Tag: #criminaljusticesystem

“Insanity Defence”: A Loophole for Criminals

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INTRODUCTION

According to the IPC, man’s relics are an integral part of the crime. However, these offenses fall under the general exceptions set out in Articles 76 to 106 of the Indian Penal Code, where there is no personal reason and the act is committed under clearly persuasive circumstances. As a result, perpetrators must be held accountable for their actions in court. Waivers are granted if the defense is successfully defended in court.  The insanity defense in a criminal case helps prove that the perpetrator was suffering from a serious mental disorder at the time of the examination. Because of this, the person may not be paying attention to their actions. Non-psychotics may, in certain circumstances1, attempt to invoke the insanity defense to avoid paying a fine, but this is rare. Although the insanity defense was intended to improve justice, most people use it to avoid fines and other punishments. Such situations have no deterrent and are serious as people become more and more involved in such activities causing problems. 

MEANING OF INSANITY

Insanity is the inability of a person to understand the meaning of his actions or to realize that he is wrong or illegal. This alludes to mental illness, in which a person’s mental faculties are severely impaired and he is unable to comprehend the consequences of his actions. Insanity is difficult to define in a way that meets legal standards. For ordinary people, insanity is usually associated with mental illness or some kind of mental illness. 

According to Black’s Law Dictionary2, any mental illness serious enough to deprive a person of legal capacity and exempt them from criminal or civil liability is considered insanity. “Mental illness,” “mental condition,” and “mental disorder” refer to illnesses that require psychiatric or psychological help, while insanity is a legal term. As a result, one can have a mental illness, illness, or disability without being legally considered insane. However, the reverse is also true.

INSANITY AS DEFENCE AND ITS TYPE

The defendant, who is defending himself on the charge of insanity, admits to having committed the crime but claims that his insanity absolves him of responsibility. It’s more of an explanation for what the person did than an apology. A defendant may raise this defense during a criminal trial in court. It has become necessary to determine the psychology of criminals. While criminal law focuses on the suspect’s “state of mind,” it also deals with “men’s rea.” Men’s rea is a legal term that focuses on a person’s mental health. It is necessary to consider not only the physical behavior of the offender but also the emotional state. The mental state of the mentally ill person prevents him from having criminal intentions, 

In the Indian criminal justice system, the ‘insanity defense is a strategy used to acquit criminal suspects. It is based on the idea that the person was suffering from a mental illness and could not understand his actions.

There are two kinds of reasons for him: 

Permanent Insanity: The condition in which a person is permanently insane. Past actions and experiences can indicate that a person is permanently insane and obscure the seriousness of the situation. 

Temporary Insanity: Occasional or temporary loss of consciousness. Examples of temporary insanity include depression, anxiety disorders, schizophrenia, and other temporary mental illnesses. There are two possible consequences of this transient madness: he is “insane and therefore innocent” and “guilty but insane and therefore not a crime”.3

To qualify for an exception under Section 84 of the Indian Penal Code, the suspect must have engaged in an illegal or unlawful act at the time the offense was suspected or he had a mentally ill comprehension and must indicate that when there is suspicion of a crime. No one is allowed to cite mental illness as a valid reason for committing a crime. The suspect’s mental state is so bad that he cannot fully comprehend the nature of the crime.4

REPERCUSSIONS OF SANITY DEFENCE

Insanity Defense has been misused time and time again, releasing guilty people under various scenarios of insanity and undermining the effectiveness of the rule of law. Due to the prevalence of misuse, many countries have eliminated this defense including Germany, Argentina, Thailand, and much of the United Kingdom. It is difficult to prove insanity legally and requires concrete evidence, but it is easy to prove insanity medically. It is difficult to meet all the requirements of Section 84 to avoid criminal liability. Therefore, most insanity defense cases end with the defendant being criminally detained and punished. Mental illness defenses are commonly misused because it is difficult to determine whether a person was “healthy or unhealthy” at the time the crime was committed.

CRITICISM

Although rarely used in criminal cases, the defense of insanity remains controversial. The question of whether the defense of insanity is necessary often comes to our minds. Due to evidence of insanity, defendants charged with more gruesome and serious crimes cannot be found guilty of committing such crimes. If the defense alleges insanity, the suspect pleads guilty and demands a plea of ​​not guilty based on his mental state. Criminals sometimes pretend to be insane to avoid punishment. In reality, claiming an insanity defense is a dangerous defense at best. A basic rule of criminal law seems to be at stake. The insanity defense is based on the idea that punitive action is acceptable only if the accused deserves it. As a prerequisite for punishment, the perpetrator of the crime must bear the moral responsibility of being a moral agent. When a person’s mental illness is so severe that he can no longer control his irrational or compulsive behavior, he can no longer act as a moral agent would be unfair. 

