Open Access Research Article
HUMANISING CRIMINAL JUSTICE RESPONSE AND PUNISHMENT FOR THE OFFENDER By: Anantha Narayanan B
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Article Details
HUMANISING
CRIMINAL JUSTICE RESPONSE AND PUNISHMENT FOR THE OFFENDER
Authored By:
Anantha Narayanan B
Roll No.:
20191BBL0114
Semester: 9th
Name of the
Program: 5 year (BBA, LL.B Hons.)
PRESIDENCY
UNIVERSITY
BENGALURU -
560064
ACKNOWLEDGEMENT
The
ultimate result of this project required a lot of supervision and guidance from
many people and I am really privileged to have got this all along the
completion of my research work. Whatever I have done is only due to such
guidance and I would like to thank them for the same.
I
thank my respected Research Methodology Professor- Mrs. Aprajita Verma , for
giving me a chance to do this research paper and for her consistent support and
guidance which helped me to complete it on time.
SYNOPSIS
ABSTRACT
The purpose of this article is to contribute to a new reflection on the
position of the convicted person: humanization. Humanization is thought to
discourage punitive criminal punishment and mechanical case processing by
making human crimes more understandable. However, this paper makes a compelling
argument that “humanization work” often achieves profound potential results. It
removes a possible danger to the individual himself that seems at odds with his
formal admission of guilt. Humanizing work succeeds in the case by removing the
possible danger that a person’s own account seems to contradict his formal
admission of guilt (e.g., a guilty plea). I apply Douglas’s work on purity and
contamination and use empirical illustrations to show how the "dirty
work" of humanizing the person to be punished clears the case of troubling
ambiguity and makes the punishment more reliable for execution.
OBJECTIVE
Understand the problems faced by prisoners and defendants and the
shortcomings of the criminal justice system.
RESEARCH QUESTION
·
Are
there shortcomings in the criminal justice system that result in the violation
of the human rights of the accused?
·
Can the punishment imposed on the accused be
humanized?
RESEARCH METHODOLOGY
·
This study is of the doctrinal type and relies on a
variety of articles, books, journals, and some Internet resources. The nature
of the study is descriptive, explanatory, analytical and comparative.
Primary
sources - The primary sources for the study are:
·
The Constitution of India
·
The Indian Penal Code
·
Secondary sources - The secondary sources include
various Journals, Research Papers and Internet Resources.
SCOPE
This study
extends to most problems faced
by prisoners and the accused
in prisons in India.
SIGNIFICANCE
This research
paper is important for bringing out reforms in the criminal justice
system.
TABLE OF CASES
·
A.K. Gopalan v. Madras, AIR 1950 SC 27
·
Maneka Gandhi v. UOI, AIR 1978 SC 597.
·
Satish v. Sharma, AIR 1954 SC 300
·
Mohd Dastagir v. Madras, AIR 1960 SC 756.
·
State of Bombay v. Kathi Kaiu Oghad, AIR 1961 SC 1801.
·
Raja Narayanlal Bansilal v. Mistry, AIR 1961 SC 29
·
RC Mehta v. West Bengal, AIR 1970 SO 940
·
Hussainara Khatoon & Ors vs Home Secretary, State
Of Bihar, AIR 1979 SC 1360
·
Kadra Pahadiya v. Bihar, AIR 1982 SCU 67.
CHAPTER I
INTRODUCTION
Introduction
Law often reflects a duality: in attempting to protect one interest, it
negatively affects other interests. Nowhere is this functional duality of law
more evident than in criminal law. While the purpose of criminal law is to
protect society from criminals, an overemphasis on this protection tends to
result in an infringement of the interests of innocent people. In authoritarian
societies, the first aspect takes precedence, but in democratic societies such
as India and the United States, with their traditions of individual liberty and
the establishment of fundamental rights, the two interests must be balanced.
However,
this is not an easy task. The judiciary is struggling to find the line between
these two interests. The contrast between the American and Indian experience is
very instructive in this complex and delicate task of justice. Both are
governed by the rule of law. The constitution of each country enshrines
fundamental human rights. Both countries have a common law tradition.
