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HUMANISING CRIMINAL JUSTICE RESPONSE AND PUNISHMENT

FOR THE OFFENDER

By

Name of the Student: Sai Suvedhya R.

Roll No.: 2018LLB076

Semester: 4th

Name of the Program: 5 year (B.A., LL.B.)

Name of the Faculty Member: Prof. Dr. Bhavani Prasad Panda, Distinguished
Professor of law

Date of Submission: 12/12/20

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY


NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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ACKNOWLEDGEMENT

The ultimate result of this project required a lot of supervision and guidance from many people
and I am really privileged to have got this all along the completion of my research work.
Whatever I have done is only due to such guidance and I would like to thank them for the same.

I thank my respected IPC II Professor- Dr. Bhavani Prasad Panda Sir, for giving me a chance to
do this research paper and for her consistent support and guidance which helped me to complete
it on time.

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TABLE OF CONTENTS

• Synopsis………………………………………………………………………………….04
• Table of Cases……………………………………………………………………………05

CHAPTER I

• Introduction……………………………………………………………………………....06
• Human Rights of the Accused an Expanding Field……………………………………...06
• Privilege of Self incrimination…………………………………………………………...08

CHAPTER II

• Under trials and Bail……………………………………………………………………..09


• Legal Aid………………………………………………………………………………...15
• Prison Justice…………………………………………………………………………….16

CHAPTER III

• Conclusion……………………………………………………………………………….20
• Bibliography……………………………………………………………………………..21

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SYNOPSIS

ABSTRACT

The aim of this article is to encourage new thinking about the position of the individual to be
sentenced to humanization. Humanization is believed to obstruct punitive criminal punishment
and mechanical case-disposal by making the offending of the person more understandable. This
article explicitly argues, however that "humanization work" often achieves profound latent
results. It seems to be at odds with her formal admission of guilt by resolving the possible danger
to a person's own account. Humanization work allows successful case-disposal by addressing the
possible danger of a person's own account appearing to be at odds with her formal admission of
guilt (e.g. guilty plea). I demonstrate how the "dirty work" of humanizing the individual to be
punished cleanses cases of troubling ambiguities by applying Douglas' work on purity and
contamination, and with empirical illustrations, making punishment easier to enforce with
confidence.

OBJECTIVE

To understand the problems faced by prisoners and the accused and the lacunas in the criminal
justice system.

RESEARCH QUESTION

• Whether there are any lacunas in the criminal justice system leading to breach of human
rights of the accused?
• Whether the punishments meted out to the accused can be humanized?

RESEARCH METHODOLOGY

The research will be doctrinal type of research by referring to various articles, books, journals
and some online resources. The nature of the study is descriptive, explanatory, analytical and
comparative.

• Primary sources - The primary sources for the study are:

• The Constitution of India

• The Indian Penal Code

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• Secondary sources - The secondary sources include various Journals, Research Papers
and Internet Resources.

SCOPE

This study extends to most problems faced by prisoners and the accused in prisons in India.

SIGNIFICANCE

This research paper is important for bringing out reforms in the criminal justice system.

TABLE OF CASES

• A.K. Gopalan v. Madras, AIR 1950 SC 27


• Maneka Gandhi v. UOI, AIR 1978 SC 597.
• Satish v. Sharma, AIR 1954 SC 300
• Mohd Dastagir v. Madras, AIR 1960 SC 756.
• State of Bombay v. Kathi Kaiu Oghad, AIR 1961 SC 1801.
• Raja Narayanlal Bansilal v. Mistry, AIR 1961 SC 29
• RC Mehta v. West Bengal, AIR 1970 SO 940
• Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, AIR 1979 SC 1360
• Kadra Pahadiya v. Bihar, AIR 1982 SCU 67.

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CHAPTER I

INTRODUCTION

Introduction Law often reflects duality—its desire to protect one interest has an adverse impact
on some other interest. This functional duality of law is perhaps illustrated no better than
criminal law. The task of criminal law is to protect the society from criminals but an
overemphasis on such a protection is likely to result in jeopardising the interests of innocent. In
an authoritarian society the former aspect gets precedence, but in a democratic society like India
or the United States with their traditions of individual liberty and entrenched fundamental rights,
a nice balance has to be drawn between the two interests.