Section 84 considers mental illness a cognitive impairment. Other types of mental illness are not admissible in court. Various mental illnesses can affect your ability to work to the point where you lose control of your activities. Many crimes are committed out of anger and emotion. A person can understand what he has done only after he has performed the act. However, his actions were governed by the emotions of the time. His cognitive abilities can be fairly normal.5

Although Section 84 seeks to provide appropriate treatment for mentally ill offenders, there are circumstances in which false acquittals or convictions are made. Therefore, broader ideas such as emotions, pre-action states, etc. should be included. The definition of legal insanity has been expanded to include other features of medical insanity. Instead of focusing on criminals, we need to focus on eliminating crime.  On the contrary, in the general interest of society, these criminals should not be released, given proper mental health evaluations to avoid false acquittals or convictions, and placed in psychiatric facilities. In all these situations, a psychiatrist should be consulted and an individual’s fate should not be left to the discretion of a single judge. Judges may be required by law to make certain decisions. He should get a medical opinion.

LANDMARK CASE LAWS

Ashirudeen Ahmed v. The King6 was intended to create a new test. It has been determined that to be eligible for protection under Section 84 of the IPC, 

  1. a defendant must produce evidence of one of the following: 
  2.  did not know that the act was illegal; 
  3.  did not know that the act was illegal; 

Dayabhai ChhaganBhai Thakkar v State of Gujarat7 found that consideration of the defendant’s mental state depends on the period during which the crime was committed. If the suspect was in a  state of mind eligible for protection under Section 84 of the  IPC, only the events before, during, and after the crime can be used to make that determination.

The Supreme Court has indicated which diseases are covered by this defense and which are not included in her Bapu Gajraj Singh v State of Rajasthan8. By law, this defense does not apply to bizarre, selfish, or impatient behavior or illnesses that impair the intellect and affect emotions and willpower. Also, it is not enough for the defendant to experience occasional insanity or epileptic seizures but otherwise behave normally. 

In Hari Singh Gond v. State of Madhya Pradesh9 case, the Supreme Court ruled that Section 84 of the IPC is the legal standard of accountability in cases of suspected mental illness. Courts, on the other hand, have largely associated the phrase with insanity. But the definition of “madness” is vague. It is a term used to describe varying degrees of mental illness severity. Therefore, people with mental illness are not always exempt from criminal responsibility. A distinction must be made between medical insanity and legal insanity. Medical insanity is not a matter of court. It’s legal madness. 

In Surendra Mishra v. State of Jharkhand10, the Supreme Court held that “legal insanity,” not “medical insanity,” must be proven to acquit a suspect of criminal liability under section 84 of the IPC. 

CONCLUSION

The section on insanity deals with all forms of insanity, such as “temporary or permanent,” “natural or consequential,” and “caused by disease or birth,” and treats the suspect as the sole criterion for establishing criminal liability. completely dependent on the behavior of the person. As it is difficult to determine whether someone is mentally unstable at the time of a crime, it is also difficult to determine their mental health status. Also, defending oneself is quite a challenge for an insane person. In addition, rational individuals use this defense to avoid punishment. This state makes it difficult for the law to achieve its main purpose, turning it into a loophole. The fact that a court must determine a person’s truthfulness in itself a very difficult situation makes this rule an additional loophole.  Only legitimate entities should be allowed to use insanity defenses. Ultimately it is left to the discretion of the courts, but laws made in the public interest must be applied fairly. It is reasonable to assume that the laws on insanity no longer serve their original purpose and is being used by criminals as a defense against law enforcement. Indian courts have often sought a more progressive approach to enforcing the concept of “mental insanity” in criminal law in the light of advances in medicine, and psychiatry in particular.

References:

  1. Parthasarathy Ramamurthy & Vijay Chatoth, How does India decides Insanity Plies? A review of the High Court judgements in the past decades, https://journals.sagepub.com/doi/abs/10.4103/IJPSYM.IJPSYM_373_18 (Visited on May 29, 2021).
  2. Black’s Law Dictionary, 8th Ed., p.810.
  3. Russell Covey, “Temporary Insanity: The Strange Life and Times of the perfect defense”, Available at: https://www.bu.edu/law/journals-archive/bulr/documents/covey.pdf (Visited on May 28, 2021).
  4. Manas Shrivastava & Adatsa Hota, “Privacy and Legal Rights of People with Mental Illness”, available at: https://www.ijlmh.com/wp-content/uploads/Privacy-and-Legal-Rights-of-People-with-Mental-Illness.pdf (Visited on May 30, 2021).
  5. Ashiruddin Ahmed v The King, 1949 CriLJ 255.
  6. Dayabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.
  7. Bapu Gajraj Singh v. State of Rajasthan (2007) 3 SCC Cri.509.
  8. Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109
  9. Surendra Mishra v State of Jharkhand, AIR 2011 SC 627

This article is written by Jay Kumar Gupta, a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

DNA Tech & Indian Criminal Justice System: Application, Need, and Criticism

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INTRODUCTION

DNA (deoxyribonucleic corrosive) is the most essential hereditary material tracked down in the body cells of every single person. It decides the way of behaving, human and body character of a person. It is fundamentally a heredity material in people that no two individuals (other than indistinguishable twins) share.

