1

PENOLOGY AND VICTIMOLOGY

Define punishment. What is punishment?

Some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or
wrong, or for the omission of the performance of an act required by law, by the judgment and
command of some lawful court.

A penalty is the punishment imposed upon a person who has violated the law, whether or a
contract, a rule, or regulation. A penalty can be in response to either civil or criminal violations,
though civil penalties are usually less severe.

Punishment, the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the
transgression of a law or command). Punishment may take forms ranging from capital punishment,
flogging, forced labour, and mutilation of the body to imprisonment and fines. Deferred
punishments consist of penalties that are imposed only if an offense is repeated within a specified
time.

In the dictionary meaning, the term ‘punish’ means to make someone suffer from a crime or for an
unlawful behaviour or the imposition of penalty as punishment for an offense. In criminal law,
‘punishment’ means any pain, penalty, suffering inflicted upon a person by the authority of law and
the sentence of the court for some crime committed by him or for his exclusion of a duty enjoyed by
law. The punishment maintains the law and order, it safeguards the person and the property. The
culprit abstains from wrongdoing for the fright of punishment and therefore, the punishment and
the law are indivisible.

Briefly explain the theories of punishment 10

1. Retributive theory
2. Deterrent theory
3. Preventive theory
4. Incapacitation theory
5. Compensatory theory
6. Reformative theory
7. Utilitirian theory

Retributive theory

Retribution is the most ancient justification for punishment. This theory insists that a person
deserves punishment as he has done a wrongful deed. Also, this theory signifies that no person shall
be arrested unless that person has broken the law. Here are the conditions where a person is
considered as an offender are:

 The penalty given will be equivalent to the grievance caused by the person.
 Performed a crime of certain culpability.
 That similar persons have been imposed for similar offenses.
 That the action performed was by him and he was only responsible for it. Also, he had full
knowledge of the penalty system and possible consequences.

Deterrent theory
 2

In Deterrent theory of punishment, the term “DETER” means to abstain from doing any wrongful act.
The main aim of this theory is to “deter” (to prevent) the criminals from attempting any crime or
repeating the same crime in future. So, it states that deterring crime by creating a fear is the
objective; to set or establish an example for the individuals or the whole society by punishing the
criminal. That simply means, according to this theory if someone commits any crime and he/she is
punished by a severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of this fear in the
minds of the people of the society, the people may stop from committing any kind of crime or
wrongful act. Here I used the phrase “may stop” instead of “will stop”. That means, there is a
probability of committing any crime or repeating the same crime.

Preventive Theory

Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals.
Main object of the preventive theory is transforming the criminal, either permanently or
temporarily. Under this theory the criminals are punished by death sentence or life imprisonment
etc.

This theory has used a restraint that an offender if repeats the criminal act is culpable for death,
exile or imprisonment. The theory gets its importance from the notion that society must be
protected from criminals. Thus, the punishment here is for solidarity and defence.

The modern criminologists saw the preventive theory from a different view. They first realized that
the social and economic forces should be removed from society. Also, one must pay attention to
individuals who show anti-social behavior. This is because of psychological and biological handicaps.

Incapacitation Theory

The word “incapacitation” means ‘to prevent the offence by punishing, so that the future generation
fears to commit the criminal act.’ Incapacitation happens either by removing the person from the
society, either temporarily, or permanently, or by some other method, which restricts him due to
physical inability. One of the most common way of incapacitation is incarceration of the offenders,
but in case of severe cases, capital punishments are also applied. The overall aim of incapacitation is
preventing or restraining the danger in the future. Definition: “Incapacitation refers to the
restriction of an individual’s freedoms and liberties that they would normally have in society.”
Purpose of Incapacitation Theory: One of the primary purposes of this theory is removing the
sufficiently dangerous persons from the society. The risk that is found to be posed by the offenders
are largely a matter of inception. Therefore, if one country treats one offence in one way, another
country will treat the same offence in a different way.

Compensatory theory

The main look out in the law of crimes is to penalize the criminal, and/or to seek his reformation and
rehabilitation with all the resources and goodwill available through the Courts and other
Governmental and non-Governmental organizations. It must be seen that the criminals should get
proper judgement for their crimes so caused and the harassment caused to the victim and towards
their family members and property. The victims in a crime can be compensated on mainly two
grounds, namely-

A criminal who had inflicted an injury against the person (or group of persons), or the property must
be compensated for the loss caused that has caused to the victim, and
 3

The State that has failed to provide safety towards its citizens, must receive compensation for the
loss caused.

Compensation is the true essence of deterrent, reformative and a necessary contribution of

retribution.

Reformative theory

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of discipline
ought to be the change of the crook, through the strategy for individualization. It depends on the
humanistic rule that regardless of whether a wrongdoer perpetrates a wrongdoing, he doesn’t stop
to be a person. In this way, an exertion ought to be made to change him/her during the time of
his/her detainment. For example, he may have executed bad behaviour under conditions which may
never happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the liable party.
He ought to be told and perform some craftsmanship or industry during the hour of his confinement
with the objective that he may have the alternative to start his life again after his conveyance from
jail.

History of the Theory:

The human development has consistently been administered under the standard of an incomparable
force. The job and type of pre-eminent force has changed throughout a long term. Beginning from
the primitive type of Government to the present just, republican and different types of
Governments, the obligation of the incomparable authority has changed a lot. The idea of discipline
has additionally changed like the idea of State duty throughout the long term. The idea of discipline
relied upon the premise of religion and the organization of the Kings. During old occasions, the idea
of discipline was retributive premise, where the hoodlums were given uncouth type of discipline.
Afterward, over the entry of ages, the significance of common liberties expanded which in essence
cleared path for the replacement of Retributive hypothesis by Reformatory and Rehabilitative
hypotheses. Under the Reformative and Rehabilitative hypotheses, the blamed are given such
structures for discipline which would change them and keep them from perpetrating such
wrongdoings.

The theory of punishment being followed in India with the goal to change the crooks as opposed to
rebuffing them isn’t that compelling in avoidance of the event of violations in India. The essential
idea of law isn’t to be static, but to be dynamic in nature. At exactly that point the law will have the
option to be successful in all fields of the general public.

The Main Purpose Reformative Theory: The reason for this hypothesis of discipline is to make the
criminal languish over his bad behaviour. Here the motivation behind the discipline is profoundly
customized and rotates around the mental outlet of the person in question or his family. The
primary reason might be accomplished to parole and probation, which have been acknowledged as
current procedures of improving the guilty parties all around the globe. Consequently, the backers of
this hypothesis legitimize imprisonment not exclusively to separate hoodlums and kill them from
society. Not many of the advanced reformative procedures of discipline are essentially concocted for
the treatment of guilty parties as per their mental attributes, for example, probation, parole,
uncertain sentence, exhortation and pardon. The reformative techniques have demonstrated to be
valuable in the event of adolescent misconduct, first wrongdoers and ladies. Sex cases additionally
appear to react well to the reformative strategy for discipline. All the more as of late, the
 4

reformative hypothesis is in effect widely utilized as a technique for treatment of intellectually

denied wrongdoers.

Utilitarian theory

According to utilitarian theory, we punish people because doing so creates a good in the world.
According to the utilitarian moral thinkers punishment can be justified solely by its consequences.
That is to say, according to the utilitarian account of punishment 'A ought to be punished' means
that A has done an act harmful to people and it needs to be prevented by punishment or the threat
of it. Jeremy Bentham is associated with the utilitarian theory of punishment. According to him,
punishment is evil, and we should do it only to the extent necessary that it can produce benefits in
the world.

------------------------------- ------------------------------------------------------- ----------------------

Origin and evolution of punishment

Birth of the process of punishment in India

The concept of punishment has also been recognized in the Dharmakshetra. In the Hindu shastras,
the king had the superiority to penalize the wrongdoer or law-breaker and protect the law follower.
Thus, it is clear-out that punishment is one of the oldest practices of managing crime and criminality.
In India, during the hunting age, man lived in forests and survived on flesh, fruits etc. and the life in
the then existing tribal society was governed by customary rules. The Manu laid the germ of criminal
jurisprudence in India. It gave a comprehensive code existing of ordinances relating to law and
order. It was a digest of the religion, philosophy, customs and practices followed by people. Both law
and social creation of the body in India are anchored or deeply embedded in specific religious
ideologies and ritual systems that constitute the ultimate legitimizing force for established social
order.

Punishment in the ancient India

Punishment has been talked about in the ancient legal literature of Dharmashastra in which, the
technical term used for punishment is danda. The term danda has been used in the context of
criminology and suppression of crimes. The ancient Indian criminology talks about two concepts i.e.
danda and prayashchita. The difference between these two is that in the latter one, the sinner
himself acknowledges that he has committed a wrong or performed an act which stands in conflict
with morality and the then existing rules, whereas in case of danda it is not necessary for the wrong-
doer to confess or voluntarily acknowledge his guilt. Accordingly, the judgement that was based on
prayashchita was known as judgement based on dharma and the judgment concluded through
evidence was known as a judgment based on vyavahara.

Birth of the process of punishment in the world

The Romans were the first people to look at crime and punishment as a purely human trait.
Historical crime and punishment commonly claimed that punishing a criminal was "doing God's
work" and that committing a crime was the same as sinning. But the Romans saw crime as an insult
to society as a whole, and Roman law was established to bring order to society. Roman law was less
concerned about pleasing religious deities and more concerned with ensuring society was safe,
orderly and fair.

The long history of punishment utilized and implemented throughout recorded history, from
“punishment” on man from the physical environment, perceived punishments from religious gods,
 5

to punishment imposed by society. Punishment imposed by societies has a long (and often times
sordid) past from banishment and fines in ancient Greece, torturous physical punishment during the
Inquisition, the implementation of the death penalty in 17th century England.

The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code
of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes. The death
penalty was also part of the Fourteenth Century B.C.’s Hittite Code; in the Seventh Century B.C.’s
Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth
Century B.C.’s Roman law of the Twelve Tablets. Death sentences were carried out by such means as
crucifixion, drowning, beating to death, burning alive, and impalement.

Punishment in Greece and Rome

The Greeks may be the first to examine the nature of criminality. In 399 B.C., Socrates is tried for
ungodliness and forced to drink poison. In Rome, punishments can be ferociously cruel and
performed in the public arena.

Punishment and Reform

In the mid-18th century, people demand a radical reform of criminal justice system. "Offenses and
Sentences" advocates abolition of torture and capital punishment. Today, Section 5 of the Universal
Declaration of Human Rights regulates the parameters of punishment.

Evolution of Punishment

Punishment in the modern India

Process of punishment has evolved with civilization, they have become less harsh and cruel.
Punishment now focuses more on correction rather that to punish. The Indian Penal Code was
codified in 1860, during the British rule and it gave the forms of punishment to be used in the
modern India. Section 53 of IPC talks about the existing forms of punishment in India, namely, death,
imprisonment for life, rigorous imprisonment, simple imprisonment, forfeiture of property, and
fine.[6] With the evolution in the forms of punishment, the process of punishment and the process
through which we reach the stage of pronouncing punishment also evolved and became more
precise. In the modern India, it is the work of the judiciary to maintain law and order. The process of
a criminal trial has been laid down in the Code of Criminal Procedure, 1973. Both the aggrieved and
the accused are examined by the Court of Law, every aspect, every minute detail is liked into by the
court and then it arrives to the conclusion of acquittal or conviction. After conviction, comes the
question of punishment, on which the court listens to the submissions of the respective lawyers and
decides the punishment accordingly.

Among primitive peoples the penal code was always short. Desire for property had not taken
possession of their emotions. Their lives were simple, their adjustments few, and there was no call
for an elaborate code of prohibited acts. Their punishments were generally simple, direct and
severe: usually death or banishment which often meant death, sometimes maiming and branding, so
that offender might serve as a constant warning to others.

Primitive peoples early asked questions about their origin and destiny. The unknown filled most of
the experiences of their lives. The realm of the known was very small. They had no idea of law and
system, of cause and effect. They early began evolving religious ideas. The manifestations of nature,
the mystery of birth, the fear of death, the phenomena of dreams, the growth and harvesting of
crops-all of these were beyond their understanding. They peopled the earth with gods to be
 6

propitiated and appeased. Everything was the act of a special providence. From early times religion
and witchcraft furnished the chief subjects for the criminal code.

The penalties for the violation of the code were always severe, generally death, and by the most
terrorizing ways. No other crime could be so great as to arouse the anger of the gods, and naturally
no other conduct should demand so severe a penalty as calling down the wrath of the gods. This
would fall not only upon the offending man, but upon the community of which he was a part. Even
as man developed in knowledge and civilization, this sort of crime continued to furnish the greater
proportion of victims and the cruelest punishments. Torture of the most fiendish sort was evoked to
catch offenders and extort confessions. Difference of religious opinions was the worst crime. The
inquisition became an established thing. Sometimes a nation was almost wiped out that heretics
should be killed and heresies destroyed. The heretic was the one who did not accept the prevailing
faith. The list of victims of punishment on account of religion, witchcraft, sorcery and kindred laws
has in the past no doubt been larger than for any other charges.

This kind of laws always called out the greatest zeal in their enforcement. To the religious enthusiast
nothing else was of equal importance. It involved not only the life of man on earth but his life
through all eternity. Out statutes today are replete with such crimes, but the punishments have
been lessened and, as a rule, communities will not enforce them. But laws against blasphemy,
working on Sunday, and Sunday amusements of all sorts, are still on the books and enforced in some
places. A large organization and an influential and aggressive part of the Christian Church are
insisting that these laws shall be enforced to the limit and that still others shall be placed among the
statutes of the several states.

The methods of inflicting the death penalty have been various, the favourite ways being burning,
boiling in oil, boiling in water, breaking on the rack, smothering, beheading, crucifying, stoning,
strangling and electrocuting. Until the middle of the last century they were carried out in the
presence of the multitude so that all might be warned by the example.

The number of crimes for which death and bodily torture have been the punishment can scarcely be
recorded and if they could it would be of no value. They would run into the hundreds and probably
the thousands. A large part of these crimes are now obsolete. Doubtless more men have been
executed for crimes they did not commit and could not commit than for any real wrong of which
they were guilty.

Prisons came into fashion later than the death penalty, and as a form of punishment have gradually
come to take the place of most death penalties. Prisons in the past have been loathsome places and
not much better than death. Prisoners have been packed together so closely that life was almost
impossible. To incarcerate victims in prisons have brought terrible punishment not only on the
prisoners and their families, but indirectly on the state. No doubt through the years prisons have
been gradually improved. Many of their terrors have been banished. People have come to believe
that even a prisoner should have some consideration from the state. Penalties have likewise grown
less severe and terms have been shortened, but this course has not been regular or constant; the
public readily relaxes into hatred and vengeance, and it is easy to arouse these feelings in men, since
they lie very close to the surface. A constant struggle has always been waged by the humane to
make man more kindly, and yet probably his nature does not really change. A few months of frenzy
may easily undo the work of years.

So long as men punish for the sake of punishment, there will be a disagreement between the
advocates of long punishment and short punishment, hard punishment and light punishment. From
 7

the nature of things, there is no basis on which this can be determined. The only thing that throws
any light on the question is experience, and men can always differ as to the lessons of experience.
Neither do they remember experience when feelings are concerned.

Punishment can deter only on the ground of the fear that flows from it. Fear comes from things that
are more or less unusual. Man has little abstract fear of a natural death; it is so unavoidable that it
does not even figure in the ordinary affairs of life. Extreme punishments may grow so common that
few give them any concern. They probably are so common now that the impression they make is not
very great. Lighter and easier punishments would have the same psychological effect. In many cases
a lenient punishment would also eliminate much of the hatred and bitterness against the world that
are common to all inmates of prisons.

------------------------------------------- ------------------------------------------------------

Define punishment and discuss origin of concept of punishments during medieval and modern
period.

Punishments during medieval period

Law and order was very harsh in Medieval England. Those in charge of law and order believed that
people would only learn how to behave properly if they feared what would happen to them if they
broke the law. Even the ‘smallest’ offences had serious punishments. The authorities feared the
poor simply because there were many more poor than rich and any revolt could be potentially
damaging – as the Peasants Revolt of 1381 proved.

By the time of Henry II, the system of law in England had been improved because Henry sent out his
own judges from London to listen to cases throughout all England’s counties. Each accused person
had to go through an ordeal. There were three ordeals:

Ordeal by fire. An accused person held a red hot iron bar and walked three paces. His hand was then
bandaged and left for three days. If the wound was getting better after three days, you were
innocent. If the wound had clearly not got any better, you were guilty.

Ordeal by water. An accused person was tied up and thrown into water. If you floated you were
guilty of the crime you were accused of.

Ordeal by combat. This was used by noblemen who had been accused of something. They would
fight in combat with their accuser. Whoever won was right. Whoever lost was usually dead at the
end of the fight.

In 1215, the Pope decided that priests in England must not help with ordeals. As a result, ordeals
were replaced by trials by juries. To start with, these were not popular with the people as they felt
that their neighbours might have a grudge against them and use the opportunity of a trial to get
their revenge. After 1275, a law was introduced which allowed people to be tortured if they refused
to go to trial before a jury.

If you were found guilty of a crime you would expect to face a severe punishment. Thieves had their
hands cut off. Women who committed murder were strangled and then burnt. People who illegally
hunted in royal parks had their ears cut off and high treason was punishable by being hung, drawn
and quartered. There were very few prisons as they cost money and local communities were not
prepared to pay for their upkeep. It was cheaper to execute someone for bad crimes or mutilate
them and then let them go.
 8

Most towns had a gibbet just outside of it. People were hung on these and their bodies left to rot
over the weeks as a warning to others. However, such violent punishments clearly did not put off
people. In 1202, the city of Lincoln in England had 114 murders, 89 violent robberies and 65 people
were wounded in fights. Only 2 people were executed for these crimes and it can be concluded that
many in Lincoln got away with their crime.

Punishment in Early Modern Times 1500 ‐ 1750

Fine ‐ The most common form of punishment for minor crime in Early Modern England

Whipping and Branding – were used against vagabonds, vagrants and petty theft.

Scold's bridle ‐ A heavy iron frame was locked onto the woman's head. Women who were accused of
scolding could be forced to wear a scold's bridle.

Cucking stools and Ducking stools ‐ were used to punish disorderly women, scolds and dishonest
tradesmen.

Public penance ‐ To apologise for your crimes in front of a large crowd such as at church (acts as a
form of public humiliaƟon)

Pillory ‐ Offenders had their head and arms secured in a wooden frame. People oŌen pelted them
with roƩen food, offal or animal excrement. It was oŌen used for people who had traded unfairly or
had commiƩed sexual offences.

Stocks ‐ Stocks were built in public places such as markets in order to add to the humiliaƟon of the
offender. Heavy pieces of wood were placed around the offender's ankles and their feet were locked
in place.

Prisons and Bridewells used as punishments in Early Modern time 1500‐ 1750

Prisons continued to be a much less common form of punishment than fines, shaming and physical
punishments.

Prisons were mainly used to hold prisoners who were in debt, or who were awaiting execution or
another form of punishment.

In the sixteenth century, Tudor governments began to pass laws to regulate prisons.

The 1531 Gaol Act, for example, forced JPs to build a prison where one was needed.

One form of punishment in the early modern period was a totally new development ‐ the bridewell
(House Of Correction)

Authorities became very concerned about the problem of vagrancy. In the 1550s, the city of London
adopted a new approach to dealing with the problem of crime and poverty.

Bridewells forced vagrants to work. Those who refused faced physical punishment.

How effective were the punishments of ‘The Bloody Code’ 1500‐1750?

The government created a ferocious legal system which became known as the Bloody Code.

This was when the number of crimes for which people could be hanged (executed) rose dramatically
from 1680‐1820
 9

With no police force to protect their property, MPs used the threat of capital punishment to frighten
(deterrence) people into being law‐abiding citizens. They believed that the fear of hanging would act
as a strong deterrent.

The number of capital offences gradually increased, from about 50 in 1688 to 200 in 1820.

In 1723, the Black Act made the poaching of deer, rabbit and fish a capital offence.

------------------------------------------------------------------------------- ------------------------------

Deterrence and retribution as forms of punishment have lost significance in modern penology.
Elucidate.

----------------------------------------- --------------------------- --------------------------------------------------

Explain the importance of penology in administration of Criminal Justice 10

Penology is taken from the Latin word 'poena' which refers to punishment. Penology is important in
the administration of criminal justice because it takes a positive approach to treating criminals in
order to reform and rehabilitate them as productive members of society. It investigates the
effectiveness of those social processes devised and adopted for the prevention of crime, via the
repression or inhibition of criminal intent via the fear of punishment. Penology is concerned with the
effectiveness of those social processes devised and adopted for the prevention of crime, via the
repression or inhibition of criminal intent via the fear of punishment.

Penology is concerned with a thorough examination of the formal institutions of criminal justice such
as police, courts and corrections. It is concerned with the process devised and adopted for
punishment, prevention of crime and treatment of prisoners. The administration of criminal justice
refers to the performance of activities such as detection, apprehension, detention, pre-trial release
and more. Penology is concerned with the effectiveness of those social processes devised and
adopted for preventing crime, through the repression or inhibition of criminal intent and by initiating
the fear of punishment.

a) To punish transgressors and offenders.

b) To prevent the recurrence of crime.
c) To rehabilitate offenders and transgressors.
d) To provide as much compensation to the victims as feasible.
e) To sustain society’s law and order.

Penology deals with care, custody, treatment, prevention, and control of crimes as also the various
modes of sentencing and rehabilitation of criminals.

The Study of Punishments - One focus of penology is the study of punishments. The study of
punishments may include the theories behind why crimes are committed, such as the motives that
cause a person to commit a specific crime. Additionally, the study of punishments may focus on the
different forms of punishment in society, such as probation or incarceration. A penologist may study
how certain punishments impact recidivism, which is the tendency of an offender to commit future
crimes.

Punishment - Penology involves much of its scholastic analyses on the punishment regime and its
efficiency dimensions. Penologists have asked important philosophical questions about all forms of
punishment, regulation and control. One of the primary questions is what is State punishment?
 10

Professor Andrew Flew in 1954 argued that for an act to be defined as punishment, it must conform
to five basic rules (McLaughlin, E, and Muncie, J. 2013).

The penal sanction must

a) Create human suffering;

b) Arise as a direct result of the perpetration of an offence;
c) Only be directed at the person who undertook the offence, i.e. the offender;
d) Be the intentional creation of other humans in response to that offence;
e) Be inflicted by an authorized body representing the embodiment of the rules or laws of
society in which the offence was committed.

Justifications of Punishment - The basic aim of punishment is to prevent criminality that may justify
punishment generally. Hyman Gross (1979) similarly writes, “The rules of conduct laid down in the
criminal law are a powerful social force upon which society is dependent for its very existence, and
there is punishment for violation of these rules in order to prevent the dissipation of their power
that would result if they were violated with impunity. Unless the threat of punishment by the state
exist, and the State actually punished criminals the authority of the state would be loosened to the
point that social order and security of the individual would be at stake. Thinkers such as Kenny,
Gross, and Hart take the prevention of harm and preservation of order as fundamental reasons for
criminal sanction, without it also needing a justification in fundamentally moral terms.

Sentencing Policy - Death penalty is awarded under the IPC for treason, murder, and after the Delhi
Gang Rape case in 2013 the legislature through amendment provided capital punishment for certain
extreme types of rapes like under section 376A of The Indian Penal Code 1860, for rape which either
causes the victim to be in a persistent vegetative state (PVS) or death, or 376E of The Indian Penal
Code 1860 for repeat sexual offences. Further sec 354(3) of the Code of Criminal Procedure (CrPC)
provides that the court in case of awarding the death penalty must give 'special reasons' for such
sentence.

Penal Institutions - Apart from the discussions on punishment systems and justifications of
punishments, the other important focusing area of penology has been the legitimacy of penal
institution, administration of prisons, modes of execution of different forms of punishments,
statistics on prison population. Much of the attention has been bestowed in the evolution of modern
prisons and the prison reforms initiated by John Howard in the 18th century and the after effects felt
in America that tried to have the penitentiary movement, till the coming of age of the minimum,
medium and maximum security prisons.

Penology and Prisons - Another focus of penology is the study of prisons, or correctional institutions,
as they are commonly called today. Prisons are state or federal institutions used to house felons
with sentences longer than one year. Prisons have been in use for hundreds of years and were
originally used to punish people who committed economic crimes. Over the decades, the use of
prisons evolved to punish people for various crimes. The penal codes are legal documents that state
the punishments and penalties for various crimes, such as imprisonment. The penal codes are
continuously changing as new laws and policies are passed.

------------------------- --------------------------- ----------------------------- ----------------- ----------------------

Crime control 6

Under Penology crime control refers to methods taken to reduce crime in a society. Crime control
standardizes police work. Crime prevention is also widely implemented in some countries, through
 11

government police and, in many cases, private policing methods such as private security and home
defence. Crime control strategies attempt to prevent crimes before they occur. There are three main
strategies: situational, social and community and environmental crime prevention.

Crime Control - "Crime control considers that crime has already happened and that some
management of these criminal activities is required to ensure that it does not spiral out of control. It
points to the need for maintenance of a problem, one where crime is kept to a tolerable level, and
not to a situation where crime can be prevented"

Four approaches to crime control are deterrence, retribution, incarceration, and rehabilitation.

Incarceration - Incarceration is the long-term confinement of convicted and sentenced offenders. In

recent years, more aggressive law enforcement, combined with mandatory detention and
sentencing requirements, has spurred a rising demand for detention and incarceration space.

The crime control model focuses on having an efficient system, with the most important function
being to suppress and control crime to ensure that society is safe and there is public order. Under
this model, controlling crime is more important to individual freedom. This model is a more
conservative perspective. In order to protect society and make sure individuals feel free from the
threat of crime, the crime control model would advocate for swift and severe punishment for
offenders. Under this model, the justice process may resemble prosecutors charge an ‘assembly-
line’: law enforcement suspects apprehend suspects; the courts determine guilt; and guilty people
receive appropriate, and severe, punishments through the correctional system. The crime control
model may be more likely to take a plea bargain because trials may take too much time and slow
down the process.

------------------------------------------------ ------------------------------ ------------------------------

What is crime prevention? Discuss the procedure for crime prevention.

"Crime Prevention comprises strategies and measures that seek to reduce the risk of crimes
occurring, and their potential harmful effects on individuals and society, including fear of crime, by
intervening to influence their multiple causes."

Crime Prevention is a term which means to prevent the occurrence of any future crime in a society.
It is an attempt to stop or reduce the performance of an act that amounts to a crime. Crime
prevention plays a very important role in ensuring a safer environment for the citizens of a nation.

The law enforcement agencies or police can carry out crime prevention by performing functions
such as:-

1. Surveillance:

Police surveillance is one of the activities that are used for crime prevention and is also considered
effective. Prevention of crime by surveillance is done through ‘deterrence’ and creates fear in the
mind of criminals that police are observing and have a constant presence. Although, if a crime occurs
in an under-surveillance place, it benefits the police in the way that they would have evidence for
investigation and/or would alert them for a reaction on the crime occurred. Surveillance is mostly
done through CCTV and this technology is most useful as it is considered as evidence in a criminal
case and can be used for prosecution. However, crime can also be displaced in to a place of non-
surveillance and it is upon the authorities to prevent it accordingly.

2. Offender Tracking:
 12

Another activity to prevent crime is offender tracking. Offender Tracking system contains
information about the prisoners or previously prosecuted criminals and that information makes it
easy for police to catch the actual perpetrator. However, India is still struggling in technology that
supports the offender tracking system and offenders often turn loose due to this lag in the system.
An offender tracking system with better technology can escalate public safety.

3. Crime Analysis:

Crime analysis means the analysis of crime data recorded by the police. Crime analysis can be helpful
in crime prevention as it would disclose the ‘pattern’ by which a crime is occurring. Police can
determine what will be the next move of a possible criminal. Crime analysis also includes basic crime
statistics calculation and the representation should be geographical and the mapping software is
used to do this representation. The usage of crime mapping and data geocoding is very wide in
terms of police departments, particularly with large population areas.

*******

The UN Guidelines for the Prevention of Crime groups the approaches and programmes into four
main categories:

Crime prevention through social development

It includes a range of social, educational, health and training programmes, such as those that target
at-risk children or families when the children are very young, to provide them with support and
child-rearing skills. Some early intervention programmes are also referred to as developmental crime
prevention since they try to intervene to develop resilience and social skills among children and their
families. Programmes may also target groups of children in areas where children and young people
are at particular risk, such as street children or children living in informal settlements or
disadvantaged areas. Other examples include education projects in schools, or recreation and skills
training projects for children and young people in the community, also in an attempt to increase
awareness and resilience as they grow up and develop. Prevention programmes of this type:
“Promote the well-being of people and encourage pro-social behaviour through social, economic,
health and educational measures, with a particular emphasis on children and youth, and focus on
the risk and protective factors associated with crime and victimization.”

Community or locally-based crime prevention

This type of prevention targets areas instead of individuals where the risks of becoming involved in
crime or being victimized are high. This includes areas with high levels of deprivation, both in terms
of infrastructure, services and wealth, or lack of community cohesion. This can include slums and
informal settlements, or inner-city or suburban housing projects, often areas with a concentration of
economic and social problems. Such programmes work to increase the sense of safety and security
of the residents of particular communities, to respond to community concerns and crime problems
affecting the population and to increase the services and social capital or social cohesion in the
community. “Social capital” generally refers to the network of social relationships, trust and shared
values, community involvement or a sense of civic identity that exist in a neighbourhood.
Community crime prevention often involves the active participation of local residents and
organizations in those communities and neighbourhoods. The term “community” can refer to small
neighbourhoods, areas within a city, or small villages or towns, or in some cases groups of citizens
with particular concerns. Such programmes aim to change the conditions in neighbourhoods that
 13

influence offending, victimization and the insecurity that results from crime by building on the
initiatives, expertise and commitment of community members.

Situational crime prevention

Situational crime prevention covers approaches that aim to reduce the opportunities for people to
commit crimes, to increase the risks and costs of being caught and to minimize the benefits.
According to the Guidelines for the Prevention of Crime, such approaches help “Prevent the
occurrence of crimes by reducing opportunities, increasing risks of being apprehended and
minimizing benefits, including through environmental design, and by providing assistance and
information to potential and actual victims.

Five specific categories of situational prevention strategies have been identified:

1. Those that increase the effort of offenders

2. Those that increase the risks for offenders
3. Those that reduce the rewards for offenders
4. Those that reduce the provocation to offend
5. Those that remove the excuses for offending

Situational techniques are designed to be directed at highly specific forms of crime, and assume that
would-be offenders make rational decisions about the potential risks and rewards of breaking the
law. They involve the management, design or manipulation of the immediate environment in a
systematic and permanent way. For example, such techniques include designing public spaces or
housing to make it more difficult for people to break equipment or enter buildings without
permission, or marking products so that they can be identified if they are stolen. Other examples
include the use of closed-circuit television to protect car parks or the development of pedestrian
pavements, gardens and seats in a public area to encourage greater public use, with increased
surveillance of that public space.

Situational crime prevention is closely associated with environmental crime prevention and crime
prevention through environmental design, which is more specifically concerned with changes to the
built environment or landscape.

Reintegration programmes

Crime prevention through reintegration refers to all programmes that work with children, young
people or adults already involved in the criminal justice system, including those in custody and
returning to the community.

According to the Guidelines for the Prevention of Crime, it is important to “Prevent recidivism by
assisting in the social reintegration of offenders and other preventive mechanisms.”

Those convicted of offences run the greatest risk of re-offending, given that they have already
broken the law, have few opportunities and skills to pursue legitimate non-criminal lifestyles, and
may have strong links with other offenders and offending lifestyles. Providing them with life and job
skills, training, education, alternative lifestyles and role models and good support and housing in the
community are all ways to assist with their reintegration. Programmes in prison may help to prepare
them for release by providing them with new work skills or increasing their educational levels and
social skills, including the ability to mediate conflict situations, and through the use of other
restorative approaches. Programmes may take place in the community, or in halfway houses or
sheltered homes that provide safe accommodation and in-house support and advice, and may
 14

include apprenticeship programmes, job-creation schemes, life-skills training, microcredit facilities

and long-term support.

Programmes that teach conflict resolution skills or use restorative justice approaches, such as victim-
offender mediation or family or community group conferencing, are other examples of ways in
which offenders can be assisted in returning to civil society. These are all examples of crime
prevention focusing on re-integration, with the overall aim of preventing re-offending.

-------------------------------------------------------------------------- ----------------------------------- -----

Discuss the kinds of programmes which are adopted in crime prevention programmes

Crime prevention is the anticipation, recognition, and appraisal of a crime risk and the initiation of
action to remove or reduce it. Crime prevention can be conceptualized as prevention through social
development, locally based crime prevention, situational crime prevention and reintegration
programmes.

Types of Prevention

1. Primary Prevention Programmes

2. Secondary Prevention Programmes
3. Tertiary Prevention Programmes
4. Short -Term Prevention Programmes
5. Social Prevention Programmes
6. Developmental prevention Programmes
7. Long term prevention Programmes
8. Shame prevention Programmes
9. Active prevention Programmes
10. Penal prevention Programmes
11. Judicial prevention Programmes
12. Disciplinary prevention Programmes
13. Common prevention Programmes
14. Situational prevention Programmes

Primary Prevention

The primary prevention is to protect individuals from fighting all areas of crime that fall within the
framework of social development [3]. At this stage of prevention, people are trying not to commit
crime. At this level of prevention, the goal is to improve living conditions in order not to offend
people, and to produce values that improve healthy relationships. In primary prevention, more
attention is paid to the crime event than to the instigated offender. This approach has also been
linked to Hendel Lang’s lifestyle theory [4].

Secondary Prevention

The secondary prevention is to use methods to protect people at risk. Like: addicts, street vagabonds
and street children. In this type of prevention, the goal is to prevent the occurrence of crime by
people who are in critical condition and likely to be victimized by the use of appropriate and early
measures. For example, in the prevention of addiction, the focus is on those who entertain in the
form of recreation and have not yet reached the level of addiction. Also, children living in
disadvantaged families and poorer neighborhoods in poor conditions, or young people who have
experienced violence in their homes, are more likely to commit criminal misconduct than others.
 15

Thertiary Prevention

This kind of prevention includes programs such as counseling for women and children, criminal
interventions, and various groups. Preventive efforts at this stage are to prevent criminal behavior so
that criminals can adapt and adapt to their social environment and not re-commit crimes.

