Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.

An Analysis of the Interaction of Psychology and Crime

Psychology and crime these two are prime facie two distinct things, but actually psychology is connected in many ways to the different aspects of crime; specially in the last 50 years the attention is shifted on the interaction of these two by criminologists, jurists and scholars. How the criminal tendency is developed, it is intrinsically connected to the domain of psychology. The contribution of great Australian psychiatrist, Sigmund Fred, is a big one; according to him thinking, violent, aggressive, or sexually deviant acts should be seen as expressions of buried internal (psychic) conflicts that are the results of traumas or deprivations experienced during childhood. Fred divided the human mind in three parts namely 1. Id (an aspect of personality that is unconscious including the primitive and instinctual behaviours.) 2. Ego (the element of personality which enables the id to function in socially acceptable ways.) 3. Superego (that is the internal approach mind towards moral and social standards). Certainly the superego of a person or moral standard will depend upon so many factors as like his background, his family, his friends etc. If a person is from a good family then his/her moral standard will be high, but an issue of a anti-social parents will not have such a good character (speaking generally).

 In very simple words we can say that many times the criminal behaviour is therefore the result of a failure of psychological development. In the childhood, the child learns so many things, and his internalized moral and social standards which guide his/her behaviour are conceived by him/her in childhood. In the childhood if proper social and psychological development is hindered then it may make him/her criminal in further life. Suppose, if the parents of a child are anti-social or criminals, then obviously it will motivate the child to be criminal. If a child was not grown in a proper social environment or proper care was not taken on the child or the relationship of the child is not good with the family members specially with the mother, then it will hinder the development of his capabilities to take a fair decision in the time of difficulty, frustration and he/she may commit crimes. Some other things as like peer group of the child, his school, and even T.V. and media may create criminal tendency in a child. At the time of the commission of a particular offence, there may be so many psychological factors behind it. Many times a person commits crime because of his internal feeling or disturbances; when we conceive things then feelings arise in our mind, and, those feelings may be pleasure giving or pain creating, now if those feelings are pain creating then those feelings may inspire a person to commit a crime for example A and B are colleagues, and B always performs better than A, then this situation may encourage A to assault or murder or harm B. 

Now, if we go to the question that why do people commit crimes? The answer cannot be given in one word or sentence but certainly the reasons are hidden in psychology. When a person commits a crime then his immediate attention is on the crime not on the further consequences (except in the case of organized crimes). As like X hates Y, then he may assault or murder Y, but he will not think the further consequences that he (X) will get punishment, rather he will only think about the assuage of his feeling of hate. When a person is continuously under the influence of frustration, tension or under immediate anger then his reasoning power is reduced, and he is very prone to take a wrong decision or say to commit a crime. Uncontrolled anger, sexual desire etc things may also be the reason of the crime; as like in the case of uncontrolled sexual desire one may commit rape. Of course the moral character of a man does matter, which would be gained by him through his family, friends, relatives etc. So many times it is possible that the criminal tendency or aggressive nature may develop from family or friends. Many people may commit crime if they are poor to get money or other things.

There may be one other reason for the commission of a crime that is personality or mental disorders. The mental instability of person may fairly lead him/her to follow a sychopath, generally speaking people commit crime to fulfill some of their desire which cannot be fulfilled legally. By doing so they want to escape from the real world, at the time of the commission of the act they enjoy by realizing that their unconscious desires are fulfilled. So, at the time of commission of an act there are totally in a different state of mind, which is actually different from the normal or the real condition as like in the case of mental confusion. There may be two personality in the mind of the offender as like in the normal condition he may live as a vey innocent person, but at the time of the commission of the offence his mental state may be totally different, and he may commit brutal and heinous crime. The intelligence level of  the offender, his/her self control on his anger and sexual urge, his capacity to bear frustration, his decision making power in tough times, his relationship with family members and the other world are some of the factor behind criminal tendency and commission of crime; the list not completed, there may be so, so many other factors.

The law has to be legitimately concerned with the psychological reasons behind the commission, it is essential for the prevention of any further happening of a crime by the same individual or other individuals as like. A psychological reason may also be a cause to reducing the sentence of a particular crime; we can take simple example as if an act is committed under the influence of anger, tension, frustration etc then the punished would be lighter than the punished for a organized crime or a crime which was committed in a normal stage of mind. In the jails also, in the western world, new developments are taking place, as like treatment programme for anger management or sexual arousal. Although in India such type of facilities are not available but still in jails different type of programmes, prayers are arranges which is certainly a good step. Ultimately, a crime may also be a sychological product, and when it is so we have to remind that what was said by Mahatama Gandhi, the father of nation, “Crime is the outcome of a diseased mind and jail must have an environment of hospital for treatment and care”.

Obvious, unless we go to psychology to find out the reasons of crime, we cannot get the solution or a proper crime prevention strategy and certainly from research of these two some new variable will come new theories will develop, and new solutions will come to prevent criminal and to prevent the development of criminal tendency.

Torture is a Crime : Issue and Perspective

 

Introduction

 The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practised in every police station in the country. Torture in police custody involves a range of practices including position abuse, shackling, beating with canes, batons, iron rods and rubber pipes, the pouring of water to disrupt sleep, the administration of electric shocks to the body . Torture being a crime committed by the State agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally  and thus  torture is to be considered as a crime against humanity.

