What is Plea Bargaining?

A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free
people and three things could destroy that confidence and do incalculable damage to society:
The first being that people come to believe that inefficiency and delay will drain even a just
judgment of its value[1]

The above statement, written by Warren E. Burger, in an address to the American Bar
Association point to the importance of timely justice in a free society. The biggest problem that
Indian justice system is facing is the huge backlog of cases. Noted jurist Nani Palkiwala rightly
said, “The law may or may not be an ass, but in India, it is certainly a snail”. More than three
crore cases are languishing in the Courts for various reasons. .One of the major reason behind
this abysmally low disposal of cases by Judiciary is the lack of number of judges in the
respective courts. Apart from huge backlog of cases, the conviction rate in our country is also
very low hence the credibility of judgment is doubted. Judicial process is additionally time
consuming, cumbersome and expensive.

All these problems call for an alternative. A way that would lead to speedy trial and efficient
sentencing. A proposed alternative to this would be bringing the opportunity of plea bargaining
into the Indian Criminal Justice System.

Plea Bargaining can be described as “pre-trial negotiations between the accused and the
prosecution during which the accused agrees to plead guilty in exchange for certain
concessions by the prosecution.”[2] They are also referred as plea agreement, plea deal or
copping a plea. The procedure for a plea bargain is simple – A bargain or deal is struck between
the accused and the prosecution whereby, the accused will agree to plead guilty to the charge
when enquired by the trial Judge and in return will get a lesser sentence or plead guilty to one or
more charge in return for the promise that the other charges will be dropped against him. The
trial Judge takes an active part in this process.

In the US, plea bargaining was introduced in the 19th Century and has proved to be very
successful. It has been an integral part of their justice system. Though Plea Bargaining has not
specifically been mentioned in their Constitution, its legality has been upheld in their judicial
pronouncements. Today, almost 90 to 95% of criminal cases in the US are disposed off by plea
bargaining rather than jury trial.
History Of Plea Bargaining In India

As far as India goes, the country has a long history of opposing the introduction of plea
bargaining. The practice of plea bargaining was considered unconstitutional, illegal and immoral
as far as criminal trials are concerned. The legality of this procedure and its usefulness was for
the first time realised in State of Gujrat v. Natwar Hachandji Thakor.

In Chandrika’s case[3], The Court held Plea Bargaining to be an immoral compromise in

criminal trials and was for a long time held to be against public policy in the criminal justice
system, although it may be allowed in a civil case. The Court held that the sentencing of a
person must be decided only on the merits of the case. The fact that the accused has pleaded
guilty should not be a reason to award him a lesser sentence. The Court said that accepting
plea bargains is against the interest of the victim and the society at large. It only serves to
satisfy the shallow requirements of the culprit who does not want to face the horror of an Indian
Jail, the prosecutor who does not want to make multiple trips to the Court filling revisionary
appeals and the overworked trial magistrate is more than happy to accepts these “sub rosa ante
room settlements” as he is burdened by a docket of cases.[4] It was widely recognized stated
that if the Courts wanted to be lenient with the accused they could grant a lighter sentence but
entering into a bargain for money was completely looked down upon.[5] In the case of Kachhia
Patel Shantilal v. State of Gujrat,[6] the Court strongly disapproved of plea bargaining and went
to the extent of stating that it would encourage corruption, collusion and pollute the front of
justice. Therefore, for a long time it was settled law that plea bargaining could not be used to
dispose of criminal cases, the Court has to decide the case on its merits and if the accused
pleads guilty the Court has to impose the appropriate sentence.

Procedure For Plea Bargaining

Plea Bargaining can happen in a number of ways:

The Law Commission of India advocated the introduction of plea bargaining in India (even
though the Supreme Court vehemently opposed it) in its 142nd, 154th and 177th reports.

The Criminal Law (Amendment) Act of 2005 introduced a chapter XXI A into the Criminal
Procedure Code, 1973. This came into effect on 5th July 2006. It allows plea bargaining to be
used in the following circumstances–
 1. Only for those offences that are punishable with imprisonment below 7 years.
2. If the accused has been previously convicted for a similar offence by any court, then
he/she will not be entitled to plea bargaining.
3. Plea Bargaining is not available to offences which might affect the socioeconomic
conditions of the country. For eg, for offences under the Dowry Prohibition Act, 1961,
Commission of Sati Prevention Act, 1987, Juvenile Justice (Care and protection of
Children) Act, 2000
4. It is also not available if the offence if committed against a woman or child below 14
years.
5. Plea Bargaining is not available for serious offences such as murder, rape

Plea Bargaining Can Happen In The Following Ways –

1. Withdrawal of one or more charges against an accused in return for a plea of guilty
2. Reduction of a charge from a more serious charge to a lesser charge in return of a plea
of guilty
3. Recommendations by prosecutor to sentencing judges for lesser sentence in lieu of plea
of guilty.

It may happen in many cases that the accused entering into plea bargaining may not do so
voluntarily. Therefore, to ensure that the plea bargaining has happened in a proper way and
justice has been ensured, the Court must adhere to the following minimum requirements,

1. The hearing must take place in Court

2. The Court must satisfy itself that the accused is voluntarily pleading guilty and there is
no existence of coercive bargaining to the prejudice of the accused
3. Any Court rejecting a plea bargaining application must be kept confidential to prevent
prejudice to the accused.

CONCLUSION

The concept of plea bargaining has been in dispute in India for a long time. The parties that
oppose and support it have strong reason for doing so, most of which are valid. Plea bargaining
being made a part of Criminal Justice System only in 2006 is still in its nascent stages and only
time will tell if it will conquer the objectives it set out to achieve.

[1] Warren E. Burger, “What’s Wrong With the Courts: The Chief Justice Speaks Out”, U.S.
News & World Report (vol. 69, No. 8, Aug. 24, 1970) 68, 71 (address to ABA meeting, Aug. 10,
1970).

[2] State of Gujrat v. Natwar Hachandji Thakor 2005 CrLJ 2957

[3] State of Uttar Pradesh v. Chandrika 2000 Cr. L.J. 384

[4] Murlidhar Meghraj Loya v. State of Maharashtra, [1976] 3 SCC 684

[5] Madanlal Ram Chandra Daga v. State of Maharashtra, [1968] 3 SCR 34

[6] [1980] 3 SCC 120

15 Serious Advantages and Disadvantages of Plea Bargaining

Plea bargaining is an agreement used in criminal cases to avoid a lengthy trial. Here, the
prosecutor and the defendant work together to agree with each other, instead of taking the
litigation to a jury. It often includes things like pleading to a lesser charge and pleading guilty in
exchange for a lighter sentence. It is highly common in the US, where many cases are settled
through plea bargains than by trials.

This type of legal agreement enables both parties to avoid a prolonged trial under court and
enables the defendant to avoid the risk of a guilty verdict at court, which can lead to a more
severe sentence. Plea bargaining has been carried out as an intentional agreement that leaves
the defendant and the prosecutor better off, in which the former have various procedural and
substantive rights. However, if the defendant pleads accountable, he is trading his rights to a
prosecutor in return for concessions that are highly respected than surrendered rights. Withal,
plea bargaining has become a hot topic in debates whether it is good for the society or not. To
get a good idea on this subject, let us take a look at its advantages and disadvantages.

List of Advantages of Plea Bargaining

1. It helps deal with case loads.
In plea bargaining, the state and the court are aided in dealing with case loads. Also, the
process decreases the prosecutors’ work load by letting them prepare for more serious cases
by leaving effortless and petty charges in order to settle through.

2. It makes trial scheduling uncongested.

For the judge, the key benefit of accepting a plea bargain agreement is that he can alleviate the
need to schedule and hold the trial on a docket that is already overcrowded. Judges are also
aware of overcrowding in jails, so they might be receptive to process out offenders who are
unlikely to do much jail time anyway. This means cases will be closed much quicker, which is
good for the society as the method de-clogs court systems for more serious cases.

3. It hastens the process of trials.

Plea bargains are a significant factor in restructuring offenders by letting them agree to the
blame for their trial and by letting them voluntarily submit before the law—without having
expensive and time-consuming trials.

4. It eliminates a case’s uncertainty.

From the criminal defense’s perspective, the most useful benefit of this type of agreement is its
ability to remove the uncertainty of a trial. It helps defendants with making sure they will not
receive more serious charges for the criminal acts filed against them.
5. It brings great possibility to find the accused guilty.
When it does happen that the prosecution is feeble or that the court wants proper witnesses or
evidence, and the outcome is likely acquittal, it is possible that the prosecuting party will still find
the accused guilty.

6. It prevents a case from getting worse.

When a charged individual takes a plea bargain, he will not have to go through trial. This means
that some crimes, which may have been committed, and any damning evidence are not going to
be discovered.

7. It does not allow maximum sentence.

One of the biggest reasons why many people opt for plea bargaining is the fact that they cannot
receive maximum sentences for their crimes.

8. It may allow for aiding larger cases.

In a plea bargaining agreement, prosecutors will often roll other conditions for the defendants to
testify against a co-defendant, which might help solve larger cases in a prosecution.

9. It lets the justice system breathe.

If all criminal cases should make it to a trial by jury, then our justice systems would not be able
to sustain themselves. Courts will probably be backed up by months or even years.

List of Disadvantages of Plea Bargaining

1. It allows presentation of the accused with unconscionable pressure.
In a plea bargaining agreement, the prosecution can present the accused with unconscionable
pressure. And even though the process is controlled, there is still a chance of it being coerced.

2. It can lead to poor case preparation and investigations.

Some judges and attorneys argue that plea bargaining has led to attorneys not taking the time
to properly prepare their cases and poor police investigations. They believe that, rather than
pursuing justice, the parties would rely on making a deal, where the details of what happened
and their legal consequences will become less important.

3. It might be biased to the prosecution party.

Plea bargaining might allow prosecutors to take full advantage of accepting criminal acts in the
weakest trials. The more beneficial will be a guilty claim for the prosecution is if the trial ends in
acquittal.

4. It might charge innocent people guilty.

Even if you are innocent, but agreed to a guilty plea, you still have to pay a fine or be
imprisoned for a crime you did not commit. Not only this, but you will also have a criminal record
that cannot be erased.

5. It is unconstitutional.
It is argued that plea bargaining is unconstitutional, as it takes away the defense’s constitutional
right to a trial by jury. If the defendant is pressured or coerced into such an agreement, then this
argument may have a considerable weight. But if the defendant, at all times in the criminal case,
 retains his right to a trial by jury without pressure to make an agreement, then the court finds
that this procedure remains constitutional.

6. It can make the justice system suffer.

Since both the defense and prosecution parties depend on their power to negotiate a deal,
instead of winning a trial, the justice system might suffer.

Conclusion
If both parties agree on a plea bargain, then the agreement shall be stated clearly on the court
record before a judge who will issue the sentence that is agreed upon. Plea bargaining can
have benefits for defendants and for the society, whose interests are represented by the
government prosecutor. However, it is always important that both the prosecution and defending
parties carefully weigh their options before reaching an agreement through a plea bargain.

A brief study of concepts of Victimology and Rights of Victims under Indian law

Introduction

During ancient times, victims had many rights and they used to play a crucial role in the criminal
justice system. This was true during the reign of Hindu kings as well as the Muslim Period. Even though
their system of criminal trial and punishment was harsh and in many cases absolutely barbaric (for
instance, trial by ordeals), the main aim was to impart justice to the victims.

However, with the emergence of the ‘adversarial system of justice’, the plight of the victims became
worse and they became forgotten people except for their minor role in the criminal justice system as a
prosecution witness. It was believed that the claim of the victim was sufficiently satisfied by the
conviction and sentencing of the offender. This assumption is neither fair nor just. Justice demands that
when society and the State are resorting to every possible measure of correction and rehabilitation of
offenders, equal concern must be shown for the victims by at least providing compensation to them for
their loss, agony, physical and mental torture.[1]

It thus became important to gain knowledge about victims of crime, the struggles faced by such
people in coping with the adverse effects of a criminal act, and how could the Justice System compensate
and rehabilitate such victims.

The study of victims or victimology is a relatively new field of academic research. Until few decades
ago it would have been difficult to have found any criminological agency (official, professional, voluntary
or other) or research group working in the field of victims of crime, or which considered crime victims as
having any central relevance to the subject apart from being a sad product of the activity under study, i.e.,
criminality.[2]

Victimology has from its inception adopted an interdisciplinary approach to its subject matter. The
purpose of the study of victimology is:

 to enhance our understanding regarding victims and impact of crime on them.

 To analyse the magnitude of the victim’s problem
 To explain causes of victimization, and
 To develop a system of measures to reduce victimization.[3]

Victimology: Meaning, Nature and Scope

 Meaning:

Victimology may be defined as the scientific study of victimization, including the relationships
between victims and offenders, the interactions between the victims and the criminal justice system; that
is, the police and courts, and correctional officials. It also includes connections between victims and other
social groups and institutions, such as the media, businesses and social movements.[4]

In a narrow sense, victimology is empirical, factual study of victims of crime and as such is closely
related to criminology and thus maybe regarded as a part of the general problem of crime.