CONCEPT OF DNA TEST

DNA profiling is not another term for Indian Criminal Investigation, however unquestionably of course less one. DNA tests are permissible in Indian courts and throughout the time it has been created to a decent degree of precision. DNA (Deoxyribonucleic corrosive), otherwise called the structure block or hereditary outline of life, was first depicted by the researchers Francis H. C. Kink and James D. Watson in 1953. The example of the mixtures that comprise the DNA of a singular living being decides the improvement of that person. DNA is similar in each cell throughout a singular body, whether it is a skin cell, sperm cell, or platelet.

Except for indistinguishable twins, no two people have a similar DNA outline. DNA examination, or DNA profiling, looks at DNA found in actual proof like blood, hair, and semen, and decides if it very well may be matched to DNA taken from explicit people. DNA examination has turned into a typical type of proof in criminal preliminaries. It is likewise utilized in common suits, especially in cases including the assurance of Paternity of Identity by the Supreme Court of the United States in Maryland v King. The approach of DNA innovation is one of the main logical headways of our time. The maximum capacity for utilization of hereditary markers in medication and science is as yet being investigated, yet the utility of DNA distinguishing proof in the law enforcement framework is as of now undisputed. Starting from the principal utilization of scientific DNA examination to get an attacker and killer, the courts have recognized that DNA testing has an unparalleled capacity to both, excuse the wrongly sentenced and to distinguish the blameworthy. It can essentially further develop both the law enforcement framework and police examination rehearses.

DNA TECHNOLOGY IN THE ADMINISTRATION OF JUSTICE

DNA innovation has been utilized in both Civil and Criminal matters. While validating proof and Disaster Victim Identification expected in Criminal cases, DNA innovation has been utilized. DNA can likewise be utilized to recognize hoodlums with staggering precision where natural proof is required. In Civil issues, DNA innovation is utilized to decide the hereditary, blood connection, support of a kid, and family relationship. DNA for the most part works or is utilized in two ways to tackle violations. At the point when a suspect is distinguished and his example or DNA will be contrasted and the proof got from the crime scene, this correlation makes it simple to decide if the suspect had carried out the wrongdoing or not. Another case comes, where the suspect has not been distinguished and the organic proof got from the crime scene would be contrasted and the guilty parties’ profiles in DNA data sets which assist in recognizing the wrongdoer.

In criminal matters, DNA profiling has not just assisted in breaking cold cases and connecting violations with lawbreakers yet additionally supports the ID of casualties generally speaking. As a rule, the casualties are being killed with an overall viewpoint of concealing the personality of the lawbreaker and because of durable examination methods, it becomes hard to interface recuperated body stays with the person in question.

In such circumstances, DNA profiling ends up being a curse. It likewise aids in further demonstrating the culpability or blamelessness of the denounced yet treating the DNA proof might lead the case in a misguided course because of which courts are left with no other choice but to give the advantage of the uncertainty to the charged. An amazing occurrence for this was Santosh Kumar Singh v State through CBI, otherwise called the Priyadarshini Mattoo case.

The altering of proof alongside the terrible examination was the greatest obstacle looked at by the arraignment in the preliminary. The cherry on top was that the DNA test demonstrated assault however again that was being altered during the examination which makes an advantage of uncertain circumstances for the blamed person. Regardless of many confirmations inclining toward the prosecution, the trial court vindicated the charged individual expressing that CBI had bombed on a few counts specifically disguising from the court that the confirmations gathered by it, were manufactured for the denounced. Likewise, an appropriate system for leading the DNA test denies the court a valuable chance to judicially audit it.

DNA AND FAIR TRAIL

DNA is one of the most remarkable examination apparatuses with a special case of indistinguishable twins which implies that the DNA of every individual contrasts from one another and no two individuals exist having a similar DNA. DNA has excellent evidential worth. On the off chance that any DNA proof has been gathered from the crime location, it lays out an immediate connection with the guilty party and can wipe out the different suspects from doubt. For instance, during an assault, natural proof like semen, blood, skin cells, body hair, and so on, can be left at the crime location or the victim’s body. The organic proof got from the crime location would be contrasted with the wrongdoers’ profiles in DNA data sets which assist in distinguishing the guilty party. This is the way DNA innovation help in a fair preliminary in rape cases as well as in cases connected with hijacking, aggressive behavior at home, murder, and DNA innovation assist Civil courts with settling the question matters of common cases.