This has, however, not been an easy task. The judiciary's struggle to find a dividing line was
tortuous and not straight-'the court sometimes moving head on with a pace, sometimes cautiously
treading and sometimes retreating. A contrast of the American experience and the Indian
experience is extremely useful in this hard and delicate job of the judiciary. The rule of law
governs them. In their respective constitutions, both have some fundamental human rights. All
have traditions of common law.

And authoritarianism is anathema to the people of both nations. A fertile ground for socio-legal
analysis is provided by criminal justice. The judiciary has not always been on the same wave
length as the police, in the none too simple job of reading the law and filling the statutory gaps.
Factual or sociological evidence will be of great importance for the courts to discover their
course and then to rest on others the feasibility of their proposals. Sadly, in India, except for a
handful. Unfortunately in India, except for a few recent studies and revelations, this area has
been barren of study from a socio-legal angle. Such a study is a desideratum as the way the
criminal law is administered affects human liberty in the most profound way.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: AN EXPANDING FIELD

The specific constitutional rights given to the accused are only few. They are contained in
articles 20, 21 and 22. These rights deal with

(a) Ex-post facto criminal laws.

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(b) Double jeopardy.

(c) Privilege against self-incrim¡nation.

(d) Right of the accused to be informed of the grounds of his arrest and to consult his lawyer.

(e) Right of the accused to be produced before a magistrate within 24 hours.

(f) Right of a person not to be deprived of his life or personal liberty except according to
"procedure established by law".

Through the process of judicial interpretation the court has given a number of other rights to the
accused. This process began with the decision of the court in Maneka Gandhi v. India1. The
Supreme Court of India has shown great sensitivity in protecting the person against executive
arbitrariness and arbitrary laws and procedures after the traumatic experience of the national
emergency between 1975 and 1977. The most groundbreaking decision in this regard was
Maneka Gandhi, where the court brought about a major change in our constitutional
jurisprudence concerning fundamental rights by inserting a three-letter word "due" in article 21
of the Constitution. Literally read article 21 only required the support of law for the executive to
deprive a person of his life and personal liberty. It was not for the court to judge whether the law
provided for fair or reasonable procedure or not. The Supreme Court has specifically examined
the question in one of its earliest judgements2 Having held that there is no space for the
application of 'due process of law' in relation to personal liberty in the light of the express words
of Article 21 (deprivation of personal liberty by a 'procedure defined by law.'). When it was
upset by Maneka in 1978, Gopalan held the field for almost 3 decades. In Article 21, the reading
of the word "due" has given life to the otherwise lifeless fundamental rights of personal liberty
granted by the Constitution to a citizen.

It is not proposed to overload this paper by discussing all the aforesaid rights, but only to take up
such rights which are controversial and debatable and also such rights which are not expressly
mentioned but which the Supreme Court has inferred from article 21 and which have brought
about significant reforms in the criminal justice administration. We basically discuss the

1
AIR 1978 SC 597.
2
A.K. Gopalan v. Madras, AIR 1950 SC 27.

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following (i) self-incrimination; (ii) bail and undertrial prisoners; (iii) legal aid; (iv) bar fetters;
(v) prison reform and (vi) exclusion of illegally obtained evidence.

PRIVILEGE AGAINST SELF-INCRIMINATION

Article 20 of the Indian Constitution provides for the privilege against self-incrimination. Since
the adoption of the privilege by the common law world as a principle of criminal jurisprudence,
there has been a perennial debate over two questions—whether it affords any shield to the
individual against state oppression and abuse of authority, and whether it does not handicap the
state in bringing criminals to book and injure the society's interest in punishing the offenders and
to tend to effect justice. The debate cannot be said to be over yet. However, the fact remains that
the Indian Constitution accepts it as part of the country's jurisprudence. However, the fact
remains that the Indian Constitution accepts it as part of the country's jurisprudence. The
International Commission of Jurists regards the privilege as an essential element of the rule of
law.3

There was no satisfaction with the judicial response to privilege. Instead of improving it its
tendency was to dilute it. It was this way until 1978. The extent and applicability of the right has
been limited in a range of cases decided by the Indian Supreme Court. Thus it was held that the
privilege did not apply to administrative investigations and inquiries4; and it applied to police
investigations only if the person was formally accused of an offence.5