In broader sense, victimology is the entire body of knowledge regarding victims, victimization and
the efforts of society to perverse the rights of the victim. Hence, it is composed of knowledge drawn from
such fields as criminology, law, medicine, psychology, social work, politics, education and public
administration.[5]

The term ‘victim’ in general parlance refers to all those who experience injury, loss or hardship due to
any cause and one of such causes maybe crime. Therefore, victimology may be defined as a study of
people who experience injury or hardship due to any cause. It involves study of victim characteristics and
maybe called ‘victim profiling’.[6]

 Some Definitions:

Schultz (1970)-

“Victimology is the study of degree of and type of participation of the victim in the genesis or
development of the offences and an evaluation of what is just and proper for the victim’s welfare.”

Drapkin and Viano (1974)-

“Victimology is the branch of criminology which primarily studies the victims of crime and everything
that is connected with such a victim.”[7]

Victimology has thus emerged as a branch of criminology dealing exclusively dealing exclusively
with the victims of crime who need to be treated with compassion and rendered compensation and
assistance under the criminal justice system.[8]

 Nature:
 Whether victimology is part of criminology?

There is a constant strife on this topic. According to Kirchhoff, “there is a criminology that calls itself
victimology when analyzing problems from a victim’s perspective.” But victimology is not
criminological victimology. Historically, however, victimology bloomed in criminology but
victimologists started asking different questions and they developed different strata of interests and
explanations. Though victimology has close connection to the concept of crime, the focus of victimology
 is the victim and not the whole social structure and role of crime and criminal law in it. Hence,
victimology is now evolved into an independent subject matter of study.[9]

 The Science of victimology

In the first symposium of Victimology held in Jerusalem it was stated that, “Victimology is the
scientific study of victimization, including the relationships between victims and offenders, the
interactions between victims and the criminal justice system- that is, the police and courts and the
correctional officials, and the connection between victims and other societal groups and institutions, such
as the media, businesses and social movements.[10]

Victimology as a science cannot be isolated from reality, even difficult realities. Science needs to go
beyond the purely observable ‘fact’ of victimization. Therefore, victimology as a science requires an
analysis and interpretation of victimization.

 Whether victimology is science or service?

The Vienna Declaration on Crime and Justice in 2000 declared that “We establish 2000 as a target
date for states to review their relevant practices, to develop further victim support services and awareness
campaigns on the rights of victims and to consider establishment of funds for the victims, in addition to
developing and implementing witness protection policies.”[11] Thus, victimology is also a service.

 Whether victimology is blaming the victim?

One aspect of victimology is blaming the victim for his own plight. However, most victimologists
reject theories of “victim blaming”. They simply explore the process of victimization with the goal of
understanding it and preventing it.

 Scope of Victimology

The victim is the forgotten party in the criminal justice system. It would be factually wrong if this
type of criticism would still be maintained today.[12] Victimology has come of age. Victims, their needs
and their rights, are being consistently acknowledged in words, if not in deeds.

1. Victimology is study of crime from victim’s point of view:

Victimology is study of crime from victim’s point of view. After the Second World War the plight of
victims was seriously considered by many criminologists in Europe. B. Mendelsohn developed this
branch of criminology as there was growing concern for the plight of victims of all crime. The First
International Conference on Victimology under the auspices United Nations was held in Jerusalem in the
year 1973 followed by another conference in Boston in 1976. There are many seminars and studies on
victimology at the regional, national and international level highlighting the problems of victims, legal
position of victims in criminal proceedings, compensation for victims.[13]

2. Victimology analysis the victim-offender relations and the interactions between victims and the
criminal justice system:

The process of being a victim involves two dimensions, individual and societal. It is therefore
incumbent upon victimology to develop theoretical models that cut across levels of analysis and which
 incorporate the dynamics of normal social intercourse as a basis of understanding how victims cope and
in addressing victim needs. There are three interfacing roles:

 Victim
 Persecutor
 Rescuer

The victim requires a ‘persecutor’ the one who victimizes and the process is complete when there is a
‘rescuer’, one who saves the persecutor.

3. Victim of abuse of power:

Term ‘victim of abuse of power’ is such a broad and ambiguous concept that sometimes it is argued
that this concept includes, for example, abuse of power between States or between races, and even
economic exploitation of employees and consumers by large enterprises. An important object of the
criminal justice system is to ensure justice to the victims, yet he/she is not given any substantial right, not
even to participate in the criminal proceedings. To achieve this goal, training and education in
victimology by trained professionals of criminal justice will help.[14]

‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ (UN,
1985)also defines the victims of abuse of power like the victims of crime. The suffering through
impairment of fundamental rights is included. The Declaration makes it clear that far more victimization
occurs as a result of the actions of governments and business institutions than ever arises from what are
defined as crimes under national laws.[15]

4. Victimology is study of restitution and compensation of the damages caused to the victim by the
perpetrator of crime:

Modern state is a welfare state in which the welfare of its citizens is of paramount importance. With
new developments in the field of victimology, the victims of crime have assumed a significant role. Now,
efforts are made to provide restitution to the victims. Compensation is given with the object of making
good the loss sustained by the victims or the legal representatives of the deceased.

5. Victimology is the study of Victimological clinic:

If we look at clinical victimological work, the treatment of victims, we have not only to look at
hospitals; we have to look at whole array of victim assistance organizations who are actively working to
alleviate the burden of victimization.

Thus, it is important to understand:

 Victim’s crime-related mental health problems

 What aspects of the criminal justice system process are stressful to victims?
 What can be done to help victims with their crime-related health problems and stress regarding the
criminal justice system?[16]

Concept of Victim

The UN Convention on Justice and Support for Victims of Crime and Abuse of Power defines
the victims in Article 1 as
 “(1) ‘Victims’ means natural persons who, individually or collectively, have suffered harm, including
physical or mental injury, emotional suffering or economic loss or violations of fundamental rights in
relation to victimizations identified under ‘scope’.

(2) A person is a victim regardless of whether the crime is reported to the police, regardless of whether
the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and victim. The term ‘victim’ also includes, where appropriate, the
immediate family or dependents of the direct victims and persons who have suffered in intervening to
assist victims in distress or to prevent victimization.”[17]

In Section 2 (wa) of the Code of Criminal Procedure, 1973, “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.”[18]

Classification of Victim:

(i) Primary Victim–

Any person, group or entity who has suffered injury, harm or loss due to illegal activity of someone is
called a primary victim. The harm may be physical, psychological or financial.

(ii) Secondary Victim–

There may also be secondary victim who suffer injury or harm as a result of injury or harm to the
primary victim.

(iii) Tertiary Victim–

Tertiary victim are those who experience harm or injury due to the criminal act of the offender. He is
another person besides the immediate victim, who is victimized as a result of the perpetrator’s action.

Example, in case of rape, the woman raped is the primary victim, while a child, if born out of such
rape, is the secondary victim because he/she suffers from lack of paternity. But the general shame and
disgrace which the entire family of the raped victim has to suffer at the hands of the society and the
system makes them tertiary victims. However, it cannot be assumed that secondary and tertiary victims
are less traumatized than the primary victims.[19]

Abdel Fattah’s mode of classification of victims:

The noted Canadian Criminologist, Abdel Fattah has classified victims of crime into five categories as
follows:

 Non-participating victims are those who are completely innocent. For example, foeticide, a crime
against being born, which is punishable under Sections 315/ 316 of the Indian Penal Code, 1860.
 Latent victims are those who have fallen prey to a crime but do not know that they are in any way
affected by it, example, blackmailing
 Provocative victims example, victims of dowry death who are provoked by the offender to commit
suicide
 Participating victims example, prostitution, cyber crimes on internet
 Retaliating victims. Certain crimes by their very nature are such that the victim does not readily yield
to the offence and retaliates to the extent possible to see that the offence is not committed by the
 perpetrator, but eventually fails in his effort to avoid the occurrence of crime. Example, victims of
robbery, etc.[20]

Impact of Victimization:

The impact of crime on victim may be physical, financial or psychological.

 Physical Impact:

The victim is likely to experience a number of physical reactions to crime to which he has fallen a
victim. The victim may also suffer from mental trauma. Another significant impact on the victim is
physical injury which may be apparent and immediate or may be realized by the victim at a later stage.

 Financial Impact:

The financial impact of crime on the victim may be in any one or more of the following forms:

1. Costs and expenses incurred in medical treatment for physical injuries

2. Damages to property or articles in possession
3. Litigation cost incurred in fighting against the crime and criminal, i.e. the perpetrator
4. Financial suffering due to loss of earnings
5. Funeral or burial expenses, if any.

 Psychological Impact:

Where the victim is confronted with the crime perpetrator immediate reaction will be anger or fear
depending on his strength and capacity to face the misfortune. Shock and mental trauma follow
immediately after the crime has been committed, for example, the Post-traumatic stress disorder (PTSD).

The psychological impact of victimization is clearly reflected in the behavioural responses of the
crime victim, which may include increased alcoholism, excessive use of drugs, avoidance of social
relationships and social withdrawal, etc. This is very much true in case of rape victims when people
blame her for having walked alone or dressed provocatively.

There may, however, be some victims who are able to shed aside their distress and shock and return to
normal life.[21]

Emerging Trends in Victimology

International Position:

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN
General Assembly, 1985), considered the ‘magna carta’ for victims, provides the basic framework of
principles which in the last two decades have been vociferously debated and converted as victims’ rights
by some of the developed countries. The international standards expected of the countries in the treatment
of victims have been elaborately detailed in the UN Handbook on Justice for Victims.[22]

The newly generated interest in crime victims has led to certain trends and policies, some of them are
as follows:
 It is being increasing realized that the victim must be treated with dignity and respect by the criminal
law agencies, viz. The police and the courts. Often secondary victimization results because of the
indifferent and callous attitude not only of the criminal law agencies but also of the people in vicinity,
hospitals and mass media as well. In the USA and some European countries, statutory guidelines in the
form of “Victims Bill of Rights” are being provided.
 A victim has hardly any role in the criminal justice system though there is an increasing awareness
now that the victim must be given rightful participation in the trial. For instance, in USA under the
Witness Protection Act, 1982, victims are to be consulted in the plea bargaining process. In Germany,
compensation is now payable to a victim if the charges are dropped against an offender.
 Innovative use is being made of certain sentencing techniques like probation to provide relief to the
victims. An offender, in appropriate circumstances, may be released on probation, if willing to
compensate the victim. For instance, in England, under the Criminal Justice Act, 1982, as amended in
1988, the court must specify the reasons for not making an order for compensation.
 In certain kinds of situations where the guilt of the offender is clear, efforts are made to bring the
victim and wrong-doer together in order to lead them to agreement or adjustment for the restoration of
losses to the victim, there being a greater potential in this kind of approach rather than the mere
punishment of the offender.[23]

Position in India:

The police play a pivotal role in victim assistance as it is the first agency victims come into contact
with after being victimized by a crime. The attitude of the victims towards the entire criminal justice
system will be based on the kind of treatment the victims get from the police whom they first encounter.
Unfortunately, in India the police are still not oriented to meet the expectations of the victims as per the
UN Handbook on Justice for Victims. The police at the field level who are in actual contact with the
victims in day–to-day crime situations are blissfully ignorant of the international developments in the
field of Victimology and the better treatment victims deserve from the police.

The UN Handbook says that “victims have a valid interest in the prosecution of the case and should
be involved at all stages of the proceedings”. In practice, the entire court proceedings protect the rights
and interest of the accused, neglecting the victims’ interest. Excepting that the victims are summoned to
tender evidence in courts, the various services and assistance to be rendered by the prosecution to victims
are not practiced in the criminal courts in India. With regard to the role of the judiciary in justice for
victims, though judges are by and large sympathetic towards victims, on many of the requirements, such
as separate waiting halls, information about the criminal proceedings, special services and support,
ordering of restitution to victims, victim participation, victim protection etc. we have a long way to go to
realize victim justice in India.

However, in the last decade, there is greater awareness on the part of the higher judiciary of the need for a
better treatment of crime victims by the criminal justice agencies at different stages in India and this is
reflected in the recommendations of the different committees and commissions calling for reforms in the
criminal justice system.[24]

Affirmative Action by the Higher Judiciary

 Restitution to Victims– Despite the absence of any special legislation to render justice to victims in
India, the Supreme Court has taken a proactive role and resorted to affirmative action to protect the
rights of victims of crime and abuse of power. The court has adopted the concept of restorative justice
and awarded compensation or restitution or enhanced the amount of compensation to victims,
beginning from the 1980s.[25]
 Justice for Rape Victims – Guidelines for Victim Assistance in Bodhisattwa Gautam v. Subhra
Chakraborty,[26] 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. The
court, having satisfied the prima facie culpability of the accused, ordered him to pay a sum of Rs.1000
every month to the victim as interim compensation along with arrears of compensation from the date of
the complaint. It is a landmark case in which the Supreme Court issued a set of guidelines to help
indigenous rape victims who cannot afford legal, medical and psychological services, in accordance
with the Principles of UN Declaration of Justice for Victims of Crime and Abuse of Power, 1985:

1. The complainants of sexual assault cases should be provided with a victim’s Advocate who has to
explain to the victim the proceedings, and to assist her in the police station and in Court and to guide
her as to how to avail of psychological counselling or medical assistance from other agencies;
2. Legal assistance at the police station while she is being questioned;
3. The police should be under a duty to inform the victim of her right to representation before any
questions are asked of her and the police report should state that the victim was so informed;
4. A list of Advocates willing to act in these cases should be kept at the police station for victims who
need a lawyer;
5. The Advocate shall be appointed by the Court, in order to ensure that victims are questioned without
undue delay;
6. In all rape trials, anonymity of the victims must be maintained;
7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India, to set up a Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatized to continue in employment;
8. Compensation for victims shall be awarded by the Court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will
take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the
expenses of childbirth if this occurred as a result of the rape.