The third prevention is used as a result of detecting or detecting or detecting operations for
arresting the offender, imprisoning a convicted person, or sentencing and rehabilitating a prisoner.
This division is done by Caplan.

Short -Term Prevention

Short-term prevention is a set of short-term solutions. Such as: providing more illumination of
streets, alleys and public places, tailor-made and deterrent penal laws, setting up work institutions,
providing decent leisure facilities, protecting children who are harassed and abused by the family
Closing neighbourhoods and crime areas, preventing the broadcasting of violent programs on
television, and equipping the police and law enforcement forces to reduce the chance of occurrence
of deviance or crime

In dealing with social and cultural issues, due to systematic and long-term planning, one cannot
overlook preventive measures in the short and long term. This prevention includes “community-
based prevention” or “social prevention” and “early prevention”.

Social Prevention

This kind of prevention includes measures and interventions that seek to eliminate or reduce the
causes of crime and thereby prevent delinquency by intervening in the development process of
individuals, improving their living conditions and normalizing the social and natural. According to
Gessen, this kind of prevention is said to be social prevention as a result of social worker prevention
experiences without interfering with police and justice discussions, and focusing on the inadequacies
of juvenile delinquents and their growth environment.

Developmental prevention

This kind of prevention attempts to prevent a child from continuing his criminal misery in the future
if a child for any reason manifests itself as a criminal offense, with early intervention in him and his
environment. Early prevention, early psychosocial intervention, in the process of children’s
development, to prevent risk factors that increase the likelihood of admitting and mimicking
persistent criminal behavior in the future.

Long term prevention

Long-term prevention refers to mechanisms that take place in a time-consuming process to reduce
crime opportunities in the future. Such as: Providing appropriate platforms for individuals to access
appropriate education opportunities; Developing and implementing general policies for community
members’ engagement; Developing family education classes to enhance life skills; Strengthening the
preventive role of schools through content promotion. And the quality of education and training
programs, efforts to reduce the economic gap among different classes of society and achieve social
justice.

Shame prevention

In passive prevention, some routine preventive measures are not of a precautionary or deterrent
nature, such as police warnings, but remain in a passive way to influence these actions. In this kind
 16

of prevention, social factors (social prevention) have no effect, and in the meanwhile, they do not
play the smallest role. The role of preventative institutions such as the police and the judicial
authorities is also very low.

Active prevention

In this kind of prevention, police force is the main focus of prevention that is activated to avoid and
avoid crime and is also active at the social level. That is, the police take charge of leisure planning
and guidance for a group of young people who are exposed to crime or deviation at a specific time
and place. Meanwhile, the role of deterrent institutions is of crime or deviation at a specific time and
place

Meanwhile, the role of deterrents of crime is also evident. In active prevention, long-term planning
is planned to prevent delinquency and reduce it. Government officials have a major role in their
social function, and they take independent action.

Non penal prevention

Non-Penal prevention is “Preventing the outcome of thought and criminal intent by changing the
circumstances and in which a series of similar crimes have occurred or may be committed in those
circumstances.” In other words, non-criminal prevention aims at eliminating the root causes and
causes of crime and delinquency by addressing the issue of social control and the impact on criminal
thought, so that human beings are raised to stay away from crime. In this kind of prevention, it is
important to pay attention to the environmental, cultural, economic and social factors that lead the
person to crime.

Penal prevention

Penal Prevention, in essence, is the next step, and applied to criminal justice through criminal justice
through criminal justice. This prevention is divided into two types of “general reaction prevention”
and “specific reaction prevention” based on the effect on society or the offender. General reaction
prevention is a collective or group-based reactive prevention that seeks to prevent the perpetration
of criminal delinquency by addressing citizens through horrific and collective learning.

Judicial prevention

Judicial prevention is a type of crime prevention based on the efforts of the government and the
responsible institutions to reduce crime and eliminate its roots. This policy is examined in the
context of judicial prevention, in which the ruling apparatus or the state acts as the first institution
against crime and delinquents and by reforming it through the application of law and legislative
policies against the perpetrator. In policy-making, crime prevention is one of the ways to prevent
crime.

Disciplinary prevention

The existence of weaknesses in each society makes the sense of security safe by the people. Since a
group of unhealthy people in the community are behaving in an unconventional manner and in
conflict with social values, they create conditions of weakness weakness and instability in parts of
society based on their thoughts and intentions, for this reason In order to prevent insecurity and
increase social security, governments and authorities have sought to control and reduce crimes
through the implementation of crime prevention programs.

Common prevention
 17

The prevention of delinquency in the general sense includes those measures and measures that
prevent the commission of crime. In this way, any criminal or non-criminal proceeding according to
this definition will be placed within the scope of prevention of delinquency. General prevention is a
crimebased prevention that focuses on deterrence, intimidation and criminal education on the
general public.

Situational prevention

Situational prevention includes a set of non-criminal measures and measures that prevent the
commission of crime through the elimination or reduction of appropriate opportunities for crime
and improper prosecution. The strategies of this method, focusing on environmental changes, are
part of controlling the perpetrators and partly on protecting the victims.

Situational Prevention was introduced as Clark, Cornish, and Heeur, as a scientific theory to reduce
delinquency in the 1980s. In their works, they always have to take appropriate measures and take
the necessary measures to reduce the opportunities and situations that lead to criminal behavior, as
well as to change the relationship between the perpetrator and the victim.

------------------------------------------ ----------------------------------------------------- ------------------------------------

Discuss the conventional and modern techniques of crime prevention.

The traditional approach to criminal law has been that a crime is an act that is morally wrong. The
purpose of criminal sanctions was to make the offender give retribution for harm done and expiate
his moral guilt; punishment was to be meted out in proportion to the guilt of the accused.

Crime prevention refers to traditional deterrent, incapacitative, and rehabilitative strategies

operated by law enforcement and criminal justice system agencies. Crime prevention programs can
be divided into three categories: community prevention, situational prevention, and developmental
or risk-focused crime prevention. The basic idea of developmental or risk-focused crime prevention
programs is very simple: Identify the key risk factors for offending and implement prevention
techniques designed to counteract them.

Prevent future outbreaks

Elicit Public help

Remove crime conditions

Establish a Strong police force

1. The basic mission for which the police exist, is to prevent crime and disorder. 2. The ability of the
police to perform their duties is dependent upon public approval of police actions. 3. Police must
secure the willing cooperation of the public in voluntary observance of the law to be able to secure
and maintain the respect of the public. 4. The degree of cooperation of the public that can be
secured, diminishes proportionally to the necessity of the use of force. 5. Police seek and preserve
public favor; not by catering to public opinion, but by constantly demonstrating absolute impartial
service to the law 6. Police use physical force to the extent necessary to secure observance of the
law or to restore order only when the expertise of persuasion, advice and warning is found to be
insufficient 7. Police should maintain a relationship with the public that gives reality to the historic
tradition; the police are the public and the public are the police. The police are charged with the
duties that are incumbent on all of the citizens. 8. Police should always direct their actions strictly
towards their functions and never appear to usurp the powers of the judiciary. 9. The test of police
 18

efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing
with it.

********************************* Other Notes

Prevention through social development

Locally based crime prevention

Situational crime prevention

Reintegration programmes

***********************************

Risk-Focused Prevention

The basic idea of developmental or risk-focused prevention is very simple: Identify the key risk
factors for offending and implement prevention techniques designed to counteract them. There is
often a related attempt to identify key protective factors against offending and to implement
prevention techniques designed to enhance or strengthen them. Longitudinal surveys are used to
advance knowledge about risk and protective factors, and experimental and quasi-experimental
methods are used to evaluate the impact of prevention and intervention programs. Risk-focused
prevention was imported into criminology from medicine and public health by pioneers such as
David Hawkins and Richard Catalano (1992). This approach has been used successfully for many
years to tackle illnesses such as cancer and heart disease. For example, the identified risk factors for
heart disease include smoking, a fatty diet, and lack of exercise. These can be tackled by encouraging
people to stop smoking; to have a more healthy, low-fat diet; and to exercise more. Risk-focused
prevention links explanation and prevention; links fundamental and applied research; and links
scholars, policymakers, and practitioners. The book saving Children From a Life of Crime: Early Risk
Factors and Effective Interventions, by Farrington and Brandon Welsh (2007), contains a detailed
exposition of this approach. Importantly, risk-focused prevention is easy to understand and to
communicate, and it is readily accepted by policymakers, practitioners, and the general public. Both
risk factors and interventions are based on empirical research rather than on theories. This approach
avoids difficult theoretical questions about which risk factors have causal effects.

Family-Based Prevention

The behavioral parent management training developed by Gerald Patterson (1982) in Oregon is one
of the most influential family-based prevention approaches. His careful observations of parent–child
interaction showed that parents of antisocial children were deficient in their methods of child
rearing. These parents failed to tell their children how they were expected to behave, failed to use
punishment consistently or monitor their behavior to ensure that it was desirable, and failed to
enforce rules promptly and unambiguously with appropriate rewards and penalties. The parents of
antisocial children used more punishment (such as scolding, shouting, or threatening), but failed to
use it consistently or make it contingent on the child’s behavior. Patterson’s (1982) method involved
linking antecedents, behaviors, and consequences. He attempted to train parents in effective child-
rearing methods, namely, noticing what a child is doing, monitoring the child’s behavior over long
periods, clearly stating house rules, making rewards and punishments consistent and contingent on
the child’s behavior, and negotiating disagreements so that conflicts and crises did not escalate. His
treatment was shown to be effective in reducing child stealing and antisocial behavior over short
periods in small-scale studies. However, the treatment worked best with children aged 3 to 10 and
 19

less well with adolescents. Also, there were problems achieving cooperation from the families
experiencing the worst problems.

Home Visiting Programs

In the most famous intensive home visiting program, Olds and his colleagues (Olds, Hill, & Rumsey,
1998) in Elmira (New York) randomly allocated 400 mothers to receive home visits from nurses
during pregnancy, to receive visits both during pregnancy and during the first 2 years of the child’s
life, or to be part of a control group that received no visits. Each visit lasted about 1.25 hours, and
the mothers were visited on average every 2 weeks. The home visitors gave advice about prenatal
and postnatal care of the child, about infant development, and about the importance of proper
nutrition and avoiding smoking and drinking during pregnancy.

Parent Management Training

One of the most famous parent training programs was developed by Carolyn Webster-Stratton
(2000) in Seattle. She evaluated its success by randomly assigning 426 4- year-old children (most
with single mothers on welfare) either to an experimental group that received parent training or to a
control group that did not. The experimental mothers met in groups every week for 8 or 9 weeks,
watched videotapes demonstrating parenting skills, and then took part in focused group discussions.
The topics included how to play with your child, helping your child learn, using praise and
encouragement to bring out the best in your child, effective setting of limits, handling misbehavior,
how to teach your child to solve problems, and how to give and get support.

Other Parenting Interventions

Another parenting intervention, termed functional family therapy, was developed by Alexander in
Utah (see Sexton &Alexander, 2000). This aimed to modify patterns of family interaction by
modeling, prompting, and reinforcement; to encourage clear communication of requests and
solutions between family members; and to minimize conflict. Essentially, all family members were
trained to negotiate effectively, to set clear rules about privileges and responsibilities, and to use
techniques of reciprocal reinforcement with each other.

School-Based Prevention

A. Preschool Programs

The most famous preschool intellectual enrichment program is the Perry project, carried out in
Ypsilanti (Michigan) by Lawrence Schweinhart and David Weikart (see Schweinhart et al., 2005). This
was essentially a “Head Start” program targeted at disadvantaged African American children.
Members of a small sample of 123 children were assigned (approximately at random) to
experimental and control groups. The experimental children attended a daily preschool program—
backed up by weekly home visits—usually lasting 2 years (covering ages 3–4). The aim of the “plan–
do–review” program was to provide intellectual stimulation, to increase thinking and reasoning
abilities, and to increase later school achievement. This program had long-term benefits. John
Berrueta- Clement (1984) showed that at age 19, members of the experimental group were more
likely to be employed, more likely to have graduated from high school, more likely to have received
college or vocational training, and less likely to have been arrested.

Community Programs

In the interests of maximizing effectiveness, what is needed is a multiple-component, community-

based program including several of the successful interventions listed above. Many of the programs
 20

reviewed in this research paper are of this type. However, “Communities That Care” (CTC) is an
additional program that has many attractions. Perhaps more than any other program, it is evidence-
based and systematic: The choice of interventions depends on empirical evidence about what are
the important risk and protective factors in a particular community and on empirical evidence about
“what works.” It has been implemented in at least 35 sites in England, Scotland, and Wales and also
in the Netherlands and Australia.

------------------------------------------------------------------ ----------------------------------------------------

Problems involved in crime prevention

Data Analysis

As all other measures taken to fight against delinquency, situational prevention has also met some
criticisms. These criticisms have undertaken various aspects of situational prevention. The purpose
of criminologists and jurist’s criticisms ranges from situational prevention theoretical foundations to
its efficiency. Being in conflict with classical principles of criminology, human rights considerations,
limited scope, ineffectiveness on highly intelligent criminals and crime displacement are of the major
criticism issued to situational prevention.

Ideological Challenges

Being In Conflict With Classical Principles of Criminology In order to adopt the most basic and
fundamental delinquency prevention strategies, primary theories of criminology were concerned
with the study of the factors and reasons behind crime commission. But the criminal’s motivation
and reasons for committing crime are not considered within the scope pf this approach. Instead of
rooting out the crime commission major causes, situational prevention strategies focus on the
circumstances surrounding the criminal. The situational prevention programs are also merely some
superficial, temporary alleviative strategies which can only set up some barriers to the crime
commission process. Nevertheless, the immediate impact of its efficiency has encouraged crime
commission custodians to hold the rate of crime commission down by the help of applying
situational prevention approach so that the extent of crime commission would seem endurable to
the community.

Human Rights Considerations

Human rights are a set of entitlements garneted to people only due to the quality of being human
and not because of any particular excellence of position. Violation of human rights is equal to
violation of the all fundamental liberties and ultimately it means to disregard the inherent dignity of
human. Therefore, governments are obliged to comply with these rights with out with their own
compromise. Situational crime prevention is sometimes in conflict with human right values which
will be discussed in this article.

Invasion of Privacy and Civil Liberties

Privacy and civil liberties are of the inalienable basic individual rights that preservation and respect
for them has been stated in both international and civil laws. Privacy can be regarded as a means of
control offered to the individuals with respect to their private realm and it aims to support human
dignity. The right to have an ensured privacy is a principle that must be considered as an inviolable
right. Privacy is what safeguards Individual’s spiritual and intellectual works and their thoughts and
feelings and provides them with a personal space free from any interference to have their remarks
and deeds inviolable and advocated by law.
 21

Economic and Social Inequalities

According to article 11 of the international covenant on social, economic and cultural rights, having
proper and decent standards of living is indispensable for enjoying these rights. Enjoying minimum
standards of living along with human dignity and possessing capability of being equipped to deal
with the dangers raised from crime commission is one of the major issues of second generation
human rights.

In the case of the existence of even slight displacement of crime, it seems that individuals deprived
of adequate financial facilities to secure themselves and their properties are more prone to
delinquency

Inequality In The Case of Enjoying Security

The second article of international covenant on civil and political rights is devoted to the
government’s prohibition of discriminations regarding the mentioned rights in this covenant.
Enjoying security is one of the citizens’ inalienable rights and government’s basic duties. The duty of
providing security should be fulfilled with no class discrimination within the society. That’s while
some of the situational prevention strategies delegate the duty of providing security to the society
or in other words to the potential victims. These methods are usually of exorbitant costs and are
only available to the well-off. By means of these methods, a security-based discrimination would
occur consequently.

The Imposition of Security-Oriented Approach on Society

Several situational prevention programs provide the security-oriented governments with pretext for
restricting individual’s civil liberties and creating a strictly monitored society. Excessive use of
situational prevention represents a restricted and military like society. Although the chief purpose of
adopting situational prevention strategies is to create a sense of security for people through
prevention of crime commission, in such restricted societies there would be less accessibility of free
spaces for the citizens and that’s how the criminals would be incapable of acquiring commission
opportunities. Disadvantages of excessive use of these techniques are no lesser than damages
caused by crime commission.

Challenges Regarding the Criminal

What was already mentioned shouldn’t lead to the conclusion that situational prevention
encounters no challenges in the case of financial crimes. Many crimes whether of financial or of
other types are committed by people of high intelligence. Although intelligence of criminals may be
discouraged at the very first moment of encounter with obstacles, they immediately devise schemes
for facing and removing them. They are capable of circumventing these obstacles and inventing
commission methods rendering the situational prevention ineffective.

Various Crime Displacements Disadvantages

Various crime displacements are of the major criticisms addressed to situational prevention.
Criminals are usually of high intelligence and motivation that they can shift their target from one to
another while encounter with preventive obstacles.

Time and Place of Commission Displacements

Time of commission displacements occur while the criminal’s targets are left unprotected.
Preventive measures and situational prevention strategies sometimes make the criminals commit
 22

the crime in another place. Situational prevention measures taken in particular places can only
reduce commission in those very places but since the criminal’s motivations still exist they will be
lead to unprotected open to attack places (Kallinger, 1998).

Tactical Displacement or Change in Method

Tactical displacement occurs while the intended method of commission has been blocked by
situational prevention strategies. If the criminals are initially unable to adopt the intended method
of commission, they would change their technique and devise new schemes for committing.

Fundamental Crime Displacement

Fundamental crime displacement occurs in the cases that by means of reducing profits or
heightening the commission risk, situational prevention can temporarily stop the criminal and
consequently the quite determined criminal would decide to commit another crime. This
displacement is particularly frequent among resolved, intelligent and professional criminals.

----------------------------------------------------------------------- ------------------------------------------------------

Modern methods of crime control

The 10 Principles of Crime Prevention are:

1. Target Hardening

 Making your property harder for an offender to access.

 Upgrading the locks on your doors, windows, sheds and outbuildings
 Fitting sash jammers to vulnerable doors and windows
 Using secure passwords to prevent criminals hacking your online accounts

2. Target Removal

 Ensuring that a potential target is out of view.

 Not leaving items on view through your windows – i.e. laptops, phones, keys, bags
 Putting your vehicle in the garage if you have one and not leaving valuables on display
 Being cautious about what you post online as it may be used to identify or locate you offline

3. Reducing the Means

 Removing items that may help commit an offence.

 Not leaving tools and ladders in the garden and clearing up any rubble/bricks
 Keeping wheelie bins out of reach, as they may be a climbing aid or help transport items
 Making sure that bricks and rubble are cleared up

4. Reducing the Payoff

 Reducing the profit the criminal can make from the offence.
 Security marking your property
 Marking your property in such a way that others will not want to buy from the thief
 Not buying property you believe or suspect to be stolen

5. Access Control

 Looking at measures that will control access to a location, a person or object.

 Locking your doors and windows to both your house and your vehicle
 23

 Ensuring that fencing, hedges, walls and other boundary treatments are in a good state of
repair
 Putting a security system in place at a commercial site (entry barriers, security guards, ID
cards)

6. Surveillance

 Improving surveillance around homes, businesses or public places to deter criminals.

 Removing high hedges / fences at the front of your home that allows an offender to work
unseen
 Consider adding CCTV to a commercial site or public place
 Establishing a Neighbourhood Watch Scheme in your street

7. Environmental Change

 Ensuring your property and wider community looks cared for.

 Ensuring that graffiti and domestic/commercial waste is cleared up
 Reporting issues with fly-tipping or broken street lights to the relevant authority
 Working with the police and local authority to close a footpath

8. Rule Setting

 Changing our habits by setting rules and positioning signage in appropriate locations.
 Introducing a rule that the last person entering / leaving should lock the door and remove
the keys
 Informing visitors to commercial sites that they must report to reception on arrival
 Informing users that a particular site is closed between certain times and should not be
accessed

9. Increase the Chances of Being Caught

 Increasing the likelihood that an offender will be caught to prevent crime occurring.
 Making use of dusk to dawn security lighting is in place and in working order
 Using good quality CCTV and/or alarm systems, especially on commercial sites and public
places
 Upgrading security to delay an offender, meaning they have to spend more time to gain
access

10. Deflecting Offenders

 Deterring an offender or deflecting their intention.

 Using timer switches to make our homes look occupied if vacant after the hours of darkness
 Running youth diversionary schemes with partner agencies
 Referring offenders to drug rehabilitation programmes

--------------------- -------------------------------------------- ------------------------------------------------------

Explain different kinds of punishments 10

The punishment awarded should neither be so harsh nor so easy that it fails to serve its purpose of
generating an impact on the offender and as an eye-opener for others. It is considered that
punishment should be of such a nature that it brings reform in a person’s personality and thinking.
 24

The court has the power to reduce the quantum of punishment after considering various aspects of
the case and the mitigating circumstances, if any.

1. Death.
2. Imprisonment for life.
3. Imprisonment, which is of two descriptions, namely:
i. Rigorous, that is, with hard labour;
ii. Simple.
4. Forfeiture of property.
5. Fine.
6. Solitary confinement.

Death

Punishment of death is also known as capital punishment. Under this punishment, a person is
hanged till he dies.

Capital punishment, also known as the death penalty and formerly called judicial homicide, is the
state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed
crime, usually following an authorized, rule-governed process to conclude that the person is
responsible for violating norms that warrant said punishment. The sentence ordering that an
offender be punished in such a manner is known as a death sentence, and the act of carrying out the
sentence is known as an execution. A prisoner who has been sentenced to death and awaits
execution is condemned and is commonly referred to as being "on death row".

This punishment is sanctioned by the government and ordered by the court. It is provided only in the
rarest of rare cases. This punishment is provided only for serious offences. A death sentence is the
highest punishment awarded under IPC, and it has always been a controversial subject. Arguments
are made in favour and against the retention of the capital sentence as a form of punishment.

It was argued in Jagmohan Singh vs the State of Uttar Pradesh that the death penalty is
unconstitutional and hence invalid as a punishment. However, the Supreme Court held the death
penalty as valid. It held that deprivation of life is constitutionally lawful if done according to the
procedure set by law.

Crimes that are punishable by death are known as capital crimes, capital offences, or capital felonies,
and vary depending on the jurisdiction, but commonly include serious crimes against the person,
such as murder, mass murder, aggravated cases of rape (often including child sexual abuse),
terrorism, aircraft hijacking, war crimes, crimes against humanity, and genocide, along with crimes
against the state such as attempting to overthrow government, treason, espionage, sedition, and
piracy. Also, in some cases, acts of recidivism, aggravated robbery, and kidnapping, in addition to
drug trafficking, drug dealing, and drug possession, are capital crimes or enhancements. However,
states have also imposed punitive executions, for an expansive range of conduct, for political or
religious beliefs and practices, for a status beyond one's control, or without employing any
significant due process procedures. Judicial murder is the intentional and premeditated killing of an
innocent person by means of capital punishment. For example, the executions following the show
trials in Russia during the Great Purge of 1937–1938 were an instrument of political repression.

Death punishment or capital punishment can be provided for the offences under sections 121, 132,
194, 302, 303, 305, 307, 364A, 376E, 396, and so on of the Indian Penal Code. In these sections, it is
not obligatory for the court to provide capital punishment.
 25

Earlier, for the offence provided under section 303, i.e., murder by life convict, capital punishment
was compulsory. In Mithu vs the State of Punjab, the death penalty was held unconstitutional for
being violative of Articles 14 and 21 of the Constitution.

The Supreme Court in Bachan Singh vs the State of Punjab upheld the validity of the death penalty,
but the court restricted the provision of the death penalty to the rarest of rare cases only. If the case
falls under this theory, then capital punishment may be given.

The court did not elaborate as to what falls under the category. Still, the court has declared from
time to time that the cases like honour killings, assassination, genocide, brutal murder, etc., fall
under the definition of ‘rarest of the rare case’.

As per section 54 of the Indian Penal Code, the appropriate government can commute the sentence
of death for any other punishment provided by this Code.

Imprisonment for life

The words “imprisonment for life” was substituted for “transportation for life” by Act XXVI of 1955.

In this type of punishment, an accused convicted of a crime has to remain in prison until he is alive
or until pardoned or otherwise commuted to a fixed period.

In its natural meaning, imprisonment for life means imprisonment for the whole of the remaining
term of the convicted person’s natural life. As per section 57 of the Code, the period for life
imprisonment is 20 years only for calculating purposes. Imprisonment for life can never be simple

As per section 433(b) of the CrPC and section 55 of the IPC, the appropriate government has the
power to reduce or suspend the sentence of imprisonment for life to imprisonment for a term of not
more than 14 years. As the prisoner is under the supervision of the State Government, the State
Government has trust in it and in such case, the State Government can appeal for the reduction of
the punishment.

Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to
remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or
otherwise commuted to a fixed term. Some countries have life imprisonment sentences as 25 years,
such as the USA. Crimes for which, in some countries, a person could receive this sentence include
murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, drug trafficking,
drug possession, human trafficking, severe fraud and financial crimes, aggravated criminal damage,
arson, kidnapping, burglary, and robbery, piracy, aircraft hijacking, and genocide, crimes against
humanity, war crimes, severe cases of child pornography, or any three felonies in case of three-
strikes law. Life imprisonment (as a maximum term) can also be imposed, in certain countries, for
traffic offences causing death. Life imprisonment is not used in all countries; Portugal was the first
country to abolish life imprisonment, in 1884.

Where life imprisonment is a possible sentence, there may also exist formal mechanisms for
requesting parole after a certain period of prison time. This means that a convict could be entitled to
spend the rest of the sentence (until that individual dies) outside prison. Early release is usually
conditional on past and future conduct, possibly with certain restrictions or obligations. In contrast,
when a fixed term of imprisonment has ended, the convict is free. The length of time served and the
conditions surrounding parole vary. Being eligible for parole does not necessarily ensure that parole
will be granted. In some countries, including Sweden, parole does not exist but a life sentence may –
 26

after a successful application – be commuted to a fixed-term sentence, after which the offender is
released as if the sentence served was that originally imposed.

Imprisonment

Imprisonment means taking away a person’s freedom and putting him in prison. According to
section 53 of the IPC, there are two kinds of imprisonment:

Simple Imprisonment: It is the type of imprisonment where an accused convicted of a crime is kept
in prison without any hard labour. They are required to do only light duties. The punishment of
simple imprisonment is awarded only for lighter offences such as defamation.

Rigorous Imprisonment: It is the type of imprisonment under which a prisoner or an accused

convicted for a crime is kept in prison, and they have to do hard labour such as agriculture,
carpentry, drawing water, etc. Rigorous imprisonment is obligatory for the offences given under the
following two sections (no alternative for simple imprisonment is available):

i. Section 194, IPC: Giving or fabricating false evidence with intent to procure conviction of
capital offence.
ii. Section 449, IPC: House-trespass in order to commit offence punishable with death.

Forfeiture of Property

Forfeiture implies the loss of property of the accused. Under this punishment, the State seizes the
property of a criminal. It is the result of the wrong or default caused by the person. The property
forfeited may be movable or immovable.Under this punishment, the government seizes all the
property or assets of the convicted. The seized property or asset may be movable or immovable.
Forfeiture of property as punishment is for offences under section 126 and section 127. Forfeiture
of property as punishment is provided for the offences given under section 126 (committing
depredation on territories of power at peace with the Government of India) and section 127
(receiving property taken by war or depredation mentioned in sections 125 and 126).

Fine

The court may impose the punishment of a fine as sole imprisonment or as an alternative for
imprisonment, or in addition to imprisonment. It depends upon the court to decide whether either
imprisonment or fine or both are to be awarded in a particular case. According to section 64 of IPC,
the court may order imprisonment if a person fails to pay the fine. It is a kind of monetary
punishment. The convict has to pay the fine as a punishment for the offence. According to section 64
of the Indian Penal Code, if anyone fails to pay a fine, the court can issue orders for imprisonment.

Solitary Confinement

It is defined under section 73 of the IPC. Solitary confinement means keeping the prisoner isolated
and away from any kind of intercourse with the outside world. It is believed that a feeling of
loneliness may exert a wholesome (good) influence and reform the criminal. Solitary confinement
shall in no case exceed three months in total. The scale, as given in section 73, is as follows:

1. If the term of imprisonment is less than or up to six months, then the period of solitary
confinement shall not exceed one month.
2. If the term of imprisonment is more than six months but less than one year, then the period
of solitary confinement shall not exceed two months.
 27

3. If the term of imprisonment is of more than one year, then the period of solitary
confinement may be up to three months but not beyond that.

It can only be awarded if the following two conditions exist:

A person must be convicted for an offence under this Code.

The offence must be the one for which the court has the power to sentence the accused to rigorous
imprisonment.

According to section 74 of IPC, the punishment of solitary confinement cannot be awarded for the
whole term of imprisonment, and it must be imposed at intervals. A sentence of solitary
confinement for the whole term of imprisonment is illegal if awarded for more than 14 days at a
time. When the imprisonment awarded is of more than three months, the solitary confinement shall
not exceed seven days in any one month of the whole imprisonment awarded.

--------------------------------------------- -------------------------- ---------------------- --------------------------

Habitual Offender 6

“Habitual offender” means a person— (a) who, during any continuous period of five years, whether
before. or after the commencement of this Act, has been convicted and. sentenced to imprisonment
more than twice on account of any one or more of the offences mentioned in the Schedule to this.

Habitual offender, person who frequently has been convicted of criminal behaviour and is presumed
to be a danger to society. In an attempt to protect society from such criminals, penal systems
throughout the world provide for lengthier terms of imprisonment for them than for first-time
offenders.

A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was
previously convicted of crimes. Various state and jurisdictions may have laws targeting habitual
offenders, and specifically providing for enhanced or exemplary punishments or other sanctions.
They are designed to counter criminal recidivism by physical incapacitation via imprisonment.

The nature, scope, and type of habitual offender statutes vary, but generally they apply when a
person has been convicted twice for various crimes. Some codes may differentiate between classes
of crimes (for example, some codes only deal with violent crime) and the length of time between
convictions. Usually, the sentence is greatly enhanced; in some circumstances, it may be
substantially more than the maximum sentence for the crime.

Whoever convicted of an offence under this Act subsequently commits an offence punishable under
this Act, shall be punishable with imprisonment for a term which shall be not less than five years but
which may extend to ten years and shall also be liable to fine.

------------------------------------------------------ ---------------------------- -------------------------------------------

What is capital punishment? Discuss whether capital punishment should be abolished or retained?

Arguments in favour of retention of death penalty.

Prevention of future crimes - To begin with, the death sentence will prevent future offences. Future
crimes may be discouraged by imposing the worst punishment for the most terrible of offences. This
has a profound effect on human psychology. When a person knows he is likely to be severely
 28

penalised for specific conduct, and the cost of that behaviour much surpasses the reward, it is self-
evident that he will not commit that act.

Ensuring justice - Second, the death penalty ensures that justice is served. The Preamble to the
Indian Constitution aims to achieve, among other things, justice for all Indian citizens. The ways by
which such justice can be achieved are crucial. Isn’t it only just that a person who has committed the
most terrible of crimes, who poses a threat to society as a whole, who has no repentance, no ounce
of humanity left in them, be sentenced to death? What rights are these offenders supposed to have,
according to human rights advocates? What about the citizens’ trust in the justice system to ensure
that a person is punished proportionately to the offence that he or she has committed? These
questions clearly establish a foundation from which the elimination of the death penalty is viewed
with severe scepticism.

Judicial reasoning - Third, the death penalty is not imposed arbitrarily. The death sentence in India is
not imposed on the basis of no evidence or without any logic or reasoning. To begin with, as
previously indicated, capital punishment is only applied in the rarest of circumstances. Even if the
death sentence is carried out, the convict has the right to make a mercy petition, or the death
sentence may be modified to life imprisonment owing to undue delay.

Capital punishment is the strongest possible deterrent to criminals and potential criminals. Many
people are deterred from committing certain crimes if they know the punishment for the crime will
be death. Human beings naturally fear death; this fear is ever-present and widely guarded against. A
rational person would think twice before committing a particular crime if he or she knew that the
punishment for the crime is death.

Heinous criminal activities such as rape, treason, murder, terrorism, and drug dealing can be
drastically reduced when the death penalty is practiced. This is why some countries such as Saudi
Arabia, where capital punishment is still actively practiced and where one can easily be sentenced to
death for committing certain crimes, have a reputation for being safe and orderly. In China and
Singapore, one can easily be sentenced to death if found guilty of smuggling drugs. People around
the world say the death penalty in those countries drastically reduces the use of illegal and harmful
drugs and all the vices associated with drugs.

Capital punishment reduces cost. It can be very expensive to imprison criminals because the state is
obligated to feed, shelter, and clothe them and provide the basic things they need to live in a
humane way. Now, imagine a case of a person serving a life term for murder. This person is going to
be taken care of by the state until the day he dies. By the time he finishes serving his life term, he
will end up costing the taxpayers a lot, and that money would have been saved if that person had
been executed. This is why many say that capital punishment is cost-effective.

Certain crimes are so heinous that they deserve nothing but the death penalty. Justice requires the
strongest response the state can make. Let’s take an example of a terrorist who deliberately
murders dozens of innocent civilians. Is it fair to hand such a criminal a life term in prison where he is
going to be taken care of by the same society he harmed? The severity of his crime deserves a
severe punishment like the death penalty. Justice is not served until such a person receives a
punishment equivalent to his or her crime.

Some very violent and hardened criminals such as serial killers must not live among the general
population because of their high tendency to continue killing; society needs to isolate those people
forever. But being sentenced to life imprisonment doesn’t always guarantee that a serial killer will
be kept away from the general population forever. Some criminals who have been sentenced to life
 29

imprisonment escape from prison and end up in society where they continue to commit their violent
and heinous crimes. Over the years, there have been several cases of cold killers (like Ted Bundy)
escaping from jail and going on to hurt and kill more innocent people. The lives of these later victims
could have been spared had these murderers been executed in the first place.