The compelling DNA as an evidential apparatus helps in looking at and dissecting the disposal of suspects having legitimate admittance to the crime scene at the hour of the wrongdoing. At the point when DNA has been received from the crime scene, it can begin taking out the suspects approaching the crime scene yet their DNA isn’t coordinated with the organic proof gathered from the place and that is the way this DNA innovation helps in a fair preliminary by segregating the blameless individuals who were available at the crime location however not having any connection with the wrongdoing.

TOLERABILITY OF DNA PROOF IN PATERNITY QUESTION CASES

In India, at first, judges took a moderate view concerning the evidential worth of DNA innovation in settling the maternity and paternity question cases. The Indian legal executive frequently deals with issues in responding to an inquiry for example while concluding fatherly obligations, the natural rate ought to be given need over the friendly rate. DNA rate testing can give proof that shows that an individual has a blood connection or natural association with a departed individual or can assist an individual with involvement in the suit.

Section 112 of the Indian Evidence Act, 1872 says that assuming a kid was brought into the world during the continuation of a substantial marriage between his mom and any man or on the other hand on the off chance that a youngster was brought into the world inside a time of 280 days after the disintegration of marriage and the mother stays unmarried during that period, it is the convincing verification that the kid is a genuine offspring of that man, until and except if the man shows that he had no admittance to the mother of a kid during the concerned period. Presently, DNA testing can be utilized to decide the paternity of the youngster and can without much of a stretch supplant this segment, as DNA testing can undoubtedly sort out the authenticity of that kid. Be that as it may, DNA testing decides the natural rate, as opposed to the social rate.

HINDRANCES TO THE EXECUTION OF DNA TECHNOLOGY

Assuming one examines the plenty of cases over utilization of DNA proof one can be guaranteed that there are a few misgivings about the manners by which such touchy information can be utilized in the Indian situation. This carries us to examine the central issues which have hindered the execution of the utilization of the innovation as well as the impending DNA Bill. A portion of the hindrances in execution have been expressed underneath.

First is the autonomy of the scientific organizations, which, most importantly, is depicted under the policing and the particular Home Department. Without having sufficient autonomy, there are higher possibilities of proof altering and misusing. Furthermore, the measuring labs don’t have the labor required or in any event, working infrastructure. Many specialists are expected for legitimate examination, individuals for conveying the advancement between the specialists, and in particular, between the criminological wing and the police. Thirdly, the police and the research officials must be completely prepared for taking care of the crime scene and gathering the proof. Right now inferable from an ill-advised or even absence of essential preparation required, individuals sent at the crime location obliterate the crucial confirmations which might have demonstrated so assuming it had been gathered by an authority prepared, as the person in question would have applied the fundamental information with ability and diligence. Lastly, and above all, India needs a devoted regulation that can legitimize the utilization of DNA proof for examinations, and the equivalent will not be exclusively left for the court to decide. Detailed regulation is probably going to cure all the previously mentioned limitations.

Notwithstanding the previously mentioned viewpoints, there lie more prominent difficulties because of which the courts also are reluctant to involve scientific proof in a criminal examination. Some of them, as indicated by the courts are amateurish direct of actual proof, including ill-advised assortment, or not gathering the proof, protecting the proof, no upkeep of chain of authority, as well as careless and postponed dispatch of actual proof for logical investigation. Different reasons incorporate not sending a charged person for medico-lawful assessment, non-lifting of fingerprints by the researching official (IO), or when the bloodstained human item had been sent for synthetic assessment without covering a similar following the capture of something similar. The courts are normally constrained to dismiss the report. There are additionally specialized lacunas that lead to altering of the proof like the postponed review of shows, non-notice of blood bunch in serologist’s report, ill-advised tests, and so forth.

LIMITATIONS OF DNA PROFILING

The presentation of DNA profiling has represented a few serious difficulties to the legitimate privileges of an individual, for example, the Right to Privacy and Right against self-implication which is the reason its been declined as proof by the Courts in some cases. Additionally, the acceptability of the DNA proof under the watchful eye of the court generally relies upon its exact and legitimate assortment, safeguarding, and documentation which can fulfill the court that the proof which has been placed in front of it is solid.

There is no particular regulation present in India that can give specific rules to the examining organizations and the court, and the method to be embraced in the cases including DNA as its proof. Nonetheless, a few arrangements permit the assessment of an individual blamed for assault by a clinical expert and the clinical assessment of the assault casualty separately yet the tolerability of these confirmations has stayed far-fetched as the assessment of the Supreme Court and different High Courts in different choices stayed clashing.

Judges don’t prevent the logical exactness and decisiveness from getting DNA testing, yet at times they don’t concede these confirmations on the ground of legitimate or established restriction and now and again the public strategy. The Patna high court, in Rajiv Singh v. The State of Bihar alluded to OJ Simpson case and noticed the potential mistakes at different stages engaged with DNA technique and noticed:

One of the enduring impacts of the OJ Simpson case will probably be a more noteworthy examination by safeguard attorneys of the arraignment’s scientific DNA proof introduced in criminal cases. In the Simpson case, the protection, put the wrongdoing research facility being investigated.