And
authoritarianism is anathema to the people of both countries. A fertile ground
for socio-legal analysis lies in the realm of criminal justice. The judiciary
is not always on the same page as the police in its all too simple task of
reading the law and filling in the gaps in it. Factual or sociological evidence
is essential for the courts to chart their course and leave to others the
validity of their suggestions. Unfortunately, in India, with the exception of a
few. Unfortunately, in India, except for a few recent studies and exposés,
there is no socio-legal angle in this area. Such research is sorely needed
because human freedom depends most on how the criminal law works.
CONSTITUTIONAL RIGHTS OF THE ACCUSED: AN EXPANDING
FIELD
The specific constitutional rights given to the accused are only few.
They are contained in articles 20, 21
and 22. These rights deal with
a) Ex-post facto criminal laws.
b) Double jeopardy.
c)
Privilege against self-incrim¡nation.
d)
Right of the
accused to be informed of the grounds of his
arrest and to consult his lawyer.
e)
Right of the
accused to be produced
before a magistrate within 24 hours.
f)
Right
of a person not to be deprived of his life or personal liberty except according
to "procedure established by law".
In the
process of judicial interpretation, courts have granted many rights to the
accused. This process
began with the decision in Maneka Gandhi v. India.[1]
After the traumatic experience of the 1975-1977 Emergency, the Supreme Court of
India became more sensitive to the arbitrariness of the executive and the
protection of people from arbitrary laws and procedures. India's Supreme Court
has shown great sensitivity to the arbitrariness of the executive and the
protection of people from arbitrary laws and procedures. The most landmark
decision in this regard was the Maneka Gandhi case, which brought about a
fundamental change in constitutional jurisprudence on fundamental rights by
inserting the three-letter word 'due' in Article 21 of the Constitution. A
literal reading of Article 21 shows that for depriving a person of life and
personal liberty, an administrative authority needs only the support of the
law. It is not for the courts to decide whether the law provides fair and
reasonable procedures. The Supreme Court specifically addressed this issue in
one of its earliest cases[2]
and held that in light of the express language of Article 21 (deprivation of
personal liberty by "procedure prescribed by law") there is no room
for the application of "due process of law" to personal liberty. in
1978 when Gopalan dominated the Maneka case, the decision was reversed. when
Gopalan had dominated the field for nearly 30 years. In Article 21 the term
'due process of law' has given life to the fundamental right to individual
liberty granted to the people by the Constitution.
It is not the intention of this
article to overburden itself by discussing all the rights mentioned above, but
only those which are controversial or those not expressly mentioned but which
the Supreme Court has derived from Article 21 and which have led to important
reforms in the administration of criminal justice. When it was upset by Maneka in 1978, Gopalan held the
field for almost 3 decades. In Article 21, the reading of the word
"due" has given life to the otherwise lifeless fundamental rights of
personal liberty granted by the Constitution to a citizen.
It
is not proposed to overload
this paper by discussing all the aforesaid
rights, but only to take up
such rights which are controversial and debatable and also such rights which
are not expressly mentioned but which the Supreme Court has inferred from
article 21 and which have brought about significant reforms
in the criminal justice administration. We basically discuss the following (i) self-incrimination; (ii) bail and undertrial prisoners;
(iii) legal aid; (iv) bar fetters; (v) prison reform and (vi) exclusion of illegally obtained
evidence.
PRIVILEGE AGAINST SELF-INCRIMINATION
Article 20 of the Constitution of
India provides for a privilege against self-incrimination. Since the adoption
of the privilege as a principle of criminal jurisprudence, the common law world
has debated two issues: whether individuals should be afforded some protection
from State repression and abuse of power, and whether the State should be
prevented from arresting criminals and undermining the public interest in
punishing them and achieving justice. For many years, there has been a debate
on the question. This debate is far from over. However, the fact remains that
the Constitution of India recognizes it as part of the jurisprudence of the
country. However, the fact remains that the Constitution of India recognizes it
as part of the jurisprudence of the country. The International Commission of
Jurists regards privilege as an integral part of the rule of law[3].
It is not satisfied with the manner
in which the judiciary has responded to privilege. There has been a tendency to
dilute rather than improve privilege and this was the case until 1978 when the
Supreme Court of India held in a case that privilege was not an integral part
of the rule of law4. The scope and applicability of the privilege has been
limited in various cases decided by the Supreme Court of India. As a result, it
has been held that the privilege does not extend to administrative searches and
investigations[4] and that
it applies to police investigations only when a person has been formally charged
with a crime[5].