Arguments in favour of the abolition of death penalty

Execution of innocent people - Innocent individuals have been executed in the past and will continue
to be executed in the future. No matter how advanced a legal system is, it will always be vulnerable
to human errors. Between 2000 and 2014, the Supreme Court and high courts acquitted a fifth of
individuals sentenced to death by trial courts. That’s 443 individuals who were sentenced to death
but were later determined to be innocent of all accusations.

Arbitrariness - The possibility of the death penalty being applied arbitrarily cannot be ruled out. The
death sentence is frequently used disproportionately on the poor, minorities, and members of racial,
ethnic, political, and religious communities. According to the National Law University Delhi’s Death
Penalty India Report 2016 (DPIR), approximately 75% of all convicts sentenced to death in India are
from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.

Inhumane - Human rights and dignity are incompatible with the death penalty. The death sentence
is a violation of the right to life, which is the most fundamental of all human rights. It also infringes
on the right not to be tortured or subjected to other brutal or degrading treatment or punishment.
Furthermore, the death penalty degrades the basic dignity of every human being.

Deterrence - The death sentence does not have the deterrent effect that its supporters claim it does.
“There is no solid proof of the death penalty’s deterrent value,” the United Nations General
Assembly has stated (UNGA Resolution 65/206). It’s worth noting that the effectiveness of the death
penalty in preventing crime is being seriously questioned by a growing number of law enforcement
experts in many retentionist states.

Public opinion - The public’s support for the death penalty does not necessarily imply that the state
has the authority to take a human being’s life. There are unmistakable historical precedents where
majorities of people supported terrible human rights atrocities, only to be roundly denounced later.
Leading people and politicians have a responsibility to emphasise the incompatibility of capital
punishment with human rights and dignity. It is important to emphasise that popular support for the
death sentence is intrinsically tied to people’s desire to be free of crime. There are, however, more
effective methods for preventing crime.

It is a sin to kill. One of the biggest sins a person or a society can commit is to take the life of a
person. Christianity is the largest religion in the world, including in most countries where the death
penalty has been abolished, so let’s take a look at the issue of killing from the point of view of a
Christian. Anybody familiar with the Bible is aware of one of the Ten Commandments which goes like
this: “Thou shall not kill.” If you are a Christian who believes in the Bible, killing is something you can
never endorse.

The death penalty is a barbaric and inhumane act, not worthy of a civilized society. No matter how
severe the crime a person committed was, it is inhumane to punish the person by killing him or her.
Think of it this way: society condemns a person for murder and goes on to punish the person by
killing him. What makes society any different from the murderer?

Most methods of execution are cruel and inhumane because the offender has to go through a lot of
pain and suffering before eventually dying. Some of these cruel methods include shooting, hanging,
 30

and stoning. Even modern methods of execution like lethal injection and the electric chair cause
suffering and have been called inhumane.

When capital punishment is allowed, innocent people can end up being executed. The saddest thing
about capital punishment is the stories of unfortunate people who end up being executed for crimes
they didn’t commit. Sadly for some of these innocent people, the truth takes a long time to come
out, and by the time the evidence that proves they are innocent comes out they might have already
been executed. This is why many opponents of the death penalty fight night and day to get this type
of punishment abolished. The Death Penalty Information Center says that, since 1973, at least 190
people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated,
while listing 20 people who were executed despite strong evidence that they were innocent. The
Innocence Project says 18 other people have been proven innocent and exonerated by DNA testing
in the United States after serving time on death row.

Another reason why capital punishment should be discouraged is that certain crimes are committed
on impulse. Let’s take the case of a person who kills someone on impulse or in a state of strong
emotion and instantly regrets his action. While this person has killed and committed a crime, and
deserves to be punished seriously, it is sometimes too harsh to give such a person the death
sentence for an act he never thoroughly intended. Unfortunately, in many places where the death
penalty is practiced, a capital offense (whether it was committed on impulse or not) warrants a
death sentence.

The death penalty violates one of the fundamental and natural rights of every human being, which is
the right to live. Every human has the fundamental right to live, as stated for example in the United
Nations Declaration of Human Rights, or the United States Declaration of Independence. Who has
the authority to take this important natural right away?

We are not even sure that the death penalty deters crime. It is difficult to prove with statistics that
execution reduces crime, including in Singapore. It has even been argued that the death penalty
encourages murder, because it gives a criminal an incentive to eliminate witnesses and law
enforcement, makes juries reluctant to convict, allows "suicide by cop," and makes the state seem
hypocritical for punishing behavior that it itself commits.

Certain crimes don’t deserve the death penalty. Justice is not served when a person’s punishment is
not equivalent to the severity of his or her crime. In certain countries, especially Islamic countries,
people can be sentenced to death for crimes that are not violent. In many Islamic countries across
the world, the crime of "apostasy," abandoning one's religion, can receive a sentence of death. A
government that executes people for religious or moral crimes might abuse its power as a pretext
for eliminating political enemies.

Some criminals regret their heinous crimes and repent while in prison. They later go on to become
model prisoners and advise others against a life of crime. They use their lives as an example to show
people that crime doesn’t pay. Unfortunately, the death penalty eliminates the possibility of people
like this reforming and becoming useful people in the future.

------------------------ ------------------------------ -------------------------- ---------------------------------------------

What is open prison? Explain its advantages and disadvantages. 10

A prison where prisoners have more freedom than in other types of prisons because they are not
considered dangerous and are trusted not to escape: He has been transferred from an open prison
to a higher security jail.
 31

The other names for open prison are minimum security prison, open-air camps or prison without
bars. The objectives behind setting up these prisons were overcrowding of jails, increasing costs to
maintain controlled jails, as a reward for good behaviour, to make them self-dependent etc.

Eligibility: Although the eligibility criteria vary from state to state, one principal and universal rule is
that the inmate must be a convict and such person must have stayed in controlled jail for at least
five years in order to have evidence over his or her good conduct. These are not open for under trial
prisoners.

These prisons have minimal security and allow eligible prisoners to spend most of their day away
from the prison on licence to carry out work, education or for other resettlement purposes. Open
prisons only house prisoners that have been risk-assessed and deemed suitable for open conditions.

Open prisons refer to the prisons that involve minimum security and is mainly dependent on the
self-discipline of the inmates. The rules of these prisons are less stringent as compared to the rules
of the other prisons. For this reason, they are also known as open air camps, prisons without bars or
minimum security prison. These promote one of the major principles of punishment known as the
‘Reformative Theory’ where instead of severely punishing the convict, an opportunity is provided to
reform oneself and get into the mainstream life. Rajasthan which has as many as 29 open prisons,
the highest in the country provides a definition of open prisons in its Rajasthan Prisons Open Air
Camp Rules, 1972 as follows: ‘prisons without walls, bars and locks.’

Advantages

1) They help in reducing overcrowding in jails.

2) The construction cost is fairly reduced.

3) The operational cost of open prisons is far less than the enclosed prisons.

4) Engaging inmates of open air prisons in productive work reduces idleness and keeps them
physically and mentally fit.

5) Open prisons offer opportunities for self-improvement and resocialisation to the inmates.

6) The removal of prisoners from general prison to an open prison helps in conservation of natural
resources and widens the scope of rehabilitative process.

Open Prisons play a very vital role in the reformation of prisoners which is now considered as one of
the most important aims of prison system.

Open prisons aid in avoiding overcrowding in jails.

(iii). The cost of construction is quite less than closed prisons.

(iv). Introduction of wage system helps the government provide employment.

(v). Open prisons allow the inmates to be visited by people and family and thus helps them realise
their social responsibility.

(vi). Since the inmates are engaged in productive work in forests, construction sites, they remain
mentally and physically fit.

Disadvantages
 32

Since some prisoners are allowed to set up their livelihood in and around the prisons and also stay
with their family, they later refuse to move out of the place as it became a cost-free shelter for them
in a prime location. There were other reasons for staying in also, as they get emotionally attached to
the place. They also want stability in the education of their children, all of which will be affected if
they relocate.

The undertrial prisoners, who are often falsely implicated into cases and have to go through the
ordeals of the police and courts do not have access to these prisons. Rather, they are more in need
of such prisons as it will provide a conducive environment for confession, inquiry and also
reformation. This is specially in case of undertrial women, sick and juveniles who are more
vulnerable to abuse.

Under-utilisation of the Open Prisons. These prisons have a capacity to accommodate 25776
prisoners however, only 3786 prisoners are currently in these prisons (as of 2015). This shows that
despite the heavy overcrowding in the closed prisons, open prisons are vacant.

The prisoners in most states are selected by a committee, who have no accountability over them, as
they are not expected to provide reasons for their selections. This leads to partiality and corruption.

No measures are taken for the convicts beginning their sentence. At least, semi-open prisons should
be made open for the fresh convicts.

No provision of Open Jails to under trial prisoners.

Inadequate Open Prisons in every state. Some states are concentrated with Open Prisons while
some have just one and no Union Territory in India has an Open Prison. Due to the state list subject,
this inequality exists among different states.

Open Prisons are the only rehabilitative prisons in India. Which also favor only a small number of
convicts. There is a need for more rehabilitative provisions for other convicts, in order to reduce the
amounts of custodial deaths.

The rules and laws governing the selection and administration are extremely old and thus unfit for
the present situations.

(i) An offender is sent to prison ‘as’ punishment and not ‘for’ punishment.

(ii) Unless the conditions of captivity are relaxed, a person can’t be trained for freedom.

(iii) The gap between the institutional life and free life has to be bridged to ensure the return of
inmate as a law-abiding member of the society.

(iii) The dictum ‘trust begets trust’ is true for prisoners as well, meaning thereby that if the inmates
are kept in open prisons and trust is reposed in them, they shall not betray the trust.

------------------------------- ------------------------------------------- ----------------------------- ----------------------------

Parole. 6

A conditional release of a prisoner who has served part of a sentence and who remains under the
control of and in the legal custody of a parole authority compare probation. Parole (also known as
provisional release or supervised release) is a form of early release of a prison inmate where the
prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated
parole officers, or else they may be rearrested and returned to prison.
 33

A parole officer with the Missouri Department of Corrections interviews a drug-related offense
probationer

Originating from the French word parole ("speech, spoken words" but also "promise"), the term
became associated during the Middle Ages with the release of prisoners who gave their word.

This differs greatly from pardon, amnesty or commutation of sentence in that parolees are still
considered to be serving their sentences, and may be returned to prison if they violate the
conditions of their parole.

In India, Parole is a significant part of the criminal judicial system. It simply refers to a prisoner’s
temporary or permanent release before the end of his/her sentence in exchange for good behavior
during the course of their punishment. It is a way by which prisoners are given a chance to get back
their social and normal life. However, nowadays it has become a way through which wealthy people
make their way out of jail or imprisonment.

History of Parole

The history of parole in India can be traced back to the French phrase ‘je donne ma parole’ which
translates to ‘I give my word’. It was initially offered to prisoners of war to live with their families for
a temporary period, under the promise to return when the said period was over. In the landmark
case of Charanjit Lal v. State of Delhi, the main goals of parole have been derived as deterrence,
prevention, retribution, and reformation.

Goal and Objectives of Parole

The main objective or goal of parole in India is to grant some relief to the prisoners. It can be granted
for the following reasons:

If the prisoner or any of his family members is severely ill/dead;

The marriage of the prisoner, his son, daughter, grandson, granddaughter, brother, sister, etc;

When the temporary release of the prisoner is necessary for ploughing, sowing or harvesting, or
carrying out any agricultural profession or his father’s undivided land is actually in possession of the
prisoner;

When it is desirable to do so for any other sufficient cause.

According to the 2010 Parole/Furlough Guidelines, the following requirements must be fulfilled to
become eligible for parole:

A convict must have served at least 1 year in jail, excluding any time spent for remission.

The prisoner must have good behavior during the course of the punishment.

The convict should not have committed any crimes during the period of parole if it was granted
previously.

The convict should not have broken any rules or regulations in his previous parole.

A minimum of 6 months should have passed since the previous parole was terminated.

Types of Parole in India

There are mainly two types of parole in India:

 34

1. Custody Parole
2. Regular Parole

What is Custody Parole?

This type of parole is granted to prisoners who are not eligible for regular parole or furlough, i.e.,
come under trial prisoners categories. According to Rule 1203 of the Delhi Prison Rules 2018, parole
may be granted to the criminal by an order in writing, issued by the Superintendent of the Prison
and to the under-trial prisoners by the trial court concerned, for a period of not more than 6 hours.
This is granted in the following eventualities:

1. Death of a family member

2. Marriage of a family member
3. Serious illness of a family member

Any other emergency circumstances with the approval of DIG (Range) prisons.

According to the rules, it is clear that under-trial prisoners can only be granted custody parole for a
period limited to 6 hours. In the case of the Election Commission of India v. Mukhtar Ansuri, the
Hon’ble court confirmed that custody parole is not a substitute for a grant of bail and cannot be
extended for a longer period of time or daily.

What is Regular Parole?

This type of parole is granted on the following grounds:

Serious illness to a family member

Critical conditions in the family on account of death or accident

Marriage of a family member or convict

Delivery of the wife of the convict if there is no one else in the house

Serious damage to life or property of family members caused by natural calamities

To maintain family and social ties

To pursue the filing of a Special Leave Petition before the Supreme Court against any judgment
passed by the lower courts.

-------------------------------------- ------------------------------ -----------------------------------------------------------

Difference between probation and parole

BASIS FOR
PROBATION PAROLE
COMPARISON

Meaning Probation is the suspension of Parole implies the early release of the
sentence of an offender and allowing convict before the expiry of the sentence
them to stay in the community while term, to serve the rest of the protion in the
inculcating good behavior, under the community, while ensuring good behavior
supervision of an officer. and subject to specific conditions.
 35

BASIS FOR
PROBATION PAROLE
COMPARISON

Nature Determinative Administrative

What is it? Alternative to jail Conditional release from prison

Imposed by Court Parole Board

Grant Prior to the incarceration. After the offender has completed a certain
portion of his prison sentence.

Allowed to First time offenders and crimes that Criminals that are already under detention.
does not involve violence.

Offender Probation Officer Parole Officer

reports to

Distinction between probation and parole

1. Probation is granted to offenders who are released into the community under supervision,
instead of being imprisoned. But parole is a temporary release for prisoners and comes with
conditions to be followed by the prisoner during that period.
2. In India, probation is governed by the Code of Criminal Procedure and the Probation of Offenders
Act. But we cannot find a uniform and concrete set of rules and regulations for parole. Though it
is recognized under the Prisons Act and Prisoners Act, the state governments are authorized to
issue their own parole guidelines, causing variation in parole guidelines across the nation.
3. Probation refers to the judgement given by the court to convicts. Meanwhile, parole is just an
arrangement of the temporary release of prisoners.
4. Probation is an alternative form of penalty granted instead of imprisonment, but parole is
granted during imprisonment. Parole is not an alternative to imprisonment.
5. Probation is pronounced by the court. Probation is judicial in nature. Parole in India is usually
decided by the Deputy Secretary of the Home Ministry of the State or by the District Magistrate.
Parole is mostly quasi-judicial in nature.
6. Probation is granted before the convict undergoes imprisonment and parole is granted after the
prisoner undergoes a minimum period of imprisonment.
7. Probation is not granted to offenders who have been imprisoned or convicted before. Parole is
granted to offenders undergoing imprisonment.
8. When an offender who has been released on probation, defaults on any conditions of probation,
he is resentenced to prison for a particular period of time. But violating the conditions of parole
sends a convict back into prison to resume the imprisonment based on the original judgment.
9. Probation is the first stage in the correctional system of an offender. But parole is in the last stage
after the offender undergoes a period of punishment.
 36

10.There is less stigma for a person undergoing probation as he is not sentenced to prison. But when
a prisoner is released on parole, he would face discrimination in society.

--------------------------------------- ----------------------------------- ---------------------------------------------------

What is probation?

Probation, correctional method under which the sentences of selected offenders may be
conditionally suspended upon the promise of good behaviour and agreement to accept supervision
and abide by specified requirements. Probation is distinct from parole, which involves conditional
release from confinement after part of a sentence has already been served.

Instead of keeping an accused with hardened criminals in a prison, the court can order personal
freedom on promise of good behaviour and can also order a period of supervision over an offender.
This is the concept behind 'probation'.

A situation or period of time in which a person who has committed a crime is allowed to stay out of
prison if that person behaves well, does not commit another crime, etc. He hoped that the judge
would grant him probation. He was sentenced to one year's probation.

The probation process for an adult begins with a pre-sentence investigation of the offender after
guilt has been established. Statutes commonly exclude from consideration persons convicted of
serious offenses, such as armed robbery or murder, or persons previously convicted of other
offenses.

When probation is ordered by the court, the offender is placed under the supervision of a probation
officer, or a person appointed by the court, with the conditions of probation specified in the court
order. Typically, these require that the probationer conduct himself properly, maintain his local
residence, report regularly to his probation officer, support his family, pay restitution, avoid criminal
associations and disreputable places, and abstain from drinking. Though these conditions may effect
the rehabilitation of an individual, they have been criticized by some as requiring the guilty to tread
a narrower path than the average citizen.

------------------------------- ------------------------------------------ -------------------------------------------------------

How probationaries are selected. 10

Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or
imprisonment for life.

The Court has to consider the circumstances of the case including the nature of the offence and the
character of the offender.

The court may pass a supervision order to release the offender on probation of good conduct. The
supervisory period is not to be shorter than one year. The probation officer must supervise the
individual for such a span in such a situation. In the supervisory order, the name of the probation
officer should be listed.

The Court can direct the offender to execute a bond, with or without sureties, to appear and receive
sentence when called upon during such period which should not exceed a period of three years. The
court may release the offender on good behaviour.
 37

The Court may put appropriate conditions in the supervision order and the court making a
supervision order explain to the offender the terms and conditions of the order. Such supervision
order should forthwith be furnished to the offender.

Probation officer’s report is not compulsory to enforce this rule, but if the information is required on
record, the Court shall take into account the probation officer’s information before granting a
probation order for good behaviour.

------------------------------------- -------------------------------- -------------------------------------------------------

Powers and duties of probation officer

Probation Officer

A probation official is a court officer who regularly meets people sentenced to a supervised
probation period. Generally, these people are perpetrators and lower-level criminals. The majority
of the offenders placed on probation are first time offenders. Placing any one on probation is a way
for the court to prevent offenders from incarceration. Many that are on probation live in our
neighbourhoods, stay home, are working or participating in an educational program, and raise their
children. The justice system’s objective is to have a person who is put on probation as a responsible
member of society while retaining contact with his or her family and community support sources.

Responsibilities of Probation Officer

A probation officer will need to meet, on a monthly or sometimes weekly basis, their client. Based
on an assessment of risk/needs, the probation officer may decide the degree of supervision that a
person requires (minimum, medium or maximum). It helps to determine how much assistance a
person requires. Evaluations assess how a person is engaged in a group, often referred to as their
community relations. The assessment also checks how likely another person will commit more
crimes.

Any time a probation client visits his/her probation officer, a report form needs to be filled out. Lives
of the populations also shift because of unemployment, job gain, or divorce. Meeting with a client
allows the probation officer to see where additional support is required in order for the client to
succeed. Therefore, when a person starts at a maximum supervisory level (weekly meetings), this
does not mean that they must remain at this level during their probationary period. Probation
officers are required to regularly revise the case plan of a probationer.

Powers and Duties of Probation Officer

Pursuant to the Offenders Probation Act 1958 – Section 14 Gives details concerning the duties of
probation officers that, subject to such conditions and limitations as may be imposed, a probation
officer is expected to do:

Investigate the circumstances or domestic environment of any person accused of an offence with
the intention, in accordance with any direction of the Court, to help the Court to determine and
report the most appropriately advised approach to his dealing with it;

Supervising probationers and other persons under his supervision and seeking suitable employment
where necessary;

Counselling and supporting victims in the payment by the Court of penalties or costs;
 38

Advice and assist persons released pursuant to Section 4 in such situations and manner as may be
prescribed;

Perform the other duties prescribed as may be.

A probation agent, as laid down in Section 14 of the Act, has main functions, such as investigation,
supervision and guidance, counselling and professional control of criminal probation. As an inspiring,
guiding and supporting probationer, this probation officer facilitates the rehabilitation of the
criminal as a law-abiding member of society.

Investigate any individual accused of an offense’s circumstances or home environment with the goal,
in line with any Court instruction, to assist the Court in determining and reporting the most suitably
advised approach to his dealing with it;

Supervising probationers and other people under his supervision and, if required, locating suitable
jobs;

Counselling and assisting victims in the payment of fines or fees by the Court;

Advice and assistance to people released under Section 4 in such situations and manner as may be
required; Perform any other tasks that may be prescribed.

According to Section 14 of the Act, a probation agent’s primary responsibilities include investigation,
monitoring and direction, counselling, and professional control of criminal probation. As an inspiring,
guiding and supporting probationer, this probation officer facilitates the rehabilitation of the
criminal as a law-abiding member of society.

---------------------------------------------------------------------------- -------------------- ----------------------------

Explain the remedies available to victims in North America 10

The crime victims' rights movement in the United States is founded on the idea that, during the late
modern period (1800-1970), the American justice system strayed too far from its victim-centric
origins. Since the 1970s, the movement has worked to give victims a more meaningful role in
criminal proceedings, aiming at the inclusion of "the individual victim as a legally recognized
participant with rights, interests, and voice."

During the colonial and revolutionary periods, the United States criminal justice system was "victim
centric" in that crimes were often investigated and prosecuted by individual victims. In the 19th and
early 20th centuries, however, the focus shifted so that crime was seen primarily as a "social harm."
The criminal justice system came to be seen as a tool for remedying this social harm, rather than an
avenue for redress of personal harm, and the role of the victim in criminal proceedings was
drastically reduced.

The modern crime victims' rights movement began in the 1970s. It began, in part, as a response to
the 1973 U.S. Supreme Court decision in Linda R.S. v. Richard D. (410 U.S. 614). In Linda R.S., the
court ruled that the complainant did not have the legal standing to keep the prosecutors' office from
discriminately applying a statute criminalizing non-payment of child support. In dicta, the court
articulated the then-prevailing view that a crime victim cannot compel a criminal prosecution
because "a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution
of another." This ruling served as a high-water mark in the shift away from the victim-centric
approach to criminal justice, making it clear that victims in the 1970s had "no formal legal status
beyond that of a witness or piece of evidence."
 39

Victims' rights legislation

Since 1982, thirty-three states have amended their constitutions to address victims' rights, and all
states have passed victims' rights legislation. That same year, Congress passed the first piece of
federal crime victims' rights legislation, the Victim and Witness Protection Act. In 1984, the Victims
of Crime Act was passed. A decade later, in 1994, the Violence Against Women Act became law. In
2004, the landmark Crime Victims' Rights Act was passed, granting crime victims eight specific rights,
and providing standing for individual victims to assert those rights in court.

Under the Victims’ Rights and Restitution Act (VRRA), 34 U.S.C. § 20141, some of the services victims
are entitled to include:

1. To be informed of the place where they may receive medical and social services
2. To be informed of public and private programs available for counseling, treatment, and other
support services
3. To receive reasonable protection from a suspected offender and persons acting in concert with
or at the behest of the suspected offender
4. To know the status of the investigation of the crime, to the extent it is appropriate and will not
interfere with the investigation
5. To have personal property being held for evidentiary purposes maintained in good condition
and returned as soon as it is no longer needed for evidentiary purposes

Federal law

Victims of Crime Act (VOCA)

VOCA established the Crime Victims Fund, which awards grants to crime victim compensation
programs, victim notification systems, and victim assistance programs. The Fund is financed by
offender fees.

Crime Victims' Rights Act of 2004

The Crime Victims' Rights Act, part of the Justice for All Act of 2004, enumerates the rights afforded
to victims in federal criminal cases. The Act grants victims the following rights:[15]

1. The right to protection from the accused,

2. The right to notification,
3. The right not to be excluded from proceedings,
4. The right to speak at criminal justice proceedings,
5. The right to consult with the prosecuting attorney,
6. The right to restitution,
7. The right to a proceedings free from unreasonable delay,
8. The right to be treated with fairness, and respect for the victims' dignity and privacy

The Crime Victims' Rights Act was named for Scott Campbell, Stephanie Roper, Wendy Preston,
Louarna Gillis, and Nila Lynn, murder victims whose families were denied some or all of the rights
granted by the Act in the course of their cases.

State law

All states have passed legislation that protects the rights of victims of crime,[17] and most have
passed constitutional amendments that afford protection to crime victims.[3] Some state laws apply
to only victims of felony offenses, while other states also extend rights to victims of less serious
 40

misdemeanor offenses. When a victim is a minor, disabled, or deceased, some states permit family
members to exercise rights on behalf of the victim.

Common state law protections include:

1. The right to be treated with dignity and respect,

2. The right to be informed about the prosecution, plea offers, court proceedings, and sentencing,
3. The right to make a statement in court at the time of sentencing,
4. The right to protection,
5. The right to seek compensation from a state victim's rights fund,
6. The right to restitution from the offender,
7. The right to return of personal property, and
8. The right to be informed of parole proceedings or release from incarceration, and the right to
make a statement to the parole board,
9. The right to enforcement of victim's rights.

----------------------------------- ----------------------------------------------- ------------------------------

Victim Witness assistance programme 6

The role of the Victim Witness Assistance Program is to ensure that victims and witnesses of Federal
crime, who have suffered physical, financial, or emotional trauma, are informed of their rights,
receive the assistance and protection to which they are entitled under the law. The United States
Attorney's Office for the Central District of California is committed to ensuring that federal crime
victims are afforded all rights to which they are entitled by law.

The Victim Witness Assistance Program provides a variety of services and assistance to victims and
witnesses. One of the functions of the program is to provide education regarding the criminal justice
process and its participants. Victim Witness staff can also notify victims and witnesses of case
events, is able to provide courtroom orientation, and can accompany victims to court proceedings if
desired.

Staff members primarily work with victims involved in indicted cases, however, program staff also
works closely with Victim Assistance staff from various federal agencies, such as the Federal Bureau
of Investigation, U.S. Postal Inspection Service, or U.S. Immigration and Customs Enforcement, who
also provide services to federal victims for cases under investigation. Referrals to appropriate
community organizations can be provided that can help victims access the services they need to
recover from crime.

The Victim Witness Assistance Unit provides assistance to victims and witnesses of federal crimes
while they are involved with the criminal justice system. Services include:

1. Information on court proceedings and case status

2. Referrals to counseling, medical and other social services
3. Court accompaniment
4. Special services for child victims, the elderly, and handicapped victims
5. Crime victims compensation claims assistance
6. Assistance with completing victim impact statements
7. Assistance with travel and lodging for out of town witnesses
8. Support witnesses throughout court proceedings
9. Assistance with restitution issues
 41

*********************** **************

Witness Protection Scheme

It is very crucial that the witnesses are protected as there are chances of them being intimidated by
the accused. If we look at the Courts in Delhi, there is a provision as per which the courtroom is
divided into three parts. This is done so that the victim and the accused are not placed in front of
each other in the same room.

It was ruled by the Supreme Court in a recent judgment where the Court stated that a Witness
Prosecution Scheme must be there in each and every state. A positive step forward is taken with the
introduction of such victim compensation schemes. In addition to this, certain guidelines were also
released by the Apex Court in this respect which is as follows:

The Centre has drawn the Witness Prosecution Scheme in 2018 along with the inputs from the
States, Union Territories. In addition to this, the National Legal Services Authorities, Civil Society,
High Courts as well as police personnel also provided inputs for the same.

It has been observed that the witnesses are frightened and intimidated in order to give evidence and
no protection from the violent or other criminal recrimination is provided to them. Thus, the main
objective of this scheme is to make sure that the investigation, prosecution as well as trial of criminal
offenses is not prejudiced.

From where do the states receive funds for the victim compensation program

In most states, a court fee has to be paid by the convicted perpetrator. This in turn serves as the
source of revenue for the victim compensation program of each state instead of taxes. In addition to
this, the federal Victims of Crime Act (VOCA) which was enacted in 1984 also provides support to all
the state programs.

A limit has been placed on the total amount of money that can be paid on a single case and in
addition to this, the limit on the amount of money that can be paid per category of expense has also
been put. The average of the maximum benefit that a state provides under the victim compensation
is about $25,000 as per the National Association of Crime Victim Compensation Boards (NACVBC).
However, some states are able to provide more benefits while some states are able to provide lesser
benefits as per their capacities.

--------------------------------------- ----------------------------------------------- ----------------------------------

Discuss different categories of victims in need of special and greater attention. 10

Explain with reasons.
Discuss which different categories of victims are in need of special attention and care.

This typology (1956:105-10B) consists of the following six

1. Completely innocent victim (typically children or those who are attacked while unconscious);
2. Victim with minor guilt (often victimized because of ignorance);
3. Voluntary victim, whose guilt is equal to that of the offender suicide pact, for example);
4. Victim more guilty than offender -- one who provokes or induces another to commit crime;
5. Victim who alone is guilty, attacker who is kill self-defence;
6. The imaginary victim -- who has suffered nothing at all but who accuses another falsely.

****
 42

1. Elderly victims
2. Child victims
3. Victims of sex offences
4. Female victims
5. Minority groups and weaker sections

Elderly victims: Abuse, neglect and financial exploitation of elders by their family members and
others are very common these days, forms a base for victimization. Such victimization can be in the
form of physical, emotional. Neglectful, financial, sexual and self-neglect. In order to protect and
mitigate them, certain laws have been made such as The Maintenance and Welfare of Parents and
Senior Citizens Act, 2007.

Child victims: The term “child victim” has, as mentioned above, been defined as children and
adolescents, under the age of 18, who are victims of crime. Lack of mental maturity, physical
strength and gullible nature make them highly dependent on others and vulnerable. There is a need
to separately address and deal with them because once they are subject to any kind of cruelty, it will
leave a deep mark on them for a lifetime if not mitigated on time. That is why they require separate
treatment from elders. The juvenile laws made for children are specifically child-centric and child-
friendly like Prevention of Child Abuse and Victim Protection, juvenile justice act 2015, human
trafficking and child exploitation prevention act etc. Parliament had also made a national
commission for the protection of child rights in the year 2007 to ensure that all legislative and
administrative policies are laid according to the rights of children mentioned in Indian Constitution
and the UN convention of child rights.

When children are victimized, their normal physiological and psychological adjustment to life is
disrupted. Furthermore, they must cope with the trauma of their victimization again and again in
each succeeding developmental stage of life after the crime. Child victims suffer not only physical
and emotional traumas from their victimization. When their victimization is reported, children are
forced to enter the stressful “adult” world of the criminal justice system. Adults—perhaps the same
adults who were unable to provide protection in the first place—are responsible for restoring the
children's sense that there are safe places where they can go and safe people who they can turn to.
As a law enforcement officer, you can play a key role in this process and lessen the likelihood of
long-term trauma for child victims.

Victims of sex offences: The most common type of victimization prevalent in our society is on the
grounds of sexual pleasure, mostly women are targetted to such kind of victimization. Offences like
rape, marital rapes, sexual assault, outraging the modesty of women, stalking and many more comes
under its ambit. These sexual offences have psychological, emotional and physical effects on victims,
it takes time to overcome these effects because of the such as depression, flashbacks, anxiety, self-
harm, substance abuse, STDs, suicidal tendencies to name a few.

Female victims: Nothing victimizes women more than a patriarchal society and gender disparity.
Apart from sexual exploitation, there is offence like disparity in wages, maternity leave, the ill-
treatment to women in homes, dowry, discrimination in the workplace and many more still
prevalent in our modern society due to its patriarchal structure that is why there is a need to protect
women and give them special treatment. The National Commission for Women in India is the apex
body that works for protecting and promoting the interests and rights of women. Similar
Commissions have also been established in most of the states in India. These Commissions were
constituted under the National Commission for Women Act, 1990. It spreads awareness among
 43

women and about women rights, ensures justice to them, paves the way for their right to life with
dignity etc.

Minority groups and weaker sections: India being a hub to multilingualism, multiculturalism and
biggest democracy in the world, have given a way to socio-economic disparity among them. Such
disparity has lead to majority and minority group, economically weak and economically strong group
and socially weak and socially strong group. Consequently, of the weaker sections of the society by
the stronger one is not a shock-horror and will lead to denial and infringement of rights. Therefore, it
is quintessential that laws should be made in order to protect these people and their rights. The
National Commission for Scheduled Castes in India looks into the implementation of legislation like
the Protection of Civil Rights Act, 1955 and the Scheduled Castes and Scheduled Tribes (Protection
Of Atrocities) Act, 1989. It aims at ensuring socio-economic development and protection of the
Scheduled Castes from victimization. Similarly, as per the Constitutional mandate, the National
Commission for Scheduled Tribes looks into the affairs related to the scheduled tribes and strives to
prevent their exploitation and assure their upliftment. The National Commission for Minorities takes
care of the interests of the minority of the country. It was set up under the National Commission for
Minorities Act, 1992 and Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) have been
notified by the Central Government as minorities.

-------------------------------------------------- -------------------------------------- -----------------------------------

Discuss the development of victimology in India - Development of victimology with special

reference to India

The power of victim during the Rigvedic period was so vast that he can even punish the offender but
slowly and gradually this power was taken by the state (king in ancient India, the government in
modern India). The laws at that time were not diverse, they all have laid down more or less same
rules, under the laws of Vishnu, Yajnavalakya, Narada, Brishpati, manu or smritis victim of crime get
compensation for the injury and offender has to pay a fine to the king. Herein, the main principle
followed is of compensation not punishment but during the Vedic period, the varna system was
introduced in which administration of justice and infliction of punishment was introduced and
followed. Adjudication of crime and punishment inflicted upon the offender was made in accordance
with the class or varna of the victim. During the period of

Moghal and British Rule in India, more importance was given to the punishment of criminals rather
than providing measures for compensation to the victim. Criminal justice system was focused only
on providing directions to the offenders and measures to reform them. However, over the years
especially from 1980s, importance was focussed on the protection of victims especially because of
judicial intervention.