In the searches and arrests under a search warrant, the right did not apply. The right obviously
included oral testimony, but it did not apply to documentary evidence (unless the document was
based on the personal knowledge of the accused)6 or such physical examination of the accused as
finger prints, signatures or specimen writings.7 A limited view of compulsion was also adopted.
There was no presumption that the perpetrator had merely made a comment whilst in police
custody involuntary.8 Over the years in the possession of the courts, the right had been so
smothered that one might regard his decent or even unceremonial burial without much ado. But

3
Human Rights 27 (1966).
4
For instance, Raja Narayanlal Bansilal v. Mistry, AIR 1961 SC 29; RC Mehta v. West Bengal, AIR 1970 SO 940.
5
Satish v. Sharma, AIR 1954 SC 300; Mohd Dastagir v. Madras, AIR 1960 SC 756.
6
State of Bombay v. Kathi Kaiu Oghad, AIR 1961 SC 1801.
7
Ibid.
8
Mohd. Dastagir v State of Madras, AIR 1960 SC 756.

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in 1978 in Nandini Satpathy v. P. L. Dani,9 the Supreme Court rediscovered and resurrected it.
This decision has given some vitality to the Indian privilege. While doing so, the Supreme Court
of India followed the famous American case Miranda v. Arizona10. In Nandini, the fundamental
question was whether compulsion in the case of custodial questioning by the police could be
assumed. It was to be believed, the court held. A few measures to provide security for an arrested
person in police custody were put forward by the court. As in Miranda, the court ruled that if he
can afford one the police could allow a lawyer to support the client, but the police need not wait
for more than a fair amount time for the advocate's arrival. However, the court was not willing to
go along with the Miranda holding that the state should make a lawyer available to the accused if
he be indigent.

The court ignored the notice found in Miranda that the "financial capacity of the person has no
relation to the scope of the rights involved here The Constitution's privilege against self-
incrimination applies to all people." The second liberal view of the privilege taken by the court
was that the police must invariably advise and document the truth "about the right to
acknowledgement." But this warning will be a somewhat different kind of warning than in the
United States.

The accused has the right to full silence in the United States, but under the jurisdiction of the
court in India, the accused has the right to refuse only to answer incriminating questions. In other
words, the court's opinion is that it is possible to ask non-incriminatory questions and that the
accused is obliged to respond when there is no strong propensity to incriminate. A distinction
was made between "relevancy" and "crimination" by the court. "Relevancy is tendency to make a
fact probable". It is submitted that distinction is without any basis. When a person is accused of
an offence, all "relevant" facts are to be viewed from the point of criminality and there are no
such facts without this element. The American view is definitely better.

The police have not been pleased with the decision of the court that they claim would hamper
their investigative powers. However in the policing procedures pursued in cases, the decision
does not seem to have made any dent. A sophisticated police machinery is necessary to comply

9
AIR 1978 SC 1025.
10
3844. S. 436 (1966).

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with the decisions of the court that are not present. However, since this is one way to civilize the
police in the long run, the principles outlined by the court are sound and should be maintained.

CHAPTER II

UNDERTRIALS AND BAIL

One pathetic aspect of criminal justice administration in India has been the unduly large number
of undertrial prisoners languishing in jails. Undertrials therefore accounted for 54.9% of the total
prison population. The proportion of sub-trials in 1975 was 57.58 percent. Depressing reading is
also made up of figures for the year 1981. There were 1,262 under-trials in prison for three years,
and 76,022 under-trials in prison for less than three years. A total of 137 under-trial prisoners
died in different prisons in the 1981-82 period in the country.11 As on June 30, 1981, out of the
total jail population of 1,41,761, there were 87,144 undertrials (61.5%). Such a state of affairs is
a flagrant violation of human rights. These undertrial prisoners fall into the following categories:

1. Those who were denied bail by the courts on account of their involvement in serious offences.

2. Those who could not furnish bail for one reason or the other. These undertrials fell in two
categories—those who were detained in jail pending investigations and those who were awaiting
trial. Most of the undertrials fell in these two cateogories.

