order to prevent him from attending the assembly session. Allowing the petition, Justice Chinnappa Reddy, speaking for the Apex Court observed that where a person has been arrested and detained with a malicious and mischievous intent and his legal and constitutional rights are invaded, the malice and the invasion is not washed away by this being set free. The court has the jurisdiction to order compensation to the victim. The state was therefore, directed to pay a compensation of Rs. 50,000/- to the petitioner for the violation of his legal and constitutional right.
The question of award of compensation to a victim of rape came up for adjudication before the Supreme Court in the historic Badhisatva Gautam. V. Subhra Chakraborthy's Case. The court in this case noted;
"Rape is a crime not only against the person of a woman; it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is, therefore, a most dreaded crime. It is violative of the victims most cherished right, namely right to life, which includes right to live with human dignity as contained in Art. 21 of the constitution''.
The court ordered that the accused shall pay an interim compensation of Rs. 1,000/-per month to the victim (woman) of his crime (i.e. rape) during the entire period of trial proceedings. The court further ruled that "compensation to victim under such conditions will be justified even when the accused was not convicted.
In state of Maharashtra v. Christian community welfare council of India, the Supreme Court was called upon the decide whether the compensation paid by the State to the victim can be recovered from the guilty officer. Justice Hegde, speaking for the court held that it wills depend on the fact whether the alleged misdeed by the officer concerned was committed in the course of the discharge of his official duties and whether it was beyond or in excess of his lawful authority. If it was found that the appellant officers did cause the death of the deceased and exceeded their lawful authority, then they cannot escape the liability to compensate the heirs of the deceased victim.
In R. Gandhi v. Union of India, the District collector or Coimbatore had recommended that the state Government shall pay Rs. 33,19,003/- as compensation to those families of Sikhs and others living in Coimbatore, who were victims of arson and rioting in the wake of assassination of the former Prime Minister in India, Shri Rajeev Gandhi. The High court of Madras, upheld the order of the District collector. Justice S.A. Kadar of the court observed;
"Legally and morally by all cannons of fair play, by all principles of justice, equity and good conscience, the State of Tamil Nadu is bound to pay compensation to victims as assessed and recommended by this senior officer i.e. the collector of Coimbatore''.
In yet another landmark case on victim's compensatory relief namely D.K. Basu v. State of West Bengal the Supreme Court, inter alia made the following observation''.
"The monetary and pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for the redressal of the established infringement of the fundamental right to life of a citizen by the public sevants. The state is vicariously liable to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the state; which shall have the right to be indemnified from the wrongdoer''.
The Supreme Court in state of Andhra Pradesh v. chalia Ramakrishna Reddy, relying on its earlier decision in D.K. Basu, awarded Rs. 1, 44, 000/- as compensation against eh State Government for death of a person caused while he was in judicial custody. Rejecting the defence plea that the prisoner was put in jail in exercise of state's sovereign function, the court ruled that the concept of sovereign power is not an except in to the right to freedom of life, and constitutional guarantee of right to live overrides the theory of state immunity.
In Delhi Democratic working women Forum v. Union of India seven military jawans raped six village girls who were travelling by train. The court directed the central Government to pay Rs. 1,000/- to each victim as compensation and ordered that the names and identity of the victimized girls be kept secret to save them from social stigma. The court also directed the National Women commission to prepare a rehabilitation scheme for such victims and expressed the need for setting up of a criminal injuries compensation Board which should decide the quantum of compensation to be paid to victims of rape after taking into consideration their shock, suffering as well as loss of earning due to pregnancy and the expenses of child birth, if caused as a result of rape.
In the case of SAHELI (a woman social activist organization) the Apex Court directed the Delhi administration to pay Rs. 75,000/- as exemplary compensation to the mother of a nine year old boy who died due to beating by police officer while extracting information from his regarding the offence. The dispute in this case was related to the land lord (house owner) trying to oust the appellant (mother of the deceased boy) from his house and the police was allegedly favouring the land lord.
In cases where the damages caused are irreversible the only effective way to enforce such rights would be through compensation. This is internationally recognized principle. Example: Article 9 (5) of the civil and political Covenant, 1966, recognizes. "Any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation''. Similarly Article 14 of the Convention against Torture, 1985, makes it an obligation of the State to ensure in its legal system, the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, principle 35 of the body of Principles for protection of All Persons Under Any Form of Detention or Imprisonment (1988) also prescribes for remedy of compensation in case of any damage incurred because of acts of omission by public officials contrary to the rights contained in the body of principles.
The NHRC since its inception in 1993 has recognized this principle of compensation and has provided momentary relief in large number of cases. The following are some of the cases, reported in the Reports of NHRC:-
(1) Custodial death in Kunwargaon Police Station, Uttar Pradesh: A person named Desraj was arrested and burnt to death on 12th September, 1994. The commission recommended payment of Rupees 3,00,000 to the next of kin of deceased and asked the State Government to recover whole part of money from the service dues of errant police official.
(2) Death in custody of Armed Forces: Assam Rifles arrested one Sumi for moving in suspicious manner. Forces engaged Sumi in search for hideouts of insurgents. He was found dead in a ditch. The armed Forces said it was due to attempt to jump out of moving vehicle. The Commission recommended a compensation of Rs. 1,00,000 to the next of kin. The Defense Ministry obliged.