 State Compensation for Victims of Abuse of Power– As early as 1983, the Supreme Court
recognized the need for state compensation in cases of abuse of power by the State machinery. In the
landmark case of Rudul Shah v. State of Bihar,[27] the Supreme Court ordered the Government of
Bihar to pay to Rudul Shah a further sum of Rs.30,000 as compensation, which according to the court
was of a “palliative nature”, in addition to a sum of Rs.5,000, in a case of illegal incarceration of the
victim for long years. Similarly in Saheli, a Women’s Resources Centre through Mrs . Nalini Bhanot v.
Commissioner of Police, Delhi Police,[28] the Court awarded a sum of Rs.75, 000 as state
compensation to the victim’s mother, holding that the victim died due to beating by the police.

 Victims right to challenge bail– In Puran v. Rambilas[29] and P. Rathinam v. State[30], the Apex
Court interpreted Section 439 (2) Cr.P.C. in a way that the victim has a say in the grant of bail to an
accused. The Court recognized the right of the complainant or any ‘aggrieved party’ to move the High
Court or the Court of Sessions for cancellation of a bail granted to the accused.

Recommendations of Commissions and Committees on Justice to Victims in India

During the last decade, there has been significant change in the thinking of the judiciary about the
human rights of victims. The concern of the courts and the judicial commissions and committees about
the need to have a law on victim compensation or a comprehensive law on victim justice has been
reflected in their judgments and reports.

 The Law Commission of India, 1996

 The Law Commission, in its report in 1996, stated that, the State should accept the principle of
providing assistance to victims out of its own funds,

1. in cases of acquittals; or
2. where the offender is not traceable, but the victim is identified; and
3. also in cases when the offence is proved

 The Justice Malimath Committee on Reforms of Criminal Justice System

The Justice V. S. Malimath Committee has made many recommendations of far-reaching significance
to improve the position of victims of crime, including the victim’s right to participate in cases and to
adequate compensation. Some of the significant recommendations include:

1. The victim, and if he is dead, his legal representatives shall have the right to be impleaded as a party in
every criminal proceeding where the charge is punishable with 7 years imprisonment or more.
2. The victim has a right to be represented by an advocate of his choice, provided that if the victim is not
in a position to afford a lawyer, the State would provide him with so.
3. The victim’s right to participation in a criminal trial shall, inter alia, include:
4. To produce evidence, oral or documentary, with leave of the court and/or to seek directions for
production of such evidence
5. To ask questions to the witnesses or to suggest to the court questions which may be put to the
witnesses
6. To know the status of investigation and to move the court to issue directions for further investigation
on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in
search of truth
7. To be heard in respect of the grant or cancellation of bail
8. To be heard whenever prosecution seeks to withdraw
9. To advance arguments after the prosecutor has submitted arguments
10. To participate in negotiations leading to settlement of compoundable offences
11. The victim shall have a right to prefer an appeal against any adverse order passed by the court
acquitting the accused, convicting him for a lesser offence, imposing inadequate sentence or granting
inadequate compensation
12. Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or
not, convicted or acquitted. This should be organized in a separate legislation by the Parliament.
13. The victim compensation law will provide for the creation of a Victim Compensation Fund to be
administered possibly by the Legal Services Authority.[31]

Amendments to the Code of Criminal Procedure in 2008:

The Code of Criminal Procedure was amended to bring in various victim-friendly provisions, such as:

 Definition of Victim

The definition of Victim was added in Section 2 (wa), which states that, “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.”

 Victim’s right to engage his advocate

 Section 24 (8) gives the victim the right to engage his advocate, “provided that the Court may permit
the victim to engage an advocate of his choice to assist the prosecution.”

 Recording of statement of rape victim under Section 157

In Section 157, a proviso has been inserted after sub-section (1), “Provided further that in relation to
an offence of rape, the recording of statement of victim shall be conducted at the residence of the victim
or in the place of her choice and as far as practicable by a woman police officer in the presence of her
parents or guardians or near relatives or social worker of the locality.” Section 309 (1) after amendment
states that the inquiry and trial should be completed within 2 months.

Section 327, has been amended to the following effect, “Provided further that in camera trial shall be
conducted as far as practicable by a woman judge or magistrate.” Also that publication of trial
proceedings relating to rape cases shall be prohibited, however, the ban on printing or publication can be
lifted, subject to maintaining confidentiality of name and address of the party.

 Investigation within three months in case of Child Rape

Section 173 (1A) provides that, “The investigation in relation to rape of a child may be completed
within three months from the date on which the information was recorded by the officer in charge of the
police station.”[32]

 Compensation to victims

Section 357 (1) and Section 357 (3) Cr.P.C. vest power in the trial court to award compensation to
victims of crime whereas similar power is vested in the Appellate and Revisional Court under sub-section
(4). The Court may appropriate whole or any portion of the fine recorded from the offender to be paid as
compensation to the victim of crime.

This compensation may be for costs, damage or injury suffered or loss caused due to death or
monetary loss incurred due to theft or destruction of property, etc.

Sub-section (3) empowers the court, in its discretion, to order the accused to pay compensation to
victim of his crime, even though no fine has been imposed on him.[33]

Section 357-A has been inserted after the 2008 Amendment, it provides that:

“Section 357-A Victim Compensation Scheme– (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 dependants who have suffered loss or injury as a result of the crime and who require
rehabilitation.

(2) Whenever recommendation is made by the Court for compensation, the District Legal Services
Authority or the State Legal Services Authority, as the case may be, shall decide the quantum of
compensation to be awarded.

(3) If the trial court, at the conclusion of 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 victims or his dependants may make an application to the State or the District Legal Services
Authority for the award of compensation.

(5) On receipt of such recommendation or on the receipt of application under sub-section (4), the State or
the District Legal Services Authority shall, after due enquiry, award adequate compensation after
completing the enquiry within 2 months.

(6) The said authority, 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 police officer not below the rank of
officer in charge of the police station or a magistrate of the area concerned, or any other interim relief as
the authority may deem fit.”

The scheme contained in the section is indeed a progressive measure to ameliorate the woes of crime
victims and providing them restorative justice.

The Code also provides compensatory relief to victims of unlawful arrest or detention by police
without sufficient cause.[34]

Where an accused is convicted of a non-cognizable offence on a complaint, the court may order him
to pay costs to the complainant or in default, suffer simple imprisonment for a period not exceeding thirty
days.[35]

 Victim’s right to appeal

Proviso to Section 372 gives right of a private appeal to a victim, thus providing the victim with
a locus standi, however, the right to appeal against inadequacy of punishment is available only on two
grounds:

 If accused has been convicted for a lesser offence, example, he was convicted for robbery instead of
dacoity
 If inadequate compensation is given.
 The victim, however, cannot appeal on quantum of punishment.

The Criminal Law (Amendment) Act, 2013

The Criminal Law (Amendment) Act, 2013 is a result of the Justice Verma Committee Report
which dealt in the rape laws and their amendment. This Committee was constituted in the aftermath of the
brutal Delhi Gang rape case of 16th December 2012.

The Committee recommended that the gradation of sexual offences should be retained in the Indian
Penal Code, 1860 (IPC).

The Committee was of the view that rape and sexual assault are not merely crimes of passion but an
expression of power. Rape should be retained as a separate offence and it should not be limited to
penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be
included in the definition of rape.

The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual
intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation
to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the
 exception to marital rape should be removed. Marriage should not be considered as an irrevocable
consent to sexual acts. Therefore, with regard to an inquiry about whether the complainant consented to
the sexual activity, the relationship between the victim and the accused should not be
relevant.[36] However, non-consensual sexual act within marriage is still not made punishable, even
though the amount of punishment has been increased.

The Indian Penal Code (IPC) was amended to provide death penalty in rape cases that cause death of
the victim or leave her in a vegetative state.[37] The Act also introduced several other new offences such
as causing grievous injury through acid attacks, sexual harassment, use of criminal force on a woman with
intent to disrobe, voyeurism and stalking.

In the case of State (Govt. of NCT of Delhi) v. Ram Singh (deceased), Mukesh, Akshay Kumar Singh,
Vinay Sharma and Pawan Kumar,[38] Shri Yogesh Khanna, Additional Sessions Judge, New Delhi,
awarded death penalty to the accused person as the facts showed a brutality of such a nature that it fell
into the category of rarest of rare cases, the entire intestine of the prosecutrix was perforated, splayed and
cut open due to repeated insertions of rods and hands. The convicts, in the most barbaric manner, pulled
out her internal organs with their bare hands as well as by the rods and caused her irreparable injuries,
thus exhibiting extreme mental perversion not worthy of human condonation. They brutally gang raped
the prosecutrix, inflicted inhuman torture and threw the defenceless victims out of the moving bus in
naked condition, profusely bleeding in a cold winter night.

The Court further held that, “These are the times when gruesome crimes against women have become
rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the
perpetrators of such crimes. The increasing trend of crimes against women can be arrested only once the
society realize that there will be no tolerance from any form of deviance against women and more so in
extreme cases of brutality such as the present one and hence the criminal justice system must instil
confidence in the minds of people especially the women. The crime of such a nature against a helpless
woman, per se, requires exemplary punishment.”[39]

Another amendment is the addition of Section 326 A regarding the acid attacks, the proviso clearly
states that the fine which is imposed on the convict shall be such that it is just and reasonable to meet the
medical expenses of the treatment of the victim of acid-attack. Such fine shall be imposed directly to the
victim.

In the Code of Criminal Procedure Section 357 B and Section 357 C have been added.

Section 357B Cr.P.C. provides that, “The compensation provided under Section 357 A shall be in
addition to the payment of fine to the victim under Section 326A or Section 376D of the Indian Penal
Code.”

Section 357C Cr.P.C. provides that all hospitals, whether public or private, run by Central Government or
State Government, local bodies or any other person, shall immediately provide the first-aid or medical
treatment, free of cost, to the victim of any offence under Section 326 A, Section 376, Section 376 A to E
of the Indian Penal Code, and shall immediately inform the police of such incident.

Other enactments regarding benefits to victims

 The Protection of Women from Domestic Violence Act, 2005

This Act is a major achievement of the women’s movement towards protection of domestic violence
victims after a struggle of 16 years. This Act aims to provide for more effective protection of the rights of
 women guaranteed under the Constitution. The definition of domestic violence is wide enough to include
physical, sexual, verbal and emotional abuse. The unique feature of the Act is that it prohibits denying the
victim “continued access to resources or facilities which the aggrieved person (victim) is entitled to use or
enjoy by virtue of the domestic relationship, including access to the shared household”. A police officer,
protection officer or a magistrate who has received a complaint of domestic violence has a mandatory
duty to inform the victim of her right to obtain a protection order or an order of monetary relief and other
rights.

 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007

This is also an innovative law aiming to protect elders and prevent elder abuse and victimization,
which is a growing problem in many countries, including India. Under this law, an obligation is created of
the children or adult legal heirs to maintain their parents, or senior citizens above the age of 60 years who
are unable to maintain themselves out of their own earnings, to enable them to lead a normal life. If
children or legal heirs neglect or refuse to maintain the senior citizen, the Tribunal can pass an order
asking the children or legal heirs to make a monthly allowance for their maintenance.

 Protection of Children from Sexual Offences Act, 2012

This Act has been enacted with a view to prevent of child abuse and victimization. It makes any kind
of sexual gratification from a child punishable with strict punishments.

 Prevention of Caste-Based Victimization and Protection for Victims

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an act to
prevent atrocities against the members of the Scheduled Castes and Scheduled Tribes. Under this Act,
compensation to victims is mandatory, besides several other reliefs depending on the type of atrocity. The
victims are entitled to receive monetary compensation ranging from Rs. 25,000 to 200,000 depending on
the gravity of the offence.[40]

 Motor Vehicles Act, 1988

The victims of vehicular accidents or their legal representatives are entitled to compensation from the
offender under Section 5 of the Act.

Victimology and Emerging Trends of Compensation

“The history of crime and punishment in the whole civilized world reveals a steadily increasing concern
with the treatment of criminal and a virtual blackout of attention to the situations of the victim” [i]

HISTORIC EVOLTUION IN VICTIMOLOGY

In ancient period, criminal law was victim oriented and they enjoyed the dominant position in entire
criminal legal system with certain short comings. Even certain trees and animals were considered sacred
and cutting and killing them were considered heinous sin and criminal had to pay heavy compensation
and undergo rigorous punishment. That’s why Stephen Schafer calls it ‘Golden Age’ of victims.