3. Others.12

Undertrials suffered from depressing conditions in prisons, overcrowding, extremely poor


working conditions, and housing along with convicts, in addition to losing their personal liberty.
For two innovations, the plight of undertrials would have remained the same however. In its
Seventy-Eight Report on Backlog of Undertrial Prisoners in Prisons, the Law Commission of
India examined the issue (February 1979). The matter was brought to the doors of the Supreme
Court by Ms. Kapila Hingorani, a dedicated public interest lawyer.13 In a series of cases known
as Hussainara Khatoon,14 The court investigated the matter and gave different remedies. In these

11
Information given to the Rajya Sabha by the Minister for Home Affairs, Amrit Bazar Patrika, Calcutta, dated July
22, 1982.
12
See Infra
13
See Baxi, The Crisis of the Indian Legal System 227-28 (1982).
14
AIR 1979 SC 1360 at 1369, 1377, and 1819. Also Kadra Pahadiya v. Bihar, AIR 1982 SCU 67.

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cases the court was expressly concerned with the condition of the prisoners held in the Bihar jails
under trial. The court's ruling in Maneka formed the basis for these decisions.

The court was anguished and shocked at the plight of undertrials detained in the jails of Bihar for
periods ranging from 3 to 10 years. These undertrials fell into the following categories:

(i) those who were in detention for a period more than the maximum period of imprisonment for
which they could be sentenced on conviction;

(ii) those who were in detention for more than half such detention;

(iii) those in whose cases the period of limitation for trial was long over under section 468(2) of
the Cr. PC ;

(iv) those in whose cases investigations had been going on for more than six months (see section
167(5) of Cr. PC);

(v) women prisoners who were either victims and needed "protective custody" or who were
needed as witnesses; and

(vi) lunatics and persons of unsound mind.

Owing to their failure to furnish bail, most of the prisoners falling into the above groups were in
jail. The court took on the task of offering the remedies after having established the issue. In
relation to criminal justice, it laid down several new law proposals and passed several orders
granting relief to the undertrials.

In this article, these ideas are addressed here and in other suitable locations. According to the
court, it was inhumane to hold people convicted of crimes in prison without trial for too long.
'Speedy trial' as interpreted by the court in Maneka was implicit in the broad sweep and
substance of article 21. It ordered the release of all those prisoners who had been in jail for more
than the full imprisonment period prescribed for the crimes for which they had been convicted.
Similarly, the court released individuals who were in custody despite the time of limitation for
prosecution under section 468(2) being over. The court ordered compliance with section 167(5)
of Cri with respect to prisoners held in summons cases in which the inquiry was not completed.

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PCs (magistrate to order their release unless he was of the view that continuation of investigation
was necessary in the interests of justice).

According to the court, the time for the regular "speedy trial" was six months. It instructed the
High Court to make the requisite information available so that this quality could be achieved.
The court gave orders that the state should provide them with legal assistance for bail purposes in
the case of inmates who were in jail for half of their full sentence. The court failed to understand
how lunatics and persons of unsound mind "could possibly be kept in the same jail along with
other undertrial prisoners". Women prisoners who were victims of crime and also detained for
the purposes of giving evidence were directed to be placed in social and welfare homes and the
state was required to set up such homes in sufficient number.

As mentioned by the International Commission of Jurists, there are four grounds for keeping an
accused person in jail:

(a) In the case of a very grave offence;

(b) If the accused is likely to interfere with witnesses or impede the course of justice;

(c) If the accused is likely to commit the same or other offences;

(d) If the accused may fail to appear for trial15.

Denial of bail and keeping the accused in jail for trial operates harshly on the person involved.
Firstly, detention before conviction has a punitive content. Secondly, it disrupts family life and it
may be economically disastrous for the family. Thirdly, it has been observed16:

“In the case of a person detained while awaiting trial, the chances of acquittal would certainly
become more distant. England's Home Office Study (Table 6, Page 9) indicates that about 9.5
percent of those committed for trial were acquitted in 1956, of which 8 percent were on bail and
1.5 percent were in detention. Although this form of research is constantly done in foreign
countries, it is unfortunate that bail is a neglected topic of criminology in India because no useful
research appears to have been done. Michael Zander in his excellent article on bail mentions that

15
The Rule of Law and Human Rights 29 (1966).
16
Balsara, supra note 14 at 343.

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the possibility that the chances of acquittal may be less for those in custody than for those on bail
is confirmed by results both in the United States and Canada.”