The right did not extend to searches
and arrests pursuant to search warrants. This right naturally included oral
testimony, but did not extend to documentary evidence[6]
(unless the documents were based on the personal knowledge of the accused) or
to physical examination of the accused's fingerprints, signature, or
handwriting samples.[7]
There was no presumption that an offender made involuntary statements only
while in custody.[8] For many
years, this right in the hands of the courts was so stifled that it can be
considered, without much discussion, to have been properly or even
unceremoniously buried In 1978, in Nandini Satpathy v. P.L. Dani,[9]
the Supreme Court rediscovered and revived it. This decision gave vitality to
the Indian privilege of secrecy. The Supreme Court of India followed the famous
American case of Miranda v. Arizona[10].
In the Nandini case, the main issue was whether coercion could be contemplated
in police custodial interrogations. The Court held that it must be provided.
The Court suggested a number of measures to ensure the safety of arrested
persons in police custody. As in Miranda, the Court held that the police, if
they can afford it, may permit an attorney to assist his client, but that the
police are not required to wait more than a reasonable time for the attorney to
arrive. However, the court did not follow the Miranda statute that the state
must provide counsel if the defendant is indigent.
The court held that a person's
"economic capacity is irrelevant to the scope of the rights at issue
here." The Court ignored Miranda's instruction that "the
constitutional privilege against self-incrimination extends to all
persons." The second liberal view of the privilege adopted by the court
was that police must always warn and document the truth "about the right
against self-incrimination." However, this warning is of a slightly
different kind than in the US.
In the US, the accused has the right
to remain completely silent, whereas under the jurisdiction of Indian courts,
the accused has the right to refuse to answer only incriminating questions. In
other words, the court holds that questions that are not incriminating can be
asked and that the accused is obliged to answer as long as they do not have a
strong incriminating tendency. The court distinguishes between the concepts of
relevancy and criminality. Relevancy is a tendency to increase the probability
of a fact." There is no basis for this distinction. If a person is charged
with a crime, all "relevant" facts must be considered in terms of
criminality; there are no facts devoid of this element. The American point of
view is certainly a better one.
The police are unhappy with a court
decision which they feel interferes with their investigative powers. However,
the procedures followed in this case do not seem to be affected by that
decision. A sophisticated police machinery
is necessary to comply with the decisions of the court that
are not present. Nevertheless, the principles laid down
by the Court are perfectly reasonable and should be preserved because it is one
way to civilize the police in the long run.
CHAPTER II
UNDERTRIALS AND BAIL
One unfortunate aspect of the administration of criminal justice in India
is the disproportionate number of non-custodial inmates in prisons. Thus, the
unsentenced prisoners account for 54.9% of all prisons; in 1975, the
unsentenced prison population was 57.58%.[11]
The figures for 1981 were also depressing: there were 1,262 prisoners in
prisons who had served three years and 76,022 prisoners who had served less
than three years. In 1981-82, a total of 137 prisoners who had not served their
sentences died in various parts of the country. As of June 30, 1981, out of a
total prison population of 1,41,761, 87,144 (61.5%) had not been sentenced to
imprisonment. This situation is a gross violation of human rights. These
prisoners who have not been sentenced fall into the following categories:
1.
those who have been denied bail by the courts because
of their involvement in serious crimes; and
2.
those for whom bail could not be granted for any
reason. These unsentenced prisoners fall into two categories: those held for
investigative purposes and those awaiting trial. The majority of prisoners who
have not been sentenced fall into these two categories.
Unconvicted prisoners suffer not only from deprivation of personal
liberty, but also from depressing prison conditions, overcrowding, extremely
poor working conditions and living with prisoners. However, were it not for the
two innovations, the plight of prisoners without conviction would not have
changed. The Law Commission of India took up the issue in its 78th Report on
the Custody of Unconvicted Prisoners in Jails (February 1979). The issue was
brought to the doorstep of the Supreme Court by Ms. Kapila Hingorani, a
dedicated public interest lawyer1.[13]
In a series of cases known as Hussainara
Khatoon,[14] The court investigated the matter and gave different
remedies. In these The
Court was clearly concerned about the condition of the prisoners held in Bihar jails
during the trial and the Maneka judgment formed the basis of these orders.