There is no significant question about the basic logical standards in DNA profiling, be that as it may, the ampleness of research facility systems and the skill of the specialists who affirm ought to stay open to request. Although there is a typical agreement among established researchers that DNA profiling can yield results with an extremely high likelihood, the complicated technique of DNA profiling isn’t without issues. At each period of the seven-step methodology recently portrayed, botches and an ill-advised treatment of the DNA test can deliver misleading outcomes which at times can prompt lifelong incarceration or even capital punishment judgment.

Subsequently, the ampleness of lab methods and the capability of the specialists who affirm ought to stay open to request. The assortment of organic proof remains part of the most extreme significance in the scientific examination. The controls or pollution of tests whether volunteer or carelessly may vitiate the master report.

CONCLUSION

It may very well be securely presumed that the Supreme Court is yet to think with point-by-point knowledge about the sacred legitimacy of different measurable devices for uncovering reality during examination even though there have been many cases whose conviction and guiltlessness depended on the DNA proof. To make the innovation of DNA profiling more dependable, the authorities and court need to concoct specific rules or regulations so there will be lesser messed-up examinations as are the possibilities of the unnatural birth cycle of equity.

This article is written by Arpita Kaushal of UILS, PUSSGRC , HOSHIARPUR.

CITATIONS

  1. Khyati Jain, ‘Challenges and concerns in Admission of DNA evidence in India: With special reference to DNA Technology (Use and Application) Regulation Bill, 2019’ (SCC Online Blog, 6 April 2022), https://www.scconline.com/blog/post/2022/04/06/challenges-and-concerns-in-admission-of-dna-evidence-in-india/ ( last accessed on 27 June, 2022 ).
  2. Maryland v King 133 S.Ct. 1958 (2013).
  3. Santosh Kumar Singh v State, (2010) 9 SCC 747.
  4. V.R. Dinkar,  Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79, 80 (2015).
  5. Rajiv Singh v. The State of Bihar,( 2010) 9 SCC 747.
  6. People of the State of California v. Orenthal James Simpson, 28 Loy. U. Chi. L. J. 461 (1997).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.

An Overview of Psychological Theories of Crime

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INTRODUCTION

When a crime happens, there are various reasons behind it. But the reasons are usually not known to most of us. Criminology theories or theories of crime describe those reasons. An individual can commit a crime for satisfying different needs. Crime causation has always been a complex field[1]. For a long time, scientists and experts have been trying to figure out what causes crime. There are several theories regarding this issue of explaining crimes which have been explained in the later parts of this article. As had been already mentioned, this article primarily deals with the psychological theories of crime. The psychological theories have been proven to be one of the most significant ones out of all the other theories. It can further be divided into “psychodynamic theory”, “behavioral theory”, and “cognitive theory”[2].

DETAILED ANALYSIS OF THE PSYCHOLOGICAL THEORIES OF CRIME

The first element of the psychological theories of crime is the “psychodynamic theory”.
The “psychodynamic theory” had been based on the approach that Sigmund Freud had concerning the field of psychology. It has the components of “id”, “ego”, and “superego”. Some experts had accepted that there is a link between this theory and the causation of a crime. According to them, any kind of imbalance amongst the abovementioned components might be a cause behind delinquency. At the same time, this belief had been disregarded by many scientists who believe that there is no such link between these components and criminology. The main problem that lies with this theory is that it is difficult to test[3]. This theory also mentions that an individual’s criminal behavior can get projected when there is an imbalance in the psyche of the individual. Such imbalances often happen as a result of an unpleasant childhood. Disturbing childhood experiences might trigger bitter emotions in individuals even in their adulthood.
The next important component of the psychological theory is the “behavioral theory”. Experts say that human behavior develops based on the experiences that they gather with time[5]. If a person is in the company of those who endorse and even reward criminal conduct – particularly those in positions of authority – they will continue to engage in that behavior and attitude. According to social learning theorist Albert Bandura, “Individuals are not born with an innate ability to act violently. He instead suggests people learn violent behavior through observing others. Typically, this comes from three sources: family, environmental experiences, and the mass media.” Behavioral issues can happen due to family issues, violent environments, drug problems, etc. Proper behavior comes as a result of proper conditioning. Childhood plays an important role when we talk about the psychological theories of crime.
Finally, the cognitive theory is an important element of the psychological theory. Individuals’ mental processes or cognitive functions are the focus of psychologists in this field. More notably, cognitive theorists seek to comprehend how criminal offenders perceive and mentally represent their surroundings[6]. This element is more about how an individual judges the morality of a situation, and how they differentiate right from wrong. There are certain levels and stages in this theory. The cognitive theory and the behavioral theory are quite interlinked to each other.