Subsequently in 16th and 17th century, with the advent of the industrial revolution, renaissance and French
revolution, a sea change was noticed in every walk of life’s. This gave birth to ‘Adversarial System’. This
was the period, in Stephen Scafer’s terminology, of decline in victim’s role in ‘criminal justice system’.
Now the criminal law became offender oriented and the suffering of victim, often immeasurable, were
entirely overlooked in misplaced sympathy for the criminal. The victim became the forgotten men of our
criminal justice system.[ii]

It was in 20th century, after the close of the Second World War some criminologist took upon themselves,
the task of understanding the importance of studying the criminal-victim relationship, in order to obtain a
better understanding of crime, its origin and implication. Because of their efforts, U.N passed a charter for
victim’s right and on similar line the European convention on the compensation of victims of violent
crime’. Therefore many states of Europe and America enacted their legislations for victims compensation
in criminal justice system. Therefore, victim’s movement has been regaining momentum in whole world
but with different shapes and been regaining momentum in whole world but with different shapes and
nature.[iii]

VICTIMOLOGY AS CONCEPT:

Definitions-

 ‘Victim’ means natural person who, individually or collectively, have suffered harm including
physical or mental injury, emotional suffering or economic loss or violations of fundamental
rights in relation to victimizations identified under scope.
 A person is a victim regardless of whether the crime is reported to the police, regardless of
whether a perpetrator is identified, apprehended, prosecuted or convicted, and regardless of the
familial relationship between perpetrator and the victim. The term ‘victim’ also includes, where
appropriate the immediate family or dependants of the direst victims and persons who have
suffered in intervening to assist victims in distress or to prevent victimization.[iv]

Definition of victim under Victims Rights Act means

 A person against whom an offence is committed by another person;

 A person who, through, or by means of an offence committed by another person, suffers physical
injury, or loss of, or damage to, property;
 A parent or legal guardian of a child, or of a young person; and
 A member of the immediate family of a person who, as a result of an offence committed by
another person, dies or is capable, unless that member is charged with the commission of, or
convicted or found guilty of, or pleads guilty to, the offence concerned.[v]

Victimology is a relatively young branch of academic research. Its objective is to gain knowledge about
victims of crime and abuse of power. Victimology has from its inception adopted an interdisciplinary
approach to its subject matter. Contributions are being made by experts from fields as diverse as academic
lawyers, criminologists, clinical and social psychologists, psychiatrists and political scientists. There are
specialized international journals for victimology; there is a world society of victimology and there are a
number of regional and national societies of victimology. The purpose of the study of victimology is to
enhance our understanding regarding victims and impact of crime on them. The aims of victimology
relate to the meaning and issues of victimology. Therefore, the study of victimization is the study of crime
giving importance to the role and responsibility of the victim and his offender.

1. To analyse the magnitude of the victims problems;

2. To explain causes of victimization; and
3. To develop a system of measures to reduce victimization.
Today, the concept of victim includes any person who experiences the injury, loss, or hardship due to any
cause. Also the word victim is used rather indiscriminately; e.g. cancer victims, accident victims, victims
of injustice, crime victims and others. The thing that all these kinds of usages have in common is an
image of someone who suffered injury and harm by forces beyond his or her control. The rapidly
developing study of criminal- victim relationship has been called “victimology” and it is treated as an
integral part of the general crime problem. The word victimology was coined in 1947 by a French lawyer,
Benjamin Mendelsohan. Victimology is basically a study of crime from the point of view of the victim, of
the persons suffering injury or destruction by the action of another person or a group of persons.[vi]

According to Viano, there is a rather well-developed vocabulary in English connected with the idea of
victim:

Victimhood: the state of being victim.

Victimizable: capable of being victimized

Victimization: the action of victimizing, or fact of being victimized, in various senses.

Victimizer: one who victimizes another or others.[vii]

Victimology focuses on the victims’ relationship to the criminal. Hence, there can be two major sub-areas
of victimology.

1. The one relating to the scientific study of criminal behaviour and the nature of the relationships
which may be found to exist between the offender and the victim; and
2. The other relating directly to the administration of justice and the role of system of compensation
and restitution to the victim.

SCOPE OF VICTIMOLOGY

Shinder, 1982– “…it investigates the relationship between offender and the victim in crme causation. It
deals with the process of victiminzation, of becoming a victim, and in this context directs much of its
attention to the problem victim-offender, sequence, i.e. the question of whether or not victimization can
have crimogenic effects or can encourage crime”.

Hence, the definition above given makes it clear that victims are the predominant concern of the
victimology. They are central figures in victimology. The study of victims I relation to the legal system of
particular country is main subject matter of study of the victims.
Victimology has come of age. Victims, their needs and their rights, are being constantly acknowledged in
words if not in deed. The victim has become a political tool or weapon depending upon ones point of
view, but the concept and issue have, in a few short years moved from the domain of a hand full of
pioneers to the Council chambers of the United Nations. And the people we know have made the
difference.

1. Victimology is study of crime from victim’s point of views

2. Victimology analysis the victim-offender relations and the interactions between victims and the
criminal justice system.
3. Victim of abuse of power.
 4. Victimology is also study of restitution and compensation or reparation of the damages caused to
him by perpetrator of crime.

The victimology is study of victimological clinic.

CONTRIBUTIONS MADE BY THE UNITED NATIONS

The basic purpose of United Nations is to protect the human rights of people and to maintain the peace in
this world. Therefore, for the improvement of the humanity, United Nations has been playing a great role
in protecting the human rights of the victims of crime. From time to time it has been calling the
international conventions, declarations and other forms of international seminars. One of the most
important developments in the field of victimology in the last twenty years has been the formal approval
by the General Assembly of the United Nations on November 11, 1985 of the “UN Declaration of basic
Principles of Justice for Victims of Crime and Abuse of Power”. In the Declaration the broadest definition
of victim has been given in paragraphs 1&2. The victim is not the person who himself suffered harm
physical, emotional or economic loss but term “victim” also includes, where appropriate, the immediate
family or dependants of the direct victim and person who have suffered harm in intervening to assist
victims in distress or to prevent victimization. Following rights have been granted to victims:

 Access to justice and fair treatment

It is said that victims should be treated with compassion and dignity. They are entitled to justice and
prompt remedy provided under national legislation. It is important o provide the information to the
victims regarding his role, scope, timing and progress of proceedings and disposition of their cases; while
allowing the views and concerns of victims to be presented at appropriate stages when their personal
interests are affected without prejudice to accused. It is also important to provide proper assistance to
victims throughout the legal process and to take measures to minimize inconvenience to victims and more
importantly protect their privacy and ensure their safety. Of course, avoiding unnecessary delay in the
disposition of cases and execution of orders or decrees granting awards to victim

 Restitution

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. 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. 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 expences of relocation, whenever such harm results in the
dislocation of a community.

 Compensation

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

1. Victims who have sustained significant bodily injury or impairment of physical or mental health
as a result of serious crimes;
 2. The family, in particular dependants of persons who have died or become physically or mentally
incapacitated as a result of such victimization.
3. 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 those cases where the state of which the victim is a national is not in a position to
compensate the victim for the harm.

COMPENSATION UNDER INDIAN CONSTITUTION

Recently the Supreme Court of India has given a new dimension to the Article 21 by interpreting it
dynamically so as to include compensation to the victims under its scope. Indian constitution has several
provisions which endorse the principle of victim compensation. In one case the Supreme Court,
considering the plight of many rape victims in the country, wanted the National Commission for Women
to draw up a scheme for compulsory payment to victims of sexual violence. Despite the sympathy
expressed in several circles, victim compensation law continues to be in an unsatisfactory acknowledge in
criminal justice with the result there is very little interest shown by them in successful prosecution of
criminal cases.[viii]

Besides the many judgements of various High Courts and the Supreme Court of India, the Law
Commission of India has also submitted the crucial Reports in which it has recommended to provide the
compensation to the victims of crime. Among many reports, 142nd, 144th, 146th, 152nd, 154th and 156thare
very important reports which have made very important contributions towards compensation of victims.
Following the various reports and judicial decisions, the Government of India has made amendments in
the Code of Criminal Procedure and s.157A has been inserted in 2009.

Fifth Law Commission, in 42nd report[ix] dealt with compensation to victim of crime in India. While
dealing, it referred to and highlighted the “three patterns” of compensating victims of crime as reflected in
Code of Criminal Procedure of France, Germany, and (Former) Russia. The three patterns are:

 Compensation by the state;

 Compensation by the offender either by asking him to pay it from the fine imposed or a specified
amount; and
 3) Duty to repair the damage done by the offender.

CONCLUSION

Hence, as we know that this issues of ‘victimology’ is gaining importance, we need to give our due share
of attention and help the study of victimology develop and be efficiently functionally. Though many rules
and provision have been made by many governments still there is not much improvement in the plight of
the victims. Victims that go through mental and physical trauma suffer throughout their lives, as there
place is in the society changes. It is the states duty to counter balance the sufferings of various victims all
over the country. If the status of victims is alleviated, it would be the first step in the reduction in crime
and hence will lead to a certain amount of control over the crimes. So to alleviate the status of the victims
and develop the subject of victimology, the following measures should be adopted:

1. Proper implementation on various established laws;

2. Since majority of crimes are against women, women empowerment in the fields if crime is
necessary; and
3. A separate law should be made for the victims such that speedy justice and relief is assured.
 Amendments to the Juvenile Justice Act

In this blogpost, Komal Rastogi, student, Nirma University, Ahmedabad, writes about the
amendments in the Juvenile Justice Act, 2000, the new features which have been introduced in
Juvenile Justice Act, 2015, the comparison between different countries and India.

Amendments to the Juvenile Justice Act, 2015

The Delhi gang rape case have triggered many major changes in the criminal system of India.
Rajya Sabha has passed the Juvenile Justice Bill 2014 after the post of many people in the
case of Nirbhaya where the juvenile convict was released. The government of India replaced
the Juvenile Justice Act 2000 in 15th January 2016. This act helps the children who are in
conflict with laws and protect them from the harsher punishments of the district and high court.

This is an Act to consolidate and amend the law relating to children in need of care and
protection, by catering to their basic needs through development, treatment, and social re-
integration, by adopting a child-friendly approaches. One of the main aim to pass the
amendment was that the minor of age 16-18 years were committing heinous crimes such as
rape, etc. The structure of the Juvenile Justice Act 2015 are as follows.

Key features:

 The Juvenile Justice Act divided the crimes into three different categories i.e. the petty
offence, serious offences and heinous offences.
 Juvenile Justice Board to be constituted in every district to deal with children in conflict
with the law. The board comprises of a metropolitan judge and judicial magistrate with
two social workers along with women.
 Excluding the offence of heinous crimes, for all other cases, the juvenile will get the
institutional care for a maximum of three years by the Juvenile Justice Board.
 “A Children’s Court is a Sessions Court notified under the Commissions for Protection of
Child Rights Act, 2005. For this Bill, once a juvenile is referred by a Juvenile Justice
Board to a Children’s Court it will determine whether to try him as an adult or else
recommend counseling, stay at observation home, etc.”[1]

The other major changes in the Juvenile Justice Act 2015 are:

Firstly, the minor accused of age more than sixteen should present before the Juvenile Justice
Board and then the Board will decide whether to send the Juvenile for trial as an adult or to
send an accused to the rehabilitation center. This method is judged on the mental and physical
ability of the child.

Secondly, the act of juvenile justice treats a minor of age sixteen-eighteen years as an adult if
he has committed any heinous crime in a conflict of the law. Minor who have committed a
serious offence may be tried as an adult only if he is apprehended after the age of twenty-one
years.

 If a minor of age seventeen years or more committed a serious offence and had been
apprehended before twenty-one years of age, then the prescribed punishment is
maximum three years in a special home with counselling.
 If a minor who committed a serious crime who is apprehended after the age of twenty-
one years then the punishment will be tried as an adult and the imprisonment of three to
seven years have been prescribed.
 If the minor of age seventeen have committed a heinous crime and has been
apprehended below the age of twenty-one year then the prescribed punishment is based
on evaluation of mental and physical capacity, etc., may be tried as a child (max. three
years) or adult (more than seven years)
 If the minor committed heinous offence and apprehended after the age of twenty-one
year, then the case will be tried as an adult and imprisonment of 7 years and above is
prescribed.

Thirdly, “A new clause on fair trial is added, under which the assessment will look into the
special needs of the child, under the tenet of a fair trial under a child-friendly atmosphere.”[2]

Fourthly, no life-imprisonment or death sentence to a juvenile.

Fifthly, the inquiry of the case should be completed within four months of the first production of
the child in the Juvenile Justice Board. This can be extended for the maximum of two more
months by recording the reason in writing.

Sixthly, the assessment of the heinous crime should be disposed of within 60 days from the first
production of the child before the juvenile justice board.

Seventhly, “inter-country adoption allowed if adoption cannot take place within the country,
within 30 days of the child being declared legally free for adoption.”[3]

Eighthly, if the biological parents want to give their child for adoption, then they have given a
chance to rethink about their decision for three months instead of one month.
Ninthly, “any child who has been abandoned by biological parents due to unavoidable
circumstances will not be considered to be willfully giving up the child.”[4]

Comparison of penalties in Juvenile Justice Act 2015 to Juvenile Justice Act 2000:

Firstly, for giving a child alcohol or any intoxicating liquor or narcotic drug, the punishment up to
seven years and penalty up to one lakh rupees.

Secondly, for buying or selling of a child have a prescribed punishment of five years of
punishment and a fine up to one lakh rupees.

