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 Home > LAWYERS > Criminal Law > Criminal Procedure Code |
7
Reforms in the criminal justice system have been a matter of frequent review and debate in India. In March 2003, the Malimath Committee submitted its report, suggesting a sort of overhauling of the fundamentals of criminal jurisprudence. It suggested the idea of fair, efficient and humane administration of criminal justice for restructuring and redefining operational orbits of all the constituent state functionaries 'investigatory, prosecutory, adjudicatory and custodial' of the criminal justice delivery system.
The present anthology,'Criminal Justice: A Human Perspective of the Criminal Justice Process In India', incorporating thought provoking essays written by scholars from India and abroad and edited by Prof. (Dr) K.I.Vibhute, endeavours to delve deep into the'human rights perspective' of the individuals'accused, prisoner and victim of crime' who come in contact with the State, vital State functionaries' the police, prosecution, courts and peno-custodial correctional institutions that are responsible for ensuring 'Criminal Justice'. As such, time and text both were significant in conceiving this treatise on Criminal Justice and Human Rights.
The compilations of essays, in this background, also offer extensive deliberations on 'criminal law and human rights', 'criminal justice', and 'human rights enforcement', which would prove useful to Lawyers, Judges, Academics, Human Rights Activists and Administrators.
List of Contributors
A. David Ambrose,
John Samuel,
N.R. Madhava Menon,
B.B. Pande,
K.D. Gaur,
Parmanand Singh,
B.V. Trivedi,
Rajeev Dhavan,
Hans Albrecht,
K.N. Chandrasekharan Pillai,
Ravi Nair
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The Committee proposes to do this, however by eviscerating many fundamental rights guaranteed by the Constitution. The Committee recommends drastic increase in the powers of Judges and the police by altering the fundamental principles of this system. It also suggests to erode the safeguards provided in Evidence Act, 1872. It seeks to move the Indian judicial system from an adversial system to an inquisitorial one. In shutting, adversial system toward an inquisitorial system, modelled on continental European system, the Committee blames the adversial system because it "lacks dynamism" as it has "no lofty ideal to inspire".
The book entirely deals with the human rights of the victims of crime. At least in the case of compensation to victims, the legal system should come forward and acknowledge the reality that crimes are committed against the victim and his family and not against the State. Considering this fact, State should change its attitude towards victims of crime and make the compensatory scheme more reachable.
Criminal law can be defined normatively as something good or desirable, because it functions to prevent or resolve social conflicts between the law-abiders and the law-breakers. It is such conceptualisation of criminal law that is taught in law classes and academies and also believed as a gospel truth by a large bulk of the consumers of criminal law, who unequivocally accept the consensus based criminalisation myth. In contrast to this much better known view, criminal law can also be perceived neutrally, as a set of power resource, which is neither good nor bad.
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1. Introduction 1
2. Exploring the Human Rights Discourse 2
3. Towards a Pluralistic History of Human Rights Discourse 5
4. Rhetoric, Politics, Ethics and Praxis of Human Rights 9
(A) The Rights Language Turn 9
(B) Rights as Politics 14
(C) Rights as Ethics 19
(D) Rights as Praxis 22
1. Theoretical Basis for a Balanced Concept of Human Rights 25
2. Development of Human Rights Law: A Tilt in the Balance 26