OTHER THEORIES OF CRIME

The various theories of crime apart from the psychological theories are mentioned as follows: “Biological theories”, “Economic theories”, “Psychological theories”, “Political theories”, “Sociological theories”, “Strain theory”, “Social learning theory, “Control theory”. The biological theory states that a link can be established between the biological state of a person to their criminal tendencies. It also suggests that genetics play an important role in determining the criminal behavior of an individual. Sociological theories are another important set of theories in the field of criminology. This theory can further be divided into three theories: “strain theory”, “social learning theory”, and “control theory”. In the case of a strain theory, an individual does criminal activities because they experience extreme stress and negativity around them that makes them act in a particular way. According to social learning theory, individuals get involved in crimes due to social situations around them (for instance “peer pressure”). Finally, control theory is defined as the situation where an individual feels that they can achieve a thing conveniently through crimes.
There are a lot of other theories, that have been proven to be very useful in studying the reasons as to why a criminal commits the crime.

IMPORTANCE OF CRIMINOLOGY THEORIES

It is extremely important to know why an individual commits a crime. If that becomes known, it will be easy to avoid crime. These criminology theories help the law experts, policymakers and experts belonging to other fields like psychology[7], to frame a society that is free from criminal activities. Studying these theories also helps in finding new ways to deal with delinquents. The “cognitive-behavioural approach” assists delinquents in developing basic socially appropriate abilities for identifying and resolving conflicts and problems[8].

CONCLUSION

It can be concluded from the article that it is essential to study criminology theories to understand crimes from their grassroots level. Criminology and criminal law are very much related to each other. Punishments mentioned under criminal law are supposed to help the delinquents to become better people. In a way, it also affects the psychology of the individual. Similarly, criminology also helps in understanding the minds of criminals. After lots of studies, it had been found that these crime theories (especially the psychological theories) are very much linked to the criminal mindsets of individuals.

ENDNOTES

  1. Sonia Balhara, “Theories of causation of crime”, [January 31, 2021], https://blog.ipleaders.in/theories-causation-crime.
  2. “Psychological Theories of Crime”, http://criminal-justice.iresearchnet.com/criminology/theories/psychological-theories-of-crime/
  3. “What Are the Three Major Psychological Theories of Crime?”, https://online.pointpark.edu/criminal-justice/psychological-theories-of-crime/
  4. Meghna Gupta, “Psychological Theories of Crime”, https://www.legalserviceindia.com/legal/article-984-psychological-theories-of-crime.html
  5. Ibid
  6. Supra note 2
  7. “Major Criminology Theories and How They Affect Policy”, [October 31, 2018], https://onlinedegrees.kent.edu/sociology/criminal-justice/community/criminal-behavior-theories
  8. J. J. Platt and M F Prout, “Cognitive-Behavioural Theory and Interventions for Crime and Delinquency (From Behavioural Approaches to Crime and Delinquency: A Handbook of Application, Research, and Concepts)”, https://www.ojp.gov/ncjrs/virtual-library/abstracts/cognitive-behavioral-theory-and-interventions-crime-and-delinquency

This article is written by Aaratrika Bal student at National Law University Odisha.

Rising cases of Domestic Violence during the lockdown in West Bengal

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Abstract – The article will make the readers conscious of the heinous act, i.e., the domestic violence in India. The article talks about the rising cases of domestic violence during the lockdown in West Bengal and the role of the West Bengal Women’s Commission in curbing such menace.

INTRODUCTION

In India, domestic violence against women is dominantly prevalent, that is tried to conceal. We live in a patriarchal society where one in every three women is subject to domestic violence. According to a research, 45 percent of women in India are subjected to violence by their spouses. Domestic abuse is a largely unseen crime that occurs mostly behind closed doors.

During the lockdown, West Bengal saw an increase in domestic violence cases. Many women were subjected to domestic violence and physical abuse. Women had previously faced physical assaults, but the lockdown had exacerbated and worsened the situation.

Since the imposition of lockdown, more than seventy domestic violence cases have been reported to the commission. The number of complaints received during this period was higher than in the months preceding the lockdown.

Analysis

According to the state women’s commission, domestic violence cases in West Bengal have increased during the lockdown. Since the lockdown was imposed, the commission has witnessed a surge in reports of domestic violence. The complaints came from all over the state, in both rural and urban areas, including Kolkata.

National and International laws

Protection of Women against Domestic Violence Act 2005

 This Act was promulgated to protect women against physical, sexual, and emotional abuses, all of which are widely specified under the Act. The Act not only talks about the protection of married women, but also women who are in live-in relationships with men. It is a must that woman should be free from all forms of violence. 

Section 498 of IPC

“Whoever takes or entices away from any woman who is and whom he knows or has reason to believe is the wife of another man, from that man, or any person caring for her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains any such woman with that intent, shall be punished with imprisonment of either description for a period which may extend to two years, or with fine, or with both.”

Dowry prohibition Act, 1961

 Anyone who provides, accepts or even asks dowry can be imprisoned for a half-year (i.e., six months) or fined up to Five Thousand Rupees under this rule.