Thirdly, for employing a child for begging in streets or train would amount to imprisonment up to
five years and fine up to one lakh rupees.

Fourthly, for subjecting a child to cruelty would lead to the punishment up to three years of
imprisonment and a fine of amount one lakh.

Comparison between other countries and India in case of Juvenile Justice Act

 Minimum age for the Juvenile at which he can be charged with an offence:

United States of America: the age ranges from six to ten years

United Kingdom: the age limit is ten years.

South Africa: the age is of ten years.

France: by offence committed

Canada: after the age of twelve years.

Germany: at the age of fourteen years.

India (Juvenile Justice Act 2000): under IPC after the age of seven years.

India (Juvenile Justice Act 2015): same as the J J Act 2000

 The age in which Juvenile can be tried as an adult:

United States of America: from the age of 13 years

United Kingdom: 17 years in England, Wales and Northern Ireland, 16 years in Scotland

South Africa: juvenile can be treated as an adult from the age of sixteen years

France: the age of being an adult is sixteen

Canada: the age of the juvenile who will be treated as an adult is fourteen years

Germany: at the age of fourteen years.

India (Juvenile Justice Act 2000): any juvenile cannot be tried as an adult

India (Juvenile Justice Act 2015): from the age of sixteen in the case of heinous crimes

 The types of offences for which the minor can be tried:

United States of America: aggravated sexual abuse, murder, assault, robbery, firearms
offences, and drug offences

United Kingdom: Murder, rape, causing any explosion likely to endanger life or property.[5]

South Africa: robbery, murder, rape

France: armed robbery, murder, rape and drug offences

Canada: serious bodily harm to any person, murder, and aggravated sexual assault

Germany: abuse of persons who are incapable of resistance, or sexual abuse, or child abuse
leading to death

India (Juvenile Justice Act 2000): cannot be trialed

India (Juvenile Justice Act 2015): “Serious offence (punishment 3-7 years e.g. cheating,
counterfeiting) or heinous offence, (punishment > seven years e.g. murder, rape, robbery)”[6]
Law Commission recommends abolition of death penalty, except in terror cases

Principle of 'rarest of rare' cannot be operated free of arbitrariness, says Law

Commission.

The Law Commission today recommended “swift” abolition of death penalty except in terror-related
cases, noting it does not serve the penological goal of deterrence any more than life imprisonment.

The recommendation by the nine-member panel was, however, not unanimous, with one full-time
member and two government representatives dissenting and supporting retention of capital punishment.
In its last report, the 20th Law Commission said there is a need to debate as to how to bring about the
“abolition of death penalty in all respects in the very near future, soonest.”

The panel, while refusing to recommend any single model for abolishing death penalty, said, “the options
are many - from moratorium to a full-fledged abolition bill. The Law Commission does not wish to
commit to a particular approach in abolition. All it says is that such a method for abolition should be
compatible with the fundamental value of achieving swift and irreversible, absolute abolition.”

While supporting death for those convicted in terror cases and for waging war against the country, the
report, ‘The Death Penalty’ said that although there is no valid penological justification for treating
terrorism differently from other crimes, concern is often raised that abolition of capital punishment for
terror-related offences and waging war will affect national security.

The panel also questioned the “rarest of rare” doctrine in awarding death to convicts.

“After many lengthy and detailed deliberations, it is the view of the Law Commission that the
administration of death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is
constitutionally unsustainable.

“Continued administration of death penalty asks very difficult constitutional questions...these questions
relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the
criminal justice system,” the report said.
One of three full-time members Justice (retd) Usha Mehra and both the ex-officio members - Law
secretary P K Malhotra and Legislative Secretary Sanjay Singh - gave their dissenting notes. Justice A. P.
Shah, Former Chief Justice of the Delhi High Court presented Report No. 262 - >The Death Penalty .

The Law Commission comprises a Chairman, three full-time members, two ex-officio members who
represent the government, and three part-time members.

Prison Reform

Why Prisons were established

Punishing the offenders is the primary function of all civil societies. Prisons are
known to have existed throughout the history. Existence of prisons can be
traced back to the ancient period. It was believed that rigorous isolation and
custodial measures would reform the offenders. Experience, however, belied
this expectation and often imprisonment had the opposite effect. With the
development of behavioural sciences, it began to federalize that reformation of
offenders was not possible by detention alone.

Purpose:

 The real purpose of sending criminals to prison is to transform them into

honest and law abiding citizens by inculcating in them a distaste for crime
and criminality.
History of Prisons in India:
 A well organised system of prisons is known to have existed in India from
the earliest time. It was a common practice to keep the prisoners in solitary
confinement so as to afford them an opportunity of self-introspection.
 The object of punishment during Hindu and Mughal period in India was to
deter offenders from repeating crime. The recognised modes of punishment
were death sentence, hanging, whipping, flogging, branding or starving to
death. The prisoners were ill-treated, tortured and subjected to most
inhuman treatment. They were kept under strict control and supervision.
Thus prisons were places of terror and torture and prison authorities were
expected to be tough and rigorous in implementing sentences.
 The British colonial rule in India marked the beginning of penal reforms in
this country. The British prison authorities made strenuous efforts to
improve the condition of Indian prisons and prisoners. They introduced
 radical changes in the then existing prison system keeping in view the
sentiments of the indigenous people.
 Conditions of prisoners were harsher than animals in India and prisoners
were treated with hatred. There was no uniform civil code to give
punishment. The meaning of the punishment itself was to crush the
prisoner. Jailors were cruel persons. But in 1835, some thought of
reformation arose.
 The second Jail Enquiry Committee in 1862 expressed concern for the
insanitary conditions of Indian Prisoners which resulted into death of several
prisoners due to illness and disease. It emphasised the need for pro per food
and clothing for the prison inmates and medical treatment of ailing
prisoners.


 Prisoners Act was enacted to bring uniformity in the working of the

prisoners in India. The Act provided for classification of prisoners and the
sentences of whipping was abolished
Legal Position

‘Prisons’ is a State subject under State List of the Seventh Schedule to the
Constitution of India. 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.

Why prison Reform

 Imprisonment affects the prisoner and also his family living in poverty.
When a income generating member of the family is imprisoned the whole
family has to suffer and adjust to the loss of income. The family has to
suffer financial loss because they have to engage a lawyer, arrange food for
the prisoner, transport to prison to visit the prison etc.
 Prisons have very serious health implications. There are some prisoners who
are suffering from various diseases before entering to the prison or they get
effected after coming in the prison.
 Imprisonment disrupts relationships and weakens social cohesion, since the
maintenance of such cohesion is based on long-term relationships.
 The size of the pre-trial prisoners is higher than that of the convicted
prisoner. Pre-trial detention period is the most open period for the abuse of
criminal justice process. Although pre-trial detainees should be presumed
innocent until found guilty by a court of law, and treated as such, conditions
 in pre-trial detention are often much worse than those of prisons for
convicted prisoners
 Overcrowded Prison: Prisons in India are overcrowded. As a result of this
there is no separation of offenders of serious offences and minor offences.
Hence hardened criminals may spread their influence over minor criminals.
 In India, 71 percent of the prison population is either illiterate or educated
below high school. Majority of these people remain in prison pending trial or
conviction. Most recent statistics reveal that over 67 percent of the
prisoners are undertrials and may continue to be held in overcrowded
prisons for years. This makes them one of the weakest sections of society.
 Poor public defense and under-utilization of non-custodial measures add to
the growing malaise of unnecessary or prolonged detention.


 Lack of inspections and sketchy implementation of oversight mechanisms

turn prisons into frightening wrecks with shoddy living conditio ns. This rot in
the criminal justice system impacts the psychological condition of a prisoner
making the person more vulnerable than before to criminal propensities.
The prisoner gets out of jail ruined and not reformed.
The Supreme Court , in its landmark decision in Ramamurthy v. State of
Karnataka7 , has identified nine major problems which need immediate
attention for implementing prison reforms. The court observed that the present
prison system is affected with major problems of;

a) Overcrowding
b) Delay in trial
c) Torture and ill treatment
d) Neglect of health and hygiene
e) Insufficient food and inadequate clothing
f) Prison vices
g) Deficiency in communication
h) Streamlining of jail visits and
i) Management of open air prisons

How Prison reform in India differ from West:



 In India, prison reforms did not emerge out of the social movement but
were necessarily an outcome of the worst conditions of treatment faced by
the political sufferers in prisons during the period of their imprisonment.
 They repeatedly launched protests with the prison authorities and made all
possible efforts to see that the rigours of prison life are mitigated and
prisoners are humanly treated.
Steps taken to Reform Prison

The modern prison system in India was originated by TB Macaulay in 1835. A

committee namely Prison Discipline Committee,1836. 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 t here is
good machinery for the infliction of punishments.

After Independence:

Mulla Committee: (All India Committee on Jail Reforms 1980-83)- The basic
objective of the Committee was to review the laws, rules and regulations
keeping in view the overall objective of protecting society and rehabilitating
offenders. It recommended a total ban on the heinous practice of clubbing
together juvenile offenders with hardened criminals in prisons.
 The committee suggested setting up of a National Prison Cmmission as a
continuing body to bring about modernisation of prisons in India.
 To constitute an All India Service called the Indian Prisons and Correctional
Service for the recruitment of Prison Officials.
 After-care, rehabilitation and probation should constitute an integral part of
prison service.
 The conditions of prison should be improved by making adequate
arrangements for food, clothing, sanitation and ventilation etc.
 Lodging of undertrial in jails should be reduced to bare minimum and they
should be kept separate from the convicted prisoners.


 The Government should make an endeavour to provide adequate resources

and funds for prison reforms.
Krishna Iyer Committee: It was constituted in 1987 for women prisoners. It
has recommended induction of more women in the police force in view of their
special role in tackling women and child offenders
What other reforms must be there
 The women prisoners should be treated more generously and allowed to
meet their children frequently.
 The prisoners belonging to peasant class should be afforded an opportunity
to go to their fields during harvesting season on temporary ‘ticket on leave’
so that they can look after their agriculture.
  The prison legislation should make provision for remedy of compensation to
prisoner who are wrongfully detained or suffer injuries to callous or
negligent acts of the prison personnel. It is gratifying to note that in recent
decades the Supreme Court has shown deep concern for prisoners right to
justice and fair treatment and requires prison officials to initiate measures
so that prisoners basic right are not violated and they are not subjected to
harassment and inhuman conditions of living.
 There is dire need to bring about a change in the public attitude towards the
prison institutions and their management. This is possible through an
intensive publicity programmes using the media of press, platform and
propaganda will.
 Last but not the least, the existing Prison Act, 1894 which is more than a
century old, needs to be thoroughly revised and even re-stated in view of
the changed socioeconomic and political conditions of India over the years.
Many of the provisions of this Act have become obsolete and redundant

Supreme Court orders release of thousands of undertrials languishing in jails

However, the relief does not apply for undertrial prisoners whose offence attracts death
penalty.

The Supreme Court on Friday mobilised judicial officers across the country to visit every prison in their
district for the next two months to identify and release undertrial prisoners who have already underwent
detention for half the maximum period of imprisonment their offence prescribes under law.

The court however clarified that the relief does not apply for undertrial prisoners whose offence attracts
death penalty.

Magistrates, chief judicial magistrates and sessions judges will start their jail visits from October 1, 2014
to identify and release undertrials. Reports will be filed to the respective State High Courts, which will
pass them on to the Supreme Court.

The order passed by a three-judge Bench led by Chief Justice of India R.M. Lodha saw the judiciary
overtake the government's efforts to find a way out for undertrial prisoners languishing in jails for years.
The government had earlier this week announced its plans to write to Chief Ministers about undertrial
prisoners who have spent half of their imprisonment period. Home Minister Rajnath Singh and Law
Minister Ravi Shankar Prasad had met to chalk out a blueprint.

Attorney General Mukul Rohatgi, appearing for the Centre, sought more time to consult with the State
governments. But the Bench said it could not wait any longer.

Justice Lodha said the judiciary is witness to men and women detained in prisons for years, and
sometimes for more than they would have spent had they been held guilty.

The CJI said the situation demands immediate action as 66 per cent of the prison population in the
country are undertrial prisoners, many too poor to raise bond money for bail.

“There are people who cannot take bail. There is nobody for them,” Chief Justice Lodha, heading a Bench
of Justices Kurian Joseph and Rohinton Nariman, observed.

The Chief Justice said delays in criminal trials make matters worse for undertrials.

“They languish in jails because courts are not enabled to take up their cases. Many States have no
finances for courts. There is no infrastructure, no courtrooms,” Justice Lodha said.

Justice Joseph pointed out to Mr. Rohatgi that what the government announced this week is already there
in the statute book since 2005, but not implemented.

The judge drew the Attorney General's attention to Section 436-A in the Criminal Procedure Code,
(CrPC), 1973. Justice Joseph said the section exactly corresponds with the government's announcement.

Section 436-A says that undertrial prisoners, who suffered detention “during the period of investigation,
inquiry or trial” for one-half of their maximum imprisonment, should be released by the court on personal
bond with or without sureties.

“It is all there,” Justice Joseph said.