Fourthly, "studies conducted in England suggest that there is a higher ratio of pleas of guilty
among the undertrial prisoners than those who are on bail. Similar studies should be made in
India, so that the effect of indiscriminate detention can be brought home to our courts of law. It is
only the gloom of detention that must be compelling many to plead guilty to put an end to the
agony."studies conducted in England suggest that among the underground prisoners there is a
higher ratio of guilty pleas than those on bail. Similar studies should be performed in India so
that our courts of law can carry the effect of indiscriminate detention home. It is only the gloom
of detention that must force many to plead guilty to put an end to the agony.

The system of bail is closely related to the problem of undertrials. It raises two questions—the
question of liberal and strict approach in granting bail. In both these matters there have been
significant developments.

In Hussainara,17 the court characterizing the bail system as it operates in the country, pleaded for
liberal rules in the matter. It regarded the monetary security for bail as archaic. The court stated:

“It is high time our Parliament recognizes that not only is the possibility of monetary loss the
only deterrent to fleeing justice, but there are also other factors that serve as equal deterrents to
fleeing justice. Ours is a socialist republic with social justice, as our Constitution and
Parliament's signature tune would do well to think if it would be more compatible with our
Constitution's ethos than personal bond without monetary responsibility rather than risk of
financial loss other relevant considerations such as family ties, roots in the community, job
security, membership of stable organizations, etc., should be the determinative factors in grant of
bail and the accused should in appropriate cases be released on his personal bond without
monetary obligation.”18

It was held that, even under the current statute, if the court is satisfied that the accused has roots
in the community and is not likely to abscond, an accused person should be released on personal
bond without guarantees. The following considerations were important in order to assess the

17
AIR 1979 SC 1360.
18
Id. at 1363.

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issue of "roots in the community": (a) length of residency in the community; (b) status of jobs,
history and financial condition; (c) family ties; (d) reputation and character; (e) prior criminal
record; (e) previous criminal record; (f) the risk of nonappearance, taking into account the nature
of the offence and the probability of conviction.

Furthermore when deciding the duration of the personal bond, the court found that the existence
of the fee alone was not the only factor, the other important factors being the funding status of
the accused and the possibility of his kidnapping. The court ordered the release without monetary
obligation of a number of inmates who were in prison for a number of years on their personal
bonds (as an exceptional measure in view of these persons rolling in jail without trial).

India's Law Commission is also in favor of liberalizing the laws on bail. It supported (a)
rendering offences punishable as bailable by up to three years of incarceration, unless the
essence of the crime demands a different approach; (b) allowing the courts the power to release a
person on bail on personal bond in the case of a bailable offence if he is unable to provide
assurances within a month; and (c) not holding the amount of bailable amount in excess of the
amount.

The liberalising tendency in freeing an arrested person on bail is elearly reflected in the
provisions for anticipatory bail in section 438 of the Cr. PC The soundness of this provision was
recognized by the Supreme Court in Balchand v. Madhya Pradesh19 in the following terms:

“The Legislature in enshrining the salutary provision in Section 43S of the Code which applies
only to nonbailable offences was to see that the liberty of the subject is not put in jeopardy on
frivolous grounds at the instance of unscrupulous or irresponsible persons or officers...”

Taking an overall view of the matter, the correct approach is that a liberal approach should be
supported in the matter of granting bail to an accused, and bail should only be denied in the four
circumstances described earlier. Where the court refuses bail, it should be compulsory on its part
to state the reasons for it.

The court's rulings in Hussainara have met with an encouraging response from the central
government. It has agreed to the various suggestions of the court.20 It is strange that a liberal bail

19
AIR 1977 SC 366.

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policy is practiced on the one hand, but on the other hand, in order to fight such social evils, such
as dowry, the magistracy (in connivance with the police) makes incorrect use of bail laws to
refuse bail in dowry death cases where the victim's death occurred due to suicide. In such cases,
the husband and/or in-laws are prosecuted for the crime of abetting suicide pursuant to section
306 of Cr. PC. By no stretch of imagination, since the suicide was due to the victim's emotional
state due to her husband and/or relationship violence for not giving enough dowry, the accused
may be said to be guilty of abetment. Everyone knows that the charge of abetment will not stand
at the trial, but the imprisonment of an individual or persons in the penitentiary for some time (by
refusing him bail), reassured the society's conscience that some punishment was earned by such a
person. This may be true, but it is nothing but perverting the law.