CEDAW

CEDAW adopts a three-dimensional and practical approach based on the concept of substantive equality or gender equality. This goes beyond equal opportunity and legal language to consider the current state of women’s lives as the actual litmus test for whether or not equality has been attained.

The media still does not play an influential role in minimizing domestic violence against women. They fail to cover the incidents and spread those to the mass, taking place every day in the marginalized communities. Because the media serves as society’s eyes, ears, and limbs, it has the potential to significantly reduce violence against women.

ROLE OF MEDIA IN COVERING THESE ISSUES

The role of media should be to expose the shades of malice and spread awareness about the rights of the women. The media needs to be aware of the violence directed against women. Indeed, many women have said that the media’s coverage of an assault or other form of brutality resembled a second attack due to the insensitivity with which they used images, published names, and other invasions of privacy.

The media’s involvement in the issues of violence against women is essential both in terms of how it covers the matter and in terms of how it may be utilized to assist activists and governments in raising awareness and implementing necessary programme.

In general, the media lacks in instilling an extensive awareness of domestic violence in the public. As a result, many scholars believe that media portrayals of domestic violence are part of a hegemonic patriarchal worldview that obscures both the issue of domestic violence and the underlying social processes that generate it.

Case Laws

S.R Batra and Anr v. Smt. Taruna Batra

 Referring to Sec17(1), 4Sec2(S) Of Domestic Violence Act, the Supreme Court held that:

Only the wife has the right to live in a joint household.

A house owned by a husband, a house rented by a husband, or a house that belongs to a husband’s joint family is considered a shared home.

The judgement further noted that, under section 19(1)(f) of the act, the claim for alternative accommodation may only be raised against the spouse and not against his in-laws or other relatives.

As a result of the facts of the case, it was determined that the wife could not claim a right of residency in the property belonging to her mother-in-law.

Dr Velusamy v.  Patchaiammal

The court noted that the Act’s definition of “domestic relationship” in section 5 sec 2(f) includes not just marriage but also a relation “like marriage” in this case.

Because the term “relationship like marriage” isn’t defined in the Act, the court clarified its meaning. According to the court, not all living relationships qualify as “relationships like marriage,” which must meet the following criteria. In addition, the parties must have lived together in a “shared household.”

The couple must exhibit themselves as husband and wife to the rest of society. To marry, they must be of legal age. To engage in lawful marriage, they must meet all other requirements, including being unmarried.

Conclusion

The government must develop a comprehensive strategy and allocate sufficient funds to provide support services to survivors, ensure the application of domestic violence laws, and conduct public awareness campaigns emphasizing that domestic violence is a crime and that the state will take strict action against it. The judicial system must become more active and effective in bringing justice to victims and sufferers.

This blog is written by Shruti Bose, studying at Christ (Deemed to be University), Lavasa

Edited by Deeksha Arora.

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Rights of Victim under Criminal Justice System in India

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This article is written by Aayukta Sharma, a law student at NIMS University Rajasthan, Jaipur. This article gives an overview of the background and history of victims with today’s circumstances to evaluate the relationship between the victims and the criminal justice system in India. It also includes the rights given to the victims in the Indian criminal justice system.

Introduction

The Ancient period was the golden age for victims of crime. The relationship between crime victims and criminal justice was very unique as the victims could ask for justice as per their wish. The system of retributive justice was present at that time which would mean an “eye for an eye” treatment provided to the victims. However, it had some kinds of elements of restorative justice because the perpetrator undoes the harm done to the victim. [i]

Criminal Justice System from the Ancient Period to Later Middle Age

During the Middle Ages, we can see the influence of the Anglo-Saxon period. During this time the crime was treated as a matter of private revenge. The entry of social leader (e.g., king) was noticed and it was no more the victim alone was given all sorts of rights during this time. But there was also a third party who would be deciding that what sort of punishment or compensation should be provided to the victim. The ultimate decision was taken by the state or the king/leader. The system fines were introduced during this period which went to the state which was paid by the accused with the amount of compensation that went to the victim.

In the later Middle Ages, the crime was considered as social harm and the state assumed complete responsibility. So, the state was considered the main victim. Crime victims were just “pieces of evidence”. It is considered the dark age for victimology.