Muslim law also follows the concept of restitution and atonement, at the time of Islamic rule more
emphasis was laid on the administration of criminal justice and steps were taken for the betterment
of the society. During the period of Sher Shah Suri, village councils were recognized who were
required to pay the victims in case of robberies and the resulting losses suffered by them. There was
direct involvement of victim and accused in criminal justice process under penal law and punishment
was divided into four categories : kisa; had; tazeer; diya.

The issues related to the criminal-victim relationship were not hidden, yet for centuries no one had
paid any heed to this issue and even today criminal’s mental, social, psychological aspects are more
important than the victim’s, the subject of the victim comes last in the priority list in the
administration of criminal justice system.
 44

In the 1700s, Indians followed the tribal law under which, the respond collectively to criminal
offences and any transgression against an individual is considered as a transgression against the
tribe as a whole. . The tribe, in essence, appropriated a victim’s concerns and whether the
communal response included a long-standing blood feud, vendetta, or even monetary reparation,
the core purpose was not the restoration of any moral order but rather the re-establishment of
tribal authority and the securing of optimal conditions for survival of the tribe as a whole.

Studies related to crime victim in India started in the late 1970s which covered the small ambit of
dacoit gangs, motor vehicle and homicide. In 1984, the first seminar on victimology was organized in
the University of Madras and subsequent developments related to this issue started taking place
after that. Finally, in 1992, Indian society of victimology was found with a motive of creating new
laws for victims and spreading awareness regarding this issue. During the 1980s and 1990s
victimology has gone through rapid and fundamental development, it was a period of fortifying, data
collection and theorization combined with new laws.

In the case of Sakshi v. Union of India, the in-camera trails were mandated by the Supreme Court to
maintain the dignity of the victims particularly in case of offences like rape and when the victim is a
child. In another case of Nirmal Singh Kahilon v. State of Punjab the Apex court held that victims of a
crime are also entitled with the right to fair investigation, equally like the accused, as provided by
our Constitution under Article 21.

Supreme Court in the case of Bodhisattva Gautama v. Subhra Chakraborty observed that the court
also has the right to award interim compensation when trying offences of rape instead of awarding
compensation at the final stage. The accused can also be ordered to pay Rs. 1000/- as interim
compensation to the victims along with the arrears of the compensation from the date of complaint.

-------------------------------------------- --------------------------------- ----------------------- ---------------------------

NHRC - Role of National Human Rights Commission - Role of national human rights commission
towards victims of sexual offences. Role of NHRC in awarding compensation to victims

The NHRC is an autonomous and statutory organisation as it has been created by an Act of
Parliament. It is fully compliant with the Pars Principles relating to the status and functioning of
national institutions for the protection and promotion of human rights, adopted by the United
Nations General Assembly in 1993. It is independent in taking decisions and expressing its own
views on different human right issues. It has a wide mandate and an array of functions catering to all
sections of the society.

The NHRC, alias, the ‘watchdog of human rights’, is considered to protect the rights of the people
enshrined in the constitution, in addition to those rights assumed to be inherently available to them,
for being human. The Commission was established on 12th October 1993 and sits at its
headquarters, in New Delhi, India. For 27 years it has served the needs of the people of India, to
protect the ‘rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants.’

It has all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, for
summoning and enforcing the attendance of witnesses and examining them on oath discovery and
production of any document receiving evidence on affidavits; requisitioning any public record or
copy thereof from any court or office; and issuing commissions for the examination of witnesses or
documents etc. The Chairperson has a fixed tenure of 70 years and once he attains the age of 70
 45

years and once: appointed, may only be removed from office by an order of the President of India
only on the ground as aid down in the PHRA

Members are also appointed to a five years term, which may be renewed once. They too retire At
70. Neither the salary and allowances nor the other terms and conditions of service of the
Chairperson or a member may be varied to his disadvantage after his appointment. It has the power
to recommend to the concerned government or authority to make payment of compensation or
damages to the complainant or to the victim(s) or the members of their family as it may deem.

Functions or Role of NHRC

The Protection of Human Rights Act mandates the NHRC to perform the following:

1. Proactively or reactively inquire into violations of human rights by government of India or

negligence of such violation by a public servant
2. The protection of human rights and recommend measures for their effective implementation
3. Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and
recommend appropriate remedial measures
4. To study treaties and other international instruments on human rights and make
recommendations for their effective implementation
5. Undertake and promote research in the field of human rights
6. To visit jails and study the condition of inmates
7. Engage in human rights education among various sections of society and promote awareness
of the safeguards available for the protection of these rights through publications, the media,
seminars and other available means
8. Encourage the efforts of NGOs and institutions that works in the field of human rights
voluntarily.
9. Considering the necessity for the protection of human rights.
10. Requisitioning any public record or copy thereof from any court or office.

IPleaders Note

General Functions: The NHRC amongst other facets of its existence, has the authority to undertake
the following:

1. Take suo motu cognizance, or intervene, in any matter presented before it, or in any other
court after due permission of such court, involving the gross violation of human rights and/or
the negligence in the prevention of such violation of rights.
2. Visit any jails or other institutions to keep a check on the treatment of detainees, and make
recommendations to the respective Government for the same.
3. Review the Constitution of India and all other laws prevailing at the present time, and suggest
methods of making the same at par with current human right standards
4. Keep a check on and provide recommendations for unemployment in India, and measures to
reduce the same.
5. Ensure precise implementation of international human rights standards in accordance with
international treaties
6. Undertake and promote research, and spread awareness through myriad sources of
multimedia, to ensure maximum knowledge of the field in maximum people in the country
 46

7. The members of the NHRC have the power to take up the office or duties of the Chairperson,
in an event such Chairperson is incapacitated, or the members are directed to do so by the
President of India.
8. The NHRC can send recommendations to the concerned Government authority for the
payments related to compensation of damages to victims in cases
9. It can recommend the initiation of action against a guilty public servant, to the respected
authorities
10. It can recommend the grant of interim relief to a victim, to the concerned government
authority

Towards victims of sexual offences

1. Women Helpline
2. Important Intervention
3. Legal Support
4. Counselling Services
5. Medical Support
6. Compensation to the victim of sexual abuse
7. Media is not allowed to report the name and details of the victim
8. Assuring Justice

------------------------------------ ------------------------------------------------------------------------

Rape Victims

Rape victim means a female who alleges or is alleged to have been raped and presents herself as a
patient. Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual
penetration carried out against a person without their consent. The act may be carried out by
physical force, coercion, abuse of authority, or against a person who is incapable of giving valid
consent, such as one who is unconscious, incapacitated, has an intellectual disability, or is below the
legal age of consent. Rape happens when someone didn't want to have sex or didn't give their
consent for sex to happen. It is a form of sexual violence and a very serious crime that carries the
same maximum sentence as murder.

Towards victims of sexual offences

1. Women Helpline
2. Important Intervention
3. Legal Support
4. Counselling Services
5. Medical Support
6. Compensation to the victim of sexual abuse
7. Restricting Media
8. Assuring Justice

-------------------------------------- ---------------------------------------- --------------------------------------------

Point out different modes of assistance to the victims

Victims of crime

1. "Victims" means persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental
 47

rights, through acts or omissions that are in violation of criminal laws operative within Member
States, including those laws proscribing criminal abuse of power.

2. A person may be considered a victim, under this Declaration, regardless of whether the
perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim. The term "victim" also includes, where
appropriate, the immediate family or dependants of the direct victim and persons who have
suffered harm in intervening to assist victims in distress or to prevent victimization.

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as
race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or
practices, property, birth or family status, ethnic or social origin, and disability.

Access to justice and fair treatment

4. Victims should be treated with compassion and respect for their dignity. They are entitled to
access to the mechanisms of justice and to prompt redress, as provided for by national legislation,
for the harm that they have suffered.

5. Judicial and administrative mechanisms 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.

6. The responsiveness of judicial and administrative processes to the needs of victims should be
facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the
disposition of their cases, especially where serious crimes are involved and where they have
requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages
of the proceedings where their personal interests are affected, without prejudice to the accused and
consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary,
and ensure their safety, as well as that of their families and witnesses on their behalf, from
intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees
granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and
customary justice or indigenous practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.

Restitution

8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair
restitution to victims, their families or dependants. Such restitution should include the return of
property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result
of the victimization, the provision of services and the restoration of rights.
 48

9. Governments should review their practices, regulations and laws to consider restitution as an
available sentencing option in criminal cases, in addition to other criminal sanctions.

10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as
possible, restoration of the environment, reconstruction of the infrastructure, replacement of
community facilities and reimbursement of the expenses of relocation, whenever such harm results
in the dislocation of a community.

11. Where public officials or other agents acting in an official or quasi-official capacity have violated
national criminal laws, the victims should receive restitution from the State whose officials or agents
were responsible for the harm inflicted. In cases where the Government under whose authority the
victimizing act or omission occurred is no longer in existence, the State or Government successor in
title should provide restitution to the victims.

Compensation

12. When compensation is not fully available from the offender or other sources, States should
endeavour to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as
a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become physically or mentally
incapacitated as a result of such victimization.

13. The establishment, strengthening and expansion of national funds for compensation to victims
should be encouraged. Where appropriate, other funds may also be established for this purpose,
including in those cases where the State of which the victim is a national is not in a position to
compensate the victim for the harm.

Assistance

14. Victims should receive the necessary material, medical, psychological and social assistance
through governmental, voluntary, community-based and indigenous means.

15. Victims should be informed of the availability of health and social services and other relevant
assistance and be readily afforded access to them.

16. Police, justice, health, social service and other personnel concerned should receive training to
sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

17. In providing services and assistance to victims, attention should be given to those who have
special needs because of the nature of the harm inflicted or because of factors such as those
mentioned in paragraph 3 above.

B. Victims of abuse of power

18. "Victims" means persons who, individually or collectively, have suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental
rights, through acts or omissions that do not yet constitute violations of national criminal laws but of
internationally recognized norms relating to human rights.

19. States should consider incorporating into the national law norms proscribing abuses of power
and providing remedies to victims of such abuses. In particular, such remedies should include
 49

restitution and/or compensation, and necessary material, medical, psychological and social
assistance and support.

20. States should consider negotiating multilateral international treaties relating to victims, as
defined in paragraph 18.

21. States should periodically review existing legislation and practices to ensure their responsiveness
to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that
constitute serious abuses of political or economic power, as well as promoting policies and
mechanisms for the prevention of such acts, and should develop and make readily available
appropriate rights and remedies for victims of such acts.

--------------------------------- --------------------------------------------------- ---------------------------------------

With the help of decided cases examine the role of Indian courts relating to crime victims.

Discuss the role of Indian Judiciary in giving compensation to victims.

Explain the legal response for compensation to victims in India

The term Victim gives meaning “a person, who is subjected to death or subjected to torture by
another; one who suffers harm and suffers severe bodily injury or property through cruel or
oppressive treatment.” Indian legislature have tried to define “Victim” means a person who has
suffered any loss or injury caused by reason of the act or omission for which the accused person has
been charged and the expression “victim" includes his or her guardian or legal heir.

Who is a victim of crime?

Any person, group, or entity who have suffered harm, injury or loss due to illegal activities of others.
The harm may be economical, mental, or physical.

Thus any person who has suffered harm because of violation of criminal law is a victim.

A person will be considered as a victim even when the offender is not identified or prosecuted.
Term victim also includes individuals who have suffered harm as a result of assisting victims in
distress or to prevent victimization.

Not only the person who suffered loss or injury are the victim, but in some cases, the near and dear
of victims (family members) are also the victims.

Judiciary

The judiciary must be a fair and unbiased body that monitors the course of a criminal case. All
parties participating in criminal procedures should have their rights considered and protected by
judges. Victims should be afforded crucial protection by judges. Special arrangements, such as
permitting the victim to testify through closed-circuit television, can be authorized in cases involving
children, if applicable and possible.

Individual rights are solely protected by the judiciary. The courts play an important role in victim
protection, from accelerating trials to including victims in all phases of the proceedings. However,
there have been a number of cases when the judiciary has openly overlooked the victims’ rights and
interests. The judiciary has failed the victims by issuing orders such as granting bail on the condition
of tying a rakhi to the rapist (which was later scrapped by the SC) or asking a rapist to marry the
victim based on the accused’s assertions. Despite being the guardian of the rule of law, the judiciary
 50

has maintained a limited and discriminatory attitude towards victim relief. But there has been a
positive response also from the judiciary. The Supreme Court required the use of cameras during
trials, particularly where the victim is a child or a rape victim.

Lawyers and prosecutors play a role that is similar to that of the police. Prosecutors should be taught
to strive for justice rather than conviction. Lawyers serve as a link between the police and the victim,
and by collaborating with the prosecutor, they should ensure that the victim’s best interests are
represented in Court. Victims of hurtful, threatening, or violent situations can seek support from the
victim advocacy program. Victim Advocates are specially trained staff who offer:

1. Personal assistance and an opportunity to talk about what happened.

2. Information on options and resources, as well as answers to frequently asked questions.
3. Assistance in deciding on a plan of action and thinking it through.
4. Accompanies the victim to meetings, Court hearings, and other events, or acts as a liaison.
5. Connection to resources on campus, in the community, and at the state level for counselling,
advising and reporting.
6. A link to the university’s offices (when appropriate, advocates can work with faculty and staff).

Role of Judiciary to provide reasonable amount of compensation to victims

The system of criminal law aims at punishing the persons whose behavior is morally wrong. Now the
compensation is being awarded as a matter of right not in criminal law but also in constitutional law,
environmental law and for violation of human rights etc. Constitution provides Compensation for
violation of fundamental rights either by the State or by its instrumentalities in excess of their
powers. The compensation for not maintaining law and order gives eligibility to claim compensation.

The Criminal Procedure Code, 1973 addresses claims for compensation to Victims of crime in India.
Especially, Section 357-A of Criminal Procedure Code 1973, directs every state to 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. In order to strengthen
India’s criminal justice system in India the Government introduced major amendments to the Cr.P.C.
1973 in 2008

In the landmark case of Bodhisattwa Gautam v. Subhra Chakraborty the SupremeCourt issued a set
of guidelines to help indigenous rape victims who cannot afford legal,medical and psychological
services, in accordance with the Principles of United NationsDeclaration of Justice for Victims of
Crime and Abuse of Power, 1985. The Supreme Court held that if the court trying an offence of rape
has jurisdiction to award compensation at the final stage, the Court also has the right to award
interim compensation.

In Mrs. Nalini Bhanot v. Commissioner of Police, Delhi Police the Supreme Courtawarded a sum of
Rs.75, 000 as state compensation to the victim’s mother, holding that thevictim died due to beating
by the police.

In K.Bhaskaran v. Sankaran Vaidhyan Balan, observed that under Section 357 of Criminal Procedure
Code 1973, the Magistrate has to consider what would be the reasonableamount of compensation
payable to the complainant. Thus even if the trial was before a courtof Magistrate of first class in
respect of cheque which covers an amount exceeding Rs.5,000/-the Court has power to award
compensation to be paid to the complainant.

The Supreme Court concluded in Bodhisattwa Gautam v. Subhra Chakraborty (1995) that if a Court
trying a rape case has jurisdiction to award compensation at the end of the case, the Court also has
 51

the authority to give interim compensation. After determining the accused’s prima facie guilt, the
Court ordered him to pay a monthly sum of Rs. 1000 to the victim as interim compensation, as well
as compensation arrears dating back to the date of the complaint.

The Madras High Court, based on the report of a commissioner appointed by it to assess the losses,
ordered payment of varying amounts of compensation for the loss of property of the Sikh
community in Coimbatore in R. Gandhi v. Union of India (2020).

In Sakshi v. Union of India (2004). The Supreme Court held in Nirmal Singh Kahlon v. State of Punjab
(2008) that the right to a fair investigation and trial applies to both the accused and the victim, and
that this right is guaranteed under Article 21 of the Indian Constitution. As a result, a victim of a
crime has the same right to a fair investigation.

------------------------------------------------------------------------- ---------------------------------- ------------------------

Victim’s right to compensation

Victims means persons who, individually or collectively, have suffered harm, including physical or
mental injury, emotional suffering, economic loss or substantial impairment of their fundamental
rights, through acts or omissions that are in violation of criminal laws operative within Member
States, including those laws proscribing criminal abuse of power.

The victim should be allowed to recover all his expenses including but not limited to those incurred
on his by way of medical expenses, emotional expenses, loss of any property etc. by the offender or
the State or both. This calls for a clear demarcation between reparation and compensation.

The victim of a crime goes through the hardships right from registering the case as in a lot of cases
he/ she depends upon the mercy of the police officer registering the FIR, up till he finally gets justice.
The injuries, which are not just physical but also mental, emotional and financial, are inflicted not
just upon the victim but also upon his family, friends and witnesses. The process which is already a
tedious one becomes even more tormenting when coupled with a lack of a proper mechanism to
ensure the protection of the victim and other people who are affected by it. Most of the time the
main interest of the State is the crime itself and not the victim. However, for the proper functioning
of a criminal justice system, it is essential to have adequate provisions for the protection of victims.

Victim’s rights under the Indian criminal justice system

The victim should be allowed to recover all his expenses including but not limited to those incurred
on his by way of medical expenses, emotional expenses, loss of any property etc. by the offender or
the State or both. This calls for a clear demarcation between reparation and compensation. Most of
the time we see how the main attention of the State and its functionaries is to punish the accused
and in doing so the interests and rights of the victim get ignored. To ensure that justice is properly
dispensed the United Nations General assembly adopted the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power which recognised 4 major rights for victims of a
crime. These rights are:

1. Access to justice and fair treatment

2. Restitution
3. Compensation
4. Assistance

Ensuring access to justice and fair treatment, compensation/restitution and providing the required
assistance to the victim are some of the rights that should be given to the victim without any default
 52

in any criminal justice system. These sacred elements have been given recognition in the Indian
criminal justice system too.

Access to justice and fair treatment

Looking at the provisions of law, one can easily make out that criminal justice is more tilted towards
ensuring the protection of the accused. The main attention of the State is to hear him out and if his
guilt is proved then take all measures to ensure that he does not go unpunished. We can find various
provisions like section 56 and section 76 of CrPC that make it mandatory for the accused to be
presented before a judicial magistrate within 24 hours of arrest without any delay shield the accused
from unnecessary harassment. However, concerning the victim, the rights are not well codified
under the Indian criminal justice system.

Despite the tilt towards the accused, there are still provisions granting rights on the victim which
help in eliminating further victimization. Section 439 provides that before granting bail to the
accused the victim has to be informed unless for cogent reasons court thinks it would not be
practicable to inform him. Furthermore, by the virtue of section 439(2), the victim can also appeal
against the bail granted to the accused. This provision ensures that the accused is not eased out
without the knowledge of the victim. When a crime happens, it is treated not just as a crime against
the individual but as a crime against society. Therefore, State is the prosecutor in such cases and a
Public Prosecutor or an Assistant Public Prosecutor is in charge of the case. In case the victim wants
to engage any pleader then he can do so. Such a leader has to act under the direction of the Public
Prosecutor or the Assistant Public Prosecutor. Section 154 of the Code prescribes the procedure for
lodging the first information report (F.I.R). As per this section, the victim can either give information
relating to the commission of the cognizable offence in writing or orally to the officer in charge of
the police station who shall then reduce it to writing.

Compensation/restitution

The criminal courts have to deal with the punitive part and punish the offender for his wrongful acts,
whereas, the civil court has to get the victim compensated by the accused. Along with the punitive
measure, the criminal court may also allow compensation to the crime victim that can be done
without causing any disturbance to the civil and criminal process and would also save time, money
and efforts. The provision related to compensation is encapsulated under section 357 of CrPC.
However, compensation under this section can only be provided if the accused has been convicted
and sentenced. While deciding the compensation the court will look into both physical and financial
loss caused to the accused. If the court orders a sentence of fine or any other sentence of which a
fine is a part then the maximum compensation that can be given, as per section 357(1) is the
maximum fine that can be imposed as compensation as to be given out of the fine so imposed.
Furthermore, section 357(3) can be construed liberally as it allows compensation only in cases where
a fine is not imposed. The object of sub-clause 3 of section 357 is to allow compensation in those
cases where fine does not form a part of the punishment given.

There are several case laws where the courts have ordered compensation to the victim in case the
State or its functionaries were unable to protect the life, liberty or dignity of such a victim. The
provision for victim compensation was introduced in CrPC in 2009 by adding section 357A which
mandated the State Government to coordinate with the Central Government and prepare a scheme
fund for victim compensation. It provides that where the trial court feels that the compensation
awarded or in those cases where the accused has been discharged or acquitted then compensation
can be awarded to the victim for his rehabilitation. Clause 2 of section 357A provides that the where
 53

the court makes a recommendation for compensation the State Legal Services Authority (hereinafter
SLSA) or the District Legal Services Authority (hereinafter DLSA) has to decide the quantum of
punishment that has to be given. There can even be cases where the offender cannot be identified.
In such cases, the Code provides relief to the victim or his dependents who can make write an
application for such compensation from SLSA or DLSA who shall then conduct an enquiry within 2
months and if satisfied award adequate compensation.

Why Compensation is necessary for the victims?

In today's time, criminal cases are becoming a contest between the accused and the State. In the
fight for hegemony between the State and the accused, the victims' plight is often forgotten. The
offender is apprehended, tried, punished or absolved or even released on probation in certain
situations, although found guilty in the Court. But the victim remains the victim. Therefore, it needs
the moment for a criminal justice system to do something more than just punishing the criminal.

When a person commits a crime, the sufferer tends to seek justice. It can be sought in two ways:

By only punishing the offender,

By punishing the offender & compensating the victim.

Hence, justice is complete when the victim is also compensated. To give complete mental
satisfaction to the victim, it is extremely essential to provide some relief to him in the form of
compensation.

------------------------- ------------------------------------- ----------------------------------------------------------------

Discuss the provisions relating to victim compensation under criminal procedure code 1973.
Discuss the provisions relating to victim’s compensation under CrPC 1973

The provisions relating to compensation to victims of crime are contained in sections 357, 357(1),
357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973.

CrPC 357 Order to pay compensation Description

When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine
forms a part, the Court may, when passing judgment order the whole or any part of the fine
recovered to be applied—

In defraying the expenses properly incurred in the prosecution;

In the payment to any person of compensation for any loss or injury caused by the offence, when
compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

when any person is convicted of any offence for having caused the death of another person or of
having abetted the commission of such an offence, in paying compensation to the persons who are,
under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person
sentenced for the loss resulting to them from such death;

when any person is convicted of any offence which includes theft, criminal misappropriation,
criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having
voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to
be stolen in compensating any bona fide purchaser of such property for the loss of the same if such
property is restored to the possession of the person entitled thereto.
 54

If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the
period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the
decision of the appeal.

When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing
judgment order the accused person to pay, by way of compensation such amount as may be
specified in the order to the person who has suffered any loss or injury by reason of the act for
which the accused person has been so sentenced.

An order under this section may also be made by an Appellate Court or by the High Court or Court of
Session when exercising its powers of revision.

At the time of awarding compensation in any subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or recovered as compensation under this section.

CrPC 357A Victim compensation scheme Description

1, Every State Government in co-ordination 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 a recommendation is made by the Court for compensation, the District Legal Service
Authority or the State Legal Service 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 the 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.

4. where the offender is not traced or identified, but the victim is identified, and where no trial takes
place, the victim or his dependents may make an application to the State or the District Legal
Services Authority for award of compensation.

5. On receipt of such recommendations or on the application under sub-section (4), the State or the
District Legal Services Authority shall, after due enquiry award adequate compensation by
completing the enquiry within two months.

6, The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of
the victim, may order for immediate first-aid facility or medical benefits to be made available free of
cost on the certificate of the police officer not below the rank of the officer incharge of the police
station or a Magistrate of the area concerned, or any other interim relief as the appropriate
authority deems fit.

CrPC 357B Compensation to be in addition to fine under Section 326A or Section 376D of Indian
Penal Code

The compensation payable by the State Government under section 357A shall be in addition to the
payment of fine to the victim under section 326A, section1 376AB, section 376D, section 376DA and
section 376DB of the Indian Penal Code.

CrPC 357 C Treatment of victims

All hospitals, public or private, whether run by the Central Government, the State Government, local
bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of
 55

cost, to the victims of any offence covered under section 326A, 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB or section 376E of the Indian Penal Code, and shall immediately inform the police of
such incident.

CrPC 358 Compensation to persons groundlessly arrested

Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate
by whom the case is heard that there was no sufficient ground of causing such arrest, the Magistrate
may award such compensation, not exceeding one thousand rupees, to be paid by the person so
causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the
Magistrate thinks fit.

In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to
each of them such compensation, not exceeding one hundred rupees, as such Magistrate thinks fit.

All compensation awarded under this section may be recovered as if it were a fine, and, if it cannot
be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for
such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.

359 Order to pay costs in non-cognizable cases

Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the
accused, may, in addition to the penalty imposed upon him, order him to pay to the complainant, in
whole or in pan, the cost incurred by him in the prosecution, and may further order that in default of
payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days and
such costs may include any expenses incurred in respect of process-fees witnesses and pleader's
fees which the Court may consider reasonable.

CrPC 250 Compensation for accusation without reasonable cause

If, in any case instituted upon complaint or upon information given to a police officer or to a
Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a
Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the
accused, and is of opinion that there was no reasonable ground for making the accusation against
them or any of them, the Magistrate may, by his order of discharge or acquittal, if the person upon
whose complaint or information the accusation was made is present, call upon him forthwith to
show cause why he should not pay compensation to such accused or to each or any of such accused
when there are more than one or, if such person is not present direct the issue of a summons to him
to appear and show cause as aforesaid.

------------------------------------------------------------------------------ ---------------------------------- ------------------

Consumer victims 6

Consumer victim is a person who suffers financial loss involving the use of deceptive, unfair, or false
business practices.

For purposes of this subsection, the term “victim” means a consumer whose means of identification
or financial information has been used or transferred (or has been alleged to have been used or
transferred) without the authority of that consumer, with the intent to commit, or to aid or abet, an
identity theft or a similar crime.

Consumer fraud is commonly defined as deceptive business practices that cause consumers to suffer
financial or other losses. The victims believe they are participating in a legal and valid business
 56

transaction when they are actually being defrauded. Fraud against consumers is often related to
false promises or inaccurate claims made to consumers, as well as practices that directly cheat
consumers out of their money.

Consumer exploitation is a situation in which a consumer is cheated or given false information by

the producer. Large companies with huge wealth, power and reach can manipulate the market in
various ways. At times they pass on false information through the media, and other sources to
attract consumers.

This include marketing defective products that result in consumer injury or death, publishing false
advertisements (e.g., “bait and switch”), misrepresenting the condition of homes and other real
property.

1. Imaginary goods or real estate, including items and property the purported seller does not own
2. Misrepresented risks and benefits for financial investments
3. Email and telephone scams
4. Counterfeit goods, especially prescription medications sold through websites that lack the
VIPPS certification
5. Pyramid and Ponzi schemes
6. Bait-and-switch sales and pricing
7. Abusive sales practices such as making threats or pressuring a buyer until he or she acts against
their own best interest.
8. Identity theft
9. Credit card fraud

Examples

Washington, D.C. – Auto sales and repairs are the number one category of complaints made to local
and state consumer agencies in 2021, according to an annual survey conducted by Consumer
Federation of America (CFA).

Any person who buys anything in the market or pays for any service is a consumer. When a
consumer is cheated in any way, either by the shopkeeper or the producer, by giving him poor
quality or adulterated goods or by charging more price for a commodity or a service, it is called
consumer's exploitation.

---------------------------------------------------------- ------------------------------ -------------------------------------

State compensation programme

--------------------------------------------------------- -------------------------------------------------------

Legal framework of compensation

Procedure for grant of compensation.—

(1) On receipt of the recommendation by the trial court or on application under sub-section (4) of
section 357 A of the Code, the District Legal Services Authority shall, after due enquiry through
appropriate authority as deemed fit by the State or the District Legal Services Authority, award
adequate compensation by completing the enquiry within two months.
 57

(2) The District Legal Services Authority shall examine and verify the contents of the claim with
regard to the loss or injury caused to the victim and arising out of the crime. The Authority may call
for any relevant information necessary to determine the genuineness of the claim. After verifying
the claim and conducting due enquiry. The District Legal Services Authority shall award adequate
compensation within two months. In accordance with the provisions of the scheme.

(3) The District Legal Services Authority may order for immediate first-aid facility or medical benefits
to be made available free of cost. On the certificate of the Police Officer not below the rank of an
officer-in-charge of the police station or a Judicial or Executive Magistrate of the area concerned or
any other interim relief as deemed fit by the Authority.

(4) The amount of compensation will be decided by the District Legal Services Authority based on the
standard criteria given in the Schedule appended to the scheme.

(5) Compensation shall be paid as a single lump sum or in two instalments as decided by the District
Legal Services Authority.

(6) The District Legal Services Authority shall decide the quantum of compensation under sub-
section (2) and (3) of section 357A of the Code within sixty days of the receipt of the
recommendation.

(7) The District Legal Services Authority shall decide the quantum of compensation on the basis of
loss caused 10 the victim, medical expenses incurred on treatment. Minimum sustenance amount
required for rehabilitation including incidental charges like funeral expenses.

(8) In the case of compensation to victim of rape/victim under trauma, the matter shall be informed
to the probation officer in the district concerned for effective rehabilitation and continuous
evaluation.

(9) At the time of awarding compensation in any subsequent civil suit relating to the same matter.
The Court shall take into account any sum paid or recovered as compensation under this section.
Compensation received from the public sector undertakings shall be considered as part of the
compensation amount under this scheme.

(10) The cases covered under the Motor Vehicles Act. 1988 (Central Act 59 of 1988) wherein
compensation is to be awarded by the Motor Accidents Claims Tribunal, shall not be covered under
the scheme.

(11) The District Legal Services Authority. Shall institute proceedings before the competent court of
law for recovery of the compensation, granted to the victim or his dependent, from the victim if
found ineligible later.

-------------------------------------------------------------------- ------------------------------------------------

Basis of compensation

The concept of 'Victim Compensation' grants direct financial reimbursement to a victim for the
expenses that the victim has to incur as a result of the commission of the crime including the
medical cost, mental health counselling cost as well as the lost wages.

Every State Government in co-ordination 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.
 58

In India, if we look at the criminal laws, the factors like nature of the offense, degree of the injury
that is caused to the victim, and the capability of the accused to pay the victim are considered while
the compensation is being paid. Today, we have certain concepts like the social investigation reports
in order to cater to the victim. However, before the recent times, no care of the victim was taken.

Section 357 of the Criminal Procedure Code, 1973 provides for the order to pay compensation.
However, there are several lacunas in this provision. It must be noted that this section has the word
‘may’ which implies that compensation is not mandatory. It is left to the discretion of the judges as
to whether compensation must be awarded or not. In addition to this, Section 357 caters only to the
victims where the conviction of the accused had happened. By virtue of Section 5 of the Probation of
Offenders Act, 1958, the trial court is empowered to order the offender to pay compensation.

Though monetary compensation cannot replace the problems that a victim faces, it acts as a solace
to the victim. The compensation let the victims know that they are a part of the Indian legal system
and they have not been forgotten.

In the case of Nipun Saxena v. Union of India (2018), the earlier Delhi Victim Compensation Scheme
of 2015 has been replaced by the Delhi Victim Compensation Scheme, 2018. In this case, the
establishments of ‘One Stop Centers’ were also detailed out by the Court and the inspiration for this
was taken from ‘BHAROSA’ in Hyderabad which is treated as a model for other one-stop centers in
India.

The victim compensation can be divided into two kinds, that is, compensation for general offenses
and compensation for sexual assault. An interim compensation relief is generally awarded to the
victims of sexual offenses as an immediate need, however, if at any point of time, the Court
concludes during the sentencing or the judgment that the compensation with which the victim has
been compensated is not sufficient, then the Court can ask the accused to pay more compensation
to the victim. A very important factor that the Court takes into consideration is that if the accused
has enough capacity in order to pay the compensation. If it is found by the Court that the victim does
not have enough capacity, it can direct authorities like the Delhi Legal Service Authority for paying
the compensation to the victim.

In addition to this, it could also be requested by the advocates for referring the matter to the Delhi
Legal Service Authority in case the compensation is not sufficient. However, it is very crucial to note
that the power to quantify the compensation to the victim is available to no trial court.

When any sort of compensation is awarded to the adult victims, they receive 25% of the
compensation immediately while the rest 75% is received by them as fixed deposits for three years.
The interest of these is credited to the saving account of the victim. On the other hand, when any
sort of compensation is granted to minors, 20% of the compensation is received by them
immediately while the rest 80% of the compensation is given as fixed deposits once the victim gains
the majority age.

Therefore, it can be said that certain steps have been taken by the Judiciary of India so that the
exploitation of the victims of sexual offenses as well acid attacks can be curbed.

Factors to be considered while awarding compensation –

While deciding a matter, the State Legal Services Authority/District Legal Services Authority may take
into consideration the following factors relating to the loss or injury suffered by the victim:

(1) Gravity of the offence and severity of mental or physical harm or injury suffered by the victim;
 59

(2) Expenditure incurred or likely to be incurred on the medical treatment for physical and/or mental
health including counselling of the victim, funeral, travelling during investigation/ inquiry/ trial
(other than diet money);

(3) Loss of educational opportunity as a consequence of the offence, including absence from
school/college due to mental trauma, bodily injury, medical treatment, investigation and trial of the
offence, or any other reason;

(4) Loss of employment as a result of the offence, including absence from place of employment due
to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any
other reason;

(5) The relationship of the victim to the offender, if any;

(6) Whether the abuse was a single isolated incidence or whether the abuse took place over a period
of time;

(7) Whether victim became pregnant as a result of the offence, whether she had to undergo Medical
Termination of Pregnancy (MTP)/ give birth to a child, including rehabilitation needs of such child;

(8) Whether the victim contracted a sexually transmitted disease (STD) as a result of the offence;

(9) Whether the victim contracted human immunodeficiency virus (HIV) as a result of the offence;

(10) Any disability suffered by the victim as a result of the offence;

(11) Financial condition of the victim against whom the offence has been committed so as to
determine her need for rehabilitation and re-integration needs of the victim.

