Module 4

Criminal Law and Poor

 Introduction
• Generally there are three important components
of Criminal Justice System: Law enforcement;
courts; corrections.
• These three components works successfully if
people associated with it follows values including
honesty; hard work; virtues.
• As we know criminal justice system is designed to
deliver “justice for all”, where the idea is to
protect the innocent; convicting criminal and
providing a fair justice process.
• Law enforcement: Acc. to Bureau of Police
Research & Development the ration of police
personnel per lakh persons is 195.39 as per
sanctioned strength and 155.78 as per actual
strength.
• It is far behind then most countries and UN
recommendation of 222.
• Acc. to 2018 survey across 22 states on
perceptions about policing, it was found that
less then 25% of Indians highly trust police as
compared to 54% for army.
• 30% of all cases filed in 2016 were pending for
investigation by the end of the year.
• According to another report sanctioned
strength od police across states was around
2.8 million, but only 1.9 million police officers
were employed. [Centre for the Study of
Developing Societies (CSDS)]
• Accordingly, report shows there are 144 police
officials for 1 lakh citizen.
Importance of Correction: Jail administration;
their role is important not only keeping criminals
confined within prison walls, but in rehabilitating
them.
Issues such as over crowding ; for instance India’s
under-trial population remains among the highest
in the world. More than half of them were
detained for less then six months alone in 2016. In
that year almost 68% were under-trials.
(Hussainara Khatoon, Art. 21)
The overcrowding is constantly increasing in last
10 years. (118..%)
• Incidents of Custodial Deaths: NHRC year wise
reports- such cases are dominated by UP
• Killing of George Floyd in U.S. & P Jeyaraj and
his son J Bennix in Karnataka or Hyderabad
encounter; Vikas Dubey encounter.
• DK Basu v. State of WB
• PUCL v. State of MH
• Law commission reports 152 & 273
• NHRC 2010 guidelines
 Prevention of Torture and inhuman
Treatment
• Torture is considered as the crime against
humanity. It is the action that instantly convert
wrongdoer into victim. Torture seeks to annihilate
the victim’s personality and denies the inherent
dignity of the human being.
• In 1975, while responding to vigorous activities of
NGOs, the general assembly adopted the
declaration on the Protection of All Persons from
being subjected to Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
Examples of Tortures (historically)
• In last few thousand years of human history have
shown us to be good at one thing, i.e. the art of
inflicting painful, humiliating death on one
another.
• Boiling to Death- a slow and agonizing
punishment.
Emperor Nero is said to be one
who used this method, then
There were examples in
Germany, in England Henry VIII
introduced this method against
those who poison to commit
murder.
• Court’s interpretations supported Article 21-
and stated that even state has no authority to
violate this right.
• Sathyavani Ponrani v. Samuel Raj- also stated
that right to free and fair investigation and
trial is enshrined in Art. 14 & 21.
• National Campaign Against Torture report a
total 1,731 deaths in custody 2019, i.e. 5
persons daily.
• Most resent example is in 2002, Uzbekistan
• History of execution/ execution sites
• e.g. UK (Newgate prison; Execution Dock; St.
Paul’s Cathedral; Lincoln’s Inn field etc.)
• One such infamous example was of
gunpowder treason and plot against King
James-I
• History of British bloodshed
• Though 1215 Magna Carta stated that no one
could be imprisoned and punished unlawfully.
• In this context here it is important to know the
principle of Habeas Corpus, which derived its
existence indirectly from Magna Carta.
• “No freeman shall be taken or imprisoned, or be
disseized of his freehold or liberties or free
customs or be outlawed or exiled or any other
wise destroyed; nor will we not pass upon him,
nor condemn him, but by lawful judgment of his
peers or by the law of the land.”
• Section 38
Nullus balivus ponat aliquem ad legem,
simplici sua loquela, sine testibus fidelibus ad
hoc aductis
• No legal officer shall put anyone to the law i.e.
start legal proceeding against anyone- (this is
the universal human rights, not limited to free
men)- on his own mere say-so, without
reliable witness having been brought for the
purpose.