The Court was saddened and shocked by the plight of the unsentenced
prisoners who have been in Bihar jails for three to ten years. These
unsentenced prisoners fall into the following categories:
1. those
who are detained beyond the maximum period prescribed under the sentence of the
court; and
2. those
who have been detained for more than half of that period; and
3. who,
pursuant to section 468(2) of the Crimes Act, have had the statute of
limitations for trial expire; PC;
4. in
respect of whom the investigation of the case has lasted more than six months
(see Art. 167(5) of the Crimes Act; PC);
5. who
are victims and have been detained for more than half that period; PC
6. women
prisoners who are victims and in need of "protective custody" or as
witnesses;
7. women
prisoners who are victims and in need of "protective custody" or as
witnesses;
8. women
prisoners who are victims and in need of "protective custody" or as
witnesses; PC
9. the
insane and insane.
Most
of the above prisoners are held in jail due to non-payment of bail. The courts,
on finding this circumstance, take upon themselves the task of providing
remedies. With respect to criminal justice, the court has drafted several new
bills and issued a number of orders to provide relief to prisoners.
This
paper discusses these ideas here and elsewhere as appropriate. In the court's
view, it is inhumane to keep people convicted of crimes in prison for long
periods of time without trial. The court's interpretation of "speedy
trial" in Maneka implied the broad scope and content of Article 21. The
Court ordered the release of all prisoners who had been held in prison beyond
the full term for the offense for which they were convicted. Similarly, the
Court released persons who were detained despite the expiry of the limitation
period for prosecution under Article 468(2). The Court has ordered compliance
with section 167(5) Cri in respect of prisoners detained in summons cases where
the investigation has not been completed.
PC
(the judge shall order their release unless he or she considers that the
interests of justice require that the investigation be continued).
According
to the court, the normal time required for "speedy trial" is six
months. The court ordered the High Court to provide the necessary information
to achieve this quality. The court ordered the state to provide legal aid for
the bail of prisoners who are in jail for half of their entire sentence. The
court did not take into account that mentally ill and insane people "may
be kept in the same jail with other prisoners who have not been
sentenced". Women prisoners who were victims of crime and detained to
testify were to be housed in social welfare institutions, and the state was
obliged to establish a sufficient number of such institutions.
As
noted by the International Commission of Jurists, there are four grounds for
the detention of accused persons in prison:
a)
Where particularly serious offenses have been
committed;
b)
If the accused is likely to interfere with witnesses or
obstruct the course of justice; or
c)
if the accused is likely to commit the same or another
offense; or
Denial of
bail and detention of the accused in pre-trial detention have serious
consequences for the persons concerned. First, pre-sentence detention has a
punitive content. Second, it disrupts family life and can be financially
devastating to the family. Third, it is noted that:[16]
"For those who are detained
while awaiting trial, the chances of acquittal are certainly slim."
According to a study by the Home Office in England (Table 6, p. 9), about 9.5%
of those tried in 1956 were acquitted, of whom 8% were on bail and 1.5% were in
custody.
1.5% were in custody. Unfortunately,
bail as a subject of study in criminology has been neglected, as no useful
study seems to have been done in India, though such studies are constantly
being done in other countries. Michael Zander in his excellent article on bail
mentions the following.
The possibility that prisoners in
custody are less likely to be found not guilty than prisoners on bail is
supported by findings in both the United States and Canada."
Fourth, "a study in the UK found
that a higher proportion of unconvicted prisoners plead guilty than prisoners
on bail. Similar studies should be conducted in India to bring back to the
courts the effects of indiscriminate detention. The fact that so many people
are forced to plead guilty to end their suffering is nothing short of the
melancholy of detention." A study in the UK found that a higher proportion
of prisoners on remand plead guilty than those on bail. Similar studies should
be conducted in India too so that courts can visualize the consequences of
indiscriminate detention. The depressing nature of detention alone should
compel many to plead guilty to end their suffering.
