Category: Criminal Law

Eye for an Eye, “Blinded by Revenge”

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For many years, the death penalty issue has created controversial debates and even to date the debates still remain unabated. This is because justice has become a relative term and people term incidences that are contrary to their self-will and desires as injustice.[1]  Therefore, with that, the thirst for vengeance is so evident that states find it difficult to ignore;[2]  particularly because of the eye for an eye concept that has been upheld for so many centuries.

However, what people seem to forget is that two wrongs don’t make it right. Yes, the offender needs to be punished, but do we necessarily have to punish the offender by taking his/her own life? What about the rights of the accused, isn’t the law made to give others a second chance to reform and do what is right for their communities? Most of these questions may seem irrelevant to most people because they are so centred on vengeance, that they forget that everyone’s rights matters.  This concept has relatively been one of the top reasons why most countries still remain to retain the death penalty, slowly ignoring the corrosive effect it causes both to the offender and the community.

We have become so blinded by revenge, that we have forgotten our obligations as individuals, government entities, as well as members of a civil society; moreover forgetting the obligations entrusted upon us by International treaties, covenants such as the Universal Declaration of Human rights. These international laws were adopted in order to guide states in respecting individual rights and states signatory to such treaties are obligated to adopt these laws within their national Constitutions.

Retaining the death penalty goes far beyond than reducing crime. It causes trauma on the side of the accused, also creates tension between states particularly in situations where another state has abolished the death penalty; and above all, it infringes the most important fundamental rights, which are the rights to life and to liberty.

Therefore, it is important that normative edifices that guard against human rights violations adequately ensure that everyone’s fundamental rights are protected and respected because respecting individual rights and freedoms is the only way to inclusive development.

According to the World Economic Forum of 2015, development is very much possible, when individual rights and freedoms are respected; this also includes the rights of the offenders or the accused. Therefore, this should be a wakeup call to retentionist countries to outlaw death penalty and respect the rights of individuals.  The death penalty should be replaced with alternatives such as life imprisonment so as to reduce the cruelty imposed upon offenders.

To deny them human rights, is to challenge their humanity[3]. With that, I believe that the rights of each individual should be maintained regardless of their status or regardless of the situation they have imposed upon their fellow community members; rights do matter.

[1] K.N Bojosi, ‘Commentary on recent constitutional challenges to the death penalty  in Botswana http://www.biicl.org/files/2292_bojosi_ recent_constitutional_challenges.pdf (2015 September 20)

[2] O.B.Iveren, ‘Justification for and the abolition of capital punishment under human rights la, Nigeria(April 2011)   https://www.unilorin.edu.ng>law  (2015 September 30)

[3] Nelson Mandela quotes

ABOUT THE AUTHOR

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LESEGO GAETWESEPE

Lesego Gaetwesepe is a law graduate and she is intrinsically passionate about human rights, community building and empowering young people. She is a participant at the YALI Regional Leadership Center in Southern Africa and was also part of the #ageofconsent project. She was also part of a project facilitated by NACA (NATIONAL AIDS COORDINATING AGENCY). Ms Lesego is currently a volunteer at Gogontlejang Phaladi Pillar of Hope Project and also represents the organisation at the UNESCO Pan African Youth Network for building a Culture of Peace, and she is also taking up training as an ASFL (African Students for Liberty) Local Coordinator.

 

Do you know D.K.Basu?

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So, do you know D.K.Basu? Do you think he is some freedom fighter? A social activist? Someone who won some award or got some recognition? If your answer is in affirmative to any of them, then you are wrong. Rather than thinking of D.K.Basu as a person look at it from another perspective. When I say another perspective I mean look at it as “D.K.Basu v/s State of West Bengal[1]”. This case is one of the landmark judgments wherein the Supreme Court of India laid down guidelines regarding the arrest of a person.

Now the question is – why should you know the guidelines? To understand why, let’s go back to the time before the aforementioned guidelines were laid down. There’s the Police obligated to protect all the citizens, and have to do so dutifully by following the procedures established by law. However, at many instances that was not the case.

In the past and even today, though minimal, the Police have been under the lens of the media, governments and public. Why? It’s because there have been, and still are, several incidences wherein they have committed gross human rights and fundamental violations. Such violations range from refusal to register F.I.R. to filing of false charges against the accused as well the complainant to being responsible for the custodial deaths. This has led to many innocent as well as guilty persons being subjected to injustice, and they were also stripped of their dignity and personal liberty, hence violating Art.21 of the Constitution of India[2].