“We have started the process now. We have sent letters to the Chief Ministers and State Law Ministers,”
Mr. Rohatgi said.
But the court was in no mood to wait. “We are of the considered view that some orders deserve to passed
today so that undertrial prisoners do not continue to be detained in prisons,” its order said.

Supreme Court Issues Directions to Prevent, Compensate for Unnatural Death of

Prisoners
The court also set timelines for the circulation of manuals and guidelines, the constitution of a
board of visitors and to tabulate details on juveniles who died an unnatural death.

New Delhi: In a landmark judgment that is expected to improve prison conditions and lead to
the setting up of mechanisms to lower the number of unnatural deaths in prisons and
compensate families of the deceased, the Supreme Court has directed the chief justices of high
courts to register a suo motu public interest petition to identify the next of kin of the prisoners
who have admittedly died an unnatural death, as revealed by the National Crime Records
Bureau (NCRB) between 2012 and 2015, and to “award suitable compensation” in case it has not
been paid.

In its order issued on September 15, the bench comprising Justices Madan B. Lokur and Deepak
Gupta, also directed the Centre through the Ministry of Home Affairs (MHA) to ensure the
circulation within one month, and at the latest by October 31, of the Model Prison Manual; the
monograph prepared by the National Human Rights Commission (NHRC) titled “Suicide in
Prison – prevention strategy and implication from human rights and legal points of view”;
communications sent by the NHRC; the compendium of advisories issued by the MHA to the
state governments; and the Nelson Mandela Rules and the Guidelines on Investigating Deaths
in Custody issued by the International Committee of the Red Cross to the director general or
inspector general of police in charge of prisons in every state and union territory.

Explain difference between natural and unnatural deaths

Calling for all efforts to be made to “reduce and possibly eliminate unnatural deaths in prisons
and to document each and every death in prisons – both natural and unnatural,” the bench also
told the Centre to direct the NCRB to explain and clarify the distinction between unnatural and
natural deaths in prisons as indicated on the bureau’s website and in its annual reports. The
court has also demanded that the NCRB should be told to explain the sub-categorisation ‘others’
within the category of unnatural deaths.

Noting that “like most societies, we are not strangers to custodial violence and unnatural
deaths,” the court had said India’s vibrant democracy permits it to debate and discuss these
issues with rational arguments. Stating that there must be a greater degree of sensitivity among
those in authority with regard to persons in custody, the bench recalled how former chief justice
R.C. Lahoti had while highlighting the aspect of custodial deaths treated a letter to the court as a
public interest litigation. The court had then flagged the issues of overcrowding in prisons,
unnatural death of prisoners, gross inadequacy of staff, and untrained or inadequately trained
staff.

In its order dated February 5, 2016, the court had dealt with the issue of overcrowding in prisons
and issued certain directions. In the present decision, it has considered the issue of unnatural
deaths after relying on information provided by the NCRB. The NCRB had stated that there were
1469 natural and 115 unnatural deaths in 2015. But the court had observed that the distinction
was “unclear”. For example, if a prisoner dies due to a lack of proper medical attention or timely
medical attention, would that be classified as a natural death or an unnatural death, it asked.

What are “other” causes in unnatural deaths

Noting that 115 unnatural deaths were reported in 2015, the court said of these 77 were
attributed to suicides, 11 to murder by inmates, seven to assault by outside elements, and 19 to
causes identified as “others”. However, again it said, “there is a lack of clarity in the
classification of unnatural deaths in the category of others” and said the NCRB should be
directed to explain the difference not only between a natural death and an unnatural death but
also to clarify the sub-categorisation of “others” in unnatural deaths.

States told to sensitise jail staff, appoint counsellors

As for the state governments, the Supreme Court has directed that they should in conjunction
with the State Legal Services Authority (SLSA), the National and State Police Academy and the
Bureau of Police Research and Development conduct training and sensitisation programmes for
senior police officials of all prisons on their functions, duties and responsibilities as also the
rights and duties of prisoners.

The apex court in its order also spelled out the need to have counsellors and support persons in
prisons. “Their services can be utilized to counsel and advice prisoners who might be facing
some crisis situation or might have some violent or suicidal tendencies. The State Governments
are directed to appoint counsellors and support persons for counselling prisoners, particularly
first-time offenders. In this regard, the services of recognised NGOs can be taken and
encouraged,” it said.

Prisoners to get more access to families, lawyer

Realising the importance of greater interaction between the prisoners and their families and
lawyers, the bench said “visits to prison by the family of a prisoner should be encouraged” and
noted that “it would be worthwhile to consider extending the time or frequency of meetings and
also explore the possibility of using phones and video conferencing for communications not only
between a prisoner and family members of that prisoner, but also between a prisoner and the
lawyer, whether appointed through the State Legal Services Authority or otherwise.”

It also directed all the SLSAs to urgently conduct a study on the overall conditions in prisons in
the state and the facilities available as had been conducted by the Bihar SLSA and also but the
Commonwealth Human Rights Initiative in Rajasthan.
The court said the SLSAs should also assess the effect and impact of various schemes framed by
National Legal Services Authority relating to prisoners and urged the chief justices of all high
courts to take up the initiative in the capacity of patron-in-chief of the respective SLSA.

Medical facilities in prisons do not meet minimum standards

Lamenting that it has been found that in Karnataka, West Bengal and Delhi “the medical
facilities in prisons do not meet minimum standards of care,” the court said this is an indication
that the human right to health is not given adequate importance in prisons and that may also be
one of the causes of unnatural deaths in prisons.

Therefore, observing that “providing medical assistance and facilities to inmates in prisons
needs no reaffirmation” as “the right to health is undoubtedly a human right,” the court said all
state governments should concentrate on making this a reality for all, including prisoners. It
also directed all state governments to study the availability of medical assistance to prisoners
and take remedial steps wherever necessary.

Create Board of Visitors with eminent persons by November 30

Observing that the constitution of a Board of Visitors, which includes non-official visitors, is of
considerable importance since through it eminent members of society can participate in
initiating reforms in prisons and in the rehabilitation of prisoners, the Supreme Court has
directed all the states to complete the constitution of such boards by November 30.

It has also directed that the establishment of ‘open jails’ or ‘open prisons’ be considered and in
this respect noted that the experiment was a success in Shimla (Himachal Pradesh) and at the
semi-open prison in Delhi.

Juvenile care given high priority

The court has also directed the Ministry of Women and Child Development, which is concerned
with the implementation of Juvenile Justice (Care and Protection of Children) Act, to formulate
by December 31 procedures for tabulating the number of children who suffer an unnatural death
in childcare institutions where they are kept in custody either because they are in conflict with
the law or because they need care and protection. It also directed the respective high court
bench hearing the suo motu PIL as per its directions to “pass necessary orders and directions” in
case of any difficulty.

Prison reforms and some fundamentals

It is not prison buildings, but what goes on inside them, that need change.
The government recently announced a Rs. 4,000-crore package for prison reforms as part of the National
Prison Policy being implemented by the Centre. This policy will redefine prisons as correctional homes.
News reports have mentioned that State governments will be encouraged to sell off prisons situated in
“prime areas” to generate funds to create modern buildings elsewhere. These buildings will have cells
with cushioned beds and clean toilets, closed-circuit TV cameras, video-conferencing facilities, and space
for yoga, sports and extra-curricular activities. The plan includes building 200 prisons to add to the 1,300
that exist in the country.

The situation of the prisons in our country came into focus in the early 1980s, when as part of the
National Police Commission K.F. Rustomji highlighted prison conditions and the plight of undertrial
prisoners. Activists such as Sheela Barse filed public interest litigation petitions on custodial conditions,
and judges like Justice P.N. Bhagwati and Justice V.R. Krishna Iyer passed landmark judgments. These
steps brought much needed relief to thousands of undertrials, who were released on personal bond or
simply discharged. However, the situation on the ground seems to get worse by the day.

The government has set up working groups, committees and commissions to investigate the issue and
offer solutions. The more important among them were the Justice Mulla Committee Report on Prison
Reforms (1982-83) and the Justice Krishna Iyer Committee on Women Prisoners (1986-87). These
reports have, by far, given the most comprehensive accounts of what ails our prisons, and suggested a
slew of measures. The latest Draft National Policy on Prison Reforms and Correctional Administration,
2007, prepared by the Bureau of Police Research and Development (BPR&D), is but old wine in a new
bottle.

The draft policy includes suggestions for some welcome changes to the Prisons Act of 1894. These
include the introduction of a provision to provide for aftercare and rehabilitation services and the
appointment of officers to provide legal aid for prisoners. Also envisaged are the establishment of a
Research and Development wing, and financial assistance to non-governmental organisations working for
the rehabilitation of prisoners and community-based alternatives to imprisonment for offenders convicted
for relatively minor offences.

However, there are some rather disconcerting suggestions in the report. For example, the committee has
recommended that prisoners sentenced to simple imprisonment should be compulsorily made to work.
This suggestion de facto eliminates the difference between simple and rigorous imprisonment, and goes
against the principle of deterrence, one of the foundations of modern criminal jurisprudence. The prison
administration should instead create educational and vocational training avenues for undertrial prisoners
and prisoners sentenced to simple imprisonment. Another suggestion of the committee is to amend
Section 305-B of the Code of Criminal Procedure, making it mandatory for the trial judge to award the
maximum sentence in cases where the accused contests the charge levelled against him or her. This is an
outrageous suggestion that goes against all principles of fair trial, as set out by Article 21 and Article 22
of the Constitution.

The committee has suggested awarding compensation to victims of crimes from the wages earned by
prisoners serving rigorous imprisonment. Deductions from the wages of a prisoner after he or she has
been sentenced to imprisonment (as punishment) amounts to punishing the person twice over — a case of
double jeopardy. In countries across the world where a system of victim compensation exists, it is
awarded out of state funds (as in Australia), and not by pinching the pocket of the prisoner, who in any
case gets a pittance as wages in prison.

A worrying suggestion of the committee is the inclusion of senior police officers in prison administration
to elicit the cooperation of the police. This is in keeping with the recent trend of deputing Indian Police
Service officers in prison departments, instead of the earlier practice of prison cadre officers leading their
departments. Ensuring the cooperation of the police cannot be a ground for the inclusion of police officers
in prison administration. As with the police or the judiciary, correctional services form a specialised area
that requires training and qualification. Each cannot be replaced by the other: they have very specific
roles and functions based on the principle of separation of powers, a foundation of any functioning
democracy.

In seeking to improve prison conditions, we have to first address the low personnel- population ratio
compared to countries that have more effective justice delivery systems. Governments tend to refuse to
fill up vacancies and augment the staff strength across criminal justice wings. We need to create
departments of correctional services, instead of just renaming prisons as correctional homes. We need to
give financial and infrastructure support to voluntary organisations working on the rights, welfare and
rehabilitation of custodialised populations. Cosmetic surgery alone will not solve problems. Let us not get
seduced by cushioned beds, western toilets and single cell facilities to house our prisoners, in the name of
prison reform.
 Prison Laws in India – The forgotten Law

Prison Laws in India – The forgotten Law

The Prisons law of India is amongst the forgotten laws of this country which has lost its
existence so significantly that neither the law makers of this country nor the mighty political
system gives it any value in order to get reformed within today age and time. There is lacuna of
stringent legislation for prisoners who also deserve life to be led with the basic human respect
which we all are entitled to being citizens of this country despite the wrongdoings they have
committed. The prisoners kept in jails are kept in inhuman conditions and are deprived of even
basic human amenities like healthy sanitary conditions and lack of proper food, bedding and
clothing facilities. The real pragmatic change in criminals kept in prisoners and solitary
confinements can be brought by using reformative measures in prisons rather than trying to
tame them by authoritative means like animals kept in zoo.

The Prisons Act, 1894

The Prisons Act 1894 is one of the oldest piece of legislation in India dealing with laws enacted
in relation to prisons in India. This Act was enacted on 22nd March , 1894 and enforced on
1st July, 1894.This act contains 62 sections and XII Chapters and it is an exhaustive act which
contains law relating to smooth functioning of prisons.