The bail system is closely linked to
the issue of unsentenced prisoners. It is a question of a liberal or rigid
approach to bail. Considerable progress has been made on these two issues.
In Hussainar[17]
the court insisted on a liberal approach to the issue as a feature of the bail
system. The court found monetary security for bail to be archaic. The court
stated:
"It is time for our Parliament
to recognize that not only is the possibility of financial loss the only
deterrent to flight from justice, but that there are other factors which play
an equally important role as a deterrent. Our country is a socialist republic
committed to the principles of social justice, and according to our
Constitution and the document signed by the Parliament, in granting bail, it is
not so much the risk of financial loss but other important considerations such
as family ties, roots in the community, job security and membership in stable
organizations that should be the determining factor, and where appropriate, the
accused should be released on personal bail without financial obligation, and
whether personal bail without financial obligation will not be a deterrent.[18]
Even under the current law, it has
been held that the accused should be released without bail if the court is
satisfied that the accused is rooted in the community and is not going to
abscond. In order to assess The issue of "roots in the community":
(a) length of residence in the community; (b) job situation, history, and
financial status; (c) family ties; (d) reputation and character; (e) prior
convictions; and (f) risk of failure to appear, taking into account the nature
of the offense and likelihood of conviction.
In addition, in determining the
duration of personal bond, the court indicated that the availability of amnesty
was not the only factor; other important factors were the defendant's financial
situation and the likelihood of kidnapping. The court ordered the release
without financial obligation of a number of prisoners who had been in jail for
years on personal bail (as an exceptional measure in view of the fact that
these persons had moved from one jail to another without trial).
The Law Commission of India has also
advocated liberalization of the law on bail. It (a) punishes bailable offenses
with imprisonment for a term not exceeding three years unless the nature of the
offense otherwise requires; (b) in case of bailable offenses, empowers the
court to release the surety on personal bail if he is unable to furnish bail
within one month; and (c) does not retain the person beyond the amount of bail,
support the following.
The trend toward liberalizing bail
for arrestees is vividly reflected in the anticipatory bail provision in
Article 438 of the Criminal Code. The validity of this provision was recognized
by the Supreme Court in Balchand v. State of Madhya Pradesh[19]
as follows:
'The Legislature should have
enshrined in Section 43S of the Act a beneficial provision applicable only to
non-bailable offenses so that the liberty of the subject is not jeopardized on
frivolous grounds at the behest of unscrupulous and irresponsible persons or
officers...' [emphasis mine].
Looking at the problem holistically,
it is correct to take a liberal approach to the question of bail for the
accused and to deny bail only in the four situations mentioned earlier. If the
court denies bail, it is obliged to give reasons for the denial.
The judgment in Husaynara's case
received an encouraging response from the Central Government. The central
government agreed to the various suggestions of the court[20].
But on the other hand, in order to
combat social evils like dowry, Magistrates (in collaboration with the police)
are misusing the Bail Act by denying bail in cases where the victim has died
due to suicide. In such cases, the husband and/or in-laws are charged with
abetment of suicide under Section 306 of the Penal Code. In such cases, the
husband and/or in-laws are charged with assisted suicide under Section 306 of
the Penal Code. In all probability, the accused can be charged with abetment
because the suicide was caused by the emotional state of the victim's husband
and the violence in the relationship due to inadequate dowry. It is common
knowledge that charges of abetment do not stand up in court, but when a person
or persons are imprisoned for some time (after denial of bail), the public mind
is soothed by the fact that such a person has been punished in some way. This
may be true, but it is a perversion of the law.
Power of arrest: it is the arrest of
a person that gives rise to the question of detainees and the need for bail. It
is necessary for the police to exercise their power of arrest judiciously.
However, the police are not performing well in this matter.
Police powers of arrest are powerful
and generate a lot of violence. According to the National Police Commission,
this is a major cause of police misconduct and misconduct. Despite the fact
that the power of arrest is discretionary in criminal investigations,
"some police officers give the impression that arrest is coercive."
The Commission stated:
"Fear of the police essentially
stems from a fear of being caught by the police in some way. It is widely
understood that false criminal cases are often simply invented for the purpose
of making arrests to humiliate and embarrass some of the complainant's real
enemies who have colluded with the police for unethical purposes."[21]
The Commission recognizes that
"the police are now practicing indiscriminate arrests in the course of
investigations." One researcher noted that "the arrest law seems to
have moved away from its purpose of allowing the police to make arrests in
respect of all imputable offenses and obliging the police to arrest all those
whom they are legally entitled to arrest."