(12) In case of death, the age of deceased, her monthly income, number of dependents, life
expectancy, future promotional/growth prospects etc.

(13) Or any other factor which the SLSA/DLSA may consider just and sufficient.

---------------------------------------------------- ---------------------------------------------------------------------

Police structure and organisation in India

Introduction:

The police organisation in Indian states is primarily governed by the Police Act of 1861, which was
based on the recommendations of the Police Commission of 1860. Section 4 of this statute lays
down the principles, on which the organisation of the police force rests till today. Under this act the
police were made subordinate to the Executive Government. Later, several changes were brought
about in the structure as well as functioning of the police system. But the basic structure and
characteristics as enshrined in the police act of 1861 continued to dominate over the police system
in the country. By the time India attained independence in 1947; the Police Administration had
developed into one of the best systems. After independence, the Government of India felt that the
system was capable of facing new challenges and was also well developed to help the new
Government to maintain stability. The police is a state subject and its organisation and working are
governed by rules and regulations framed by the state governments. These rules and regulations are
outlined in the Police Manuals of the state police forces.

Each State/Union Territory has its separate police force. Despite the diversity of police forces, there
is a good deal that is common amongst them. This is due to four main reasons:
 60

i. The structure and working of the State Police Forces are governed by the Police Act of 1861, which
is applicable in most parts of the country, or by the State Police Acts modeled mostly on the 1861
legislation.

ii. Major criminal laws, like the Indian Penal Code, the Code of Criminal Procedure, the Indian
Evidence Act etc are uniformly applicable to almost all parts of the country.

iii. The Indian Police Service (IPS) is an All India Service, which is recruited, trained and managed by
the Central Government and which provides the bulk of senior officers to the State Police Forces.

iv. The quasi-federal character of the Indian polity, with specific provisions in the Constitution, allows
a coordinating and counseling role for the Centre in police matters and even authorizes it to set up
certain central police organizations.

The Organization Structure at State Level: Superintendence over the police force in the state is
exercised by the State Government. The head of the police force in the state is the Director General
of Police (DGP), who is responsible to the state government for the administration of the police force
in the state and for advising the government on police matters.

Field Establishment: States are divided territorially into administrative units known as districts. An
officer of the rank of Superintendent of Police heads the district police force. A group of districts
form a range, which is looked after by an officer of the rank of Deputy Inspector General of Police.
Some states have zones comprising two or more ranges, under the charge of an officer of the rank of
an Inspector General of Police. Every district is divided into sub-divisions. A sub-division is under the
charge of an officer of the rank of Additional Superintendent of Police/ Deputy Superintendent of
Police. Every sub-division is further divided into a number of police stations, depending on its area,
population and volume of crime. Between the police station and the subdivision, there are police
circles in some states - each circle headed generally by an Inspector of Police.

The police station is the basic unit of police administration in a district. Under the Criminal
Procedure Code, all crime has to be recorded at the police station and all preventive, investigative
and law and order work is done from there. A police station is divided into a number of beats, which
are assigned to constables for patrolling, surveillance, collection of intelligence etc. The officer in
charge of a police station is an Inspector of Police, particularly in cities and metropolitan areas. Even
in other places, the bigger police stations, in terms of area, population, crime or law and order
problems, are placed under the charge of an Inspector of Police. In rural areas or smaller police
stations, the officer in charge is usually a Sub-Inspector of Police.

The Section Inter Alia States: The administration of the police throughout a general police district
(now called states) done by the Inspector General of Police and in such Deputy Inspectors

General and Assistant Inspectors General as the State government shall deem fit.

The Organization police system in India represents a queer amalgam of the Hindu, Mughal and
British traditions and institutions. Conventionally, the field formations were typically mediaeval, over
which the

Englishmen grafted a quasi-sophisticated system of district police. As the district was the hub of
revenue activity in rural India, the district police gradually became a significant organization during
the British period. As national movement accelerated for freedom along with the expense of Indian
sub- continent, and due to absence of communication network, police organization at the grass root
level got localized. .
 61

At present the structure of the police in the states of India can be understood in better way by
examining the following diagram:

District Headquarters and the Office of the SP: The district police organisation constitutes the hub of
the Indian police system. On an average, an Indian district covers about 3,600 sq. miles and a
population of over a million and a quarter people. In addition to providing administrative services,
the district headquarters have a large jail and store-houses for clothing equipment, arms and
ammunition.

Constables for the district are recruited and partly trained here. Armed police and sometimes,
mounted police also have their reserve lines or barracks there.

The CID organisation operates from its headquarters. Adequate discretion has been vested in the
police authorities at this level and this facilitates a happy mediation between general directives and
adjustment to specific circumstances.

The SP at the distirct level is always a member the IPS and wields a great amount of power and
prestige in his area. . Working under the overall supervision of the DM, he looks after the problems
of law and order and that of the administration of crime and vices in the district.
 62

At the Police Station Level-The Office of the Sub-Inspector of Police: The office of the inspector of
police is one of the living anomalies of the Indian administration. Originating in the Daroga system of
mediaeval India, the office of the sub-inspector represents a queer and ingenious grafting of the law
and order machinery on the district-based and district- based revenue administration of the country,
evolved by the colonial rulers of India.

-------------------------------------------------------------- -----------------------------------------------------------------------

Pardoning power of the president. President’s Mercy Jurisdiction

The power of pardon was historically vested in the British monarch during their rule.

A pardon was an act of mercy by which the King absolve someone of any crime, offence,
punishment, execution, right, title, debt, or duty under common law.

From 1935 onwards, the law of pardon was contained in Section 295 of the Government of India Act,
1935 which did not limit the power of the Sovereign.

By virtue of clause (1) of Article 72 of the Constitution of India the President of India can issue the
following five types of orders:

Types of Pardoning Powers of the President

Type Detail

1. Pardon When the President pardons, both the sentence and the conviction of the
convict completely absolve the sentences, punishments and disqualifications

2. Respite When the President uses the pardoning power of ‘Respite’, he chooses to award
a lesser sentence in place of one originally awarded to the convict. For example,
 63

due to some special fact, such as the physical disability of a convict or the
pregnancy of a woman offender, the President can use this power

3. Repriev When the President chooses the pardoning power of ‘Reprieve’; he stays the
e execution of a sentence (especially that of death) for a temporary period. By
doing this, he enables the convict to have time to seek pardon or commutation
from him

4. Remit When the President chooses the pardoning power of Remit, he acts to reduce
the period of the sentence but the character of the sentence remains the same.
For example, a sentence of rigorous imprisonment for two years may be
remitted to rigorous imprisonment for one year but the imprisonment remains
rigorous

5. Commut When the President chooses to use this pardoning power of ‘Commute; he
e substitutes one form of punishment for a lighter form. For example, a death
sentence may be commuted to rigorous imprisonment, which in turn may be
commuted to simple imprisonment.

The very first order i.e. pardon that can be issued by the President Of India under Article 72 is the
order that completely absolves the guilt of The offender. Even the Apex Court has held that
whenever a convict is Granted pardon by the President of India under Article 72, he is completely
Absolved from the punishment imposed on him as also from all penal Consequences and such
disqualifications as disentitle him from following His occupation and as are concomitant of the
conviction.

Thus whenever a Pardon has been received by a convict form the President of India, he Becomes
free to live in society as if he never committed any offence. Moreover the disqualification attached
to the conviction also comes to an End.

The Constitution of India conferred the power on the President of India and the Governors of the
States by Articles 72 and 161 respectively.

A pardon is an act of mercy, forgiveness, clemency.

The concept of pardon is an artefact of older times, of an age where an omnipotent monarch
possessed the power to punish or remit any punishment.

In India, the power to pardon is a part of the Constitutional scheme.

The Power of pardon exists to prevent injustice, whether from harsh, unjust laws or from judgments
which result in injustice; hence the necessity of vesting that power in an authority other than the
judiciary has always been recognised.

The President can use any one of the pardoning powers in the cases mentioned below:

1. When he is considering a case of punishment against a person who has committed an offence
against a Union Law
2. When he is considering a case of punishment where the latter is given by the court-martial or
military court
3. When he is considering a death sentence
 64

The very first order i.e. pardon that can be issued by the President Of India under Article 72 is the
order that completely absolves the guilt of The offender. Even the Apex Court has held that
whenever a convict is Granted pardon by the President of India under Article 72, he is completely
Absolved from the punishment imposed on him as also from all penal Consequences and such
disqualifications as disentitle him from following His occupation and as are concomitant of the
conviction.

Thus whenever a Pardon has been received by a convict form the President of India, he Becomes
free to live in society as if he never committed any offence. Moreover the disqualification attached
to the conviction also comes to an End.

In case of the second order i.e. reprieve, can be issued by the President of India under Article 72,
simply stays the execution for a Temporary period, or postpone a capital sentence or take back or
withdraw A sentence for a time. Generally the President can issue the order of Reprieve in all cases
where a mercy petition under Article 72 is presented Before the President for consideration and this
order of reprieve remains in Force till the final disposal of the petition by the President.

But as a matter of practice a specific procedure has been laid down for the grant of Reprieve where
a mercy petition has been filed. As per this procedure the Duty not to carry out the sentence of
death has been conferred on the Jail Superintendent. But this duty can be exercised only if a mercy
petition has been filed either by the prisoner or his relatives.

The third order the President of India can issue under this Article is that of respite. This order also
results in temporary suspension of a Sentence in special circumstances such as the pregnancy of a
woman Sentenced with death penalty or insanity of convict. In other words it is a Postponement of
execution of the sentence to the future. In such type of Cases the President may also award a lesser
sentence instead of the Penalty prescribed by the court.

The fourth order that can be issued by the President of India under Article 72 is that of remission. It
Means the reduction of the sentence without changing the nature or the Character of the
punishment awarded by the court e.g. a sentence of two Years rigorous imprisonment may be
remitted to one year rigorous Imprisonment.

The last order that can be issued by the President is the order of Commutation of the sentence
whereby the President may change a Punishment to one of different sort than that originally
awarded by the Court.

Thus under Article 72 President of India has power to issue not only the order of pardon but he can
also issue the orders of reprieve, respite, Remission or commutation. Whosoever applies under
Article 72 he always Wishes to receive an order of pardon from the President.

The basic or Obvious reason behind it is that a pardon completely relieves a person from Any kind of
liability attached with the sentence and thereafter he can live in Society without any prejudice to his
rights or in other words he can live a Normal life in the society without any blemish of being a
criminal and can Enjoy all the rights of a normal citizen. But If a person will get anything less Than
pardon such as reprieve, respite, remission or commutation in his Favour, in that case the stigma
and blot attached to the punishment will go With him till his last breath.

Since no power can be absolute therefore this power of the President of India under Article 72 of the
Constitution, to issue orders of Pardon, reprieve, respite, commutation, remission, is also subject to
certain Restriction as well. The area within which this power can be exercised has specifically been
prescribed by the Constitution itself.
 65

----------------------------------------- ------------------------------------------------------------

Vishaka V. State of Rajasthan

Vishaka & ors. v/s state of Rajasthan[1]is a case which deals with the evil of Sexual Harassment of a
women at her workplace. It is a landmark judgment case in the history of sexual harassment which
as being decide by Supreme Court. Sexual Harassment means an uninvited/unwelcome sexual favor
or sexual gestures from one gender towards the other gender. It makes the person feel humiliated,
offended and insulted to whom it is been done. In many of the cases, it has been observed that
homosexual labor harass an employee belonging to the same sex to which he belongs.

Sexual harassment is also termed as “Eve Teasing” in India, and it can be determined from the
following acts like- passing of indicative or typical comments or jokes, uninvited touching, making
appeals for sex, sexually blunt pictures or text messages or emails, discredit person because of sex.
Accordingly, Sexual Harassment violates the fundamental right of the women of gender equality
which is codified under Article 14 of Indian Constitution and also the fundamental right to life and to
live a dignified life is violated/infringed under Article 21 of constitution of India. Even though there
has been no provision for sexual harassment at workplace under Indian Constitution.

Justice Arjit Pasayat beholder from his beautiful thought that- “ while a murderer destroys the
physical frame of the victim, on the other hand the rapist defiles the soul of a helpless female”.
Sexual harassment is one of the social evil faced by the fragile portion of the society. Now at this
point of time the high society people or the people who commits sexual harassment should become
aware about the vital needs or rights of women or either when this tranquil volcano of anger will
erupt will cause immense danger and shattering which would have equal consequences which is
cause from the burst or eruption of an inactive volcano.

Facts
The facts of this case are given below:-
# Bhanwari Devi who was a social activist/worker in one of the Rajasthan’s village.
# She worked under a social development program at rural level which was about to stop child
marriage in a village and this social program was administered/ initiated by the Rajasthan’s state
government.
# Bhanwari Devi en-devoured to stop the marriage of the Ramkaran Gujjars (thakurs) daughter, who
was merely less than one year old i.e. she was an infant only.
# As a part of her duty, Bhanwari Devi tried to terminate the marriage of her infant daughter.
# Even of her vain-full efforts to stop the marriage, it happened, but Bhanwari devi was not excused
or pardoned for her’s this fault.
# She was exposed to or put forward to social punishment or boycott.
# September 1992, she was been gang raped by Ramkaran Gujjar and his five friends in front of her
husband.
# The male doctor at normal primary health center declined to survey her and the doctor at Jaipur
only made confirmation of her age without any recommendation of her being raped in her medical
report.
# At police station too she was been continually taunted by the women countable for the whole of
the midnight.
# In past midnight she was been asked by the policeman to leave her lehnga as the evidence of that
incident and go back to her village.
# After that, she was only left with the bloodstained dhoti of her husband to wrap her body, as a
 66

result of which they had to spend there whole night in that police station.
# The Trail Court made the discharge of the accused people for not being guilty.
# The High Court in his judgement propounded that –“ it was a case of gang rape which was
conducted out of revengeful situation.
# All these statement and judgement, aroused women and NGO’S to file pitition (PIL) in Supreme
Court of India.

Issue Raised In This Case

# Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of
women at workplace.

Judgement-
The judgment of Vishakha's case was conveyed by Chief Justice J.S Verma as a representative of
Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishakha
the victim of this case. The court observed that the fundamental rights under Article 14[2],
19[3](1)(g) and 21[4]of Constitution of India that, every profession, trade or occupation should
provide safe working environment to the employees. It hampered the right to life and the right to
live a dignified life. The basic requirement was that there should be the availability of safe working
environment at workplace.

The Supreme Court held that, women have fundamental right towards the freedom of sexual
harassment at workplace. It also put forward various important guidelines for the employees to
follow them and avoid sexual harassment of women at workplace. The court also suggested to have
proper techniques for the implementation of cases where there is sexual harassment at workplace.
The main aim/objective of the Supreme Court was to ensure gender equality among people and also
to ensure that there should be no discrimination towards women at there workplace.

After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any
physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any
sexual desire towards women, sexual favor will come under the ambit of sexual harassment.

----------------------------------------------------- --------------------------------------------------------------------

Various offences for which capital punishment can be passed

Capital Punishment is also known as a death penalty, execution of an offender sentenced to death
after conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the
important parts of capital punishment.

Under Indian Penal Code

1. Waging war against the state (Sec 121)

2. Abetment of mutiny (Sec 132)
3. Giving or fabricating false evidence leading to procure one’s conviction (Sec 194)
4. Murder (Sec 302)
5. Abetment of suicide committed by a child or insane (Sec 305)
6. Attempt to murder by life-convict, if hurt is caused (Sec 307)
7. Kidnapping for ransom etc. (Sec 364A)
8. Dacoity with murder (Sec 396)
 67

Aggravated murder

It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860. In Bachan
Singh v. State of Punjab, the Court of India held that the death penalty is constitutional only when
applied as an exceptional penalty in “the rarest of the rare” cases.

Other offences resulting in death

In the Indian Penal Code, the death penalty is given to a person who commits murder during an
armed robbery. The abduction of the victim for the money is punishable with the death penalty if
the victim is killed. Organized crime involvement, if it leads to death, is punishable by death.
Committing or helping to commit Sati to another person is also punishable by the death penalty.

Terrorism-related offences not resulting in death

Muhammad Afzal was executed by hanging on 9th February 2013. He was executed of the
December 2001 attack on India’s parliament in which nine people got killed by five gunmen armed
with guns and explosives. Mohammad Ajmal Amir Qasab, the only surviving shooter in 2008, was
hanged on 21 November 2012 for various crimes, including waging war on India, murder and
terrorist acts.

The use of any special category of explosive to cause an explosion that could endanger life or cause
serious damage to property is punishable by the death penalty.

Rape not resulting in death

A person who inflicts injury in a sexual assault which results in death or is left in a “persistent
vegetative state” may be punished with death under the Criminal Law Act, 2013.

Gang rapes are punishable with death penalties. These changes were imposed after medical student
Jyoti Singh Pandey’s 2012 gang rape and death in New Delhi.

According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is below
12 years of age may be sentenced to death or sent to prison for 20 years along with fine. The 2018
amendment also specifies the death penalty or life imprisonment for a girl’s gang rape under the age
of 12. These changes to criminal law followed an eight-year-old girl’s rape and murder, Asifa Bano,
who triggered a lot of political unrest in Jammu and Kashmir State and across the country.

To know more about the evolution of capital punishment in India and who all are excluded from
capital punishment, please watch the video below:

Kidnapping not resulting in death

According to Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an
offence punishable by death. If any person detaining anybody and threatens to kill him or harm him
during which the kidnapper’s act actually resulted in the death of the victim, will be liable under this
section.

Drug trafficking not resulting in death

If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit

any of a range of drug trafficking offences, or financing of certain types and amounts of narcotic and
psychotropic substances, he or she can be sentenced to death.
 68

Treason

The death penalty is given to any person who is waging or trying to wage war against the
government and helping Navy, Army, or Air Force officers, soldiers, or members to commit a mutiny.

Military offences not resulting in death

Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty and
various other offences are punishable by death if committed by a member of the Army or Navy or
Air Force.

Other offences not resulting in death

If a person is a party to criminal conspiracy to commit a capital offence is punishable by death.

Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is
harmed by the attempt.

If a person provides false evidence with the knowledge that it can lead to the conviction of a person
belonging to scheduled caste or tribe for committing a capital offence on the basis of such evidence,
will be punished with the death penalty if it results in the conviction and execution of an innocent
person.

-------------------------------------------------------------------------------------------- ------------------------------------

What is sentencing process? Discuss the factors to be considered in sentencing process.

Sentencing process and policies.

 A. Pre-trial Stage
 1. Commission of an offence (cognizable or non-cognizable)
 3. Investigation by Police
 4. Anticipatory Bail
 5. Arrest of the Accused
 6. Production of accused to magistrate
 7. Remand
 8. After investigation is completed
 9. Cognizance of Offence by Magistrate
 11. Appearance of accused before court & engagement of advocate.
 13. Decision is taken by the Court after hearing the public prosecutor and the counsel
for defence
 14. Framing Of Charge
 15. Conviction on plea of guilty
 16. If the accused pleads not guilty
 B. Trial stage
 17. Commencement of trial
 18. Prosecution evidence
 19. Statement of the accused
 21. Final Arguments
 22. Judgment and sentence by the Court
 23. Arguments on sentence
 24. Judgment of Court passing sentence
 C. Post-Trial Stage
 69

 26. Judgment of the Appellate Court or Court having revisional jurisdiction.

 27. Execution of Sentence.
The criminal trials in India can be be broadly categorized into three stages namely;
A. Pre-trial stage
B. Trial stage
C. Post-trial stage

Now, each stage requires some detailed steps to be fulfilled which are described below.

A. Pre-trial Stage

1. Commission of an offence (cognizable or non-cognizable)

Information to police.

1. Information of cognizable offence.

2. Information of non-cognizable offence.

a. Information of cognizable offence:

Under Section 154 of the Code of Criminal Procedure, a FIR or First Information Report is registered.
FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police
relating to the commitment of an offense. In case of cyber-crimes, online complaint can also be
resorted and legal assistance can be taken from cyber-crime lawyers.
b. Information of non-cognizable offence:
In case of non-cognizable offence N.C.R (non-cognizable report) is registered by police under section
155 of Cr.P.C. but the police cannot start investigation or arrest the accused without the order of a
Magistrate having power to try such case.
2. Complaint to magistrate

Section 2 (d) of the Code of Criminal Procedure defines the term 'complaint as any allegation made
orally or in writing to a Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not include a police
report. On receipt of a complaint a Magistrate has several courses open to him.
He may take cognizance of the offence and proceed to record the statements of the complainant
and the witnesses present under Section 200, Cr Thereafter if in his opinion there is no sufficient
ground for proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there
is sufficient ground for proceeding he may issue process under Section 204, Cr PC.
However, if he thinks fit, he may postpone the issue of process and either inquire into the case
himself or direct an investigation to be made by a police officer or such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for proceeding (Section 202, Cr
PC).
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the
complaint if there is no sufficient ground for proceeding.
3. Investigation by Police

Police conduct investigation for

 70

 For collection of evidence;

 Interrogation statement of accused;
 Statement of witnesses;
 Scientific analysis / opinion if required. During this time, at any stage decided by
investigating agency, accused persons can be arrested.

In case of cognizable offence police can start investigation after the registration of FIR, no prior
approval of magistrate is necessary. But in case of non cognizable offence, prior approval of
magistrate is necessary to start investigation.
4. Anticipatory Bail

Upon registration of FIR for cognizable criminal offence the accused may make an application for
anticipatory bail in session court or high court. If anticipatory bail is granted then the accused cannot
be arrested. If anticipatory bail is rejected then the accused can be arrested without warrant. Since it
is a serious matter restricting the freedom of accused person, criminal lawyer in Kolkata should be
contacted without any laches for cases in Kolkata.
5. Arrest of the Accused

In case of cognizable offence police can arrest the accused without warrant. However in case of non
cognizable offence prior approval of magistrate is necessary.
6. Production of accused to magistrate

Within 24 hours of the arrest the accused shall be produced before a magistrate having jurisdiction
to try such cases.
7. Remand

Whenever an accused is arrested for any offence and police cannot complete investigation within 24
hours then such person is produced before a magistrate for seeking extension of police or
magisterial custody.
8. After investigation is completed

If investigating agency feels a prima facie case is made out, charge sheet is filed in Court through the
public prosecutor. If police feels that no prima facie case is made out, a final report filed in Court.
9. Cognizance of Offence by Magistrate

After filling of charge sheet the next stage is taking cognizance of offence by magistrate under
section 190 of the Criminal Procedure Code. In the language of the Hon'ble Apex Court employed in
its earliest decision R.R.Chari v. State of U.P AIR 1951 SC 207 “taking cognizance does not involve any
formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his
mind to the suspected commission of offence"
10. Service of summons/warrant to accused and Process to compel appearance under chapter 6 of
Cr.P.C.

The Court sends summons to the accused for appearance in the court on the due date.
11. Appearance of accused before court & engagement of advocate.

The accused appears before the court along with an Advocate of his choice to defend him and seek
bail if anticipatory bail is not taken.
12. Filing bail application/ furnishing surety.
 71

The accused moves an application for bail and once the bail is granted furnishes the required suety
to the court as per the order.
13. Decision is taken by the Court after hearing the public prosecutor and the counsel for defence

On question of Charge sheet:

1. Court can reject charge sheet, in which case the accused is discharged. Or,
2. Court can accept that a prima facie case is made out, frame the charges, and post the case
for trial. Case goes to next stage.
3. Court can accept the final report- case is closed and accused is discharged. Or,
4. Court can reject the final report, and direct the police to further investigate the case. Case
goes back to the Stage of investigation. Or, c. If the Court direct the case to be posted for
trial. Case goes to next stage.

14. Framing Of Charge

After considering the police report and other important documents the accused is not discharged
then the court frames charges under which he is to be trialed.
15. Conviction on plea of guilty

If the accused pleads guilty, the court shall record the plea and may, at discretion convicts the
accused.
16. If the accused pleads not guilty

Case is posted for trial to begin the trial of the case and further proceedings as per Criminal
Procedure Code.

B. Trial stage

17. Commencement of trial

Generally speaking trial of a case commences when the case is posted for examination of witnesses.
Trial may be -

1. Sessions trial
2. Warrant trial
3. Summons trial
4. Summary trial

18. Prosecution evidence

After the charges are framed, and the accused pleads guilty, then the court requires the prosecution
to produce evidence to prove the guilt of the accused. The prosecution is required to support their
evidence with statements from its witnesses. This process is called "examination in chief". The
magistrate has the power to issue summons to any person as a witness or orders him to produce any
document.
19. Statement of the accused
 72

Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and
explain the facts and circumstances of the case. The statements of accused are not recorded under
oath and can be used against him in the trial.
20. Defence evidence

An opportunity is given to the accused in a case where he is not being acquitted to produce so as to
defend his case. The defense can produce both oral and documentary evidence. In India, since the
burden of proof is on the prosecution the defense, in general, is not required to give any defense
evidence.
21. Final Arguments

Public Prosecutor and the defence counsel present their arguments.

22. Judgment and sentence by the Court

The final decision of the court with reasons given in support of the acquittal or conviction of the
accused is known as judgment.
23. Arguments on sentence

When the accused is convicted, then both sides are invited to give arguments on the punishment
which is to be awarded. This is usually done when the person is convicted of an offense whose
punishment is life imprisonment or capital punishment.
However when the sentence is pronounced in a summons case, the parties need not argue on the
amount of punishment given. The sentence is the sole discretion of the judge.
24. Judgment of Court passing sentence

After the arguments on sentence, the court finally decides what should be the punishment for the
accused. While punishing a person, the courts consider various theories of punishment like
reformative theory of punishment and deterrent theory of punishment. Court also considers the
age, background and history of an accused and the judgment is pronounced accordingly.

C. Post-Trial Stage

25. Appeal (within specified period of limitation)/Revision

Appeal can be filed by party aggrieved by judgment on acquittal / conviction /sentence. On notice
being issued to the opposite parties, arguments are placed before Appellate court by defence
counsel and the public prosecutor. Or,
Revision Application:
Where there is right of appeal provided but no appeal was filed then in its discretion the Sessions
Court or the High Court can entertain a revision to prevent miscarriage of criminal justice
system occurred by the orders of the lower court.
26. Judgment of the Appellate Court or Court having revisional jurisdiction.

The Court having such powers can either rebut the lower court judgement or confirm the judgment
pronounced by the lower court.
27. Execution of Sentence.
 73

Finally, if the accused is pronounced convicted by all relevant courts and appellate authorities then
he is sent to jail.
--------------------------------------------------------------------------------------- -------------------------------------------

Discuss the rights of prisoners under the Indian Constitution

Indian constitution gives some rights to the prisoners. The research covers the historical background,
constitutional and statutory provisions of the prisoners which is supported by case laws. Moreover,
the rights enjoyed by Prisoners, under Article 14, 19 and 21, though limited, are not static and will
rise to human rights when challenging a situation arises. According to our article 21 of the
constitution which prohibits any inhuman, cruel or degrading treatments to any person (either
citizen or non-citizen) will be punished. In the same way, Prisoners Act, 1984 specifically dealt with
cruelty of prisoners. If any excesses are committed on a prisoners, the prison official is responsible
for that. The Indian judiciary, especially Supreme Court in the recent past years has been very
vigilant against encroachments upon the human rights of the prisoners.

Right to Legal Aid- Although our country is having a complex economic structure and hence crisis
arise like poverty, destitution and illiteracy, so providing legal machinery itself is expected to deal
with that. Legal Aid gives assurance to:

1. Fundamental Rights
2. Right to Privacy
3. Right against solitary confinement and bar fetters
4. Right to Life and personal liberty
5. Right to live with human dignity
6. Right to health and medical treatment
7. Right to a speedy trial
8. Right to legal aid
9. Right against Inhuman treatment
10. Right to Education
11. Right to publication

Fundamental Rights

Fundamental rights form the core of human rights in India. They are the basic rights of the citizens
which cannot be taken away under any circumstances. The law of the country also guarantees some
of these rights to the prisoners too like Article 14, 19, 21. However, it cannot impose the
fundamental rights in its full panoply to the advantage of the prisoners. Giving prisoners Right to Fair
procedure forms the soul of Article 21. Levying reasonableness in any restriction is the essence
of Article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anathema for
Article 14. All of these statements are supported by various judgments of the lower courts and the
higher court. Some of them are listed below.

Right to Privacy

The Right to Privacy is one of the very significant rights available to the citizens of India. They form
an intrinsic part of Right to Life and Personal Liberty under Article 21 of the Indian Constitution. They
have also been made applicable to the prisoners and convicts through various judgements passed by
courts over the years.

In India, however, this right is perhaps the most violated. The right to privacy in respect to search
and seizure was first raised in the 1950s, where the apex court ruled that search and seizure cannot
 74

be seen as violative of Article 19 (1)(f) of the Indian constitution and a mere search by itself does not
nullify or harm an individual’s right to property. Even if search or seizure affected such right then its
effect is temporary and is to be construed as a reasonable restriction on the rights of individuals.

Right against solitary confinement and bar fetters

Solitary confinement is a kind of imprisonment in which the convict or prisoner is kept in a different
cell with little or no contact from other inmates. In addition to that strict monitoring is done on the
habits and behaviour of the person. The idea behind solitary confinement is to teach notorious
convicts discipline and provide safety to other inmates from them.

The validity of solitary confinement was considered by the Supreme Court in the famous case of
Sunil Batra v. Delhi Administration wherein the honourable court highlighted that imposition of
solitary confinement is only to be made in exceptional cases where the prisoner is of such violent or
dangerous nature that his segregation becomes an utmost necessity.

Right to Life and personal liberty

The Hon’ble Supreme Court has repeatedly applied the rule of Article 21 in numerous cases and
asserted its significance in several other. It has expanded the connotation of the word “life” given by
Field J. in the much-known case of Kharak Singh v. State of UP. In the said case, the court ruled that
the term “life” connotes more than mere existence like that of an animal. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye
or the destruction of any other organ of the body through which the soul communicates with the
other world.

Right to live with human dignity

The right of a human being to live with dignity is protected by the constitution. This right is also
given to the prisoners as their mere conviction does not render them inhuman. This right forms a
significant part of right to life guaranteed under the constitution of India. The idea behind is that
every person’s life is precious and irrespective of the circumstances, he should be given a sense of
dignity to help him continue living. The courts have enlarged the scope of Article 21 to include this
right. Its occurrence could be noted in many cases. Some of them are enumerated below:

Case Laws - In the case of Maneka Gandhi v. Union of India, the apex court propounded a new
dimension of Article 21 wherein it stated that “right to life or live” does not confine itself to mere
physical existence but also includes right to live with human dignity.

Right to health and medical treatment

Right to health is an important right. The Constitution of India incorporates provisions guaranteeing
every individual the right to the highest attainable standard of physical and mental health. In a series
of judgements, the highest court of the land has held that the right to health care is a crucial
element of Article 21. Article 21 of the Constitution imposes an obligation on the State to safeguard
an individual’s life.

In the case of Parmannd Katara v. Union of India, the court held that a doctor working at a
Government hospital is bound by duty to extend any type of medical assistance for preserving life. In
fact, every doctor has a professional obligation of extending his services to the patients (be it
anyone) with due diligence and expertise in order to protect his life.
 75

Right to a speedy trial

It is very well said that justice delayed is justice denied. Every prisoner has a right to a speedy trial
irrespective of the crime he is convicted of. Speedy trial is considered as an integral part of the
criminal justice delivery system. Once a person is accused, he must be subject to speedy trials so as
to punish him from the crime he committed or absolve him from it, if not proven guilty. No one
should be subject to long, pending and tiresome trials as it not only violates the rights of an
individual but is considered to be the denial of justice altogether. The right to a speedy trial,
therefore, has become a universally recognized human right.

In AR Antulay v. RS Nayak the Supreme Court laid down comprehensive guidelines for accused
convicted in a criminal case, however, it did not prescribe a fixed time period for the trial of
offences.

Right to legal aid

Legal assistance plays a significant part in the life of an accused awaiting trial or any prisoner or
convicts, for that matter. The 42nd Amendment to the Constitution (1976) of India incorporated
services of free legal aid as Article 39A under the head Directive Principles of State Policy. Though
this article is part of the directive principles of state policy and hence, not enforceable, the principles
underlined therein are of utmost importance. It is incumbent upon the State to keep this article in
mind while framing rules and regulations for prisoners, criminals or convicts.

Right against Inhuman treatment

It is the right of every prisoner to be protected against any type of cruel or inhuman treatment. The
Supreme Court of India in several cases has highlighted the harsh treatments faced by prisoners and
directed state and prison authorities to check and regulate the same. The court also prohibited the
use of instruments such as handcuffs, chains, irons and straitjackets in punishing the prisoners. Some
other instruments of restraint are permissible but only under certain circumstances. These
circumstances are mentioned hereunder:

Right to Education

Right to education is a Fundamental Right and therefore it should be given to every citizen of the
country. Along with education, it is compulsory that the right type of education should be imparted.
In Mohammad Giasuddin v. State of AP, the court tried to regulate the manner of work and
education provided to the inmates of the jail. It directed the state government to look into the
nature of work and education given to the prisoners and check that the work provided is “not of a
monotonous, mechanical, intellectual or like type mixed with a title manual labour…”. The court
further stated the facilities of liaison through correspondence courses must also be given to the
prisoners who are interested in doing higher or advanced studies.

Right to publication

The Supreme court held in a case wherein the prisoner was not allowed to read a scientific book that
there was nothing in the Bombay Detention Order, 1951 that prohibits a prisoner from writing or
publishing a book. It stated that the book prisoner wanted to read was merely a work of science,
(“Inside the Atom”) and it could not be regarded as detrimental to public interest or safety as
provided under the Defence of India Rules, 1962.
 76

Further, in State of Maharashtra v. Prabhakar Pandurang Sanzgir wherein an accused detained under
preventive detention was not allowed to hand over his unpublished book to his wife for publication,
the court termed such an act as violative of Article 21.