 This act defines the term prison inclusively as buildings maintained by state
governments with the purpose to detain prisoners. The act also categorizes prisoners as
“criminal “, “civil” and “ convicted” prisoners.
 The Chapter II of the Act deals with maintenance and officers of prison. It deals more
with appointment of staff including superintendent, medical officer, jailer and officer like
inspector general under whose charge the prison will work efficiently. The inspector in –
charge will be bound to carry the functions to run the prison in manner as directed by the
state authorities. The state authorities have to make proper arrangements for
accommodation of prisoners and this act also make provisions to deal with natural
calamities like epidemics wherein the prisoners are provided safe custody and
temporary shelter during that period on directions of inspector- in charge.
 The Chapter III of the Act deals with duties of officers of the prison as enumerated under
Section 8 to 20. Superintendent, jailer and medical officers shall constitute officers of the
prison who all are responsible to run the prison in an efficient manner. Superintendent of
the prison who is ought to comply orders of Inspector General shall look into matters
relating to labour, discipline , punishment , expenditure of prison as well has to maintain
records of prisoners. Medical officer of prison shall be in subordination to superintendent
and is responsible to carry out following functions with respect to sanitary conditions,
health, treatment of prisoners, reporting to superintendent with respect to prisoners
seriously affected with a disease etc. Apart from this medical officer shall also keep
record of all particulars such as health, diet, diseases and date of death of deceased
prisoner. Jailer of the prison who is subordinate to Superintendent shall maintain all
 records and shall be in-charge of prison and documents. Jailer shall also be assisted by
deputy or assistant jailer. The Jailer of Prison is also responsible to always reside within
the premises of prison and shall not leave prison without prior intimation.
 The Act also creates posts for prisoners such as convict prisoners who shall function
and carry responsibilities within prison premises and shall deemed to be public servants.
Section 9 of the Act strictly prohibits jail officers to carry commercial activities within jail
premises.
 The Chapter IV of the act deals with admission, removal and discharge of prisoners. The
essentials of this chapter covers that convicts entering into prison shall be thoroughly
checked and all their belongings shall be kept in custody of jailer and the female convicts
shall be checked only by female officers. The criminal convicts shall be examined by
medical officer and marks and wounds on his body shall be recorded. Prisoner shall
only be removed from prison premises if in the opinion of medical officer he suffers with
acute disease.
 Chapter V deals with discipline of prisoners, it lays few essentials i.e. that male prisoners
shall be separated from female prisoners, convicted prisoners from under trial prisoners,
prisoners under age of 21 shall be kept separately, prisoners sentence with death
sentence shall be kept separately from all others.
 Civil or an under trial prisoner shall have an access to commodities from outside the
prison subject to examination of the goods being received. Such prisoners shall provide
themselves with clothing’s and bedding\’s. No part of food, bedding or clothing belonging
to civil and under trial prisoner shall allow to be transferred to convicted prisoners.
 Chapter VII deals with employment of prisoners. Civil prisoners are permitted to work
after permission from superintendent and shall receive earnings for the work done. A
criminal prisoner shall not work for more than nine hours and shall work only in case of
emergency. All prisoners convicted for simple imprisonment shall be made to work within
the premises.
 The Act also lays directions as to taking care of health of prisoners within the prison
premises. Prisoners shall be subject to regular medical check-up and sick prisoners shall
be provided with proper medical care and attention.
 Sections 42 to 54 deals with offenses relating to prison. Section 42 lays out that any
person who being into or removes from prison prohibited articles, abets offenses
prohibited under act or communicates with convicted prisoners shall be punished with
imprisonment of six months or with fine of rupees two hundred or with both.
 Prison offence are enumerated under section 46, which shall include wilful disobedience
of prison rules, use of criminal force or threatening language, indecent behaviour, refusal
to work, causing damage to prison property or documents, preparation or conspiring for
escape etc, offenses committed under the section shall be punishable under sections 46
and 47 of the Act.
 Section 52 lays out that in case a prisoner is in a habit of committing heinous crime time
and again, he shall be forwarded to District Magistrate or any other Magistrate of first
class by superintendent.
 The act under section 54 lays punishment for offenses committed by prison
subordinates.

Critical analysis of The Prisons Act, 1894

The Prison Act 1894 deals more with the smooth functioning of prison rather than reformation
and rehabilitation of prisoners. This act has colonial approach which deflects with the
contemporary ideology of reformation of prisoners on humanitarian grounds in order to change
their heart and mind to become responsible citizens rather than to advocate punitive and
disciplinary measures of taming them in prisoners like animals in zoo . The prisoners should not
be just left on its own in prison to just languish and suffer like dead creatures but should be
treated with respect of a human being.

Incompetencies – The real picture of Prison

According to the statistical reports given by http://www.hrln.org/hrln/prisoners-rights/the-

initiative.html , 80% of prisoners are victims are under trials who are kept in inhuman conditions
where they have to face poor conditions , lack of proper medical facilities and are subjected to
torture by jail authorities .

There are statutory legislation such as the Prisoners Act, 1894 and various precedents which
have been laid down in landmark cases which provide for the rights which these prisoners are
entitled to but the time again it has been proved that these centurion old laws are futile in
today’s age and time to deal effectively with prisoners right and to reform them in a
humanitarian manner. Nobody thinks about the social stigma the prisoners have to face all their
life and perhaps they can never become as normal citizens of this country ever after some
because of the path they chose for themselves and other because of lack of reformatory
measures in jails which never reform them as individuals who can contribute to the society in
the outside world.

Issues of concern

 80% prisoners are under trials

 Even though bail is granted, prisoners are not released.
 Lack or insufficient provision of medical aid to prisoners
 Callous and insensitive attitude of jail authorities
 Punishment carried out by jail authorities not coherent with punishment given by court.
 Harsh mental and physical torture
 Lack of proper legal aid
 High amount of surety ordered by courts which indigent prisoners can’t pay
 Rejection of surety bonds due to lack of money or verification of addresses, as indigent
prisoners don’t have houses.
 Corruption and other malpractices.

Reformatory measures – Prisoners Rights

The rightful treatment to the prisons can be achieved by the law makers by implementing the
rights given to them by virtue of acts like Prison Act , 1894 and other precedents in confluence
with advocates , social activists and NGO initiatives by safeguarding their access to free legal
aid services by filing their bail applications and legal assistance to under trails who are
languishing in jails without proper trials which is the most gross injustice to the prisoners inside
jail who have to fight for their survivals in jails without a legal trial , maternity help given to
female prisoners in jail so that they can carry the child safely, therapy sessions should be
conducted in jails for prisoners in order to ensure that they don’t break psychologically inside the
prison cells, monetary assistance given to indigent prisoners and their families to fight for their
survival inside the jail.

The prisons are made for reformatory purposes not to break their inner self so blatantly that they

can never fit into their normal self in outside world ever after .The reformation is not seen in

prisoners when they get released out of jail cells as they become absolute misfits in the society

after suffering from inhuman tortures and adding to their misery the social stigma they have to

live with as they are never accepted neither by society nor by their own families. It is hard to

picture their plight in light of the incompetent infrastructure present in prisons and inhuman

treatment they have to suffer at the hands of prison authorities.

Positive Outlook – The Approach to be

As the famous quote given by father of our nation Mahatma Gandhi as “Hate the crime not the

criminal” shall be the approach kept in mind in reforming prisoners. A prisoner shall be sent to

prison for the punishment and not as a punishment to deprive his personal liberty and privacy.

The punitive punishment system should not reach the pinnacle level of destructiveness for

human beings from which they can never be reformed. It is also essential to ameliorate

environment of the prisons and to value humanitarian needs of prisoners so as to ensure that
prisons do not create hardened criminals .It is essential to rehabilitate and socialize prisoners in

view to help the prisoners to become responsible and potential citizen of this country.

The time has come to unlock the colonial Indian prison system and amend the centurion old

Prison Act 1894 as its obsolete and not in tune with modern day and age where the reformation

is required not only of prisons but also the prisoners who shall be equipped with basic

fundamental rights which this nation grants to its every citizen.

Analysis Of Prison Administration And The Rights Of Prisoners

“Crime is the outcome of a diseased mind and jail must have an environment of the hospital for

treatment and care.” – – Mahatma Gandhi

Prison

A prison is a place of accommodation for the people who have committed a crime and are

undergoing trial for the commission of any offense mainly criminal in nature.According to section

3(1) of the prisoners Act, 1894,‘Prison’ means any place used under the general or

Special orders of State Government for the detention of prisoners, and includes all land and

buildings appurtenant thereto.[1] Prisons in India, their administration is a state subject covered
by item 4 of the state list in the seventh schedule of the Constitution of India. The management

and administration of prisons purely come under the authority of state Government along with

the Prisoners Act 1894 and also the Prison Manuals of the concerned State Government.

The Central Government provides various rules and guidelines to the State Government
regarding proper administration as well as ensuring safety and security in the prisons . Hon’
able Supreme Court of India , in its various judgments covering prison administration, has
enumerated 3 broad principles for the proper administration of prisons in India. It includes:

 A person inside a prison does not become a non-person

 A person is entitled for the enjoyment of all kinds of human rights within the limitations of
imprisonment
 There is no justification for the aggravating the suffering already inherent in the process
of incarceration[2] .

Supreme Court has also looked into various matters inside prisons such as overcrowding, lack
of proper medical care and other facilities for the prison inmates, lack of free legal aid available
for them which is provided under the provisions of the Constitution of India.

Prison administration in India

We all know that crime rate in India is increasing at a rapid pace. But there are no adequate
facilities in various prisons in our country to accommodate such person at least by providing
facilities for a decent living inside the prisons. Even though there are certain rules and
guidelines regarding prison system and administration, many of them are not enforced properly
due to the prevailing condition of prisons in India. Various surveys state that around 80% of the
prisoners are under trial prisoners, and the balance 20% includes people who are convicted of
various offenses as well as women prisoners. The present condition of many of the prisons is
that the prison authorities are unable to meet requirements of the prisoners. In the light of such
situation, it can be stated that it leads to an infringement of the fundamental rights of prisoners
to a great extent.
While going through judgments on various cases in connection with prison administration, we
understand a common fact that in such cases, prisoners have undergone various ill treatments
and negligence from the part of the prison authorities. One among such cases are Neena Rajan
Pillai v. union of India[3], wherein Mr. Rajan Janardhan Mohandas pillai, who was one of the
famous businessmen in Singapore, Died when he was undergoing judicial custody at the Cental
Jail of Tihar. In this case, Court was of a view that there is a clear case of violation of
fundamental rights for the deceased from the part of prison authority, and it lead to the death of
the deceased. The court also stated that during such situations wherein urgent medical
assistance is required for the prison inmates, necessary arrangements may be made without
any delay or else it may lead to an infringement of the right to life under Article 21 of the
Constitution.

Various committees were formulated by the Government in order to look after the matters
inside prisons such as All India Committee for jail reforms, The mulla Committee and The
Krishna Iyer Committee, which looked into the reforms and rehabilitation of prisoners as well as
for the proper administration in prisons.

Rights for prisoners

As India is a democratic country, each and every person is entitled to certain fundamental rights
depending upon the nature of his living. As far as the prisoners are concerned, they are denied
of certain rights available to other citizens in our country. But there are certain other rights
exclusively for prisoners which include[4]:

 Right to speedy trial

 Right against solitary confinement, handcuffing and bar fetters and protection from
torture
 Right to meet relatives, friends and consult legal practitioner of his choice
 Right to reasonable wages in prison
 Right to expression
 Right for reasonable health care

The Act

Looking into the Prisoners Act,1894, Chapter 2 deals with the maintenance and officers of
prison. It states that there must be a superintendent,medical officer, jailer and other such
officers if there is a necessity. There must be an Inspector General in every prison to discharge
various functions directed by the State. Chapter 4 of the Act purely deals with admission and
removal of prisoners. The Act states that after conviction, the person must undergo thorough
checking by the prison officer along with a proper medical check up by the medical officer. Act
lays down various provisions for the medical checkup of prisoners. They must be undergone
through proper medical checkup, and if found sick, proper attention has to be taken by the
authorities.

Chapter 5 of the Act deals with discipline of the prisoners . It states that male and female
prisoners, convicted and under trail prisoners shall be kept separately. Prisoners who are
convicted for a death sentence must be separated from all others. But due to the overcrowding
of prisons, many of the guidelines are not abled to follow by the prison authorities[5].

Rehabilitation for prisoners

As our criminal Justice administration system purely focuses on a deterrent way of handling
crimes as well as criminals. It focuses on such penal approach wherein the punishment for a
crime must be a warning to the society and also it must provide some sort of reformative
policies to the society. In such a context various rehabilitative mechanism which can be
adopted in the prisons helps the prisoners to make changes in the character and attitude and
also be aware of the impact of the crime committed by them in the society. Rehabilitation may
be done in many ways such as:

 Conducting various awareness programs for the prisoners on a periodic basis

 Conduct various counseling classes for them so that their mental condition changes
positively
 Conducting various entertainment programs inside the prison premises
 Conducting classes on social issues so that prisoners will be aware of what is happening
outside the walls of prison
 Increasing the skills of prisoners by arranging various small scale ventures and events
inside the prison
 Changing the atmosphere of the prisons into a friendly environment by avoiding various
kinds of torture and third-degree measures.

Conclusion

Prison and prison administration plays an inevitable role in the criminal justice administration
system in India. Various criminologists have stated that no one in this world born as criminal, but
his economical and social backgrounds make him a criminal. In the light of such views, it has to
be stated that the prisoners as well as the prison administration has to be changed in such a
way that they should not feel isolated in this society, and there must be a hope in their mind that
they also can change themselves and be a part of development in their society. Proper food,
shelter, health care treatment and other such basic necessities must be fulfilled by the
concerned prison authorities in order to make the prisoners a productive group of the society
after their period of incarceration.

[3] Neena Rajan Pillai v. Union of India WP (c) 1894/1998. Retrieved on

:https://indiankanoon.org/doc/1524596/

How Do You Feel About the Death Penalty? The Law Commission Wants to Abolish It, and Here’s Why
In India, capital punishment is awarded for murder, gang robbery with murder, abetting the suicide of a
child or insane person, waging war against the government, and abetting mutiny by a member of the
armed forces. It is also given under some anti-terror laws for those convicted for terrorist activities. The
death sentence is imposed only when the court comes to the conclusion that life imprisonment is
inadequate based on the facts and circumstances of the case.