The Power of Arrest: It is simply the detention of an individual that gives rise to the issue of
prisoners under trial and the need for bail. It is necessary to ensure that the police use the power
of arrest in a reasonable way. However the record of the police in this matter has not been strong.

The power of police arrest is a formidable power and it has given rise to a lot of violence. It is
the opinion of the National Police Commission that this has been a significant source of police
misconduct and malpractice. Although the power of arrest is discretionary when investigating a
criminal case, "several police officers make it appear that an arrest is mandatory". The
commission states:

“The fear of the police derives fundamentally from the fear of police capture in some relation or
another. It is widely understood that often false criminal cases are just engineered for the purpose
of making arrests to humiliate and embarrass some of the complainant's real enemies in league
with the police for unethical purposes.”21

The Commission acknowledges the "present police practice of making arrests indiscriminately in
the course of investigations" It is important to make a strong plea that the police can arrest a
person only when it is absolutely crucial. A scholar has rightly noted that "authorising arrest by
police in respect of all cognizable offences and requiring the police to apprehend all persons
whom they are legally authorised to apprehend seem to make the law of arrest over-reach its

20
See the statement of the Minister of Home Affairs in Rajya Sabha on July 19, 1982, 123 Rajya Sabha Report 219.
21
R.V. Kelkar, "Law of Arrest: Problems and Incongruities," 22 JILI 314, 316 (1980). Also D.C. Pandey,-Search for an
Action Against Illegal Arrest", ibid, at 328.

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objective". The National Police Commission supports the idea of laying down guidelines for the
police to arrest a person in cognizable offences. It recommends that an arrest during investigation
of a cognizable case may be considered justified in the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape, etc., and it is necessary
to arrest the accused and bring his movements under restraint to infuse confidence among the
terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his
movements are brought under restraint.

(iv)The accused is a habitual offender and unless kept in custody, he is likely to commit similar
offences again.

LEGAL AID

There is no clear statutory right for an accused person to seek legal assistance. Article 22 only
allows for the right of the accused person to be informed and defended by a lawyer. Even the
Forty-Second Constitution adopted in 1976, merely requires the addition of Article 39A to the
chapter on Directive Principles of Public Policy, which orders the State to provide 'free legal
assistance.’ This is merely a directive and does not in any way give a legal right to the accused to
secure free legal aid.

This constitutional gap, however, has been filled up by the court holding free legal aid as an
essential requisite of the "due procedure" for depriving a person of his personal liberty. In M.H.
Hoskot v. State of Maharashtra,22 emphasising this aspect, The Supreme Court held that a
prisoner who has been convicted by a court but is entitled to appeal against the verdict could
assert the right of counsel to argue his appeal, and it was the responsibility of the state to provide
him with legal assistance if he could not afford the counsel, being indigent. In such a case the
court must appoint the accused to a lawyer and the state must pay a resonable amount that can be
set as remuneration by the court.

22
AIR 1978 SC 1548.

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Once again, many outrageous incidents have shown that on the one hand, several prisons in this
country appear to be a byword of human degradation and debasement, and on the other, dens of
greed, callousness and cruelty. In the harsh and dehumanizing situation, multiple and frequent
attempts at reform failed to make a dent, leaving alone bringing about a comprehensive reform of
the prison system. Once again, many outrageous incidents have shown that on the one hand,
several prisons in this country appear to be a byword of human degradation and debasement, and
on the other, dens of greed, callousness and cruelty. In the harsh and dehumanizing situation,
multiple and frequent attempts at reform failed to make a dent, leaving alone bringing about a
comprehensive reform of the prison system.

In Hussainara, the principle providing legal aid was reiterated and the court held that legal aid
was to be provided to undertrials for the purposes of bail and also to defend them at the time of
trial.