---------------------------------------------------------- --------------------------------------------------- -------------

Explain the criminal injuries compensation schemes with reference to United Kingdom

The Scheme is a government funded scheme designed to compensate victims of violent crime in
Great Britain. We, the Criminal Injuries Compensation Authority (CICA), administer the Scheme and
decide if applicants are eligible and assess the appropriate value of any award. The rules of the
Scheme and the value of the payments awarded are set by the Secretary of State and approved by
Parliament. To qualify for an award, an injury must be described in the tariff of injuries at Annex E of
the Scheme. The CICA must pay an award in line with these prescribed amounts, based on the
severity of the injuries and the impact on you. We recognise that no amount of compensation can
ever make up for the harm and suffering caused to victims by violent crime. Injury awards are
intended to be an acknowledgement of harm and an important gesture of public sympathy.

The Criminal Injuries Compensation Scheme is a state-funded scheme which provides compensation
to people who suffer injury through crimes of violence. The scheme covers physical and mental
injury but is open only to victims who have been injured in a crime of violence, during an attempt to
prevent an offence or detain an offender, or as a result of someone trespassing on the railway. The
Authority’s aims are to support the victims of violent crime by providing compensation for injuries in
circumstances which qualify under the 1996 and 2001 criminal injuries compensation schemes;
appropriate services to the Criminal Injuries Compensation Appeals Panel following the transfer of
residual work from the Criminal Injuries Compensation Board; ensuring that the services are
delivered efficiently, effectively and with proper consideration to value for money. Where an injury
is fatal, the victim's dependants may be eligible to claim. A person injured in a normal road accident
would not qualify for an award (unless they were a victim of a deliberate attempt to injure them).
Nor would someone who became depressed or needed medical treatment because their house had
been burgled. Applicants must have reported the offence to the police. Delay or failure to report the
offence, without good reason, greatly reduces the strength of a claim.

The Scope of the scheme

The Criminal Injuries Compensation Scheme allows financial awards in the case of physical or mental
injuries caused by a violent crime; to compensate for past or future lost earnings or special expenses
caused by a violent crime; or for the death of a close relative as a result of a violent crime. The
applicant must have suffered injuries in Great Britain which means England, Scotland and Wales. The
scheme was developed by the Home Secretary and approved by the parliament and both schemes in
1996 and 2001 were set up under an act of parliament.

Under the Scheme, “criminal injury” means one or more personal injuries being an injury sustained
in Great Britain and directly attributable to a crime of violence, an offence of trespass on a railway;
the apprehension or attempted apprehension of an offender or a suspected offender, the
prevention or attempted prevention of an offence, or the giving of help to any constable who is
engaged in any such activity.

Under the Scheme, “personal injury” includes physical injury; mental injury that is temporary mental
anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis and
disease that is a medically recognised illness or condition. Mental injury or disease may either result
 77

directly from the physical injury or from a sexual offence or may occur without any physical injury. In
order to have a successful application, the applicant should report as soon as possible after the
incident giving rise to the injury and must be received by the Authority within two years of the date
of the incident.

The compensation for mental injury

Any criminal injury will be recognized as serious if the applicant suffered it. However, the lowest
level of Compensation which can be awarded by the scheme is £ 1.000. Furthermore, the Tariff
awarded for the physical injury includes an element of compensation for the mental injury which the
applicant suffered as a result of the physical injury. In the majority of the cases, the applicant could
be awarded compensation for mental injury only if it is bound to the physical injury. When applying
for compensation for mental injury, it will need to be diagnosed by a doctor if the applicant wants
compensation for shock or by a psychiatrist or psychologist if he wants compensation for a more
serious mental injury.

However, it is possible to apply for compensation for mental injury only in two different situations.
Firstly, if the applicant suffered a mental injury because of the fear of immediate physical harm.

Secondly, when mental injury was caused by someone very close to the applicant suffering a
criminal injury. In this case, the applicant will need to show that he suffered the injury because he
either “witnessed or were present” at an incident or were “closely involved in the immediate
aftermath “of an incident where a person with whom he had “a close relationship of love and
affection” was physically or mentally injured.

The amount of Compensation

There is a standard amount of compensation which is determined by reference to the nature of the
injury. In order to be applicable for the compensation scheme, the applicant must have suffered a
physical or mental injury that is serious enough to be included in one of the Tariff bands attached to
the scheme. There are different types of Compensation. The first type recognizes the applicant
suffering from an injury; it is called “the standard amount of compensation”. It will compensate the
applicant for lost earnings. It will apply if the applicant has lost earnings or the ability to earn for
longer than 28 weeks as a direct result of the injury.

The second type of compensation is called “special expenses”; this covers the cost of medical
treatment which cannot be provided by the NHS; the cost of care provided by a residential
establishment or at home; and the cost of adaptations that need to be made to the home of the
applicant as a result of his injury. The maximum award is £ 500,000. It applies to the injury rather to
the person applying. If the behaviour of the applicant had contributed to the incident in which he
was injured the award can be reduced by 50%. The minimum award is £ 1,000. It happens when the
injury is not serious. As the maximum award, the minimum award relates to the injury rather than
the person applying. It is important to bear in mind that the compensation will be awarded only if
the injury has been directly caused by a violent crime; serious enough to justify a payment of at least
£1,000.

What payments are available from the Scheme?

We can consider claims for the following:

 Mental or physical injury following a crime of violence;

 Sexual or physical abuse;
 78

 Loss of earnings - where you have no or limited capacity to work as the direct result of a
criminal injury;
 Special expenses payments - these cover certain costs you may have incurred as a direct
result of an incident. You can only ask us to consider special expenses if your injuries mean
you have been unable to work or have been incapacitated to a similar extent for more than
28 weeks;
 A fatality caused by a crime of violence including bereavement payments, payments for loss
of parental services and financial dependency; and funeral payments.
 personal injury following a single incident;
 personal injury following a period of abuse;
 loss of earnings;
 special expenses payments – to cover specific injury-related requirements
 which are not available free of charge from any other source;
 fatal injuries, including loss of parental services and financial dependency;
 and
 Funeral payments.

Eligibility

We can compensate victims of violent crime, or people whose loved ones have died as a result of a
crime of violence. You will also need to meet all the remaining requirements and eligibility criteria
within the Scheme to receive an award of compensation.

Direct victim of a crime of violence

A direct victim is someone who was directly injured as a result of a crime of violence in Great Britain
or other relevant place.

The term ‘a crime of violence’ is defined at Annex B of the Scheme.

Incident location

Compensation can only be awarded where the incident occurred in England, Scotland, Wales, or
another ‘relevant place’. A full definition of ‘relevant place’ is given at Annex C of the Scheme.

---------------------------------------------------------------------------------------------- ------------------------------

Euthanasia

Every person desires to live his life to the full extent, and for a long time. But there are certain
circumstances, where the same person desires to end his life. The ending of the life of a person by
himself may arise out of two ways; either suicide, or by euthanasia. While the former is entirely
illegal in India, the latter is a debatable topic.

Euthanasia, according to Merriam-Webster dictionary, means the act or practice of killing or

permitting the death of hopelessly sick or injured individuals in a relatively painless way for reasons
of mercy. It can also be seen as ‘mercy killing’. According to this practice, the victim, or any other
person on his behalf, chooses death for himself, mainly because of medical conditions of the victim
and then he is put to death by someone else. This is done simply to mercifully end the life of the
victim to release him from the incurable disease, intolerable suffering and from the misery and pain
of life.
 79

Over the years the meaning of euthanasia has evolved too many meanings like “a good death”,
“assisted dying”, “death with dignity”. The use of such language which is of a very broad nature has
also led to deceptive use of the term which has led to the subsequent evolution of its meaning. The
ethical and moral dilemma which surrounds euthanasia can be considered the first hindrance
towards any change as it puts individual autonomy and preservation of human life in the same boat.
The “do no harm” as stated in the Hippocratic oath that binds doctors and medical practitioners
under an obligation to prolong a patient’s life is perhaps the biggest safeguard against euthanasia. It
has been considered by the World Medical Organization as well as the Medical Council of India. The
counterargument which has been laid out against the Hippocratic Oath is that the principle of “do no
harm” should be interpreted to give a reasonable meaning to what constitutes harm to a patient. In
this instance, the intense suffering of a patient can cause more harm to the patient by forcing him to
stay alive rather than letting him die in peace and with dignity.

Classification of Euthanasia

Active euthanasia

In active euthanasia, the death of the victim is caused when the medical professionals, or any other
person, deliberately do some positive act; such as injecting a dose of a lethal drug, or overdosing the
victim with some drug, which would otherwise not result in death, if not for the overdose; resulting
in the death of the person.

Passive euthanasia

In passive euthanasia, the death of the victim is caused because the treatment necessary for
sustaining his life is either held off, or is not given. In this case, the medical professionals either do
not something that is necessary to keep the patient alive, or they stop giving the treatment required
to keep him alive; such as switching off the life support system, disconnecting the feeding tube, not
carrying out life-extending operations, and other similar acts. In “passive euthanasia” the doctors are
not actively killing anyone; they are simply not saving him.

Voluntary

In case of voluntary euthanasia, the expressed consent and desire of the patient is present. It is
primarily concerned with the right to choice of the patient, suffering from incurable disease who
decides to end his life.

Non-Voluntary

Non-voluntary euthanasia occurs when a person’s life is ended, who is mentally incompetent to
make any such decisions of his life, or a request to die; such as a patient suffering from comatose. In
such cases, the patient does not leave any living will, or give any advance directives, mainly because
he either might not have had the opportunity, or he might not have anticipated any such accident or
eventuality.

Western legal system

Throughout history, the movement for euthanasia gained momentum multiple times and it almost
attained a legal status that was defeated by the legislature. The movement had a tremendous
negative setback after the Nazi holocaust and subsequently, after the war was over individuals
started looking to solve problems associated with euthanasia with scientific and technological
solutions rather than them being moral or political.
 80

There was an eclectic pattern of euthanasia followed in various countries around the world and we
discuss a few of them:

Switzerland

The most recent development in the field of euthanasia took place in 2021 when a coffin-shaped
euthanasia machine also termed as ‘Suicide machine’ which can be operated by the user in the blink
of an eye was legalized.

The practice of assisted suicide has also been legalized in the country along with the presence of
safeguards to prevent people from unlawfully gaining as a result of the practice. 1.5% of deaths in
Switzerland can be attributed to assisted suicide

Canada

Canada allowed assisted suicide as well as euthanasia only in cases where it could be reasonably
foreseen that the grievous physical condition of an adult would ultimately lead to his death.

In 2021 the ambit of the law was increased by bringing adults under its ambit who was suffering
from an incurable and serious disability or illness which or may not lead to their death.

Australia

The state of Victoria in Australia legalized voluntary euthanasia in 2017 after twenty years since the
law was repealed in 1997 owing to widespread public backlash. The practice would only be available
for people who are reeling under the effects of progressive and incurable diseases and is expected to
lead them to their death within one year. Following Victoria, four more Australian states have also
legalized the practice.

United States of America

Several States in the US such as California, Montana have legalized euthanasia or legally assisted
dying through court rulings, legislation.

The process involves a doctor writing a prescription for the fatal drugs along with the presence of a
healthcare professional when such drugs are administered by the patient.

France

The practice of palliative sedation which involves sedating a person to the point of termination of
their life with their consent is legal in France.

However, in 2021 a bill related to legalizing euthanasia was brought which was rejected by the
French Parliament.

Netherlands

The practice of assisted dying as well as euthanasia is legal in the Netherlands for people who are
suffering from a disease that causes tremendous suffering without any chance of improvement.

Euthanasia in India

Indian courts recognise only passive euthanasia. In a recent case of Common Cause (a regd. Society),
it was held that the ‘right to die with dignity’ is a fundamental right of a person. It can be availed by
the patients who suffer from incurable, and prolonged diseases, and have reached the state of
permanent vegetative state (p. v. s.), where there is very little or no hope of recovery, and the
 81

patients are kept alive through external instruments and machines, such as the cardiopulmonary
machines. In such cases, passive euthanasia can be allowed.

------------------------------------------------ ----------------------------------------------------- ---------------------

Problems faced by women prisoners

 Poor living Accommodations or Overcrowding of Prisons.

 Shortage of prison staff
 Lacks with basic facilities of sanitation and hygiene.
 Poor spending on health care and welfare.
 Problem of Women Prisoners in India- custodial rape
 Nutrition
 Vulnerabilities of pregnancy
 Childcare
 Lack of education
 Violence
 Skilling & vocational training

A. Poor Living Accommodations or Overcrowding of Prisons:

This is one of the most severe problems faced in Indian prisons both to the male and female
prisoners. In prisons, a specified size for cells and barracks is provided according to the guidelines of
the National Prison Manual. Barracks are ideally only for 20 prisoners and dormitories to house only
four to six prisoners each. Overcrowding has worsened hygiene conditions and health problems with
even minor infections spreading quickly. The disproportionately low number of toilets and
bathrooms exacerbate the situation. Overcrowding also has severe psychological effects on
prisoners forced to live in such close quarters with one another.

Although convicted and under trial, prisoners are to be housed separately on conviction, this is
usually not possible due to severe space constraints.

Young offenders (18-21 years of age) must also be kept separately, mostly they are found with the
older women offenders leading to make them the habitual offenders. Overcrowding in prisons also
leads to children of prisoners having to live in cramped and undesirable conditions.

B. Lacks basic facilities of sanitation and hygiene:

In India, most of the female prisoner’s age from the age group of 18-50 was a large majority that is
81.8% female’s falls under the menstruating age group where there is an increasing need to provide
proper sanitation facilities as well as access to adequate menstrual hygiene products. As they should
be provided with proper sanitary pads to maintain their hygiene but it is reported that they charged
for sanitary napkins in some prisons or are only provided a set monthly number irrespective of need.
Thus, this leads women to resort to using unhygienic materials such as cloth, ash, pieces of old
mattresses, newspapers etc.

C. Poor spending on Health care and welfare:

In India, an average of Rs.10, 800 per inmate per year was spent by prison authorities during the
year of 2005, distributed under the heads of food, clothing, medical expenses, vocational &
educational, welfare activities and others (National Crime Records Bureau 2005)
 82

This is in contrast to the US, where the average annual operating cost per state inmate in 2001 was $
22,650 (the latter presumably also includes salaries of prison staff). The maximum expenditure is on
food in Indian prisons.

The States like- West Bengal, Punjab, Madhya Pradesh, Uttar Pradesh, Bihar and Delhi reported
relatively higher spending on medical expenses during that year, while in Bihar, Karnataka and West
Bengal reported relatively higher spending on vocational and educational activities. Tamil Nadu,
Orissa and Chhattisgarh reported as it is relatively higher spending on welfare activities regarding
with the prison.

D. The problem of Women Prisoners in India- custodial rape:

In the case of State of Maharashtra vs. C.K.Jain, there was rape in police custody. Regarding
evidence, the Supreme Court emphasized that in such cases unless the testimony of the prosecution
was unreliable, collaboration normally should not be insisted upon. Secondly, the presumption is to
be made that ordinarily, no woman would make a false allegation of rape. Thirdly, delay in the
making of the complaint is not fatal and quite understandable reasons exist for the delay on the part
of the victim woman in making a complaint against the police. As far as the sentence was concerned
there was no room for leniency, the punishment must be exemplary.

The common problems for women in prison generally come from both the lives they led before
being imprisoned as well their actual incarceration. As a result of their gender, women arrive in
prison usually with a different set of problems than male prisoners do. After being imprisoned, a
woman might encounter different problems than a male inmate because most prisons are set up to
deal exclusively with young male offenders. Generally speaking, the critical problems faced by
women prisoners are being separated from their children and partners; inadequate or substandard
physical and mental health care; sexual abuse; a lack of vocational or educational programs; and an
unsafe prison environment. Although some male offenders might face somewhat similar problems,
the problems faced by women in prison differ significantly in terms of the effects on the women and
their lives both in and out of prison.

Research indicates that a substantial majority of female prisoners are mothers, with most having
children who are not yet 18. Women tend to bear most of the responsibility for raising their
children, so the resulting separation from their children during incarceration can be an
overwhelming additional burden to the woman, as well as to her children and other family
members. Prisons in most countries make an effort to house inmates within a reasonable distance
from their family, but females are far more likely to be housed at greater distances from their homes
because so few prisons can accommodate women. This can make visitation much more difficult.

The number of women in prison is far less than the male prison population, so females routinely
receive little or substandard medical attention. Most prisons do not offer mammograms, pelvic
examinations or other services that are needed exclusively by women. It is not unusual for women
who are pregnant to enter the prison population. Prenatal care is not routinely given and, in fact,
women in prison often remain shackled when in labour, which can cause excessive bleeding and
serious brain damage to the baby. In many countries, women are immediately separated from their
babies after birth — to the detriment of both mother and child.

Women in prison might be subjected to sexual abuse or assault by the correctional officers who
serve in these institutions or by other inmates. Research has established that female prisoners have
been raped, groped or victimized through other types of sexual coercion. Often, these incidents go
unreported because of fear.
 83

Skilling & vocational training

Opportunities for skilling and vocational training should be made available in all jails. It is considered
an essential part of reformation. Every State/UT is to have a clear policy for skill development
programmes and vocational training of prisoners. A Board of Skill Development Programme and
Vocational Training is to be set up at the prison headquarters under the chairpersonship of Inspector
General of Police.

------------------------------------------------------- ----------------------------------------------------------- ------------

Restitution

Restitution is a court ordered payment from a convicted offender, whereas, compensation is a

government program that pays the victim where the compensation is not fully available or
recoverable from the perpetrator.

Restitution involves the court, as part of a sentence in a criminal case, ordering a defendant to
compensate the victim for losses suffered as a result of the crime. All states have laws providing that
convicted defendants pay restitution to their victims. Public policy favours imposing restitution as
part of a sentence to force the offender to answer directly for the consequences of the crime.

After the conviction of the accused, the trial Court shall direct the accused to file the affidavit of his
assets and income within 10 of crime on the victim, the expenses incurred on prosecution as well as
the paying capacity of the accused. If the accused does not have days, thereafter, a summary inquiry
is conducted to ascertain the impact the capacity to pay the compensation or the compensation
awarded against the accused is not adequate for the rehabilitation of the victim, the Court shall
invoke Section 357-A of the Cr. P. C to recommend the case to DSLSA to award compensation from
the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

This format of Victim Impact Report has been developed as against the Victim Impact Statement,
which is an instrument of victim participation that allows victims to directly address the Court in its
own words as to how the crime impacted them. It allows the victim to come to terms with the
offence and makes the offender perceive and realize the impact of crime on the victims.

Who Is Eligible for Restitution?

The laws that authorize the payment of restitution to crime victims also define who exactly that
victim is.

Direct victims. Generally, restitution is paid to the person who directly suffers injury or loss as a
result of the defendant's crime, such as the assault or robbery victim. In most states, especially in
relation to financial crimes, the victim can be an individual, partnership, corporation, or any other
association or entity.

Indirect victims. In some cases, the law allows compensation to indirect victims. For instance, in a
murder case, the surviving family members of the murder victim are eligible to receive restitution.

Third parties. Many states authorize restitution to any entity that has provided recovery to the
victim as a collateral source, such as victim compensation programs, government entities, and victim
service agencies. If a victim is insured and has been reimbursed by the insurance company for
damages from the criminal act, some states allow the court to order a defendant to pay restitution
directly to the insurance company. A few states even allow restitution to creditors.
 84

The government. When there's no identifiable victim of a crime, the defendant cannot be ordered to
pay restitution as part of his or her sentence. For example, a defendant convicted of possessing a
fraudulent identification in the name of Ned Nobody can't be ordered to pay restitution to Mr.
Nobody if Mr. Nobody doesn't exist. However, in some jurisdictions, the government and society at
large would be considered the victim of these "victimless" crimes (especially drug offenses,
prostitution, and welfare fraud), and defendants could be ordered to pay restitution to reimburse
agencies for money expended to investigate the crime.

What Expenses Does Restitution Cover?

Restitution can be ordered to reimburse a victim for a variety of expenses related to a crime. While
provisions vary from state to state, the following can typically be considered in calculating restitution
amounts:

Funeral expenses. All expenses associated with the funeral and estate closing costs are usually
considered appropriate for restitution in homicide cases.

Lost wages. If a victim missed work because of injuries from a criminal act or because of
participation in the court process, the victim can ask to be compensated for these lost wages. In
some states, defendants can even be required to compensate victims for any vacation time or sick
time used for recovery or court attendance. Victims who are self-employed stand to lose far more
from not being able to work, so they can ask for restitution for lost profits.

Medical and counseling expenses. Medical expenses such as hospital costs, physical therapy, and
rehabilitation care are generally included. Most states allow restitution to cover counseling expenses
for victims, which can sometimes include counseling of victims' family members in homicide cases.
Some states allow the court to order restitution amounts in anticipation of long-term expenses that
may not have fully materialized by the sentencing date.

Lost or damaged property. Courts can order restitution for the replacement or repair value of stolen
property that cannot be returned and for the cost of any property damage. In the event that
specialized cleanup is required (such as removal of biohazard waste from a homicide scene or meth
house), these expenses can be included in restitution amounts.

Other direct out-of-pocket expenses. The court can order restitution for any other out-of-pocket
expenses incurred directly because of the crime, such as increased insurance premiums in a burglary
case or expenses for correcting a victim's credit history in an identity theft case.

Considerations in Ordering Restitution

Courts must take certain legal elements into consideration in determining the amount of restitution
ordered in a particular case. These include:

 losses suffered by the victim

 the seriousness and gravity of the offense and the circumstances of its commission
 the economic gain derived by the offender
 the financial burden placed on the victim, the government, and others injured as a result of
the crime
 the current financial resources of the defendant, and
 The defendant's future ability to pay.
 85

------------------------------------------------------- ------------------------------------------------------------------

Plea-bargaining in India

Plea bargaining is a pre-trial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain
where a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious
charges. It is not available for all types of crime e.g. a person cannot claim plea bargaining after
committing heinous crimes or for the crimes which are punishable with death or life imprisonment.

Plea Bargaining is not an indigenous concept of Indian legal system. It is a part of the recent
development of Indian Criminal Justice System (ICJS). It was inculcated in Indian Criminal Justice
System after considering the burden of long-standing cases on the Judiciary.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea
Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining
for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are excluded

The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian
Criminal Justice System. It defined Plea Bargaining as an alternative method which should be
introduced to deal with huge arrears of criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was headed by the former
Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue of
escalating number of criminal cases. The Malimath Committee recommended for the plea
bargaining system in India. The committee said that it would facilitate the expedite disposal of
criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed out
the success of plea bargaining system in the USA to show the importance of Plea Bargaining.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and
finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to amend
the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian
Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country, which
is inundate with a plethora of criminal cases and overabundant delay in their disposal on the one
hand and very low rate of conviction in cases involving serious crimes on the other. The Criminal Law
(Amendment) Bill, 2003 focused on following key issues of the criminal justice system:-

(i) Witnesses turning hostile

(ii) Plea-bargaining
(iii) Compounding the offense under Section 498A, IPC (Husband or relative of husband of a woman
subjecting her to cruelty) and
(iv) Evidence of scientific experts in cases relating to fake currency notes.
 86

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea bargaining
in India. The following are provisions which it added:-

 Section 265-A (Application of Chapter) the plea bargaining shall be available to the
accused who is charged with any offense other than offenses punishable with death or
imprisonment or for life or of an imprisonment for a term exceeding to seven years.
Section 265 A (2) of the Code gives the power to notify the offenses to the Central
Government.
The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offenses
affecting the socio-economic condition of the country.

 Section 265-B (Application for Plea Bargaining)

1. A person accused of an offense may file the application of plea bargaining in trails which
are pending.
2. The application for plea bargaining is to be filed by the accused containing brief details
about the case relating to which such application is filed. It includes the offences to
which the case relates and shall be accompanied by an affidavit sworn by the accused
stating therein that he has voluntarily preferred the application, the plea bargaining the
nature and extent of the punishment provided under the law for the offence, the plea
bargaining in his case that he has not previously been convicted by a court in a case in
which he had been charged with the same offence.
3. The court will thereafter issue the notice to the public prosecutor concerned,
investigating officer of the case, the victim of the case and the accused of the date fixed
for the plea bargaining.
4. When the parties appear, the court shall examine the accused in-camera wherein the
other parties in the case shall not be present, with the motive to satisfy itself that the
accused has filed the application voluntarily.

 Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the
procedure to be followed by the court in mutually satisfactory disposition. In a case
instituted on a police report, the court shall issue the notice to the public prosecutor
concerned, investigating officer of the case, and the victim of the case and the accused to
participate in the meeting to work out a satisfactory disposition of the case. In a
complaint case, the Court shall issue a notice to the accused and the victim of the case.
 Section 265-D (Report of the mutually satisfactory disposition) This provision talks about
the preparation of the report of mutually satisfactory disposition and submission of the
same. Two situations may arise here namely

1. If in a meeting under section 265-C, a satisfactory disposition of the case has been
worked out, the report of such disposition is to be prepared by the court. It shall be
signed by the presiding officer of the Courts and all other persons who participated in the
meeting.
2. If no such disposition has been worked out, the Court shall record such observation and
proceed further in accordance with the provisions of this Code from the stage the
application under sub-section (1) of section 265-B has been filed in such case.
 87

o Section 265-E (Disposal of the case) prescribes the procedure to be followed

in disposing of the cases when a satisfactory disposition of the case is worked
out. After completion of proceedings under Section 265-D, by preparing a
report signed by the presiding officer of the Court and parties in the meeting,
the Court has to hear the parties on the quantum of the punishment or
accused entitlement of release on probation of good conduct or after
admonition. Court can either release the accused on probation under the
provisions of Section 360 of the Code or under the Probation of Offenders
Act, 1958 or under any other legal provisions in force or punish the accused,
passing the sentence. While punishing the accused, the Court, at its
discretion, can pass sentence of minimum punishment, if the law provides
such minimum punishment for the offenses committed by the accused or if
such minimum punishment is not provided, can pass a sentence of one-
fourth of the punishment provided for such offense. ”
o Section 265-F (Judgment of the Court) talks about the pronouncement of
judgment in terms of mutually satisfactory disposition.
o Section 265-G (Finality of Judgment) says that no appeal shall be against such
judgment but Special Leave Petition (Article 136) or writ petition (under
Article 226 or 227) can be filed.
o Section 265-H (Power of the Court in Plea Bargaining) talks about the powers
of the court in plea bargaining. These powers include powers in respect of
bail, the trial of offenses and other matters relating to the disposal of a case
in such court under Criminal Procedure Code.

 Section 265-I (Period of detention undergone by the accused to be set off against the
sentence of imprisonment) says that Section 428 of CrPC is applicable for setting off the
period of detention undergone by the accused against the sentence of imprisonment
imposed under this chapter.

 265-J (Savings) talks about the provisions of the chapter which shall have effect
notwithstanding anything inconsistent therewith contained in any other provisions of the
Code and nothing in such other provisions shall be construed to contain the meaning of
any provision of chapter XXI-A

 Section 265-K (Statement of the accused to be used) specifies that the statements or
facts stated by the accused in an application under section 265-B shall not be used for
any other purpose except for the purpose as mentioned in the chapter.
 Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be
applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice
(Care and Protection of Children) Act, 2000.

Types of Plea Bargaining

Plea Bargaining is generally of three types namely:-

1. Sentence bargaining;
 88

2. Charge bargaining;

3. Fact bargaining.

S.
Concept Type Meaning
No.

In this type of bargaining the main motive is to get a lesser

Sentence sentence. In Sentence bargaining, the defendant agrees to
1.
bargaining plead guilty to the stated charge and in return, he bargains
for a lighter sentence.

This kind of plea bargaining happens for getting less severe

charges. This the most common form of plea bargaining in
Plea Charge criminal cases. Here the defendant agrees to plead guilty
2.
Bargaining bargaining to a lesser charge in consideration of dismissing greater
charges. E.g. Pleading for manslaughter for dropping the
charges of murder.

This is generally not used in courts because it is alleged to

Fact be against Criminal Justice System. It occurs when a
3.
bargaining defendant agrees to stipulate to certain facts in order to
prevent other facts from being introduced into evidence.

Plea Bargaining and Judicial Pronouncements

In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble Supreme Court
criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.

In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs State of Gujarat
and Anr, the Apex court said that the Plea Bargaining is against public policy. Moreover, it regretted
the fact that the magistrate accepted the plea bargaining of accused. Furthermore, Hon’ble Court
described this concept as a highly reprehensible practice. (see here)

The Court also held that practice of plea bargaining as illegal and unconstitutional and tends to
encourage the corruption, collusion and pollute the pure fount of justice.

Thippaswamy vs State of Karnataka, [1983] 1 SCC 194, the Court said that inducing or leading an
accused to plead guilty under a promise or assurance would be violative of Article 21 of the
Constitution.

The Court also stated that “In such cases, the Court of appeal or revision should set aside the
conviction and sentence of the accused and remand the case to the trial court so that the accused
 89

can, if he so wishes defend himself against the charge and if he is found guilty, proper sentence can
be passed against him”.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386), the Apex Court disparaged the concept
of plea bargaining and held this practice as unconstitutional and illegal. Here the Hon’ble Court was
of the view that on the plea bargaining Court cannot basis of disposing of criminal cases. The case
has to be decided on the merit. In furtherance of the same, court said that if the accused confesses
his guilt, he must be given the appropriate sentence as required by the law. (see here)

In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709, the Court acknowledged the
importance of plea bargaining and said that every “plea of guilty” which is construed to be a part of
the statutory process in the criminal trial, should not be understood as a “plea bargaining” ipso
facto. It is a matter of matter and has to be decided on a case to case basis. Considering the dynamic
nature of law and society, the court said that the very object of the law is to provide an easy, cheap
and expeditious justice by resolving disputes.

-------------------------------------------------------------------------- -------------------------------

Justice Dr VS Malimath Commission report on victim’s compensation

Victim compensation is a State obligation in all serious crimes.

The Victim Compensation Fund can be created under the victim compensation law and the assets
confiscated in organised crimes can be made part of the fund.

The victim should be allowed to participate in cases involving serious crimes and also be given
adequate compensation.

Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended
or not, convicted or acquitted. This is to be organised in a separate legislation.

A Victim Compensation Fund can be created under the victim compensation law and the assets
confiscated in organised crimes can be made part of the fund.

The victim will also have opportunity to adduce evidence in regard to his loss, pain and suffering and
assist the court in determining the quantum of compensation.

The Justice V.S. Malimath Committee is recommitted to victim’s rights and their participation in
cases and adequate compensation. It should be mandated access to the justice and fair treatment
accompany with victims.

In 2003, the Malimath Committee on reforms in the Criminal Justice System of India, was of the
opinion that the strategies being introduced in the United Kingdom to give a better deal for victims
should be considered for adoption in India. It stated that Victim compensation is a state obligation in
all serious crimes, whether the offender is apprehended or not, convicted or acquitted.

In it’s report, it recommended the creation of a victim compensation fund to be administered by the
Legal Services Authority. This led to the introduction of Section 357A of the Code of Criminal
Procedure, which was a revolutionary step towards victim rehabilitation for the Indian Criminal
Justice system.
 90

Victim Compensation Scheme is available under Section 357A of Code of Criminal Procedure. Under
this section, the victim can request the State or District Legal Service Authority to award him or his
dependents compensation, for the loss or injury caused to him by the offender or for rehabilitation.

There was no criminal law in uncivilized society. Every man was liable to be attacked on his person or
property at any time by any one. The person attacked either succumbed or over-powered his
opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal
justice. As time advanced, the injured person agreed to accept compensation, instead of killing his
adversary. Subsequently, a sliding scale of satisfying ordinary offences came into existence. Such a
system gave birth to the archaic criminal law. For a long time, the application of these principles
remained with the parties themselves, but gradually this function came to be performed by the
State.

Participation of the victim will also assist the court in exercising its discretion in regard to grant or
cancellation of bail. The victim will also have opportunity to adduce evidence in regard to his loss,
pain and suffering and assist the court in determining the quantum of compensation. In cases where
prosecution seeks to withdraw from the case, the victim would be in a position to assist the court in
proper exercise of its discretion and may even offer to take the responsibility of continuing the
prosecution.

The victim or his representative who is a party to the trial should have a right to prefer an appeal
against any adverse order passed by the trial court. In such an appeal he could challenge the
acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation
payable to the victim. The appellate court should have the same powers as the trial court in regard
to assessment of evidence and awarding of sentence.

Relevant recommendations regarding rights of the victim to participation, right to prefer an appeal
against acquittals and right to compensation are incorporated in the separate chapter on ‘justice to
victims’.

They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right
to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right
to seek and receive compensation from the criminal court itself for injuries suffered as well as
appropriate interim reliefs in the course of proceedings.

He would be of help to the court in the matter of deciding the grant or cancellation of trial. He will
adduce evidence in the matter of loss, pain and suffering to decide on his entitlement of interim
reliefs and compensation by way of restitution. Wrongful attempts to withdraw or close the
prosecution due to extraneous factors can be resisted if the court were to have the continued
assistance of the victim. the right to seek and receive compensation from the criminal court itself for
injuries suffered as well as appropriate interim reliefs in the course of proceedings.

Not only the victim’s right to compensation was ignored except a token provision under the Criminal
Procedure Code but also the right to participate as the dominant stakeholder in criminal proceedings
was taken away from him.

Compensation for victim

The principle of compensating victims of crime has for long been recognized by the law though it is
recognized more as a token relief rather than part of a punishment or substantial remedy. When the
sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part
of it may be directed to be paid to the person having suffered loss or injury as per the discretion of
 91

the Court (Section 357 Cr.P.C.). Compensation can be awarded only if the offender has been
convicted of the offence with which he is charged.

While Section 357 (i)(c) provides for the payment of compensation out of the fine imposed, Section
357 (3) makes way for the payment of compensation even if fine does not form part of the
punishment.

While Section 357 (i)(c) provides for the payment of compensation out of the fine imposed, Section
357 (3) makes way for the payment of compensation even if fine does not form part of the
punishment. The amount of compensation which the Court can thus order is flexible enough to
make it real and truly compensatory. It may be paid directly to the beneficiary before the court on a
fixed date and if not so paid, may be reconsidered as a fine.