 In India all the State agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including  silencing of opposition, irrespective of its nature. The practice of torture in India has permeated  a high degree of fear about the State agencies in the psyche of the ordinary population. On the contrary, fear generates mistrust, thereby impending the establishment of the rule of law in the country.

It has long been overdue as torture is recognised as a heinous practice that needs to be criminalized. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant, whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator.

 Throughout history, torture has often been used as a method of effecting political re-education and coercion. In the 21st century, torture is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially do agree not to torture prisoners in armed conflicts. Torture is also prohibited by the “United Nations Convention Against Torture” which has been ratified by 147 states .

Torture – its meaning

The word ‘torture’ comes from the French torture, originating in the  Latin tortura and ultimately deriving the past participle of torquere meaning ‘to twist’.

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions(1).

Torture , the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.

Custodial torture in India : Issue

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s in Lok Sabha , the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.  Torture in police custody remains a widespread and systematic practice in India. ACHR’s research into patterns of torture in police custody since 2008 (ACHR’s2008 and 2009 Annual Reports on Torture) suggests that victims suffer high risks of torture in the first twenty four hours following detention.

There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture. Torture is the most naked assault on human dignity. In India as elsewhere, it is the aam aadmi who suffers the most. Torture in state detention is endemic in India, involving a range of practices including shackling, beatings and the administration of electric shocks. Disadvantaged and maginalized groups including women, Dalits, Adivasis and suspected members of armed opposition groups are those most commonly abused. Torture is also reportedly widespread in prisons. The National Human Rights Commission registered 1,596 complaints of torture of prisoners in 2008-09. The number of deaths due to torture is not routinely reported.

Torture and impunity – Legal Perspective

Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”[2] .The Supreme Court has upheld this provision[3] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity. Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5].

Similarly with respect to national security legislation, the in famous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill[6]. The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India[7]. Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India[8], the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement. Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act[9].  Law enforcement personnel enjoy virtual immunity from prosecution for torture and other human rights abuses, and prosecutions remain sporadic and rare.

In “disturbed areas”, such as Jammu and Kashmir and the north-eastern states where the Armed Forces Special Powers Act is in effect, Armed Forces personnel enjoy additional immunity protection and there is virtually no accountability for violations.  

The Prevention of Torture Bill, 2010

The Prevention of Torture Bill, 2010 is also a very important step in this regard. The Prevention of Torture Bill in India, 2010 is meant to bring India closer in line with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention in 1997 but has yet to ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue.  

   Highlights of the Bill 
  • The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
  • The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
  • Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.

The  Bill defines torture in a  limited sense. It states that if a public official  intentionally does an act to seek information or confession from a person by inflicting,

(i) grievous hurt to any person; or

(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.

Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture. The definition not only ignores other purposes of torture like punishment and intimidation but also  makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes  include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.

Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if  a public official  inflicts grievous hurt on a person to extract information he would not be liable  unless it is proved that he had animosity against a group or community to which the person belonged.

Defects of the Bill

Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.

Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.

The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.

Suggesstions for improvement  of the Bill

1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.

2. Compensation Schemes must be enumerated in the bill.

3. Proper review mechanisms for interrogation must be established.

4. Clauses like procurement of  prior governmental sanction and  limited time period to file complaints must be removed.

5 A prohibition on the expulsion, return or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment must be added.

6. Immediate legal aid must be provided to the arrested.

7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.

 Conclusion

 If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight.

The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards. Inviting suggestions for the Bill, the Select Committee said it would consider suggestions to incorporate provisions for monetary compensation of the victims of torture, payable by the torturers in addition to making the provisions regarding sanction of prosecution of the offending public servants purposive and meaningful.

Among other provisions, the definition of torture in the proposed Bill and the need to protect honest officials against frivolous prosecutions will also receive the committee’s attention.
The committee could also consider views on preventing tortured confessions to distort the course of justice.

References

  1. Press Release- Amnesty International of the USA, more information visit (www.amnestyusa.org)
  2. The Statesman – custodial death on the rise(14 april 2010).
  3. Deccan Herald – Experts differ on torture bill, by Deepak k Upreti, New Delhi, DHNS.
  4. Asia Centre of Human Rights: Prevent custodial Death in India(One World South Asia).
  5. PRS Legislative Research: Security/Law/Strategic affairs.
  6. Ethiopian Review, Amnesty International.
  7. The Prevention of Torture Bill (www.weeksupdate.com).
  8. The Torture Bill (www.indiaexpress.com).
  9. South India Cell for Human Right Education and Monitoring,(The Prevention of Torture Bill- an affront to civil liberties).

10.  Human Right Feature, Voice of Asia Pacific Human Right Network(www.hrdc.net/sahrdc)

11.  The Tribune Online Edition, Chandigarh, India(Prevention of Torture: Weak bill won’t do by Pushkar Raj (the writer is General Secretary of People’s Union for Civil Liberties, New Delhi).

End notes

  1. Torture, according to the United Nations Convention Against Torture.
  2. Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm
  3. See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44.
  4. CrPC, Section 45(1).
  5. CrPC, Section 132(1).
  6. See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: http://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html.
  7. Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
  8. Masooda Parveen v. Union of India and Ors, 2007 AIR 1840.
  9. Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a).