3. Hohfeldian Scheme and Re-Balancing the Concept of Human Right 29
4. Concluding Remarks 31
1. Penal Internationalisation 33
2. Jurisdictional Pluralism 34
3. Penal Culture(s) 35
4. Enforcement Problems 37
5. Penal Institutions In Crisis 38
6. Conclusions 40
1. Context 41
2. Critique of the Constitutional Court Reasoning 43
(A) Freedom rights and the principle of commensurateness 47
(B) Delimitation of basic legal principles 45
(C)Pseudo-empirical grounding for interpretation of the law 48
(D)Normative contradictions and circular logic 51
(E)The ignorance of the damaging effects of drug policy 51
(F)Crimes without victims - crimes without guilt 54
(G)The definition of harm by cumulating of non-harm 55
(H)The procedural law solution of de-penalisation 56
(I)Continued inequality of law in action 57
(J)Flexibility of the definition of ''large quantities''
for distribution 58
(K)Consumer responsibility with alcohol - not with illegal drugs! 58
(L)Alcohol not conceived of as a psychoactive substance 59
3. The Dissenting Votes 60
4. Conclusion 61
1. Introductory Remarks 62
2. Philosophical Assumptions 64
3. North-South/East-West Perspectives 65
(A) Socio-economic Rights versus Civil and Political Liberties 65
(B) Absolutism versus Relativism: The 'Asian Values' Debate 67
(C) The Instrumentality of Democracy 69
(D) The Instrumentality of a Free Market Economy 70
(E) The Fountains of Freedom 71
(F) Human Rights and Religious Restraints 73
(G) Individualistic versus Collectivist Notions 74
(H) Rights and Duties 75
(I) Human Rights or Human Dignity? 75
(J) Human Rights and Private Centres of Power 76
4. Moral Superiority of the West: Myth or reality? 77
5. Concluding Remarks 80
1. Introduction 82
2. Public Policy Issues 82
3. Police Reforms and Human Rights 87
4. Secessionist Movements, Terrorism and Human Rights 92
5. Summing Up 96
1. Introduction 97
2. Human Rights-A Global Concern 97
3. Human Rights and Criminal Justice System In India
- A Legislative Paradigm 99
4. Conclusion 104
1. Introduction 105
2. Legislative Recognition to Human Rights Principles in India 106
(A) Human Rights Measures under the Constitution 106
(B) The General and Special Law Measures 106
3. Judicial Evolution of Human Rights-Friendly Criminal Justice
Administration 107
(A) Limitations on the Power of Arrest 107
(B) Ensuring Humane Conditions of Investigations 108
(C) Restrictions on Indiscriminate Prosecution and
Fabrication of False Evidence 109
(D) New Rationalisation of a Right to Bail 110
(E) Limiting Police Remand 111
(F) Recognizing a Pre-sentence Hearing Right 112
(G) Restitutive Sentencing 112
4. Criminal Justice Administration: Human Rights Blind Spots 113
(A) Excessive Powers of Arrest 113
(B) Taking Citizen's Liberty Lightly 114
(C) Sentencing Power sans Guidelines 115
(D) Differential Enforcement of Criminal Laws 116
5. Conclusion 116
1. Preliminary Remarks 119
2. Universal origin of Human 119
3. Concept of Duty and Asian 121
4. Struggle for Independence 121
5. Fundamental Rights and Directive Principles 122
6. Summing up 127
1. Introduction 129
2. Rights of the accused - Some Reflections 130
(A) Right to Life 130
(B) Right to Speedy Trial 131
(C) Right to Counsel 132
(D) Right to Free Legal Aid 133
(E) The Right to a Fair Trial 134
(F) Right against Double Jeopardy 134
(G) Right against Self-incrimination 135
(H) Right against 'Third-degree' Methods 135
(I) Right to Fair Treatment 137
3. Conclusions 139
1. Introduction
2. Genesis Of Human Rights 141
3. Criminal Justice System In India 142
(A) Police and Prosecution 142
(B) Non-registration of Cases 143
(C) Arbitrary Arrest 144
(D) Custodial Crimes 144
(E) Prisons 145
(F) Delay in Disposal of Cases 147
4. Current Correctional Philosophy 148
5. Human Rights Initiatives in Prisons 148
6. Conclusion 150
1. Overview 152
2. The Pitfalls of the Malimath Committee's Proposed Shift