PRISON JUSTICE

In Indian prisons, shockingly bad and scandalous conditions prevail and the maltreatment
inflicted on prisoners has drawn the attention of the judiciary, the government and journalists in
recent years. The conditions of Indian jails have been identified in a pithy way by a team of
journalists as under:

“Once again, many outrageous incidents have shown that on the one hand, several prisons in this
country appear to be a byword of human degradation and debasement, and on the other, dens of
greed, callousness and cruelty. In the harsh and dehumanizing situation, multiple and frequent
attempts at reform failed to make a dent, leaving alone bringing about a comprehensive reform of
the prison system

So much so that an experienced prison scene observer has been forced to note that in India a "jail
subculture" has grown that sanctifies barbaric treatment of inmates, including torture, forced
labor, sexual perversion, hunger diet and large-scale abuse and exploitation by small prison
officials shielded by powerful mentors.”23

23
Life Behind Bar, Times of India, dated May 23,24 and 25, 1983

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Another journalist paints the same picture about the Delhi Tihar Jail (the main jail in the capital
of the country):

“The Tihar Central Jail's vast complex lurks like a squatting beast on the fringes of the western
reaches of New Delhi. Tihar also bears the distressing marks of tyranny, avarice, desire, and the
age-old attitude of men towards their fellow-humans, like all great jails in poor, overpopulated
countries. Both the prisoner and the understatement share the common denominators of woefully
inadequate and inedible food, hard labor, dishonest guards, and dirty water.”24

Solitary confinement can be provided by way of punishment to a prisoner who has been
sentenced to death or to other prisoners by the jail authorities. Solitary confinement is a
perversion of mankind and should be avoided as much as possible. The protections alluded to in
the preceding paragraph are to be followed with respect to solitary confinement by way of
punishment. The same prison life status as other inmates is to be granted to an inmate serving a
death sentence except in two detail. Secondly, these inmates are subject to 24 hours of
supervision by guards. With the exception of those two limits, any of the community facilities
such as games, newspapers, books, traveling about except between dusk and dawn), and meeting
inmates and visitors, subject to fair prison management regulations, should not be denied.
Finally, in Sunil Batra I, the court laid down another significant proposal that legal assistance
should be provided to inmates to obtain justice from the authorities and also, if need be, to
challenge the decision in the court, where the prisoner is too poor to afford a lawyer.

In the same vein, the Supreme Court spoke of the same jail: the prison of Tihar is an
environment of stress, trauma, tantrums and crimes of abuse, vulgarity and corruption. And to
top it all the contamination of pre-trial accused with habitués and "injurious prisoners of
international gang." exists. The crowning piece is that the jail officers themselves are reportedly
in the cells in league with the offenders. That is, there is a large network of criminals, officials
and non officials in the house of correction: drug racket, alcoholism, smuggling, violence, theft,
unconstitutional punishment by way of solitary confinement and transfers to other jails are not
uncommon.25

24
Kumkum Chadha, The Indian Jail 9-10 (1983).
25
AIR 1980 SC 1576, 1586.

18
Hitherto prisons were not treated as correctional treatment centres but merely as detention cells.
The committee has emphasised the need for correctional treatment services in the prisons.

The government's response to prison reform was simply limited to paper, appointing a committee
or commission to recommend prison reforms. No fewer than 23 such committees have been
formed since 1950 to propose changes to the prison administration. In 1977, the Tek Chand
Committee developed a voluminous paper. And now there's another report from the Prison
Reforms Committee (Mulla Committee). However nothing real or substantial has taken place as
a result of these commissions.26

It was, however, left to the judiciary to humanise the prison administration to some extent. This
the Supreme Court did in the two Sunil Batra27 cases and Prem Shankar v. Delhi Administration.
The court began with the presumption that the basic rights granted to individuals did not stop at
the door of a prison. Any punitive, outrageous, scandalizing or inhuman treatment levied on a
prisoner under detention by the authorities will be contrary to Articles 14, 19 and 21 of the
Constitution. Such human rights have not been negotiable.

In three matters, the court brought about reform of prison administration: (a) handcuffing and bar
fetters: (b) solitary confinement: (c) punishment by the prison authorities of an inmate. Bar
fetters is considered by the court as inhuman treatment offered to an inmate. It is humiliating,
obscene, and inflicts the inmate with physical and mental pain. Except when they are to be
placed on the prisoner to keep him from fleeing or when he is otherwise dangerous and
desperate, bar fetters are irrational.