• Convection
• Bill ; Law commission report 273rd
• Constitutional Provisions; Evidence law; CrPC etc.
• National Campaign Against Torture (NCAT) report
(2020) says five custodial deaths daily. 2019-
1,606 deaths in judicial custody and 125 in police
custody
• Out of these 125 cases 93 persons died due to
allege torture or foul paly while 24 died under
suspicious circumstances
• 75 of these (60%) belonged to poor and
marginalized communities.
• Women continued to be tortured or targeted
for sexual violence in custody often comes
from weaker section of the society.
• Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or
punishment
• Tihar jail incident, in one year 9 prisoners died.
The postmortem reports confirmed death of
three inmates was a result of ill treatment
amounting to torture. Leads to Delhi HC
intervention.
• Additional information: UN General Assembly
resolution 73/296, designating international day
to commemorate the victims of acts of violence
based on region or belief, the world has faced the
alarming escalation of hate. (22nd Aug 2021)
• Counter-insurgency operations, where thousand
of people were killed, widespread human rights
abuses, including torture, forced disappearances,
extrajudicial execution etc.
• The municipal records- police had secretly
cremated thousand of bodies.
• Several Habeas Corpus petitions were filed in SC
and CBI probe was ordered.
• NHRC was appointed as a sui generis body with
the power of supreme court under Art. 32.
• In 2006, NHRC compensated the next to kin of
1,051 individuals for the wrongful cremation. In
2010 Delhi HC ordered compensation to a father
of a riot victim.
• United Nations Convention against Torture
(UNCAT) is one of the first documents to deal
with the prevention of torture.
• Adopted in 1984, India is signatory (1997) but
not ratified.
• The convention condemns torture, inhuman
degrading treatment of prisoners by officials.
It involve the infliction of higher degree of
pain both mentally or physically.
• Art. 1- any act causing severe pain or
suffering, whether physical or mental
intentionally inflected on a person;
• The Prevention of Torture Bill, 2017
• to provide punishment for torture inflicted by
public servants or any person inflicting torture
with the consent or acquiescence of any
public servant, and for matters connected
herewith or incidental thereto.
• Punishment- 3 years to 10 year imprisonment
and fine.
• Statement of objects and reasons :
acknowledges torture and cruelty by police,
shares data of national crime record bureau.
• Out of 170 countries, India remains one of the
only eight countries who didn’t ratified.
• Also refer to 152 law commission report;
• Most importantly 2017, SC observation- in
absence of anti-torture law we have weak
extradition….
• International commission of Jurists criticized
India’s failure to deal with the issues of torture.
Universal periodic review – 22 states urged India
to immediately ratify the convention.
• 273rd law commission report:
• The Law Commission Report of 1985 strictly
citing the Apex Court’s verdict in the case
of State of Up v. Ram Sagar Yadav suggested
changes to the Indian Evidence Act, 1872
pertaining to section 114 of the act. As said in
the report on the dire need of reform.
• Lack of political willingness – for e.g. non
compliance with SC directives on police
reforms. Governments have either rejected,
ignored or diluted significant features of the
directives. Reported by Commonwealth Human
Rights Initiative (2018).
• Prakash Singh v. Union of India, 2006, SC laid
down several directives on police reforms for
the central and state govts.
• Constitution of a state security commission
(SSC) in each state and union territory to
‘ensure that state govt. does not exercise
unwanted influence or pressure on the state
police’.
• The functions of SSC proposed to work on
drafting broad policy guidelines; evaluating the
performance of the police and preparing
annual report.
• In order to maintain a check on political
influence it was recommended to include the
leader of opposition; in etc. dependent
member and penal etc.
• Court also cited the reports of National
Human Rights commission; Ribeiro Committee
and Sorabjee Committee.

• Peeling Principles (Ethical Police Force)-

Policing by consent (see the possibility in
India)
• Court: the court professionals from judges to
bailiffs are responsible for understating
criminal cases, divulging the truth behind
them.