Objective". The National Police Commission supports the development
of guidelines for police making arrests of persons in the context of crimes
under investigation. The Commission recommends that an arrest during the
investigation of a criminal offense should be justified in the following cases:
(i)
The case involves a serious crime such as murder,
dacoity, robbery or rape and it is necessary to arrest the accused and restrain
his behavior to instill confidence in the frightened victim
(ii) The accused
is likely to abscond and evade due process; and
(iii)
The accused is prone to violent behavior and may
commit new crimes if his or her behavior is not restrained.
(iv) The
defendant is a hardened criminal and is likely to reoffend with similar
offenses if not taken into custody.
LEGAL AID
There is no clear statutory right for an accused person to seek legal
assistance. Article 22 only allows for the right of the accused person to be
informed and defended by a lawyer. Even the Forty-Second Constitution adopted
in 1976, merely requires the addition of Article 39A to the chapter on
Directive Principles of Public Policy, which orders the State to provide 'free legal
assistance.’ This is merely a directive and does not in any way give
a legal right to the accused to secure free legal aid.
This constitutional gap, however, has been filled up by the court holding
free legal aid as an essential requisite of the "due procedure" for
depriving a person of his personal liberty. In M.H. Hoskot v. State of
Maharashtra,[22]
emphasising this aspect, The Supreme Court held that a prisoner who has been
convicted by a court but is entitled to appeal against the verdict could assert
the right of counsel to argue his appeal, and it was the responsibility of the
state to provide him with legal assistance if he could not afford the counsel,
being indigent. In such a case the court must
appoint the accused to a lawyer
and the state must pay a resonable amount that can be set as remuneration by the court.
Numerous egregious cases
demonstrate that, on the one hand, the country's prisons are synonymous with
dehumanization and depravity, and on the other, they are a haven for greed, callousness
and cruelty. In the face of harsh and inhumane conditions, repeated attempts to
reform the penitentiary system have failed to bring it to a halt, let alone a
comprehensive reform. Once again, a number of egregious cases demonstrate that
some of the country's prisons are synonymous with dehumanization and depravity
on the one hand, and cesspools of greed, ruthlessness and cruelty on the other.
Under harsh and inhuman conditions, repeated attempts to reform the prison
system have failed to take a single step forward, let alone comprehensive
reform.
In Husaynara's case, the principle
of legal aid was re-emphasized, with the court ruling that legal aid should be
available to prisoners who have not been sentenced to imprisonment, for bail,
as well as for defending themselves during the judicial process.
PRISON JUSTICE
Shockingly poor and scandalous conditions reign in Indian jails, and the
mistreatment of prisoners has attracted the attention of the judiciary,
government and journalists in recent years. Conditions in Indian prisons have
been highlighted by a group of journalists as follows:
"Many brutal incidents have shown that the country's jails are
synonymous with dehumanization and depravity on the one hand and cesspools of
greed, callousness and cruelty on the other." In the face of harsh and
inhumane prison conditions, repeated attempts to reform the penitentiary system
have failed to make a single step forward, let alone a comprehensive reform of
the system.
As a result, an experienced prison observer was forced to note that India
had developed a "prison subculture" that sanctified barbaric
treatment of prisoners, including torture, forced labor, sexual perversion,
starvation diets, and widespread abuse and exploitation by petty officials
surrounded by powerful leaders.[23]
Another journalist paints a similar picture of the capital's main Tihar
Jail in Delhi:
"The sprawling Tihar Central Jail complex lurks like a squat beast
on the western outskirts of New Delhi. Tihar, like other large jails in poor
and overcrowded countries, also bears the grim marks of tyranny, lust, greed
and man's perennial attitude towards his fellow human beings. Both prisoners
and underclassmen are united by woefully inadequate and inedible food, hard
labor, unscrupulous guards, and filthy water. "24
Solitary confinement is sometimes offered by prison authorities as a
punishment for death row inmates or other prisoners. Solitary confinement is a
perversion of humanity and should be excluded as far as possible. The protections
mentioned in the previous paragraph should also be respected in relation to
solitary confinement as a punishment. Prisoners sentenced to death have the
same life status as other prisoners, except for two details. First, they are
under [24]-hour
surveillance by guards. In addition to these two restrictions, under the rules
of just imprisonment prison officials cannot be denied such amenities as games,
newspapers, books, walks except during twilight hours, and visits from inmates
and visitors. Finally, in Sunil Batra I, the court made another important
suggestion: if prisoners are too poor to afford a lawyer, legal aid should be
provided to help them get justice from the authorities and, if necessary,
challenge their sentence in court.