From An Adversarial To Inquisitorial System 154
(A) The Danger of the Selective Incorporation of Aspects
of the Inquisitorial system 154
(B) Summary of the Recommendations 155
(i) Adverse inferences 155
(ii) Defence statement 155
(iii) Transforming Section 311 156
(iv) Standard of proof - inner conviction 156
(v) Investigative magistrate 156
(vi) Bad character evidence 157
(C) Seeking the Truth, or Simply More Convictions? 157
(D) The Effect of Removing the Right to Silence 158
(E) Delusions of Gender-sensitivity 159
3. Conclusion 163
1. Five Years in the Life of The Commission 164
2. The Complaint Jurisdiction 166
(A) The Overall Docket 166
(B) Illustrative cases 177
3. Human Rights Policies, Promotional Tasks and
Socio-Economic Rights 194
(A) Policy concerns on Terrorism and State Atrocities 194
(B) Social Justice Concerns 196
(C) Statutory Reform and Treaties 197
(D) Public Education Liaison and Logistic Support 198
4.Into the Next Millennium 199
1. Introduction 200
2. The Evolution of PIL 200
3. Features of PIL 202
4. Governmental lawlessness and repression203
(A) Custodial Violence 203
(B) Terrorism and Insurgency 206
(C) Violence against Women 207
(D) Bonded Labour 209
(E) Children 210
5. Role of National Human Rights Commission (NHRC)212
(A) Composition212
(B) Functions, Powers and Procedure 212
(C) Performance of the NHRC 213
(i) Terrorism and Insurgency 213
(ii) Custodial Deaths, Rape and Torture213
(iii) Systematic Reform: Police, Prisons and other Centres
of Detention 214
(iv) Handling of Complaints: Illustrative Cases 214
6. Concluding Remarks 217
1. Introduction 219
2. The Police and The Use Of Force:
The Legal Regime In India-A Paradigm 220
3. 'Policing' the Police: Legislative, Judicial
and Institutional Approach 227
(A) Legislative Approach: Existing and Proposed 227
(B) Protection of Human Rights Act, 1993: A Rights' Institution 232
(C) Judicial Approach233
(D) Approach of the National Human Rights Commission 237
4. 'Police Excesses' & 'Custodial Violence': Accountability Of
The Police 238
5. Conclusion 240
1. Introductory Remarks 243
2. Human Rights against Torture 244
3. Confession 245
4. Confession and State Acts 247
5. Conclusion and Suggestions 249
1. Introduction 253
2. Causes for Popular Dissatisfaction with Police 253
3. What can be done and by whom? 254
(A) Reforms from Within the Police 254
(B) Reforms that the Government has to Undertake 255
(C) Reforms which People themselves can Initiate 256
4. Conclusion 256
1. Introduction: The Death Penalty-Ongoing Concerns 257
2. The Legal Framework of Imposing and Enforcing the Death Penalty,
Political Developments and Empirical Information on Executions 258
(A) The Legal Framework of the Death Penalty 258
(B) Capital Punishment in Practice 260
3. International and European Penal Policies
and the Death Penalty 261
4. Problems of Threatening, Imposing and Enforcing
the Death Penalty from A Human Rights Perspective 262
(A) Introduction 262
(B) Equal Treatment, Arbitrariness and the Death Penalty 265
(C) The Death Penalty and the Question of Deterrence267
(D) The Death Penalty and Public Opinion 268
(E) The Imposition of the Death Penalty
and the Right to have a Fair Trial 269
(F) The Death Penalty and Possible Errors in Judgment 269
5. Summary 270
1. Sentence Of Death: Legislative and Judicial Policy 272
2. Delay In Execution Of Death Sentence as an Extenuating Factor
and the Supreme Court in Search of Guiding Principles275
3. Concluding Remarks 283
1. Introduction 286
2. The Spread of Imprisonment 286
3. The Scope of Imprisonment Today2 87
4. The Problems Associated with Imprisonment 289
(A) Overcrowding 289
(B) Infection and Disease 291
(C) Human Rights Abuses 291
(D) Vulnerable Groups 292
(E) Discrimination 293
5. International Human Rights Framework 293
6. Prison Reforms and The International Standards 295
7. Reducing the use of Imprisonment 296