Such incidences occurred due to lack of or no supervision over the police. But, that all changed on a large scale when the judgment of the D.K.Basu v/s State of West Bengal[3] case was laid down with respect to arrest, detention and interrogation.

Let’s look into these guidelines to understand how:

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
  3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
  9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Area (Illaqa) Magistrate for his record.
  10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

These requirements are in addition to the following other requirements:

  • The right to be informed at the time of arrest of the offence for which the person is being arrested.
  • The right to be presented before a magistrate within 24 hours of the arrest.
  • The right not to be ill-treated or tortured during arrest or in custody.
  • Confessions made in police custody cannot be used as evidence against the accused.
  • A boy under 15 years of age and women cannot be called to the police station only for questioning.

So, next time if the police comes knocking on your door, ask them, “Do you know D.K.Basu?”

[1] (1997) 1 SCC 216

[2] Right to life and personal liberty

[3] (1997) 1 SCC 216

ABOUT THE AUTHOR

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VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Age of Consent in India

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Age of consent has long been a controversial issue in India. Coming to a consensus as to what the age of consent should be has proved to be a challenging job. The age of consent has never been stable, it’s always fluctuating as the public morality changes and ideas about gender and sexuality take different forms. The Indian Penal Code, 1860 prior to the Criminal Law Amendment, 2013 stated that sexual intercourse with a woman below the age of 16 years was to be considered ‘rape’ regardless of her consent being present or not.[1] In 2012, the much talked about POCSO Act was passed and among much controversy the age of consent was raised from 16 years to 18 years. The Criminal Law (Amendment) Act followed in 2013 which also raised the age of consent from 16 years to 18 years.

One of the key reasons why the decision of increasing the age of consent from 16 years to 18 years was mired in controversy was because the critics of increasing the age of consent contended that because this Act criminalizes indulging into sexual acts with a person below 18 years of age, regardless of consent, there is a high likelihood of enforcement agencies e.g. police exploiting their powers or of parents misusing the law to regulate their children’s sexual behavior. [2] This poses a serious challenge as there is a plethora of cases where false complaints, for example, of kidnapping have been filed against the accused. With each new legislation passed, there are always unintended consequences attached. In case of POCSO, as mentioned earlier, there are a lot of instances where false complaints are filed by parents against the lover of their minor child or by the minor herself/himself out of vengeance or pressure by their family.

Another shortcoming in not taking into account the consent of the minor is that outlawing the various kind of consensual sexual behavior that children indulge into completely discards their independence and fundamental rights.[3] One of the main reasons why the issue of age of consent is so hotly debated is because it criminalizes sexual conduct of adolescents which is deemed normal behavior at that age. The age of consent line is at the end of the day an artificially drawn line. There is no hard and fast basis on which this line has been drawn at eighteen. There are several factors based on which the age of consent is determined; these include relying on the fact of when a person becomes “mature”. This, quite clearly, is a hugely vague logic to apply as it’s extremely hard to pinpoint when a person attains sexual maturity to be able to enter into consenting sexual relationships.

To curb these malpractice of false cases being lodged against the innocent and to allow minors, especially, the ones who can count as young adults to express their sexuality freely the law needs to be amended. More importantly, there needs to be space for adjudicators to apply proper logic and reasoning in a given or specific case depending on the truthfulness of the allegation. A relaxing approach needs to be taken by judges wherein they hold the accused guilty or acquit them based on the facts and circumstances of the case. It needs to ensure that nobody gets blind advantage due to the wording of these provisions.

The main object of POCSO Act dictates that there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship but this too has been critiqued on the grounds that if that interpretation is allowed, it would surmount to the persons below 18 being treated as “state property”. It is almost equal to saying that persons below 18 years aren’t citizens as they can’t exercise all the rights as citizens above 18 years of age can. This is in no way a reasonable classification. Therefore, it is of utmost importance, that the age of consent line be blurred for good. This will drastically reduce false complaint cases filed against innocent persons and undoubtedly guarantee that minors who can be classified as young adults get to exercise their rights such as willingly entering into consensual relationships fearlessly.

[1] Section 375, Indian Penal Code , 1890

[2] http://www.prsindia.org/theprsblog/?p=1680

[3] http://www.tarshi.net/inplainspeak/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/

ABOUT THE AUTHOR

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PRITHVIKA REDDY

Prithvika Reddy, an aspiring bureaucrat, is a final-year law student from O.P Jindal Global University, Sonipat. Her subjects of interest are Constitutional Law and Human Rights. Also, she’s a History Enthusiast. She loves keeping herself updated with the current news.