Tihar Jail is an environment of stress, trauma, tantrums, abuse,
vulgarity and corruption - all of which are crimes. On top of that, the jail
holds hardened criminals and "international gang prisoners" pending
trial. To make matters worse, prison officials themselves are rumored to be in
solitary confinement in collusion with criminals. In other words, there is an
extensive network of criminals, officials and nonofficials operating in
correctional facilities. Drug racketeering, alcoholism, smuggling, violence,
theft, and unconstitutional punishments of solitary confinement and transfers
to other prisons are not uncommon.[25]
Until now, prisons have not been viewed as correctional treatment
centers, but simply as places of detention. The Commission emphasizes the need
to establish correctional treatment services in prisons.
The government's response to prison reform has been limited to appointing
commissions or committees on paper to make recommendations for prison reform.
Since 1950, more than 23 such commissions have been set up proposing reforms in
prison management; in 1977, the Tekchand Commission produced an extensive
volume of papers. And now the Commission on Prison Reforms (Mulla Commission)
has released yet another report. However, nothing substantial has come out of
the work of these commissions[26].
Nevertheless, it remained for the judiciary to humanize the prison
administration to some extent. The Supreme Court did so in Sunil Batra[27]
and in Prem Shankar v. Administrator of Delhi. Above all, the court proceeded
on the premise that the fundamental rights to which people are entitled do not
remain outside the prison door. The punitive, inhuman, scandalous and inhuman
treatment of prisoners in custody by the authorities is contrary to Articles
14, 19 and 21 of the Constitution. These human rights are non-negotiable.
(a) handcuffs and shackles; (b) solitary confinement; (c) punishment of
prisoners by prison authorities. Handcuffing and shackling are regarded by the
Court as inhuman treatment of prisoners. They are humiliating, indecent and
cause physical and mental suffering to prisoners. Except to prevent escape or
in dangerous and desperate cases, iron fences are irrational.
The imposition of handcuffs or chains on prisoners as punishment may
occur either inside the prison or on the prisoner's journey to and from prison
to court. In both cases, the courts have condemned the use of handcuffing of
prisoners; in Sunil Batra I, it was held that only the prison authorities can
punish the use of handcuffs, subject to certain procedural safeguards. The
court set out the following safeguards: (a) the use of handcuffing must be
absolutely necessary; (b) the reasons must be recorded; (c) the underlying
condition of dangerousness must be well founded; and (d) natural justice must
be satisfied.
Similarly, if any penalty is to be placed on an inmate, such as placing
him in a solitary cell or hard labour or denying him the requisite facilities
for his misconduct, it was held in
Sunil Batra II that this can only be
achieved by observing certain procedural safeguards. "a hearing at some
stages, a review by a superior, and early judicial consideration"a hearing
at some stages, a superior's review and early judicial consideration.[28]
Solitary confinement can be provided by way of punishment to a prisoner
who has been sentenced to death or to other prisoners by the jail authorities.
Solitary confinement is a perversion of mankind and should be avoided as much
as possible. The protections alluded to in the preceding paragraph are to be
followed with respect to solitary confinement by way of punishment. The same
prison life status as other inmates is to be granted to an inmate serving a
death sentence except in two detail. Secondly, these inmates are subject to 24
hours of supervision by guards. With the exception of those two limits, any of
the community facilities such as games, newspapers, books, traveling about
except between dusk and dawn), and meeting inmates and visitors, subject to
fair prison management regulations, should not be denied. Finally, in Sunil
Batra I, the court laid down another significant proposal that legal assistance
should be provided to inmates to obtain justice from the authorities and also,
if need be, to challenge the decision in the court, where the prisoner is too
poor to afford a lawyer.