8. Reductions in the Prison Population 297
(A) Reducing Pre-trial Detention 297
(B) Alternatives to Prison 298
9. Imprisonment and Development Policy 299
10. Restorative Justice 300
11. Conclusions 301
1. Introduction 302
2. Prisoners' and Human Rights: A Global Perspective 302
(A) Governments constantly emphasise the 'Problem of Crime' 302
(B) Prison Populations 303
(C) Traditional View: Prisoners do not have Rights 304
(D) International Developments 305
(E) Changes in Attitudes 306
3. Prisoners' Human Rights: A Survey Of
Constitutional Perspectives 307
(A) Recent Constitutions 307
(B) Some Constitutions of the 1990s 307
(C) What Rights might Prisoners Claim? 309
(i) Due Process310
(ii) Special forms of constraint 310
(iii) Physical security of prisoners 311
(iv) Access to reading matter 314
(v) Voting 314
(vi) Access to the media 317
(vii) Sex and family life 318
(viii) Privacy 318
(ix) HIV positive prisoners 319
(x) Religious observance320
(xi) Consideration for parole 321
(xii) Privatisation 321
(xiii) Monitoring and complaints 322
(xiv) Other rights 323
4. Conclusion and Suggestions324
1. Introduction 327
The Kirit Ravjibhai Rawal Custodial Death case 327
2. The Human Rights Context in Prisons 328
(B)Inadequate Provision for Basic Needs 329
(C) Torture, Ill-treatment and Repressive Control 329
(D) Unequal Treatment and Privileges 330
3. Judicial Initiatives in Securing Prisoner's Rights 331
4. Conclusion - A Recipe for
Prisoners' Human Rights Observance 334
1. Introduction 336
2. Compulsory Hard Prison Labour and The Indian Penal Code:
3. 'Forced Labour': Constitutional Scheme and Spirit 337
4. Compulsory Hard Prison Labour and A Prisoner's Right to
Receive Wages: Constitutional Vires And Judicial Voices 339
(A) Compulsory Hard Prison Labour: Constitutional Vires
and Judicial Voices 339
(B) Prisoners' Right to Receive Wages and the Quantification
of Wages: Constitutional Tune and Judicial Tone 342
(i) Does a prisoner have the right to claim wages for his labour? 342
(ii) Does a prisoner have the right to receive 'reasonable' or
'minimum' wages for his labour?344
5. Conclusion 347
1. Introduction 350
2. Quest for Justice to Victims of Crime 351
3. Compensation to Victims of Crime 352
(A)Compensation under the Fatal Accidents Act, 1855 352
(B)Compensation under the Motor Vehicles Act, 1988 352
(C)Compensation under the Criminal Procedure Code, 1973353
(i) Compensation as mitigating factor 355
(a) Compensation for murder 355
(b) Compensation for sexual assault 356
(D) Constitutional Remedy for Human Rights Violations 357
(E) Compensation under the Probation of Offenders Act, 1958 359
4. Conclusion and Suggestions 360
1. Introduction 362
2. Justice for Victims of Crime: A Requirement of Human Rights 363
3. Victim Compensation and the Law in India: A Sketch 363
4. Victim Compensation Fund - Proposed Paradigm 365
(A) The Compensation Board365
(B) Computation of Compensation367
5. Conclusion 368
1. Introduction 370
2. Justice to Victims of Crime and The Criminal Law System
In India: Legislative Framework 374
(A) Compensating Victims of Crime: Existing Legislative
Spirit and 375
(i) The Code of Criminal Procedure, 1973 375
(ii) The Probation of Offenders Act, 1958 377
(a) Recovery and the payment of compensation 378
(b) Efficacy of the compensatory scheme:
Some observations 379
(B) Participation of Crime Victims in Criminal Process 380
3. Justice To Victims Of Crime And The Criminal Law
System In India: Emerging Trends And Legislative Paradigms 381
(A) Compensation as an 'additional punishment' under the IPC? 382
(B) Comprehensive Statutory & State Obligatory Crime Victim
Compensatory Scheme? 384
(C) The Right to seek State Assistance Model? 387
(D) The Crime Victim Participatory in Criminal Process Model? 388
4. Concluding Remarks 392
SUBJECT INDEX 396 
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