Background of Rights of Victims Under the Criminal Justice System

The General Assembly of the United Nations adopted the declaration of basic principles of Justice for Victims of Crime and Abuse of Power at its 96th plenary on November 29, 1985. The Declaration constituted an important recognition to set the norms and minimum standards in international law for the protection of victims of crime and also for the rights of victims of crime – access to justice and fair treatment, restitution, compensation, and assistance.[ii] It also observes relevant judicial dicta that have sought to address the needs of victims of crime. The victim of the crime is the person who initiates the criminal justice system by informing the police about the crime, crime scene, accused, and suspects and the officer in charge is duty-bound to register the complaint[iii]free of cost[iv] and also provide a copy of the FIR free of cost. If the officer in charge refuses to register the written complaint, the victim can write to the Superintendent of Police.[v] In case he also refuses or is not entertaining the matter, the victim can file a complaint to the magistrate.[vi] The victim thereafter only participates in the investigation when he is called to confirm the accused’s identity.[vii]

The criminal justice system is responsible for looking after the needs of the victims of rape and other violent crime against women has always been predictable and inadequate.  The place of the victims who are women or children. In imposing the punishments[viii] and shifting burden of proof [ix] the law has failed to address the need of the victim to be treated with dignity, protection from intimidation, to readily access the justice procedure to legal aid and rehabilitation.

It is the right of the victim to get compensation under the criminal procedure code 1898 but it is substantively available to the extent of the fine received by the offender according to the fine specified in the Indian penal code 1860

Victimology and Criminology

Criminology is a broader term where victimology is a part of criminology. Victimology consists of victims, crime victims, victim rights, victim precipitation, etc.[x] The term victimology academically consists of two words – “Victim” and “ology”. It means the psychological study of the victims of crime and the main objective is to restore their mental, physical, psychological, emotional, and financial status as it was before the occurrence of the accident with them. Whereas criminology focuses on the punishment of the criminals and prevents the crime before happening.

Victimology vs Victimization

There is a great misunderstanding between both the words, “Victimology” and “Victimization”. Victimization is the outcome of deliberately taken actions by a person or institution to exploit or harm another. Victimology is the study of Victimization[xi]. The harm includes emotional, psychological, physical damage, economic loss, or sexual injury.[xii]

Victim’s Rights

Victims have very few legal rights as compared to criminals or accused of crimes in the criminal justice system. Victims do not have any right to be notified about the trials, court proceedings, or arrest of the defendant but they have the right to be informed, heard, and present within the criminal justice system. The victim assistance program is virtually non-existent. The core rights of the victim are-

  • Right to apply for compensation
  • Right to a speedy trial
  • Right to attend the criminal proceedings in court
  • Right to protection against harassment and intimidation.
  • Right to prompt return of personal property seized as evidence

Other rights given to the victims by the constitution are-

  • Right to attend the trial and proceeding
  • Right to be treated with fairness, dignity, and respect
  • Be informed of the proceeding and events such as the release of the defendant
  • Be awarded restitution from a convicted offender.
  • Be heard at critical points in the criminal justice system such as sentencing or parole hearings.

Judicial Activism – Landmark Judgments for Victims of Crime

  • The National Human Rights Commission V State of Gujrat 2009[xiii]

The Necessity for considering victim’s rights

  • Alister Antony Pareira v State of Maharashtra 2012[xiv]

Significance of no contract order

  • Delhi Domestic Working Women’s Forum v Union of India[xv]

Legal representatives of direct victims & all sorts of aid to the victims

  • State of Punjab v Gurmit Singh 2002[xvi]

The Necessity for in-camera proceedings

  • Balasaheb Ranganath v state of Maharashtra[xvii] 

Victim’s right to appeal

Conclusion

Over the last two decades, the victims have taken a much more prominent place in the criminal justice system. From the golden age of victims in the ancient era to the current era, Victims struggle a lot to gain their rights within the system. The victims also get defamed and end up in subjugation and are unable to cope with the circumstances or crimes they’ve witnessed even after the punishment to the criminal and compensation to the victim. 

References

[i] http://www.legalservicesindia.com/article/1391/The-Legal-system-in-ancient-India.html

[ii] Clause 4 and 5 of the UN Declaration

[iii] S. 154(1) of Cr. PC. 1973 – Registered as the first information report (FIR)

[iv] S. 154(2) of Cr. PC. 1973

[v] S. 154(3) of Cr. PC. 1973

[vi] S. 190 of Cr. PC. 1973

[vii] S. 9 of Evidence Act 1872 – the evidence gathered by some means of test identification parade is relevant and admissible.

[viii] S.376(2) IPC 1860 – Punishment of rape

[ix] S. 114 A, Evidence Act 1872 -presumption as to the absence of consent where the women raped says that she did not give her consent.

[x] https://www.jusdicere.in/crime-victims-and-victimology/

[xi] https://en.wikipedia.org/wiki/Victimology

[xii] http://www.legalservicesindia.com/article/1349/Victims,-victimization-and-victimology.html

[xiii] National Human Rights Commission vs State of Gujarat & Ors on 1 May, 2009

[xiv] Alister Antony Pareira v State of Maharashtra on 12 January 2012

[xv] Delhi Domestic Working Women’s Forum v Union of India 1995 SCC (1) 14, JT 1994 (7) 183

[xvi] State of Punjab v Gurmit Singh 2002 CriLJ 3210

[xvii] Balasaheb Ranganath v state of Maharashtra on 19 December 2017

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