(3) Killings in Police Firing: The commission has awarded monetary compensation for those killed and injured CPI (MC) activists in Police firing in Begusarai, Bihar.
(4) Killing of Civilians in Manipur Cross Firing: On the allegation that there was indiscriminate firing by Assam Rifles in June 1994, where there were killings of 3 civilians, the commission recommended compensation of Rs. 50,000 to be paid to next of kin of those killed. The Defense Ministry complied.
Similarly for the deaths in custody of Ahmed Forces in Jammu and Kashmir, Manipur Commission had recommended payment of compensation and they were complied with:
(5) Death of 125 children in Pulbani District; As a result of malnutrition accompanied by repeated attacks of malaria, chicken-pox and other diseases 125 children died in pulbani District, Orissa in August-september 1993. The commission recommended the State Government to pay sum amounting to Rs. 6,52,000 to 125 tribal families whose children had died.
(6) Rape in Police Custody: For the custodial rape of T. Uma, by head constable of Alangulam Police Station, TamilNadu, the commission recommended for departmental action against head constable and others involved. The State Government sanctioned Rs. 1,00,000 as compensation to Uma.
(7) Stripping of Teenagers in Police Lock- up in Kerala; Seven boys were stripped and forced to spend two nights in police Lock-up at Triunelli in "Wayanad District, Kerala. The commission recommended for payment of compensation of Rs. 10000 to each of the seven boys.
(8) Victims of Riot in Gujarat: Two persons, Gulab Nabi and Zahir Ahmed died in communal riots in Surat, following the demolition of Babri Masjid. These persons were from Jammu and Kashmir who had come to Gujarat for trading in Shawls. With the intervention of the commission, the State of Gujarat paid Rs. 2,00,000 each to next of kin of the deceased.
(9) Custodial Death: For Custodial Death of Laxman Somnath Verma, Maharashtra, who died on 7th December, 1996, in prison hospital, the commission, asked the Government of Maharashtra to pay Rs. 25,000 as compensation. For custodial death of Balu Kala Sheke, Maharashtra, on 2nd August 1996, due to shock following head injuries, the commission asked the Government of Maharashtra to pay Rs. 50,000as compensation.
(10)Illegal Detention : For illegal detention of Kuldeep singh, by Punjab police, the Commission recommended compensation of Rs. 10000/- by way of interim Relief.
(11)Highhandedness of Police Official : A minor boy Sachin was mercilessly beaten By Head Constable of P.S. Dabri, in Delhi, for the reason that boy was playing "Gillidanda'' and his "gilli'' fell near police station's assistance booth. The Commission recommended paying compensation of Rs. 50,000/- to Sachin.
(12)Killing of 29 Bus passengers in Peren sub-Division, Nagaland: Twenty-nine Persons lost their lives in an attack by certain insurgent elements. The commission recommended the State Government to give ex gratia relief of Rs. 50,000/- to the families of 29 persons killed. The Government of Nagaland Has complied.
(13)Torture by Police and false implications in a criminal case, Haryana: One sher Mohd. Khan was beaten with sticks by Police constables as a result of which he Sustained injuries on his head and back. He was falsely implicated in a case under Section 448/506, IPC. The commission recommended that Rs. 25,000/- by paidBy Government of Haryana as interim relief.
(14)Policemen turn robbers and kill innocent citizens: It was alleged by one Rita Dhawan that while returning from Varanasi in Maruti Van, they were surrounded by six policemen near police station, civil lines, Ranchi and demanded Rs. One Lakh. On refusal, the petitioner was shot dead. The commission recommended the State Government to pay interim relief of Rs. Ten Lakhs, to Rita Dhawan, without prejudice to her private law rights. The State Government has complied.
(15)Brutal Killing by Police, Bihar: A Police Party led by Sub-inspector visited village Joitali in 12th December 1998 and shot one Santosh Kumar who fell injured. While Still alive Santosh was put in jeep and taken towards Purnea. He was denied water in spite of several requests. On the way to Purnea he died. The commission recommended an interim relief of Rs. 5.00 lakhs to be given to the widow without prejudice to her other rights.
(16)Death of child in judicial custody, Haryana: Girl children of two months along with another aged two years were lodged with their mother in Rohtak District Jail. The infant child of two months died. Mother alleged that she did not get diet to which she was entitled immediately after delivery and that, in turn she was unable to provide requisite nourishment to the suckling child. The commission has held that the death of child could not be "natural'' and asked the State Government to pay Rs. 20,000/- as interim relief.
(17)Victims in cases of industrial hazards, Uttar Pradesh: Eight workers lost lives because of accident occurred due to explosion caused by leakage of an inflammable chemical, hexane, petitioner alleged accident due to neglect of safety conditions. With intervention of commission, an immediate relief of Rs. 5,000/- was paid to victims, apart from compensation by the State.
Thus it may be said that NHRC has laid down precedents on powerful foundations in awarding compensation to the victims of violations of human rights. NHRC has awarded compensation whenever the act is unauthorized, unlawful, illegal, grossly negligent, non-implementation of law, dereliction of duty etc., and another noteworthy feature of NHRC recommendation is that it has tried to fix personal liabilities on the errant officials. This makes the Public Authorities sensitive to the human rights of the people and also cautions the other Authorities in future to respect for human rights of the people.
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