The payment of compensation by the offender is not possible where there is acquittal or where the
offender is not apprehended. Further, the payment remains suspended till the limitation period for
the appeal expires or if an appeal is filed, till the appeal is disposed of (Section 357(2) Cr. P. C.) The
delay in the realization of the amount often adds to the woes of the victim.

A person who fails to pay the fine/compensation is normally required to undergo imprisonment in
default of the said payment. There are many cases of default for a variety of reasons. The result is
again denial of compensation for the victim even in those few cases which end in conviction.

The hopeless victim is indeed a cipher in modern Indian criminal law and its administration.

Substantial monetary compensations have been awarded against the instrumentalities of the State
for failure to protect the rights of the victim. In 1995 the Indian Society of Victimology based in
Chennai prepared a bill for Victim compensation and submitted to the Government which the

Committee feels is an appropriate draft for initiating action. Compensation – when compensation is
not fully available from the offender or other sources, State should provide financial compensation
at least in violent crimes, resulting in bodily injury for which national funds should be established.

This is over and above the victim compensation scheme which has been in operation in Britain for a
fairly long period. Of course, victim support strategies depend for their effectiveness on the reform
steps undertaken in the overall structure and policies in criminal law and criminal justice
administration. Costs may be awarded to the opposite party or to the State which may be credited
to victim compensation fund if one exists. The number of cases should depend upon the time the
cases are likely to take. Indiscriminate posting of a large number of cases should be avoided.

IPC Amendment Bill of 1978 was the first attempt made to bring about certain changes in sentencing
which remained static from the time IPC was enacted. Prior to this a 173bill had been enacted in
1972 which suggested 3 new forms of punishment externment Section 17(A) compensation for
victims-14(8) and Public Censure 74(C). However, in 1978 externment as a form of punishment was
rejected. Community service [74(A)]

Financial penalties taking into account the offenders’ financial circumstances, and fixing of fines,
remission of fines, compensation orders are provided. A review of compensation orders limits of fine
to be imposed on the young offender and a direction to the parent or guardian to pay fines,
compensation etc., are all fixed and statutorily regulated.

As recommended by the Law Commission when the accused makes a plea of guilty after hearing the
public prosecutor or the de facto complainant the accused can be given a suspended sentence and
he can be released on probation or the court may order him to pay compensation to the victim and
 92

impose a sentence taking into account the plea bargaining or convict him for an offence of lesser
gravity may be considered.

The victim shall have a right to prefer an appeal against any adverse order passed by the court
acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting
inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies
against the order of conviction of such court.

Legal services to victims in select crimes may be extended to include psychiatric and medical help,
interim compensation and protection against secondary victimization.

Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended
or not, convicted or acquitted. This is to be organised in a separate legislation by Parliament. The
draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology
provides a tentative framework for consideration

The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be
administered possibly by the Legal Services Authority. The law should provide for the scale of
compensation in different offences for the guidance of the Court. It may specify offences in which
compensation may not be granted and conditions under which it may be awarded or withdrawn.

The court in its discretion shall award costs to the other party or direct that the same shall be
credited to the victim compensation fund if one is constituted.

----------------------------------------------------------------------------------------------- -----------------------

What is rarest of rare case? Explain with decided cases.

The cases wherein there was an involvement of an uncommon crime which is unusual to any
prudent person, or any person of the society with a reasonable mind, as well as a lack of alternative
punishment being sufficient for the crime, is equal to what the Court later coined as the “Rarest of
Rare” situation. The court further elaborated the scope of rarest of rare by mentioning five criteria
within which the case of rarest of rare was applied.

Rarest of rare is a principle that was brought in to make it easy for the judiciary to choose between
death penalty and life imprisonment as a punishment for the offence of murder under Section 302.

The Doctrine of Rarest of Rare was established in the case of Bacchan v. State of Punjab. The
Supreme Court, in this case, endeavoured to cut out a doctrine particularly for offences culpable
with death to decrease the ambiguity for courts regarding when to go for the highest punishment of
the land. By the majority of 4 to 1, the constitutionality of death penalty was upheld by the Supreme
Court and a principle was laid down that death penalty must be surrounded only in the “rarest of
rare cases.” However, the scope of this phrase was left undefined. The Ratio Decidendi of Bacchan
Singh case is that the death sentence is constitutional if it is prescribed as an alternative for the
offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life.
This means that death penalty can only be imposed on “rarest of rare cases” where an alternative
option is excluded.

Later, in the case of Macchi Singh v. State of Punjab, the court tried to lay down criteria for assessing
whether a crime fell into the category of “rarest of rare.” In the case of Santosh Kumar Bariyar v.
State of Maharashtra, the Supreme Court ruled that, “The rarest of rare dictum serves as a guideline
in enforcing Section 354(3) and establishes the policy that life imprisonment is the rule and death
punishment is an exception.” Section 303 of the Indian Penal Code mandated death penalty for all
 93

offenders serving a life sentence. This section was struck down as being held unconstitutional. The
year 2008 accounted for the case of Prajeet Kumar Singh v. State of Bihar, wherein the court ruled
exactly on what would constitute a “rarest of rare case.” The Court held that a death sentence would
be awarded only, “when a murder is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

What is a Rarest of Rare case?

In the Macchi Singh case, the court laid down certain criteria for assessing when a case could fall
under the ambit of rarest of rare. The criteria are analysed as below:

1. Manner of commission of murder – When the murder is committed in an extremely brutal,

ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme
indignation of the community; for instance,

a. When the victim’s house is set on fire with the intention to bake him alive.

b. When the victim is tortured to inhuman acts in order to bring about his/her death.

c. When the body of the victim is mutilated or cut in pieces in a brutal manner.

2. Motive for the commission of murder – When total depravity and cruelty are the motives behind a
murder; for instance,

a. A hired killer committing murder merely for the sake of a monetary reward.

b. A cold-blooded murder incorporating a thoughtful design in order to get control to inherit

property or for any other selfish gains.

3. Socially abhorrent nature of the crime – When a murder of a person belonging to one of the
backward classes is committed. Cases of bride burning, famously known as dowry deaths, are also
cozered in this.

4. Magnitude of the crime – When the proportion of the crime is massive, for instance, in cases of
multiple murders.

5. Personality of victim of murder – When the murder victim is an innocent child, a helpless woman
or person (due to old age or infirmity), a public figure, etc.

In applying the abovementioned guidelines, the following questions may be asked and answered
accordingly:

a. Is there something which is very unusual about the crime that renders sentence of life
imprisonment insufficient and needs a replacement with sentence of death?

b. Are the conditions of the case such that there is no alternative but to impose death penalty even
after giving full weightage to mitigating circumstances that speak in favour of the offender?

What is the scope of the Doctrine of Rarest of Rare?

In the case of Jagmohan Singh v. State of U.P[9], the Supreme Court upheld the constitutionality of
capital punishment giving reasons that it is not merely a deterrent but a token of disapproval of
crime on part of the society. The Court also felt that Indian could not risk experimenting with
abolishing capital punishment.
 94

The constitutionality was again upheld in the case of Bacchan Singh. Thus, from the case of Bacchan
Singh, the following propositions were emerged:

i. The extreme step of imposing death penalty need not be imposed except in cases of extreme
culpability.

ii. Before opting out for capital punishment, the circumstances of the offender must need to
accounted for. (Aggravating and Mitigating circumstances)

iii. Life imprisonment is rule and death sentence is an exception. In other words, death sentence
should only be imposed in cases where life imprisonment proves to be altogether insufficient
punishment giving regard to accurate conditions of the crime.

iv. A balance sheet of all aggravating and mitigating circumstances needs to be drawn up and full
weightage must be given to mitigating circumstances just so that a balance between both can be
struck.

Afterward, on account of Machhi Singh v. State of Punjab the court attempted to set down rules for
surveying whether wrongdoing fell into the class of rarest of rare.

In the Macchi Singh’s case, the court set out specific standards for surveying when a case could fall
under the ambit of rarest of rare.

The models are investigated as beneath:

1. Way of commission of homicide- when the homicide is submitted in an incredibly fierce,

detestable, revolting, or unforgivable way in order to stir exceptional and extraordinary anger of
the network; for example,
2. When the victim’s house is determined to fire with the aim to prepare him alive.
3. At the point when the casualty is tormented to cruel acts so as to realize his/her passing.
4. At the point when the body of the casualty is ravaged or cut in pieces in a ruthless way.
5. Rationale in the commission of homicide when all out evil and savagery are the thought
processes behind a homicide.
6. Socially despicable nature of the wrongdoing: When a homicide of an individual having a place
with one of the regressive classes is submitted.
7. Size of the wrongdoing when the extent of the wrongdoing is gigantic, for example, in instances
of numerous homicides.
8. Character of casualty of homicide when the homicide casualty is a blameless youngster, a
vulnerable lady or individual (because of mature age or sickness), an open figure, and so forth.

------------------------------------------------------------------------------- --------------------------------------------

How do you consider Jail as a reformative institute?

Prison is where the criminal equity framework put its whole expectations. The correctional
mechanism, if falls flat will make the entire criminal methodology futile. The regulation behind
discipline for a crime has been changed considerably by the advancement of new human rights
statutes. The idea of transformation has turned into the watchword for prison organization. Human
rights statutes advocate that no crime ought to be punished in a pitiless, corrupting or in a cruel way.
Despite what might be expected, it is held that any discipline that adds up to remorseless,
humiliating or brutal ought to be dealt with as an offence by itself. The change caused to the
criminal equity framework and its correctional mechanism has been embraced around the world and
question of incorporation of the same in Indian scenario remains unanswered.
 95

Internationally, it turns into an all-round acknowledged decision that the correctional mechanism in
criminal equity organization ought to agree to reformative arrangements. It is likewise announced
that all prisoners might be approached with deference because of their innate respect and incentive
as human beings. There is an arrangement of rights distinguished by the international legal
framework to spare the human poise and estimation of prisoners and thereby the reformative topic
of rectification. It is additionally emphatically contended that the group can never endure a plan of
adjustment that does not keep up an association with the evilness of the crime done. This discipline
dependably keeps up a subjective point of view. The privileges of the imprisoned individuals must be
perused regardless of this observation. It is genuinely implied that there can be changed disciplines
for the same offence; however, one ought not to be dealt awfully while the sentence once
pronounced by the Court goes on. In this domain, the rights ensured under the international legal
framework are to be investigated and are to be incorporated in India.

Prison as a Correctional /Reformative system

Under the existing social condition, general social reform has become primary pre-condition for
crime prevention. Society involvement in the prevention of crime cannot be conceived without self-
examination and self-improvement by the community at large, this will have and indirect impact on
crime and correction but that impact will be sure and lasting. “Community – based correctional
programmes embrace any activity in the community directly addressed to the offender and aimed at
helping his to become a law abiding citizen”.

In Maharashtra the first Open Institution was started as annex of Yeravda Central Prison in the year
1956 and the second one at Paithan in Aurangabad District in the year 1968. The starting of the
Open Central Prison at Paithan is an important land mark in the history of prison administration of
Maharashtra, as this Institution, foundation for the development of new correctional approach has
been laid. The object is to save lifers long term prisoners from the ill-effects of prisonisation and
continuous exposure to criminal culture of close prisons, having traditional walls. To this end, an
atmosphere of opportunities is created for education, vocational training and self discipline in open
prison. The phases of treatment correction and rehabilitation of prisoners are indicated as follow: 1.
Admission - quarantine – orientation 2. Study of the prisoners through: a) interviews, b) collection of
social information, c) tests and examinations, d) observation, e) analysis of the collected material,
compilation of report, preparation of the case file, central indexing, f) planning of training and
treatment, implementation of the same and observation of response to treatment programme, g)
review of progress and adjusting training and treatment programme to the needs of the prisoner‟s,
h) planning post release rehabilitation programme in collaboration with the after care agencies, i)
pre-release preparation, j) release. The correctional process of the prisoners starts right from the
admission into the prison till release of the prisoner

India still holds and believes in its spirit, the reformative theory of punishment. The reformative
approach is a holistic one and focuses on reforming the individual through various channels. This
approach has been devised to reform the individuals to repent for a crime committed and it works
as a device of self- realization of one’s mistake. Furthermore, the therapeutic approach deals with
the offender being under the continuous supervision and care of the counsellor or the
psychoanalyst. In this way, the prisoner will share his grievances and his behaviour will be
understood in a clear manner. The alternative of meditation can help achieve mental peace to the
prisoners, it can be sought to construe as a channel of relief for them. This approach merely revolves
around the concept of mental study of the human mind. The concept of psychological analysis is
briefly discussed as under
 96

Psychoanalysis is a school of psychology founded by Sigmund Freud. This school of thought

emphasized the influence of the unconscious mind on behaviour.

Freud believed that the human mind was composed of three elements:

The id – The id consists of primal urges

The ego – The ego is the component of personality charged with dealing with reality.

The superego – The superego is the part of personality that holds all the ideals and values we
internalize from our parents and culture.

Freud believed that the interaction of these three elements was what led to all the complex human
behaviors. Freud’s school of thought was enormously influential, but also generated considerable
debate. This controversy existed not only in his time but also in modern discussions of Freud’s
theories.

Punishment as a means to reform the offender was not considered as such during Hindu and Mughal
period in India. During this period punishment was mainly based on deterrence. The recognized
modes of punishment were death sentence, hanging, whipping, flogging, branding or starving to
death. Prisons were considered to be places of torture. Treatment of prisoners was inhuman.

Prison reforms started in India from the British era. They made tremendous efforts for the
reformation of Indian prisons and prisoners. They introduced radical changes in the then existing
prison system. Sole purpose of sending a criminal to prison is to transform him into an honest and
law abiding citizen. Jail enquiry committees in 1836 and 1862 expressed concern for the insanitary
conditions of Indian prisons which resulted in deaths of the inmates.

As a result of the recommendations the three enquiry committees the Prison Act 1894 was enacted.
It provided for better prison administration and the act provided for classification of prisoners and
the sentence of whipping was abolished. Emphasis was also laid on safe custody of prisoners and
under-trials but also on their reformation and rehabilitation in the society.

After independence a committee was for under 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.

Some guidelines issued were:

Correctional measures should form an integral part of the Home Department of each State.

Probation and Parole should be used to reduce burden on prisons.

State jail manuals should be revised periodically.

Why do we need corrective measures?

A person is not a born criminal. It is due to his association with bad company that often leads him
into trouble. A person is always capable of reforming provided he sees his release in the society as a
reward for it. If no such temptation is provided to accused persons, he will never try to reform
himself and always languish in jails.

This often leads to overcrowding of prisons and serious health issues arise in the prisons. It is to be
noted that the corrective methods are required for the accused persons and not for under-trials. A
mechanism has to be prepared for separating under trials from convicts. Due to various corrective
 97

measures a convict can be reformed and be released in the society because it is always better to
reform a convict than to punish a person who is already repenting for his wrongdoing. It is ultimately
the fight against crime and not criminals.

Various corrective measures in India

Various corrective measures we have in India are open prisons, concept of parole, probation, prison
labour etc.

Education in prisons are also provided for example:

Fundamental academic education designed to provide the intellectual tools needed in study and
training, and in everyday life

Vocational education, designed to give training for an occupation.

Health education

Cultural education

Social education.

Service of educated inmates also provided a helpful hand to the prison authorities as well as to the
society. After being released, they actively participate in the economic progress of the society. They
prove to be useful subjects of the society.

Open prisons play an important role in the reformation of prisoners. Besides being less costly open
prisons provide an advantage to the Government to utilize the capabilities of the inmates to a great
extent. The monetary returns are positive and once put into operation, the open jails acquire
financial self-sufficiency. Open prisons are also helpful in reducing the overcrowding of the prisons
which is urgently required in the case of Indian prisons. Appreciating the concept of open prisons in
India the Supreme Court in the case of Ramamurthy v. State of Karnataka held that: though open-air
prisons, create their own problems which are basically of management, we are sure that these
problems are not such which cannot be sorted out. For the greater good of the society, which
consists in seeing that the inmates of a jail come out, not as a hardened criminal but as a reformed
person, no managerial problem is insurmountable. So let more and more open air prisons be
opened. To start with, this may be done at all the District Headquarters of the country

-------------------------------------------------------------------------------------------- -------------------------------

Pre-sentencing enquiry

A presentence investigation report (PSIR) is a legal document that presents the findings of an
investigation into the "legal and social background" of a person convicted of a crime before
sentencing to determine if there are extenuating circumstances which should influence the severity
or leniency of a criminal sentence. The PSIR is a "critical" document prepared by a probation officer
via a system of point allocation, so that it may serve as a charging document and exhibit for proving
criminal conduct. The PSIR system is widely implemented today.

The judge often orders a pre-sentence investigation after the defendant has been found guilty or
pleads guilty and requests probation. The purpose of the pre-sentence investigation is to look into
the defendant´s background to see if he or she is likely to be a good candidate for probation.
 98

The pre-sentence investigation is conducted by the probation office. The defendant meets with a
probation officer who interviews the defendant regarding past criminal offenses, educational and
family history, employment record and use of alcohol and drugs.

Sometimes tests are conducted to measure a defendant´s drug or alcohol use as in a case where the
defendant is charged with Driving While Under the Influence of Alcohol (DUI).

The probation office prepares a report on this information along with a recommendation to the
court as to whether the defendant would be a good candidate for probation. The judge studies this
report prior to making a decision.

PSIR reports trace their origins to the efforts of prison reformer John Augustus who in the 1840s
began a campaign to allow discretion in sentencing to help those who were deemed undeserving of
harsh sentences and could be reformed. More specifically, in the Police Court of Boston, Augustus
posted bail for a man, promising the judge that the man would improve upon returning to the court
and would earn a lessened sentence. The rationale behind this was that if a person was not a
dangerous criminal, i.e. convicted murderer or other violent offender, that they should be allowed to
have familial support, continue working, as well as receive aid from trained specialists, without being
in prison. The practice then became firmly entrenched in the 1920s under a theory that crime was a
pathology that could be diagnosed and treated like a disease; PSIRs were meant to expose the main
reasons behind criminal acts by looking at the offenders history in light of forgiveness and
understanding, and thus resulting in a positive change for the future. Since the 1970s, the focus of
these documents has increasingly shifted to profiling the defendant's criminal history, with a
decreasing emphasis on the defendant's social background. This is at least partially attributable to
the increase in public fear of crime since the 1970s as well as the increasing opposition to more
"liberal" approaches to the matter of criminal justice.

History

PSIR reports trace their origins to the efforts of prison reformer John Augustus who in the 1840s
began a campaign to allow discretion in sentencing to help those who were deemed undeserving of
harsh sentences and could be reformed. More specifically, in the Police Court of Boston, Augustus
posted bail for a man, promising the judge that the man would improve upon returning to the court
and would earn a lessened sentence. The rationale behind this was that if a person was not a
dangerous criminal, i.e. convicted murderer or other violent offender, that they should be allowed to
have familial support, continue working, as well a receive aid from trained specialists, without being
in prison. The practice then became firmly entrenched in the 1920s under a theory that crime was a
pathology that could be diagnosed and treated like a disease; PSIRs were meant to expose the main
reasons behind criminal acts by looking at the offenders history in light of forgiveness and
understanding, and thus resulting in a positive change for the future. Since the 1970s, the focus of
these documents has increasingly shifted to profiling the defendant's criminal history, with a
decreasing emphasis on the defendant's social background. This is at least partially attributable to
the increase in public fear of crime since the 1970s as well as the increasing opposition to more
"liberal" approaches to the matter of criminal justice.

The information included in a typical PSIR encompasses both legal and extralegal information about
the defendant such as:

Legal Information

1. Juvenile record
 99

2. Adult record
3. Previous court record
4. Probation/parole history
5. Mitigating and aggravating circumstances
6. Official version of offense
7. Plea bargain
8. Custody status
9. Pending cases
10. Previous cases
11. Recommendation summary

Extralegal Information

1. Probation officer recommendations

2. Gang affiliation
3. Background and ties to the community
4. Substance use disorder history
5. Physical health
6. Mental health
7. Financial circumstances
8. Employment history
9. Education history
10. Medical history
11. Victim-impact statement
12. Marital history
13. Military record
14. Evaluative/needs summary

There is considerably more extralegal information contained within the PSIR. This is important
because many have seen this as suggestive of sentencing disparities or inequality in the treatment of
offenders with a lower socioeconomic status or little to few ties to the community. However, as
Alarid and Montemayor (2010, p. 130) state, "The use of extralegal factors becomes especially
important in that the PSIR identifies needs related to the defendant's criminal behavior for future
treatment intervention services".

Purpose

The report has an immediate purpose: to help the court determine an appropriate sentence as well
as aide in officer sentencing recommendations. The report serves to collect objective, relevant, and
factual information on a specific defendant.[7] Since the advent of the sentencing guidelines, the
importance of the presentence reports has increased. This is because the document is now designed
to frame factual and legal issues for sentencing. Thereafter, if a defendant is incarcerated, the
Bureau of Prisons or State Department of Corrections will use information in the report to designate
the institution where the offender will serve the sentence and determine the offender's eligibility or
need for specific correctional programs. Also, depending on the jurisdiction, the presentence report
can be used to calculate the release date. The probation officer assigned responsibility for the
offender's case during probation and supervised release will use the report to make an initial
assessment of case needs and risks. Additionally, the report may be used as a source of information
for future research. The information allows changing of a sentence subject to the Commitment
 100

Order and the judge's verdict.[8] This report is considered "the critical document at both the
sentencing and the correction stages"[9] of the criminal justice system.

Preparation

Whether interviewing or reviewing documents, the probation officer must weigh the evidence based
on the best available information. The final report must contain only accurate information. The goal
is to produce a report that the court may rely upon at sentencing. Though it is inevitable that there
will be data that the probation officer is unable to verify, that information should be clearly
identified. The probation officer must distinguish between facts and the inferences, opinions, or
conclusions based upon those facts.

When a defendant is referred for a presentence investigation, the officer must immediately begin to
gather the facts. Though the procedure varies slightly from jurisdiction to jurisdiction, the officer
usually conducts several aspects of the investigation concurrently to ensure that the presentence
report is submitted to the court on time. Since officers routinely conduct multiple presentence
investigations simultaneously, meeting the deadlines can be difficult.

------------------------------------------------------------------------------------------------- -------------------------------

Discuss the history and philosophy of victimology

History of victimology 6 (https://www.scribd.com/document/492697361/VICTIMOLOGY-NOTES#)

“Victimology” is an academic scientific discipline which studies data that describes phenomena and
causal relationships related to victimizations. This includes events leading to the victimization, the
victim's experience, its aftermath and the actions taken by society in response to these
victimizations.

Literature reveals that victimology has been accepted as a part of the criminology only during 1940.
Victimology is the scientific study of victims of crime a sub breach of criminology. It seeks to study
the relationship between victims and offenders. The scientific study of victimology can be traced
back to the

1940s and 1950s. two criminologist Mendelsohn, and Von Henting, began to explore the field of
victimology. They are considered as the “Fathers of study of Victimology”. Von Henting (1940)
studied victims of homicide and said that the most likely to the type of the victim is the “depressive
type” who is an easy target careless and unsuspecting wolfgang another victimologist followed this
lead and later theorized that “many victims precipitate homicide were in fact cause by the
unconscious desires of the victims to commit suicide.

The term victimology is not new. In fact, Benjamin Mendelsohn first used it in 1947 to describe the
scientific study of crime victims. Victimology is often considered a subfield of criminology, and the
two fields do share much in common. The word ‘ Victimology’ was coined in the year of 1947 by a
French Lawyer , Benjamin Mendelssohn, by deriving from a Latin word ‘victima’ which translate into
“victim” and a Greek word’ ‘logos’ which means a system of knowledge, the direction of teaching,
science and a discipline.

The development of Victimology as discipline in academic field is a phenomenon of approximately

six decades. In 1948, a German Criminologist, Han Von Hentig made the first overall exploration of
the role of victim in crime. The discovery of victim inaugurated a new trend in criminology with
increased accent on exploring the doer-sufferer’ relationship. This recognition of the sociological
 101

significance of victim had immediate academic repercussions. Victimology acquired international

interest and became the subject of solid scientific inquiry.

An important breakthrough occurred when discussions in several international victimological

symposiums pleaded for the extension of the concept of “victim” beyond its traditional confines. The
plea, in effect, was towards widening the concept of victim including within its purview the victims
of different varieties.

This view derived ample support from studies which discovered new categories of victims, e.g.
victims of abuse of economic, political and public power, victims of organised/and corporate crime,
victims of environmental offences, victims of consumer frauds, victims of development induced
crime as well as victims of natural and men made disasters etc.

Benjamin Mendelsohn, often referred to as the father of victimology, describes the field as “the
science of victims and victimity. By victimity, we mean the general concept the specific common
phenomenon which characterizes all categories of victims, whatever the cause of their situation”
(1976, p. 9). In other words, Mendelsohn continues, “it [victimology] must take into account all
phenomena which causes victims, to the extent that society takes an interest in them” (1976, p. 9;
emphasis added). Taking into account these statements, victimology is the study of victimization
that includes the analysis of the victim-offender relationship as well as the victim’s experiences with
the criminal justice system during the administration of justice (Mendelsohn, 1976; van Dijk, 1999;
Viano, 1983). Ultimately, the field of victimology includes two overarching goals: (1) to prevent
victimization from happening in the first place and (2) to minimize the harm postvictimization as well
as prevent repeat victimizations (Mendelsohn, 1976).

The following quote from Frederick Wertham’s (1949) text entitled The Show of Violence
underscores the importance of victimology in the overall understanding of crime: “One cannot
understand the psychology of the murderer if one does not understand the sociology of the victim.
What we need is a science of victimology” (as cited in Fattah, 1989). While this holistic
understanding of crime has steadily progressed since the 1970s, most studies prior to the 20th
century placed little emphasis on crime victims (Mendelsohn, 1976; Schneider, 2001; van Dijk, 1999;
Viano, 1983, 1976). Interestingly, as Fattah (2000) notes, some of the earliest works examining crime
victims were outside academia and are found in literature and poetry. To understand the state of
victimology then, it is important to revisit this history, including the work of its pioneers, and learn
how the field progressed.

Theories of Victimology

Victimology is the study of crime victims. It’s a subset of criminology, the study of crime. People who
study victimology, or victimization, examine the psychological effects of crimes on the victims, the
interactions between victims and the criminal justice system and the relationships between victims
and offenders. Modern theories of victimology try to explain why some are more likely than other to
become victims of a crime.

Three areas within of study within victimology include the following:

Victim Precipitation Theory

The victim precipitation theory suggests that the characteristics of the victim precipitate the crime.
That is, a criminal could single out a victim because the victim is of a certain ethnicity, race, sexual
orientation, gender or gender identity.
 102

This theory does not only involve hate crimes directed at specific groups of people. It might also
involve occupations or activities. For example, someone who is opposed to his or her views may
target a political activist. An employee may target a recently promoted employee if he or she
believes they deserved the promotion.

Lifestyle Theory

Lifestyle theory suggests that certain people may become the victims of crimes because of their
lifestyles and choices. For example, someone with a gambling or substance addiction could be as an
“easy victim” by a con artist.

Walking alone at night in a dangerous area, conspicuously wearing expensive jewelry, leaving doors
unlocked and associating with known criminals are other lifestyle characteristics that may lead to
victimization.

Deviant Place Theory

There is some overlap between the lifestyle theory and the deviant place theory. The deviant place
theory states that an individual is more likely to become the victim of a crime when exposed to
dangerous areas. In other words, a mugger is more likely to target a person walking alone after dark
in a bad neighborhood. The more frequently a person ventures into bad neighborhoods where
violent crime is common, the greater the risk of victimization.

There is also some overlap between the deviant place theory and socioeconomic approaches to
victimization. Low-income households are more likely to be located in or near dangerous areas of
town, and individuals from poor socioeconomic backgrounds are less capable of moving away from
these dangerous areas.

Philosophy of victimology
The concept of victim dates back to ancient cultures and civilizations, such as the ancient Hebrews.
Its original meaning was rooted in the idea of sacrifice or scapegoat -- the execution or casting out of
a person or animal to satisfy a deity or hierarchy. Over the centuries, the word victim came to have
additional meanings. During the founding of victimology in the 1940s, victimologists such as Mendel
son, Von Hentig, and Wolfgang tended to use textbook or dictionary definitions of victims as hapless
dupes who instigated their own victimizations. This notion of "victim precipitation" was vigorously
attacked by feminists in the 1980s, and was replaced by the notion of victims as anyone caught up in
an asymmetric relationship or situation. "Asymmetry" means anything unbalanced, exploitative,
parasitical, oppressive, destructive, alienating, or having inherent suffering. In this view, victimology
is all about power differentials. Today, the concept of victim includes any person who experiences
injury, loss, or hardship due to any cause. Also today, the word victim is used rather indiscriminately;
e.g., cancer victims, holocaust victims, accident victims, victims of injustice, hurricane victims, crime
victims, and others. The thing that all these usages have in common is an image of someone who has
suffered injury and harm by forces beyond his or her control.

------------------------------------- ------------------------------------------------------- -----------------

Discuss the development and reforms in prison system of India.

The history of the correctional movement could be traced to the developments which took place in
the United Kingdom in the early twentieth century. The turning point in the humane treatment of
custodial populations came with the Universal Declaration of Human Rights. These standards were
further strengthened by the U.N. Standard Minimum Rules for Treatment of Prisoners, 1955. In the
 103

Indian scenario, the Indian Constitution, the Prisons Act, 1894, the rulings of the Supreme Court and
High Courts and the reports of various prison reform bodies have highlighted the problems with
regard to the situation of prisons and suggested roadmaps to address these concerns.

INTERNATIONAL OBLIGATIONS AND GUIDELINES

The International Covenant on Civil and Political Rights (ICCPR) remains the core international treaty
on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to
incorporate these provisions into its domestic laws and state practices. The International Covenant
on Economic, Social and Cultural Rights (ICESR) states that prisoners have a right to the highest
attainable standards of physical and mental health. Apart from civil and political rights, the so called
second generation economic, social and human rights as set down in the ICESR also apply to the
prisoners.

The UN Standard Minimum Rule also made it mandatory to provide a separate residence for young
and juvenile delinquents away from adult prisoners. Subsequent UN directives have been the Basic
Principles for the Treatment of Prisoners (United Nations 1990) and the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment (United Nations 1988).

PRISONS AND PRISON LAWS IN INDIA

Prison is a State subject under List-II of the Seventh Schedule in the Constitution. The management
and administration of Prisons falls exclusively in the domain of the State Governments, and is
governed by the Prisons Act, 1894 and the Prison Manuals of the respective State Governments.
Thus, States have the primary role, responsibility and power to change the current prison laws, rules
and regulations. Important statutes which have a bearing on the regulation and management of
prisons in the country are:

1. The Indian Penal Code, 1860.

2. The Prisons Act, 1894.
3. The Prisoners Act, 1900.
4. The Identification of Prisoners Act, 1920.
5. Constitution of India, 1950
6. The Transfer of Prisoners Act, 1950.
7. The Representation of People Act, 1951.
8. The Prisoners (Attendance in Courts) Act, 1955.
9. The Probation of Offenders Act, 1958.
10. The Code of Criminal Procedure, 1973.
11. The Mental Health Act, 1987.
12. The Juvenile Justice (Care & Protection) Act, 2000.
13. The Repatriation of Prisoners Act, 2003.
14. Model Prison Manual (2016).

PROBLEMS RELATED TO INDIAN PRISONS

Despite the relatively low number of persons in prisons as compared to many other countries in the
world, there are some very serious problems in prisons across India. These are: overcrowding,
prolonged detention of undertrials, unsatisfactory living conditions, staff shortage and poor training,
corruption and extortion, inadequate social reintegration programes, poor spending on healthcare
and welfare, lack of legal aid and allegations of indifferent and even inhuman approach of prison
staff among others. On some occasions, such as the blinding of prisoners in Bhagalpur, the stark
 104

human rights situation also attracted great attention. The murder of a woman life convict in the
Byculla women’s prison in Mumbai in June 2017 has brought the focus back on custodial violence,
especially the vulnerability of inmates to authoritarian behaviour.

PRISON REFORMS IN INDIA

The concept of modern prison in India originated with the Minute by TB Macaulay in 1835. A Prison
Discipline Committee was appointed which submitted its report on 1838. The committee
recommended increased rigorousness of treatment while rejecting all humanitarian needs and
reform of prisoners. Following the recommendations of the Committee, Central Prisons were
constructed from 1846. The contemporary Prison administration in India is thus a legacy of British
rule. It is based on the notion that the best criminal code can be of little use to a community unless
there is good machinery for the infliction of punishment. In 1864, the Second Commission of Inquiry
into Jail Management and Discipline made similar recommendations as the 1838 Committee. In
addition, this Commission made some specific suggestions regarding accommodation for prisoners,
improvement in diet, clothing, bedding and medical care.

In 1888, the Fourth Jail Commission was appointed. On the basis of its recommendations, a
consolidated prison bill was formulated. Provisions regarding jail offences and punishment were
specially examined by a committee of experts on Jail Management. In 1894, the draft bill became
law with the assent of the Viceroy. It is this Act which forms the basis for the present day jail
management and administration in India. This Act has hardly undergone any substantial changes
since its inception.

However, the process of review of prison problems in India continued. In the report of the Indian Jail
Committee 1919-20, for the first time in the history of prisons, 'reformation and rehabilitation' of
offenders were identified as the objectives of prison. The Government of India Act 1935 resulted in
the transfer of the subject of jails from the Central List to the control of Provincial Governments and
henceforth reduced the possibility of uniform implementation of a prison policy at the national level.
Thus, State Governments have their own rules and regulations for the day to day administration of
prisons, maintenance of prisoners, and prescribing procedures.