 

Prostitutes, Prostitution and Prostitution Laws in India

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Think of a day when you wake up and look into the mirror, trying to look for the purpose of your existence, your identity, you know what you are, yet you try collecting every other thing that can mark your importance. Then it strikes to you, that your identity has become a corpse. You have been discarded from the group of persons holding the status of a person. To the society, you are no more respectable or someone to show gratitude for. You are alive with a dead inner self.  You have been used again and again by others for their personal pleasure.  You have become an aphrodisiac.  Living yet dead, busy yet idle, crowded yet alone. Yet you confront it, live with it, every day – every night; because this is how you can make both ends meet. Knowingly or unknowingly you are stuck in a vicious circle about which all you know is that IT GOES ON!

“Stolen people, stolen dreams.”

This is the story of every girl, every woman, every lady who is brought into this business of prostitution, to satisfy the greed of some men, whose lust for sex and money never ends.

Prostitution means the sexual exploitation or abuse of person for commercial purposes and the expression prostitute shall be construed accordingly.  It is one of the oldest and prevalent trades in India.

Prostitution is illegal in India and legal consequences can entail a prosecution, which may culminate in an imprisonment of up to 7 years. Although several debates on its legalisation are ongoing since time immemorial because due to its illegal status women who have entered this trade find it very hard to report abuse, which is very common.

Prostitution and related acts are governed by the Suppression of Immoral Traffic in Women and Girls Act 1956, the Immoral Trafficking Prevention Act, 1956, The statute primarily deals with sex-work in India and does not penalise prostitution or prostitutes per se. Although the act gives the power to punish acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring, even where sex-work is not coerced.

Section 372 and 373 of the Indian Penal Code, also directly deal with prostitution.

Section 372 of the Indian Penal Code: Selling minor for the purposes of prostitution, etc.: Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be used or employed for the purpose of prostitution or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Section 373 of the Indian Penal Code: Buying minor for purpose of prostitution, etc. : Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with the intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful or immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

According to an estimate, there are around 2.8 million prostitutes in India living a life no less than dead. As if they are not women but a mere sex toy.

“Call a jack a jack, call a spade a spade. But always call a whore a lady.”[1]

[1]Patrick Rothfuss

ABOUT THE AUTHOR

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AISHWARYA HIMANSHU SINGH

Aishwarya Himanshu Singh is a final year law student. An aspiring researcher who has a deep love for writing. With her first publication at the age of 13, she believes a pen is mightier than the sword. Having authored more than 50 papers she is all set for the ‘writing for a change’ programme.

Adequacy of Punishment in Rape Cases

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Rape as defined by the Supreme Court in Bodhisattwa Gautam v. Ms. Shubhra Chakraborty[1] is not only a crime against the body of a woman (victim), it is a crime against the entire society. The Apex Court has further observed, “to many feminists and psychiatrists, rape is less a sexual offence than the act of aggression aimed at degrading and humiliating women”.

It is a crime against the basic human rights and also violates the victim’s most cherished fundamental right, namely the right to life as contained in Article 21[2] of the Indian Constitution.

One of the issues in system is that the rape laws do not, unfortunately, take care of the social aspect of the matter and are inapt in many respects. Furthermore, a large number of the rape cases remain unreported because of the social stigmas and pressures attached to the victim of rape and humiliation and mental torture which she and her family have to suffer during the court trial.

Scenario of Indian Society

In Indian system, it is considered that a crime is committed against the society not only against the victim. And, this is the sole ground for granting punishment to the accused, he is punished on the basis of impact that is formed on the society due to that offence. Felon is not punished on the basis of what consequences does the victim has faced or will face.

Due this concept society may get the justice but the victim often does not. If see towards the case of NIRBHAYA[3], the convicts got the death penalty and majority of the India is happy that finally the justice has been done to the victim. But, what kind of justice this is to the brave NIRBHAYA? She only suffered the pain and torturous acts of those culprits but she did not see them facing all such pains, tortures and humiliation which she faced on that BLACK day. Atleast the culprits must face and feel all that pain and humiliations which they made her to face.

Unfortunately, NIRBHAYA is just one of the numerous rape cases that fortunately got the media attention and due to this media attention got disposed off within 6 years (which is although a long time period but acceptable and fine if we see the Indian Judicial and political system with reference to other pending cases for example BILKISBANO[4] case). There are ‘n’ numbers of rape cases in which even FIR is not filed or even if it is filed then the mouth of the victim and her family shuts up or is made to shut up due to the fear of loss of reputation. Awarding of death penalty is fine in doing justice to the society but in my opinion the culprit must also get to face all those consequences and loss of reputation.