• Overburdened Judiciary- 18 judges per one
million population;
• safety and security of Judges (Jharkhand
incident).
• Politicizing Judges and impact on
administration of criminal Justice etc.
• Broadly main objectives of criminal justice
system are:
To punish the transgressors and criminal;
To prevent the occurrence of crime;
To rehabilitate;
To compensate the victims (restorative justice)
To deter the offender;
Maintain law and order in society;
To safeguard the accused/offenders rights (use
of forensic and other technique)
 Mechanisms for ensuring Justice to
Poor
• Public interest litigation
• Bail Justice Jurisprudence
• Compensatory Justice Jurisprudence (CrPC
sec. 357; Probation of Offenders Act, sec. 5
etc.)
• Prison Justice (prisoner’s rights- role of plea-
bargaining etc.)
• Legal Aid and Legal Service
Right to Die vis-à-vis Suicide under Law
• The word Euthanasia –means ‘good death’
• It include various types or dimensions- from
active; passive; voluntary; involuntary and
physician assisted. [ the euthanasia movement in
modern America, 2003]
• Debatable and complex issue- has various aspects
including ethical, human rights, legal, health,
religious, economic, social and cultural etc.
• Medical and human rights perspectives
• In India abetment to Suicide and attempt to
suicide are both criminal offences.
• In 1996, abetment of commission of suicide
(306) came before the court in Gian Kaur v.
State of Pb, where accused were convicted by
lower and appellate court.
• Before SC the contention was ‘right to die’ be
included in Art. 21, any person abetting the
commission of suicide is in a way assisting the
enforcement of Art. 21, hence their
punishment is violation of Art. 21.
• The matter was referred to Constitutional
Bench and court held that right to life doesn't
include right to die.
• Further, court argued that abetment to
suicide and attempt to suicide are two distinct
offence and hence 306 can survive
independent of 309.
• Court also stated that attempt to suicide is
result of depression and hence person need
help rather punishment & asked Parliament to
reconsider the feasibility of deleting 309.
• Background developments: State v. Sanjaya
Kumar Bahtia, 1985- Delhi HC strongly
recommended for the removal of sec. 309 and
insisted that defendant instead should be send to
clinic.
• Maruti Shripati Dubal v. State of MH, 1986,
wherein a mentally ill patient tried to end his life
by pouring kerosene over him and lighting a
matchstick. The division bench of HC held sec.
309 to be ultra virus of Art. 14 and 21. It is argued
that right to life include right to die. It further
drew a analogy of positive and negative
freedoms.
• Chenna Jagadishwar v. State of A.P., 1988, however AP
High Court upheld the validity of sec. 309.
• In 1994, P. Rathinam v. UOI, the question around
constitutional validity sec. 309 IPC came before the court
& where court held that 309 is unconstitutional under
Art. 21.
• The court reasoned by stating that the act of suicide or
its attempt thereof did not harm the society at large and
hence, the state’s interference was uncalled for. It
further expanded the scope of Article 21 by holding that
right to life also included the right not to live a forced life
• But overruled as discussed in Gian Kaur, where it was
observed that right to life (with dignity) extended to the
entire natural life span of a person and in no
circumstances will include right to die.
• Law Commission 196th report in 2006 regarding
terminally ill patients- argued for protection
from sec. 309 in passive euthanasia. (2006 is
also imp. because same year US SC judgment
on euthanasia in Gonzalaes v. Oregon, 2006.
• 210th Law commission report argued for
attempt to suicide shall be considered as
mental condition..
• suicide.org
 Arguments around Euthanasia
• Background
• The questions revolve around Right to refuse
Treatment and involves debate on Right to
Consent.
• The earliest expression of this principle was
found in Nuremburg Code of 1947. (medical and
experimental atrocities committed by the
German Nazi regime)
• It made mandatory to obtain free and informed
consent
• Declaration of Helsinki adopted by World Medical
Association in 1964
• Worldwide practice- 2002, MCI Guidelines
• Main question is about Capacity to consent!