THE PAKWASA COMMITTEE

After independence, various Committees were appointed to improve the condition of prisons in
India. The Pakwasa Committee in 1949 suggested the system of utilizing prisoners as labour for road
work without any intensive supervision over them. It was from this time onwards that a system of
wages for prisoners for their labour was introduced. Subsequently, certain liberal provisions were
also introduced in jails manuals by which well-behaved inmates were rewarded with remission in
their sentence. In 1951, the Government of India invited the United Nations expert on correctional
work, Dr. W.C. Reckless, to undertake a study on prison administration and to suggest policy
reforms. His report titled 'Jail Administration in India' made a plea for transforming jails into
reformation centers. He also recommended the revision of outdated jail manuals. In 1952, the
Eighth Conference of the Inspectors General of Prisons also supported the recommendations of Dr.
Reckless regarding prison reform.

Accordingly, the Government of India appointed the All India Jail Manual Committee in 1957 to
prepare a model prison manual. The committee submitted its report in 1960.

MODEL PRISON MANUAL

 105

The Model Prison Manual 1960 is the guiding principle for prison management in India. On the lines
of the Model Prison Manual 1960, the Union Ministry of Home Affairs, in 1972, appointed a working
group on prisons. It brought out in its report the need for a national policy on prisons. It also made
an important recommendation with regard to the classification and treatment of offenders and laid
down certain principles.

THE MULLA COMMITTEE

In 1980 the Government of India set-up a Committee on Jail Reforms under the Chairmanship of
Justice A. N. Mulla. The Mulla Committee submitted its report in1983. Some of the prominent
recommendations of the Mulla committee are:

 Improving prison condition by making available proper food, clothing, sanitation,

 The prison staff to be properly trained and organized into different cadres. Setting up an All
India Service called the Indian Prisons & Correctional Service.
 After-care, rehabilitation and probation to be an integral part of prison service.
 The press and public to be allowed inside prisons and allied correctional institutions
periodically, so that the public may have first-hand information about the conditions of prisons
and be willing to co-operate in rehabilitation work.
 Undertrials in jails to be reduced to bare minimum and they be kept away from convicts.
Undertrials constitute a sizable portion of prison population. Their number to be reduced by
speedy trial and liberalization of bail provisions.
 The Government may make an effort to provide adequate financial resources.

THE KRISHNA IYER COMMITTEE

In 1987, the Justice Krishna Iyer Committee was appointed to study the situation of women
prisoners in India. It recommended the induction of more women into the police force in view of
their special role in tackling women and child offenders.

SUBSEQUENT DEVELOPMENTS

Following the Supreme Court direction (1996) in Ramamurthy vs State of Karnataka to bring about
uniformity of prison laws and prepare a draft model prison manual, a committee was set up in the
Bureau of Police Research and Development (BPR&D). In 1999, a draft Model Prison Management
Bill (The Prison Administration and Treatment of Prisoners Bill, 1998) was circulated to replace the
Prisons Act 1894 by the Government of India to the States but this Bill is yet to be finalized.

Meanwhile, a Model Prison Manual was prepared in 2003 by evolving national consensus on
relevant issues relating to prison reforms in India and circulated to all State Governments for
guidance. With the passage of time and after having gained a better understanding of ground
realities, a need was felt to revise and update the Manual to reflect the developments of the past
decade. In the meantime, the Supreme Court had also issued several directions. An expert
committee was constituted in 2014 to revamp the Model Prison Manual prepared in 2003. The
expert committee extensively reviewed the model prison manual and came up with a draft Model
Prison Manual in 2016. The Model Prison Manual 2016 was finalized with the approval of the Home
Ministry and circulated to all States and Union Territories for their guidance. The new manual aims
at bringing uniformity in laws, rules and regulations governing prison administration and
management of prisoners all over the country. Its key features include an emphasis on prison
computerization, special provisions for women prisoners, focus on after care services, prison
 106

inspections, rights of prisoners sentenced to death, repatriation of foreign prisoners, enhanced focus
on prison correctional staff, to name a few.

The Supreme Court, in the matter of Suo Moto Writ Petition (Civil) No. 406/2013 titled Re: Inhuman
Condition Prevailing in 1382 prisons in India, asked the Centre and all States to implement its
directions on prison reforms including filling up of vacancies of jail staff across the country and
devise a scheme to audit their accounts. Besides, an assessment was made by the Bureau of Police
Research and Development (BPR&D) on the financial requirements of the States depending on their
prison population and available capacity etc. and a non-plan scheme involving a total outlay of Rs
1800 crore to be implemented over a period of five years from 2002-03 to 2006-07 was launched
with the approval of Cabinet which was later extended upto 31.3.2009.

OPEN PRISONS

Many developed countries, like Finland which is a pioneer in the open jail concept, have introduced
open prisons. There are no bars or no uniforms. Instead of old style cells, there are rooms with bed,
neat toilets, kitchen, televisions, etc. Prisoners go for long walks, tend the garden, and more
importantly they are paid reasonably form their work. The advantage is that it makes detainees
better prepared to return to society.

The management cost of such prisons is 33 per cent lower than the traditional prisons.
Hoshangabad, in Madhya Pradesh has an open prison built on 17 acres of land, where convicts
during the last two years of their sentence are transferred from other prisons in the State to make
them familiar with reformed environs. Prisoners go out for work daily like normal people do from
their homes and return at the end of the day.

RECENT MEASURES BY THE CENTRAL GOVERNMENT: The Union Home

Ministry, issued an advisory on prison reforms adopted at the 5th National Conference of heads of
prisons of States and Union Territories, 2016.

CONCLUSION

Though various bodies have studied the problems of prisons in India and laws are made for
improving jail conditions, it is a fact that many problems plague our prisons. In many cases, prisoners
come out of jails as hardened criminals more than as reformed wrong doers willing to join the
mainstream social processes. The emphasis on correctional aspect needs to be strengthened
through counselling programmes by experts. The mindset of the prison staff must change. The
management of prisons must be marked by discipline and due regard to the human rights of
prisoners. Prison reform is not just about prison buildings, but what goes on inside them that needs
to be changed. The focus must be on the human rights of prisoners besides improving their
amenities.

------------------------------------------------------------------------------------------ --------------------------------

Recommendations of Mallimath committee on reforms of criminal justice system.

The 158 recommendations of the committee, arrived at after examining several national systems of
criminal law, especially the continental European systems, essentially propose a shift from an
adversarial criminal justice system, where the respective versions of the facts are presented by the
prosecution and the defence before a neutral judge, to an inquisitorial system, where the objective
is the “quest for truth” and the judicial officer controls the investigation of offences.
 107

Its report has suggested the dilution of many of the pre-trial safeguards against violence in police
custody that an accused has.

For instance, it seeks to double the 90-day period available for filing a charge-sheet after which an
accused can be released on bail.

It also recommends that the permissible 15-day police remand of an accused be doubled for grave
offences.

Malimath Committee seems to have concentrated on the rights of the victim. It mentions the need
to formulate a witness protection programme, reclassify offences, and involve the victim in all stages
of the trial.

On the question of making investigations more effective, it suggests the setting up of a State Security
Commission, as recommended by the NPC, to insulate the police from political pressure.

It has expanded the definition of rape to include all forms of forcible penetration, is eclipsed by the
indifference to most of the concerns of the women’s movements. The committee does not favour
the death penalty for rapists. The report states that wherever the death penalty is a possible
punishment it should be replaced with life imprisonment without commutation or remission.

Two years later, the Justice Malimath Committee submitted a report with 158 recommendations to
the Deputy Prime Minister, L.K. Advani, who was also the Home Minister. The Committee felt that
the existing system “weighed in favour of the accused and did not adequately focus on justice to the
victims of crime.” Here is a look at 20 key reforms suggested by the six-member panel.

1. Borrowing from inquisitorial system

2. Right to silence
3. Rights of the accused
4. Presumption of innocence
5. Justice to victims of crime
6. Police investigation
7. Dying declaration
8. Public prosecution
9. Courts and judges
10. Trial procedures
11. Witness protection
12. Perjury
13. Vacations for the courts
14. Arrears Eradication Scheme
15. Sentencing
16. Reclassification of offences
17. Offences against women
18. Organised crime and terrorism
19. Economic crimes
20. Periodic review

Borrowing from inquisitorial system

The panel was in favour of borrowing features from the inquisitorial system of investigation
practised in countries such as Germany and France, where a judicial magistrate supervises the
 108

investigation. The committee recommended that courts be bestowed with powers to summon any
person — whether or not listed as a witness — for examination, if it felt necessary.

Right to silence

The panel recommended a modification to Article 20 (3) of the Constitution that protects the
accused from being compelled to be a witness against himself/herself. The Committee suggested
that the court be given freedom to question the accused to elicit information and draw an adverse
inference against the accused in case the latter refuses to answer. The Committee also felt that the
accused should be required to file a statement to the prosecution disclosing his/her stand.

Rights of the accused

The Committee suggested that a Schedule to the Code be brought out in all regional languages so
that the accused knows his/her rights, as well as how to enforce them and whom to approach when
there is a denial of those rights.

Presumption of innocence

The courts follow “proof beyond reasonable doubt” as the basis to convict an accused in criminal
cases. This, the committee felt, gives “very unreasonable burden'” on the prosecution and hence
suggested that a fact be considered as proven “if the court is convinced that it is true” after
evaluating the matters before it.

Justice to victims of crime

The Committee made a series of recommendations to ensure justice to the victims.

The victim should be allowed to participate in cases involving serious crimes and also be given
adequate compensation.

If the victim is dead, the legal representative shall have the right to implead himself or herself as a
party, in case of serious offences.

The State should provide an advocate of victim’s choice to plead on his/her behalf and the cost has
to be borne by the State if the victim can’t afford it.

Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended
or not, convicted or acquitted. This is to be organised in a separate legislation.

A Victim Compensation Fund can be created under the victim compensation law and the assets
confiscated in organised crimes can be made part of the fund.

Police investigation

The Committee suggested hiving off the investigation wing from Law and Order. It also
recommended setting up of a National Security Commission and State Security Commissions. To
improve the quality of investigations, it suggested a slew of measures, including the appointment of
an Addl. SP in each district to maintain crime data, organisation of specialised squads to deal with
organised crime, and a team of officers to probe inter-State or transnational crimes, and setting up
of a Police Establishment Board to deal with posting, transfers, and so on.

Police custody is now limited to 15 days. The Committee suggested this be extended to 30 days and
an additional time of 90 days be granted for the filing of charge sheet in case of serious crimes.
 109

Dying declaration

The committee favoured dying declarations, confessions, and audio/video recorded statements of
witnesses be authorised by law. It also sought amendments to the law to allow thumb impression
only if the witness is illiterate.

Public prosecution

It suggested that a new post, Director of Prosecution, be created in every State to facilitate effective
coordination between the investigating and prosecuting officers under the guidance of the Advocate
General. The appointment of Assistant Public Prosecutors and Prosecutors, it was recommended,
should be made through competitive examination. There was also a rider that they were not to be
posted in their home district and the places where they were already practising.

Courts and judges

The report submitted in 2003 pointed out the judge-population ratio in India is 10.5 per million
population as against 50 judges per million population in many parts of the world. The ratio is 19.66
per million people as of 2017.

The National Judicial Commission must have clear guidelines on precise qualifications, experience,
qualities and attributes that are needed in a good judge and also the prescription of objective
criteria to apply to the overall background of the candidate. The higher courts, including the
Supreme Court, should have a separate criminal division consisting of judges who have specialised in
criminal law. The committee suggested every court keep a record of the timestamps such as date of
conclusion of arguments, date of pronouncement of judgment, and so on, which may be
prominently displayed.

Trial procedures

The Committee felt that all cases in which punishment is three years and below should be tried
summarily and punishment that can be awarded in summary trials be increased to three years.

Witness protection

Noting that taking action against perjury is a cumbersome process and genuine witnesses are
treated shabbily, the Committee batted for a strong witness protection mechanism – it said the
judge should be ready to step in if the witness is harassed during cross-examination.

It also recommended the following: that witnesses get their allowances on the same day; t hey be
provided with proper seating and resting facilities and be treated with dignity. It also suggested that
a separate witness protection law be enacted akin to the one in the United States.

Perjury

If during the trial, the witness is found to have given a false evidence with an intention to affect the
case, he/she must be summarily tried and be liable to fine up to ₹500 or up to three-month prison or
both.

Vacations for the courts

The committee recommended reducing the period of vacation by 21 days, keeping in mind the long
pendency of cases. If implemented, the Supreme Court will work for 206 days and High Courts will
function 231 days per year.
 110

Arrears Eradication Scheme

The Committee proposed an ‘Arrears Eradication Scheme’ to tackle cases that are pending for more
than two years. Under the scheme, such cases will be settled through Lok Adalats on a priority basis.
These cases will be heard on a day-to-day basis and no adjournment shall be permitted.

Sentencing

The Committee is in favour of a permanent Statutory Committee to prescribe sentencing guidelines.

Pregnant women and women with child below seven years can be kept under house arrest instead
of being lodged in prison, keeping in mind the future life of the child, it said.

In cases where the interest of society is not involved, law should favour settlement without trial as
recommended by the Law Commission. The fine amount may be increased by fifty times. In cases
where the convict is unable to pay fine or has defaulted, community service may be prescribed.

The Committee also favoured substituting death sentence with imprisonment for life without
commutation or remission.

The Indian Penal Code has to be reviewed to enhance, reduce or apply alternative modes of
punishments keeping in mind new and emerging crimes.

Reclassification of offences

Offences are currently classified as cognisable and non-cognisable. Instead, the Committee
recommended classifying offences as social welfare code, correctional code, criminal code, and
economic and other offences code.

Offences against women

Here is a gist of the Committee’s recommendations:

Bigamy: Evidence regarding a man and woman living together for a reasonably long period should
considered as marriage, even if he is already married and he is liable to provide maintenance to both
women.

Adultery: When a man can be punished for having sexual relations with another man’s wife, the
woman should also be liable for punishment.

Domestic abuse: The Committee favoured making Section 498A as a bailable and compoundable
offence. This Section is largely used in case of dowry harassment.

Rape: Non-penal penetration and any forcible penetration should also be considered as rape and
must be carry a heavier punishment. The trial of rape cases should be done with most expeditiously,
within four months, and with a high degree of sensitivity.

Organised crime and terrorism

Though crime is a State subject, a central law must be enacted to deal with organised crime, federal
crimes, and terrorism. A Department of Criminal Justice must be established to appraise procedural
and criminal laws and to periodically amend them, the Committee said.

One of its suggestions was that the possession of prohibited automatic or semi-automatic weapons
and lethal explosives be made punishable with up to 10 years jail.

Economic crimes
 111

The Committee suggested that sentences in economic offences not run concurrently, but
consecutively. A law has to be enacted to protect informers, it said.

Periodic review

The Committee has recommended providing for a Presidential Commission for a periodical review of
the functioning of the Criminal Justice System.

----------------------------------------------------------------------------------------- ----------------------

Supreme Court guidance in Sunil Batra cases in prison life.

The case of Sunil Batra v. Delhi Administration & Others stands out in our legal history as a landmark
judgment that helped secure the fundamental rights of prisoners. It was unique in a multitude of
ways, one being that the petitioner in question was a convict on death row, something very much
unheard of at that time. It brought to light a host of issues, including the clashes between various
fundamental rights and the Prison Act of 1874. Furthermore, it exposed the poor treatment of
prisoners, with many being subject to torture and sexual abuse. It went a long way in shedding light
to the alarming behaviour exhibited by prison officers towards the inmates.

In this case, the Supreme Court held that, vis-a-vis Article 32 and Article 226, it had the power to
intervene and restore the fundamental rights of prisoners. That is, it was completely within the
authority of the honourable court to intervene and protect prisoners from harsh or inhuman
treatment. Also, it was made clear that during the prisoner’s time in jail, the jail authorities do not
have any rights to punish, torture or in any way discriminate against them without the explicit
permission or orders of the court. Only the court had that right.

Moreover, in spite of Section 30(2) of the Prison Act vesting jail authorities with the power to keep a
prisoner in a separate cell, this provision was not to be misinterpreted as a right or freedom to
torture inmates. This is because the prisoner still possesses the right to life and liberty. It was made
clear that Section 30(2) of the Prison Act was in violation of Article 21. This is because the freedom
of prisoners can only be curtailed when there is clear backing of the law. This section was considered
too arbitrary, as it did not highlight anything in particular with regard to the need for separate
confinement to have the support of the law.

The Court also found that Section 30(2) not to be in violation of Article 14, as prisoners under death
sentence may run the risk of being a danger to other prisoners and jail authorities. As such, keeping
them in separate cells was seen as necessary. The Supreme Court also held that a prisoner under a
death sentence does not come under the ambit of Section 30(2) when there are still chances of
getting the decision of the court reversed. If a Death sentence given to any prisoner is final and
irreversible, then and only then can the said prisoner be kept in a separate cell under the provisions
of Section 30(2).

It was also held that Section 56 of the Prison Act should be trimmed and controlled by the court as it
was in violation of basic human dignity. Similarly, the Superintendent’s powers under this section
were to be kept under check as well. Rehabilitating convicts with humiliation and disrespect was not
seen as the best course of action by the court It was also held that the definition of solitary
confinement was wrongly interpreted by the Jail authorities. As a result, the court held that under
subsection 8 of Section 30, ‘solitary confinement’ meant to restrict the prisoner from talking to any
other prisoner but this did not necessarily mean prisoners should be kept out of the view of other
inmates.
 112

Moreover, Section 56 of Prison Act empowered the Superintendent to take necessary precautions by
putting the prisoners in irons, but they were allowed to do that only when such orders were duly
confirmed by the local government and they could not do this on their own discretion. In this
specific case, Prem Chand was kept in a separate cell with irons without express permission from the
local government. As a result, the Superintendent was liable for his actions.

Analysis

It is the duty of the Supreme court and all other subordinate courts to protect the rights of our
country’s citizens, in no way are prisoners and convicts exempt from this. This judgment was pivotal
ensuring that Articles 14,19 and 21 were available for even those in prisons. This case also
highlighted the urgent need for reforms in the Prison Act of 1894 and the Punjab Jail Manual. It was
also made clear that checks and balances were essential in ensuring that the prison system in this
country worked and was not deterred by an abuse of power or arbitrary acts by prison authorities.

It also highlighted the folly of the then-common practice of solitary confinement, shedding light on
its inhumane nature. In light of the horrifying discoveries, the court also directed the district
magistrate visit the jail every week so that he/she could constantly survey the living conditions and
environment of the prisoners. The acceptance of Sunil Batra’s writ petition was a revolutionary
direction by the top court, with the usage and versatility of article 32 being pushed further and the
skills of the top court in full display for all to see. Also, all state governments were required to take
the necessary steps to end cruelty and torture in prisons across the country.

Jailors and Jail authorities were under increased scrutiny and were expected without compromise to
follow the rule of law and were under the strict obligation to work in tandem with the various legal
provisions. Inflicting of supplementary sentences on prisoners was strictly banned. Moreover, this
judgement pushed for a more reformative form of punishment rather than simple punitive action.

Directions of the court

Further, the court issued the precise directions that are as follows-

For Prem Chand

1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot
absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is
limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing.

The State shall take action against the investigating police for the apparently collusive dilatoriness
and deviousness we have earlier indicated. Policing the police is becoming a new ombudsmanic task
of the rule of law.

2. We direct the Superintendent to ensure that no corporal punishment or personal violence on

Prem Chand shall be inflicted. No irons shall be forced on the person of Prem Chand in vindictive
spirit. In those rare cases of ‘dangerousness’ the rule of hearing and reasons set out by this Court in
Batra’s case and elaborated earlier shall be complied with.

For the nomination of lawyers

3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court
will be given all facilities for inter views, visits and confidential communication with prisoners subject
to discipline and security considerations. This has roots in the visitatorial and supervisory judicial
role.
 113

The lawyers so designated shall be bound to make periodical visits and record and report to the
concerned court results which have relevance to legal grievances.

For disposal of Grievance

4. Within the next three months, Grievance Deposit Boxes shall be maintained by or under the
orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is
deemed fit and suitable action taken on complaints made. Access to such boxes shall be accorded to
all prisoners.

For official visitors

5. District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in
their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make
expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall
be made to the High Court for the latter to initiate, if found necessary, habeas action.

The rules regulating the appointment and duties of non-official visitors and official visitors to the
prisons have been in force for a long time and their primary functions is “to visit all parts of the jail
and to see all prisoners and to hear and enquire into any complaint that any prisoner hear make”.

In practice, these rules have not been very effective in providing a forum for the prisoners to redress
their grievances. There are a few non-official visitors who take up their duties conscientiously and
listen to the grievances of the prisoners. But most of them take this appointment solely as a post of
honour and are somewhat reluctant to record the visitors’ book any grievance of a prisoner which
might cause embarrassment to the prison staff. The judicial officers, viz., the Sessions Judge and the
Magistrates who are also ex- officio visitors do not discharge their duties effectively.

We insist that the judicial officers referred to by us shall carry out their duties and responsibilities
and serve as an effective grievance Mechanism.

For solitary or punitive cell

6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other
punishment or denial of privileges and amenities, no transfer to other prisons with penal
consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such
intimation, on account of emergency, is difficult, such information shall be given within two days of
the action.

No specific time limit

The court further said that-

“What we have stated and directed constitute the mandatory part of the judgment and shall be
complied with by the State. But implicit in the discussion and conclusions are certain directives for
which we do not fix any specific time limit except to indicate the urgency of their implementation.”

Quasi-mandates

The court further spelled out quasi-mandates-

1. The State shall take early steps to prepare in Hindi, a Prisoner’s Handbook and circulate copies to
bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and
habilitative programmes are brought into the prison may create a fellow- ship which Will ease
 114

tensions. A prisoners’ wall paper, which will freely ventilate grievances will also reduce stress. All
these are implementary of s. 61 of the Prisons Act.

2. The Slate shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners
recommended by the United Nations, especially those relating to work and wages, treatment with
dignity community contact and correctional strategies. In this latter aspect, the observations we
have made of holistic development of personality shall be kept in view.

3. The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the Model
Manual being out of focus with healing goals. A correctional-cum orientation course is necessitous
for the prison staff inculcating the constitutional values, therapeutic approaches and tension- free
management.

4. The prisoners’ rights shall be protected by the court by its writ jurisdiction plus contempt power.
To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by
professional organisations recognised by the Court such as for e.g. Free Legal Aid (Supreme Court)
Society. The District Bar shall, we re-commend, keep a cell for prisoner relief.

The Declaration on the Protection of All Persons from Torture and other cruel, Inhuman or
Degrading Treatment or Punishment adopted by U. N. General Assembly (Resolution 3452 of 9
December 1975) has relevance to our decision.

In particular Article 8.

Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading
treatment or punishment by or at the instigation of a public official shall have the right to complain
to, and to have his case impartially examined by, the competent authorities of the State concerned.

Article 9.-Wherever there is reasonable ground to believe that an act of torture as defined in article I
has been committed, the competent authorities of the State concerned shall promptly proceed to an
impartial investigation even if there has been no formal complaint.

We conclude with the hope that the State, though preoccupied with many pressing problems, will
discharge its constitutional obligation to the invisible mortals incarcerated by it and legislatively and
administratively re-make a Prison Code.

-------------------------------------------------------------- ------------------------------------------

Victim’s right to be heard

The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than
appropriate to move forward in a positive direction, rather than stand still or worse, take a step
backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice
needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is
clearly heard.”

One of the most significant rights for crime victims is the right to be heard during critical criminal
justice proceedings that affect their interests. Such participation is the primary means by which
victims play a proactive role in the criminal justice process. When a crime victim is allowed to speak
at the sentencing hearing, or to submit a victim impact statement regarding the impact of the
offence on the victim and the victim’s family, there is an acknowledgment by the criminal justice
system of the personal nature of the crime and of the harm suffered.
 115

Until recently, criminal law had been viewed on a dimensional plane wherein the Courts were
required to adjudicate between the accused and the State. The ‘victim’ — the de facto sufferer of a
crime had no participation in the adjudicatory process and was made to sit outside the Court as a
mute spectator. However, with the recognition that the ethos of criminal justice dispensation to
prevent and punish ‘crime’ had surreptitiously turned its back on the ‘victim’, the jurisprudence with
respect to the rights of victims to be heard and to participate in criminal proceedings began to
positively evolve.

Internationally, the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse
of Power, 1985, which was adopted vide the United Nations General Assembly Resolution 40/34,
was a landmark in boosting the pro‐victim movement. The Declaration defined a ‘victim’ as someone
who has suffered harm, physical or mental injury, emotional suffering, economic loss,
impairment of fundamental rights through acts or omissions that are in violation of criminal laws
operative within a State, regardless of whether the perpetrator is identified, apprehended,
prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the
‘victim’. Other international bodies, such as the European Union, also took great strides in granting
and protecting the rights of ‘victims’ through various Covenants.

Amongst other nations, the United States of America had also made two enactments on the subject
i.e.
(i) The Victims of Crime Act, 1984 under which legal assistance is granted to the crime-victims; and

(ii) The Victims' Rights and Restitution Act of 1990. This was followed by meaningful amendments,
repeal and insertion of new provisions in both the Statutes through an Act passed by the House of
Representatives as well as the Senate. In Australia, the Legislature has enacted South Australia
Victims of Crime Act, 2001. While in Canada there is the Canadian Victims Bill of Rights. Most of
these legislations have defined the ‘victim’ of a crime liberally and have conferred varied rights on
such victims

On the domestic front, recent amendments to the Cr.P.C. have recognised a victim’s rights in the
Indian criminal justice system. The genesis of such rights lies in the 154th Report of the Law
Commission of India, wherein, radical recommendations on the aspect of compensatory justice to a
victim under a compensation scheme were made. Thereafter, a Committee on the Reforms of
Criminal Justice System in its Report in 2003, suggested ways and means to develop a cohesive
system in which all parts are to work in coordination to achieve the common goal of restoring the
lost confidence of the people in the criminal justice system. The Committee recommended the rights
of the victim or his/her legal representative “to be impleaded as a party in every criminal
proceeding where the charges punishable with seven years’ imprisonment or more”.

It was further recommended that the victim be armed with a right to be represented by an advocate
of his/her choice, and if he/she is not in a position to afford the same, to provide an advocate at the
State’s expense. The victim’s right to participate in criminal trial and his/her right to know the status
of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal
proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the
Committee. Repeated judicial intervention, coupled with the recommendations made from time to
time as briefly noticed above, prompted the Parliament to bring into force the Code of

Criminal Procedure (Amendment) Act, 2008, which not only inserted the definition of a ‘victim’
under Section 2 (wa) but also statutorily recognised various rights of such victims at different stages
of trial.
 116

---------------------------------------------------------------------------------------- -----------------------------------

Prison labour

The Prisoners Act, 1894 came into existence in order to regulate the prisoners. It is one of the key
legislations where the police & lawyers should understand the process. In this article, let us have a
look on what are the labour rights that a prisoners can have as per the prisoners Act, 1894. Firstly,
the Sec. 11 of the Act, which deals about the Superintendent says that as per the orders of the
Inspector General (IG), the Superintendent need to manage all the matters relating to prison
especially with respect to discipline, labour, expenditure, punishment and control. This provision
says that Superintendent is the authority who manages all the matters respect to the prison labour.

Further, Sec. 15 of the Act deals about the report on death of prisoner. The medical officer shall
record the particulars on the death of the prisoners. The provision specially mentions that in case if
the prisoner does or engaged in any activity related to labour on the day of his death occurred then
the medical officer shall compulsorily record it.

The Sec. 24 of the Act states that prisoner shall be examined on admission. In this provision, it is
stated that the after the admission, prisoner shall also as soon as possible examined by proper
medical officer and the same needed to be entered in a jailer record book regarding the class of
labour that he thinks fit. Hence, the medical officer can also make an observation and can give
directions about the labour class of prisoner and where he can work.

Further, Sec. 26 of the Act speaks about the removal & discharge of prisoners. This provision states
that prisoner cannot be removed without medical officer report. Also, one person cannot be
removed from one prison to other without the same report. Even without the opinion of medical
expert, no prisoner can discharge from prison against his will.

Further, Sec. 35 of the Act states about the employment of prisoners who have criminal charges.
This provision clearly states that the one prisoner cannot work more than nine hours per day except
in emergency circumstances declared by the Superintendent.

Also, the medical expert from shall examine about laboring prisoners from time to time and at least
once in every two weeks to be recorded of each prisoner employment based on weight. In case the
medical expert has any opinion about like any prisoner cannot do a particular labour activity then
medical expert may recommend that he or she cannot suit for such labour. Then upon such opinion,
the relevant prisoner shall not be employed in such labour activity.

Next, the Sec. 26 of the Act which states about employment of prisoners who were sentenced to
simple imprisonment. But the prisoners shall not be punished for neglect of labour work except
under certain exceptions made in the rules of prison.

Further, Sec. 45 of the Act speaks about the offences in prison. Like it specifies few acts like willful
disobedience, assault or criminal force usage, make threatening or using insulting kind of language,
performing any act with immoral behavior and willfully disabling from labour. Hence, willfully
disabling from labour can be a prison offence. Further, Sec. 46 of the Act states about the
punishment for these offences.

Upon the instructions of Superintendent, the prisoner will be punished initially with formal warning
then in case of hard labour can be punished not exceeding seven days in case of simple
imprisonment. The Superintendent can also take action on irksome activities. There may be also a
 117

separate confinement for three to four months. Also, they may impose restrictions on panel diet
with some exception of not more than ninety days. More over Sec. 47 of the Act[9] speaks about the
plurality of punishment i.e., which elaborates on no two punishments can be made at once. It
specifically mentions that panel diet shall not be combined with labour activities.

When it comes to fitness of the prisoner, Medical officer need to give certificate for fitness,
competency and change of labour. Also he needs to check the capability of prisoner to undergo any
punishment. The same has been explained in section 50 of the Act. Lastly, Sec. 59(14) of the Act
states about the state government power regarding to make rules for classifying and regulating the
labour.

Judicial Pronouncements:

There are different issues with respect to the prisoner labour. If we discuss in depth in one famous
case, The court not only stressed that a convict is entitled to the right guaranteed by article 21 but it
(court) also relied heavily upon article 21, inter alia , to hold that a prisoner cannot either be
subjected to unwarranted physical or mental restraint or to a cruel or torturous punishment.[13]

The Andhra Pradesh High Court, in the Vijaykumar case, denying that article 23 of the Constitution
forms the basis for the assertion that a prisoner has a right to be paid wages, argued that even
payment of wages by the state to a prisoner compelled to do hard labour does not alter the forced
character of the labour extracted from the prisoner.

However, his Lordship, relying heavily upon tenor of article 21 of the Constitution and recalling the
punitive policy of section 53, IPC, held that a prisoner has the right to earn his livelihood and to
preserve his life and the state, in turn, has a corresponding obligation to provide work to the
prisoner and to pay him, unless there is a valid law enacted by the Legislature, and found by the
constitutional courts to be fair and reasonable, authorizing the state to deny the payment, for the
work extracted from him.

It, in the absence of such an authorization either in section 53, IPC, or any other statute, held that
the extraction of hard labour from a prisoner without payment of fair wages violates the prisoner's
right guaranteed in article 21 of the Constitution.

The SC asserted that the mere detention does not deprive the convicts of all the fundamental rights
enshrined in our constitution. In 1977, the SC stressed for the rehabilitation of prisoners and
reformation of prisons.

The court held that the fact that a person is legally in prison does not prevent the use of Habeas
Corpus to protect his other inherent rights. In one case the court held that no person shall be hand-
cuffed, fettered routinely for convince of the custodian’s escort. The right to fair treatment and right
of judicial remedy are pre-requisites of administration of prison justice. The Court adopted a
dynamic and constructive role with regard prison reforms. Court apart from other things stressed on
the improvements of the conditions of the prisons in India.

The Supreme Court in U.S. in Manna v. People of Illinois said that life is not merely animal existence.
The souls behind the bar can’t be denied the same. The rights guaranteed by Art.21 are for every
person and not even the state could deny it. Prisoners also have all the rights which a free man has
under some restrictions. Just being in prison doesn’t deprive them from their fundamental rights.

----------------------------------------------------------------------------------- ------------------------------------

How the gravity of an offence in generally assessed.

 118

Gravity of an offence can be measured in part by the lasting emotional effects of the offence upon
the victim. The individualization of a sentence to account with the characteristics of a particular
offender should not reduce a global sentence to the point where it not proportionate with the
misconduct.

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected
by the potential penalty imposed by Parliament and any specific features of the commission of the
crime which may tend to increase or decrease the harm or risk of harm to the community.

The Court is required to go by the principle of proportionality. If undue sympathy is shown by

reducing the sentence to the minimum, it may adversely affect the faith of people in efficacy of law.
It is the gravity of crime which is the prime consideration for deciding what should be the
appropriate punishment."

Indeed, an offence punishable with a sentence of death or imprisonment for life or imprisonment for
a term that may extend to 10 years is a serious offence entailing intensive and perhaps extensive
investigation. It would therefore appear that given the seriousness of the offence, the extended
period of 90 days should be available to the investigating officer in such cases. In other words, the
period of investigation should be relatable to the gravity of the offence - understandably so. This
could be contrasted with an offence where the maximum punishment under the IPC or any other
penal statute is (say) 7 years, the offence being not grave enough to warrant an extended period of
90 days of investigation. This is certainly a possible view and indeed the Cr.P.C. makes a distinction in
the period of investigation for 'default bail' depending on the gravity of the offense. Nevertheless, to
avoid any uncertainty or ambiguity in interpretation, the law was enacted with two compartments.
Offences punishable with imprisonment of not less than ten years have been kept in one
compartment equating them with Offences punishable with death or imprisonment for life. This
category of Offences undoubtedly calls for deeper investigation since the minimum punishment is
pretty stiff. All other Offences have been placed in a separate compartment, since they provide for a
lesser minimum sentence, even though the maximum punishment could be more than ten years
imprisonment. While such Offences might also require deeper investigation (since the maximum is
quite high) they have been kept in a different compartment because of the lower minimum
imposable by the sentencing court, thereby reducing the period of incarceration during
investigations that must be concluded expeditiously. The cut-off, whether one likes it or not, is based
on the wisdom of the Legislature and must be respected.

The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a
conviction of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying
crimes.

-------------------------------------------------------------- -----------------------------------------------------------------
 119

Branding punishment

Explain the role of victims in crimes.

Note three essentials of an ideal penal system.