The Law Commission of India released a report in 2015 recommending that the country move toward
abolishing the death penalty, except in terrorism cases to safeguard national security.

Currently, judges in India can impose the death penalty in the “rarest of rare” cases, including treason,
mutiny, murder, abetment of suicide, and kidnapping for ransom. In 2013, an amendment to the law
permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative
state, as well as for certain repeat offenders.

According to the Law Commission report, executions in the recent past have been few, with significant
time gaps. Only three convicts were executed over a period of 10 years, one each in West Bengal (2004),
Maharashtra (2012), and Delhi (2013).

India saw an execution-free period of seven years between 2004 and 2012. The latest was the execution of
Yakub Memon. The Court found him guilty of being behind a series of explosions in Mumbai in 1993,
killing more than 250 people. On average, the courts sentence 129 people to death row in India every
year, according to the National Crime Records Bureau.

Data shows a huge gap between death sentences pronounced and actual executions. According to an
ACHR report and National Crime Records Bureau (NCRB) data, there have been several death sentences
between 2001 and 2011. But the authorities actually carried out only a few of these. Despite the fact that
death sentences rarely convert to executions in India, the Law Commission recommends abolishing the
penalty in most cases.

According to leading criminal lawyers in India, people sentenced to death by Indian courts face long
delays in trials and appeals. “During this time, the prisoner on death row suffers from extreme agony,
anxiety, and fear arising out of an imminent yet uncertain execution,” the Law Commission said. It added
that solitary confinement and harsh conditions imposed on prisoners were degrading and oppressive.
Even the Supreme Court acknowledged that being on death row in India amounts to “near torture” for
the convict.

The Law Commission report cited the following reasons while advocating the abolition of capital
punishment:

1. Developments in India. India has made significant progress since the last report in 1967. The
level of education, general well-being, and socio-economic developments are vastly different
today.
2. Death penalty as a deterrent is a myth. The decline in murder rate in India has coincided with
a decline in rate of executions. This raises questions about whether the death penalty has any
greater deterrent effect than life imprisonment.
3. Arbitrary sentencing of capital punishment. The Supreme Court has expressed concerns over
arbitrary imposition of capital punishment. In most cases, the courts have affirmed or refused to
affirm the death penalty without laying down legal principles.
4. Long delays leading to extreme agony. Death row prisoners continue to face long delays in
trials, appeals, and executive clemency. During this time, prisoners on death row suffer from
agony, anxiety, and fear because of an imminent yet uncertain execution.
5. International developments. India has retained capital punishment while 140 countries have
abolished it in law or in practice. That leaves India in a club with the USA, Iran, China, and Saudi
Arabia as a country which retains it.

The commission concluded that the death penalty does not serve the goal of deterrence any more than life
imprisonment.

Capital punishment in India – An Overview

The Death penalty is a process, where the life of a person is taken by the State by following the
due procedure of law. Capital punishment is, in all cases, given for the most heinous of crimes.
During recent times, there has been a global trend to abolish the capital punishment. However,
India has yet not abolished the capital punishment (though the Court awards the capital
punishment in rarest of the rare case). What makes the capital punishment a unique form of
punishment is the nature of irreversibility attached to it. If any error has been committed to
awarding the death penalty, it cannot be undone after the person has been executed. (Many
people give this argument for abolishing the capital punishment.)

Although the death penalty has existed from time immemorial, the movement to abolish it has
gained a lot of momentum in the recent times. This movement can be traced back to the
works[1] Of one of the great criminologist named CessareBeccaria, who convinced many
people that death penalty should be abolished because it is inhuman, useless and technically
speaking, a public assassination. In the year 1846, Michigan became the first State to abolish
the capital punishment, followed by Portugal and Venezuela in 1867. Abolition of the death
penalty was also supported by the United Nations during the drafting of Universal Declaration of
Human Rights in the year 1948.[2]

Around the world, 58 countries still practice awarding the capital punishment. 102 countries do
not award capital punishment for any crime, i.e. total abolition.[3] According to the reports of
Amnesty International China, Iraq, and Iran have awarded highest number of death penalties in
the recent years. In Europe, the death sentence has been almost abolished completely, except
The Republic of Belarus retaining it.[4]

Position in India

Article 21 of the Indian Constitution states that no person shall be deprived of his life and liberty
except according to the procedure laid down by law. Under Article 21, every person has the
Right to Life which has been guaranteed by the Constitution.

The Indian Penal Code, 1860 provides for the provision of a death sentence for various offenses
like criminal conspiracy, murder, waging war against the nation, dacoity and murder, etc.
Various other legislations like the NDPS ACT and Unlawful Activities Prevention Act also
provides for the death penalty.

Under Article 72, the Constitution has created a provision for clemency of capital punishment.
Under this Article, the President of India has the power to grant pardon, or commute or remit the
death sentence in certain cases. Similarly, Article 161 provides for powers of the Governor of
the State to grant clemency.

Also, when a Sessions Court awards the capital punishment, it must be confirmed by the High
Court of the particular state, and then only the execution can be carried out.

These measures are necessary so as to remove any room for error. These days, awarding life
sentence has become the rule, and death penalty an exception, which is awarded only in the
rarest of the rare case. The case of Jagmohan Singh v State of U.P[5] Was the first case in
which the court had the opportunity to discuss the Constitutionality of capital punishment. The
council for the appellant put forth the argument that capital punishment takes away all the rights
guaranteed under Article 19 (1) of the Constitution. The second argument which was given that
the discretion of which capital punishment was awarded did not follow any fixed standard or
policy. Thirdly it was argued that this unguided and unfettered discretion violated Article 14 of
the constitution, which guarantees equality before the law. It was stated that in many cases, the
situation arose that where two individuals had committed a murder, one was awarded the
capital punishment, and other was awarded life imprisonment. The last argument which was put
forward was that the law does not provide any guidelines which considers different factors and
circumstances while awarding death penalty or life imprisonment.

Law Commission Report

A discussion on death penalty cannot be complete without taking into consideration the
36thReport[6]of the Law Commission of India, which was submitted by the Law Commission in
1967.

The Report stated that the issue of abolition or retention of capital punishment should be
decided after balancing the arguments given in favor and in against of death penalty. A single
factor cannot decide the question of abolition or retention of death penalty in the country. The
Report also vocally stated that the question of protecting the society must be given prime
consideration while deciding the issue.

The Commission did consider the strong arguments given for abolition of capital punishment.
They also considered the concept of irrevocability attached with the punishment of a death
penalty. Nor did they ignore the fact that capital punishment was very severe, and a modern
approach was required to deal with criminals. But considering the state of the nation, the
Commission stated that, keeping in mind the way of upbringing of the citizen, the disparity level
in educational and moral levels of the people, the vastness of the area, the diversity of the
nation and the utmost need to preserve law and order, India cannot risk abolishing the capital
punishment yet.
In the judicial pronouncement of Ediga Anamma v State of Andhra Pradesh[7], Justice Krishna
Iyer commuted the death sentence of the accused to life imprisonment considering factors like
gender, age and socio-economic background of the accused. In this case, the Court laid out that
apart from looking into the circumstances of the crime, the Court should also look into the
condition of the accused. This case was followed by some important developments. Section 354
(3) was added to the Code of Criminal Procedure, 1973 which stated that in cases where capital
punishment was being awarded, the Court has to give special reasons for it. This made life
imprisonment a rule, and death penalty an exception, which was the other way round earlier.

In 1979, India also became a signatory to the International Covenant on Civil and Political rights
(ICCPR).[8] In the case of Rajendra Prasad v State of U.P[9] the Apex Court, however, stated
that the question whether capital punishment should be abolished or retained was a question for
the Legislature and not for the Courts to decide.

The case of Bachchan Singh v State of Punjab again brought up the question of the validity of
capital punishment and in this case, the doctrine of “rarest of the rare” was formulated. The five
Judge Bench stated that the taking of human life shouldn’t be encouraged even in the form of
punishment except in “rarest of the rare” cases where no alternative method can be used and is
foreclosed.

When the validity of capital punishment was questioned, the bench (majority decision) opined
that capital punishment did not violate either Article 19 or Article 21 of the Constitution. They
also pointed out to the fact that the makers of the Constitution were fully aware that the capital
punishment may be awarded in some cases, and it was proved by the existence of the provision
of appeal and provision of pardoning powers of the President and the Governor. It was also laid
down that mitigating, and aggravating factors should be considered while deciding the matter.

In the judicial pronouncement of Mithu v. State of Punjab[10], mandatory death sentence, under
Section 303[11] Of IPC was declared unconstitutional and deleted from the IPC. This section
was based on the logic that any criminal who has been convicted for life and has committed a
murder while in custody is beyond reformation and do not deserve to live.

The case of Machchi Singh v State of Punjab[12] elaborated the doctrine of “rarest of rare.” The
Court gave guidelines regarding the things to be considered when deciding on the issue that
whether the case falls under the category of “rarest of rare” or not.
The following are-

1. Manner of Commission of the Crime: The Court stated that if the crime were
committed in extremely brutal and diabolic manners so that it arouses the intense
indignation of the society, it’d fall under the rarest of the rare case. Some instances were
given like when the house of the victim is set to flame with the objective to burn him
alive, or the victim is subjected to inhuman cruelty and torture, or when the body of the
victim is chopped and mutilated, it’ll be considered as a rarest of rare case.
2. Motive for Commission of the Crime: When the crime is committed in furtherance to
betray the nation, or assassins are hired to kill the victim, or any deliberate design is
made to kill the victim in a cold-blooded manner, it’ll also fall under the said category of
rarest of the rare.
3. Magnitude of the Crime: When the crime is humongous in proportion, for example,
killing all the members of the family or a locality is done.
4. Socially Abhorrent Nature of Crime:When the crime is such that it is socially abhorred,
such as killing a person belonging to the backward classes of the community, or burning
of a bride in case dowry wishes are not met, or murdering a woman to remarry again.
5. Victim of the Crime: If the victim of the crime is a small child, who couldn’t have
provided any reason to the accused to commit the crime, or the crime is committed
against a helpless woman, or an old person, and if the victim was mentally challenged,
or the victim was a public figure who was loved by the society, the crime will fall under
rarest of the rare case.

In the case of Allauddin v State of Bihar,[13] The Court stated that in case the Court was unable
to give a special reason for awarding the capital punishment, the Court should go for a lower
sentence. In the case of Kehar Singh v Union of India,[14] Assassins of the then Prime Minister,
Indira Gandhi, were sentenced to death. Kehar Singh was one of the conspirators who took part
in the planning of the murder but did not commit it. The Court stated that even this fell in the
rarest of rare category.

The case of Santosh Kumar Bariyar v State of Maharashtra[15] Can be considered one of the
cases where a major step towards abolition of the death sentence was taken. In the following
case, the accused along with three other people kidnapped a person and then demanded a
ransom of 10 lac rupees. When the demands were not met, the kidnappers killed the victim and
chopped his body into pieces and then disposed of the victim’s body by throwing, the pieces are
various locations. Although the manner in which the crime was committed was extremely brutal,
the Court considered the mitigating factors and opined that the case was outside the ambit of
“rarest of the rare” category. The reasoning of the Court was that the accused were not
professional killers, and they committed the crime with the sole motive of collecting money. The
Court opined that in such circumstances, there was a chance that they might be reformed and
opted for the lesser punishment of life imprisonment.

In the year 2012, the judicial system had to suffer two major embarrassments.[16] The first
instance was when fourteen retired judges asked for thirteen cases of capital punishment to be
commuted admitting that the capital punishment was awarded out of ignorance or error in these
cases. The second instance was where, the then President Pratibha Patil commuted the death
penalty of a convict to like imprisonment, and it was later known that he had already died five
years previously.

After these incidents, the protest against awarding of capital punishment gained more
momentum. In 2012, Ajmal Amir Kasab was executed by the State for his involvement in the
Mumbai Terror Attack. Then in 2013, Mohd. Afzal, the mastermind of the 2001 Parliament
Attack was also executed. The verdict of the Nirbhaya Rape case was also given in 2013 where
the accused were awarded death sentence; this decision also reignited the debate regarding the
death penalty.

Concluding Remarks

India’s view on the issue of capital punishment is still very topsy-turvy. The debate is not only
about the legality of the punishment but also include social and moral aspects. If the question of
law is kept aside, two views can be given on the issue. The first view is the security of the
society, and the public sentiments. The counter view is that it promotes the principle of “eye for
an eye” which can’t be accepted in a civilized society. On one hand by retaining the death
sentence, we may condemn someone to death, who turns out to be innocent. On the other
hand, by giving a second chance to someone, we might be giving them a bullet to shoot us, just
because they missed the first time.

Jagmohan Singh v. the State of U.P , (1973 1 SCC 20)

EdigaAnamma v. State of Andhra Pradesh, AIR 1973 S.C. 774

Mithu v. the State of Punjab, (1980) 2 SCC 684

[11]https://indiankanoon.org/doc/793437/

[12]Macchi Singh v. State of Punjab (1983) 3 SCC 470

[13]Allauddin v. State of Bihar, AIR 1989 SC1456

[14]Kehar Singh v. The Union of India, (AIR 1962 SC 955)

[15]Santosh Kumar Bariyar v. the State of Maharashtra , JT2009(7)SC248

[16] Supra 2