• ‘Best interest’ & ‘will and preference’ concepts
• Sufficient consent? (while operating for
appendicitis, Dr. removed the gall bladder.)
• Compromising with the autonomy of the patient,
as doctor was acting sans valid consent. Ram
Bihari Lal v JN Shrivastva, 1984/85
• Issues of Proxy consent- where hospital
performed a bypass surgery while obtaining the
consent from the wife.
• C.A. Muthukrishnan v. M. Rajyalakshmi,
1999, - whether hospital while complying the
rules to such an extent as to undermine the
health of the patients themselves for whose
benefit and protection those rules have been
framed?
• Argument against Euthanasia:
• Eliminating the invalid: they argue if we embrace
‘the right to with with dignity’- people with
incurable and debilitating illness will be disposed
from the “civilized” society. Palliative care is an
active, compassionate and creative care for the
dying. (C. Saunders).
• Art. 21- right to life with dignity- so need to assure
the life, not opposite.
• In general cases- attempt to suicide or suicide are
commonly in patients of schizophrenia,
depressions, substance users etc.
• Malafide intention: Mercy killing should not lead
to ‘Killing Mercy’
• Emphasis on Care: the principle is to add life to
years rather years to life with a good quality
palliative care. Need of ‘care’ over “cure”.
• Commercialization of health care
• Arguments in Favor:
• Caregiver burden- right to life- right to death
• Refusing treatment is a well recognized right
• Encouraging organ transplantation
• Slippery slope- questions of moral dilemma.
Illustrations from Europe:
• European Convention on Human Rights &
Biomedicine Convention dignity, autonomy etc.
etc.
• debates on right to die with dignity & with
assistance
• ECHR Art. 2; 8; 5-9
• Article 2 imposes a number of negative and
positive obligations on Member States, to protect
the life of individuals and to take measures in case
individuals die due to situations that could have
been prevented
• In case of Pretty v. UK, 2002 held that ‘the imposition of
medical treatment, without the consent of a mentally
competent adult patient, would interfere with a person’s
physical integrity in a manner capable of engaging the
rights protected under Article 8. Informed consent is
important.
• The applicant in this case was a 43-year-old woman who
suffered from a form of motor neurone disease (MND).
MND is a progressive neuro-degenerative disease of
motor cells within the central nervous system which will
eventually result in the death of the person concerned
due to progressive muscle weakness involved. There is no
cure for MND and treatment will only slightly alter the
course of this disease. In the case of the applicant, the
disease had rapidly advanced and her health had
significantly deteriorated.
• The applicant’s life expectancy was poor. She
was very concerned about the further course
of the disease and strongly wanted to be able
to control how and when she would die. She
thereto wished to commit suicide, an act not
prohibited under English law.
• Haas versus Switzerland
• This case concerned a man with a serious bipolar
affective disorder, who had twice attempted to
commit suicide and who had stayed in psychiatric
hospitals on several occasions. The applicant had
asked several psychiatrists to obtain 15 grams of
sodium pentobarbital, which is available only on
prescription in Switzerland, to end his life. All
psychiatrists had, however, refused to do so.
According to the applicant, the requirement to
need a prescription violated his right of choosing
the time and manner of his death
• The case of Charlie Gard v. the UK concerned a baby
suffering from a rare and fatal genetic disease
• The hospital where Charlie was treated sought a
declaration from the domestic courts as to whether it
would be lawful to withdraw artificial ventilation and
provide Charlie with palliative care. The parents of
Charlie were strongly opposed to such a decision and
asked the courts to consider whether it would be in the
best interests of their son to undergo experimental
treatment in the United States of America.
• The domestic courts decided that it would indeed be
lawful for the treating hospital to withdraw life
sustaining treatment given the likelihood that Charlie
would suffer significant harm if his present suffering was
prolonged without any realistic prospect of
improvement.