Mr. Justice S. Ratnavel Pandian of the Supreme Court in Madan Gopal Kakkad v. Naval Dubey & anr.[5] observed that, “offenders of the sexual assault who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms”.

This crime destroys the entire psychology of a woman and pushes her into deep emotional crises.[6] If nature of the crime is such, then why don’t we apply the principle of hedonism (i.e., utilitarian theory of pain and pleasure propounded by eminent Jurist Jermy Bentham) .Not only the principle of hedonism must be applied the culprit should be punished through the retributive methods of punishment so that he must feel and come across the similar pain and realise what he did to an innocent person (woman).

Role of Politics

Still, despite of making such legislation, Indian politicians often start their dirty politics and talk about the human rights, basic fundamental rights, needs of the family of culprits. And, try to fill their vote bank behind the curtain of sympathy for the victim and condemnation of the rapist (most often accused because in most cases they are left free) and offering a helping hand to the culprit and his family in the name of humanity and fundamental rights of felons!

[1] AIR 1996 SC 922

[2] ARTICLE 21- Protection of life & personal liberty- No person shall be deprived of his life and personal liberty except according to the procedure established by law

[3] Mukesh & Anr. v. State for NCT of Delhi & Ors. [CRIMINAL APPEAL NOS. 607-608 OF 2017]

[4] cr.appeal.1020­to­1023.09, 487.10, 194.11, 271.11

[5] 1992(3) SCC (204)

[6] Supra, at 1

ABOUT THE AUTHOR

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TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.

Ethical Dilemma in Criminal Justice

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Ethical dilemma and questions arise for professionals in criminal Justice system concerning right and wrong which put the criminal justice officers to decide to choose being human or minding about their own self-interest. Criminal Justice system comprises of professionals who execute or who exercise power and some cases are authorised to use force and physical coercion which need to involve a great use of wisdom requiring not to take advantage of dilemmas which are pose by this powers to commits injustices. In most cases this powers provide and avenues for most of the dilemmas.

These dilemmas are brought more by the working condition. Where there is a very poor working condition for the criminal Justice officers, there exists more dilemmas as compare to those with good working conditions. So it has that those criminal justice officers in the underdeveloped nations face more dilemmas.

When an issue involves ethical consideration and then have the ability to apply a knowledge of ethics including ethical terminology and concept in making our decisions about what to do. It gives the mind the task of making critical decision which sometimes are matter of life and death. This dilemmas puzzles always brings war between interest of criminal Justice officers (law enforcement, prosecution and judiciary) and interest of common citizen who is seeking justice and his or her fate lies on the discretion of the criminal Justice officer. In most instances the wrong decision made by the criminal Justice officers adversely affect the common citizen seeking Justice.

Examples of these dilemmas:

Law enforcement officers in many case come across drug barons, because they lack enough money to satisfy their wants and needs they are always divided into two in reasoning where the drug barons accept to give them millions in reward of letting them free.in most case police have colluded with these drug barons to let the free which is great injustice to the society whose youths in turn find the drug at their disposal which ruins their life. These youth are then arrested for drug taking and handling while the same police officers who are arresting them are the one who let the drugs into the country. This total injustice because the same police office sometime are bribed with the youths to let free rather not to take them to the rehabilitation centre.

Similar situations may arise where a prosecutor because of the personal attitude which he ore has against the accuse maybe because of  accused ethical background, religious and maybe past experience may decide to seek maximum penalty against an accused and if he or she seek maximum  penalty the result may be that the accused death This is social injustice to the family members of the accused and also to the accused who is hanged to death because of personal attitude of the prosecutor who decided to seek for maximum penalty.

When politician and those who are so reach get involved in criminal activities they always go scot free because they justice by buying justice in expense to the common citizen who is the complainant in that caes because police investigators are underpaid and they need money they the money and do shoddy investigation and prosecutor present a week case because is paid and the judge deliberately decide not to take all evidence into consideration.

ABOUT THE AUTHOR

Amimo Stephen

STEPHEN AMIMO MUGACHO

Stephen Amimo Mugacho is a young writer with a writing experience in various topics. He is a criminology professional with expertise in security and forensic investigation. He has a great understanding of the law for that is the basic in understanding if someone is a criminal and has committed any offence. He has just completed his first degree on 24th April 2017 in BA. Criminology and Security Studies at Chuka University.