CONCLUSION
Each Supreme Court decision is a
response to certain sociological facts that have come to light through the
efforts of certain journalists and like-minded lawyers. Each of these facts
speaks of a too uncomfortable state of affairs in the administration of
criminal justice. Another sociological aspect of police activity is related to
the previously mentioned "use of third-degree relatives." The
findings of a journalist concerned the use of torture by the police in Delhi,
where there are at least four interrogation rooms. These are located in the
historic Red Fort building, the Central Reserve Police Force hostel Kingsway
Camp, the Revenue Intelligence Bureau complex and the basement of Indraprastha
Estate.
The case of Sheela Barse v
Maharashtra shows that even women are not free from ill-treatment in detention.
The court's approach to humanizing the administration of
criminal justice has met with strong opposition from the police. The decision
has been made and now it is time for a discussion between the police, judges,
lawyers and academics. Indeed, such a discussion would be fruitful in
addressing the problem.
BIBLIOGRAPHY
BOOKS
·
The - Sarkar On The Indian Penal Code, 1860(Act No. 45
Of 1860) By S.C.Sarkar Edition: 2014
·
PSA Pillai's Criminal Law 14th Edition
·
Ratanlal & Dhirajlal’s the Indian Penal Code
JOURNALS
·
Human Rights And Administration Of Criminal Justice,
S.N. Jain
·
Humanising Punishment? Mitigation And “Case-Cleansing”
Prior To Sentencing
·
The Rationale And Purposes Of Criminal Law And
Punishment In Transitional Contexts, Elena Maculan And Alicia Gil
·
Humanizing The Criminal Justice Machine: Re-Animated
Justice Or Frankenstein’s Monster? The Machinery Of Criminal Justice, Stephanos
Bibas
WEB SOURCES
·
Heinonline
·
JSTOR
·
LexisNexis
·
SCC Online
·
Manupatra
[1] AIR 1978 SC 597.
[2] A.K. Gopalan v. Madras,
AIR 1950 SC 27.
[3] Human Rights 27 (1966).
[4] For instance, Raja Narayanlal Bansilal v. Mistry, AIR 1961 SC 29; RC Mehta
v. West Bengal,
AIR 1970 SO 940.
[5] Satish v. Sharma, AIR 1954 SC 300; Mohd Dastagir v. Madras, AIR 1960 SC
756.
[6] State of Bombay v. Kathi Kaiu Oghad, AIR 1961 SC 1801.
[8] Mohd. Dastagir v State of Madras,
AIR 1960 SC
756.
[9] AIR 1978 SC 1025.
[10] 3844. S. 436 (1966).
[11] Information given to the Rajya Sabha by the Minister for Home Affairs, Amrit Bazar Patrika,
Calcutta, dated July 22, 1982.
[12] See Infra
[13] See Baxi, The Crisis of the Indian Legal System 227-28
(1982).
[14] AIR 1979 SC 1360 at 1369, 1377, and 1819. Also Kadra Pahadiya
v. Bihar, AIR 1982 SCU 67.
[15] The Rule of Law and Human Rights 29
(1966).
[16] Balsara, supra note 14 at 343.
[17] AIR 1979 SC 1360.
[18] Id. at 1363.
[20] See the statement of the Minister
of Home Affairs in Rajya Sabha on July 19, 1982, 123 Rajya Sabha Report 219.
[21] R.V. Kelkar, "Law of Arrest: Problems
and Incongruities," 22 JILI 314, 316 (1980).
Also D.C. Pandey,-Search for an Action Against
Illegal Arrest", ibid, at 328.
[22] AIR 1978 SC 1548.
[23] Life Behind Bar, Times of India, dated May 23,24 and 25, 1983
[24] Kumkum Chadha, The Indian Jail 9-10 (1983).
[25] AIR 1980 SC 1576, 1586.
[28] AIR 1980 SC 1594
Article Information
HUMANISING CRIMINAL JUSTICE RESPONSE AND PUNISHMENT FOR THE OFFENDER By: Anantha Narayanan B
Authors: Anantha Narayanan B
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/23
- Issue 7
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