By way of punishment, there can be handcuffing or chaining a prisoner either inside the precincts
of the prison or it can be done when the prisoner is taken from the prison to the court and back.
In all cases the court condemned the chaining of inmates. In Sunil Batra I, it was held that only
prison authorities subject to certain essential procedural protections could punish the application
of bar fetters on a prisoner. Some of the safeguards prescribed by the court were: (a) it is
absolutely necessary to put fetters; (b) reasons must be recorded; (c) the basic condition of
dangerousness must be well-grounded: (d) natural justice must be observed.

26
See Times of India, dated 25.5.1983.
27
AIR 1978 SC 1548.

19
Similarly, if any penalty is to be placed on an inmate, such as placing him in a solitary cell or
hard labour or denying him the requisite facilities for his misconduct, it was held in Sunil Batra
II that this can only be achieved by observing certain procedural safeguards. "a hearing at some
stages, a review by a superior, and early judicial consideration"a hearing at some stages, a
superior's review and early judicial consideration.28

Solitary confinement can be provided by way of punishment to a prisoner who has been
sentenced to death or to other prisoners by the jail authorities. Solitary confinement is a
perversion of mankind and should be avoided as much as possible. The protections alluded to in
the preceding paragraph are to be followed with respect to solitary confinement by way of
punishment. The same prison life status as other inmates is to be granted to an inmate serving a
death sentence except in two detail. Secondly, these inmates are subject to 24 hours of
supervision by guards. With the exception of those two limits, any of the community facilities
such as games, newspapers, books, traveling about except between dusk and dawn), and meeting
inmates and visitors, subject to fair prison management regulations, should not be denied.
Finally, in Sunil Batra I, the court laid down another significant proposal that legal assistance
should be provided to inmates to obtain justice from the authorities and also, if need be, to
challenge the decision in the court, where the prisoner is too poor to afford a lawyer.

CHAPTER III

CONCLUSION

Any of the Supreme Court's decisions are an answer to certain sociological facts that have come
to light as a consequence of the efforts of certain journalists and a few public-spirited lawyers.
Any of the exposed facts speak of a none too comfortable state of affairs in the criminal justice
administration. Another sociological aspect regarding the operation of the police is applied to
what was said earlier: the use of the third degree. The results of a journalist's inquiry relate to the
use of police torture in Delhi, where at least four interrogation chambers are situated. They are
housed in the historic Red Fort, the hostel of the Kingsway Camp Central Reserve Police, the
complex of the Directorate of Revenue Intelligence and the basement of Indraprastha Estate's

28
AIR 1980 SC 1594.

20
police headquarters. The Sheela Barse v. Maharashtra case shows that even women are not free
from abuse in custody.

The approach of the court to humanize the administration of criminal justice has met with strong
reactions from the point of view of the police. The decisions have been delivered and it is now
time to have a conversation between the police, the judges, the lawyers, and the scholars. Indeed,
such a meeting will prove fruitful in resolving the tangle.

BIBLIOGRAPHY

BOOKS

• The - Sarkar On The Indian Penal Code, 1860(Act No. 45 Of 1860) By S.C.Sarkar
Edition: 2014

• PSA Pillai's Criminal Law 14th Edition


• Ratanlal & Dhirajlal’s the Indian Penal Code
JOURNALS

• Human Rights And Administration Of Criminal Justice, S.N. Jain


• Humanising Punishment? Mitigation And “Case-Cleansing” Prior To Sentencing
• The Rationale And Purposes Of Criminal Law And Punishment In Transitional Contexts,
Elena Maculan And Alicia Gil
• Humanizing The Criminal Justice Machine: Re-Animated Justice Or Frankenstein’s
Monster? The Machinery Of Criminal Justice, Stephanos Bibas

WEB SOURCES

• Heinonline
• JSTOR
• LexisNexis
• SCC Online
• Manupatra

21
2018LLB076 - IPC II - HUMANISING CRIMINAL JUSTICE
RESPONSE AND PUNISHMENT FOR THE OFFENDER -
Research Paper
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