CHAPTER – I INTRODUCTION

The essential object of criminal law is to protect society against criminals and law-

breakers. For this purpose the law holds out threats of punishments to prospective

lawbreakers as well as attempts to make the actual offenders suffer the prescribed

punishments for their crimes. Therefore, criminal law, in its wider sense, consists

of both the substantive criminal law and the procedural (or adjective) criminal law.

Substantive criminal law defines offences and prescribes punishments for the

same, while the procedural law administers the substantive law.

Therefore the two main statues which deals with administration of criminal cases

in our country are criminal procedure code i.e. Cr pc and Indian penal code i.e. Ipc

being procedural and substantive respectively. However with the changing times

the societal norms also change and people who are part of this society have to

accept this change either by way of compromise or any other way in order to adjust

and make them still the part of the very same society. In earlier days there was no

criminal law in uncivilized society. Every man was liable to be attacked in his

person or property at any time by any one. The person attacked either succumbed

or over-powered his opponent. "A tooth for a tooth, an eye for an eye, a life for a

life" was the forerunner of criminal justice. As time advanced, the injured person

agreed to accept compensation, instead of killing his adversary. Subsequently, a

sliding scale came into existence for satisfying ordinary offences. Such a system

gave birth to archaic criminal law.

For a long time, the application of these principles remained with the parties

themselves, but gradually this function came to be performed by the State. The

germs of criminal jurisprudence came into existence in India from the time of

Manu. 1

In the category of crimes Manu has recognized assault, theft, robbery, false

evidence, slander, criminal breach of trust, cheating, adultery and rape. The king

protected his subjects and the subjects in return owed him allegiance and paid him

revenue. The king administered justice himself, and, if busy, the matter was

entrusted to a Judge. If a criminal was fined, the fine went to the king's treasury,

and was not given as compensation to the injured party. 

Later with the advent of western jurisprudence and passing of various charters and

commissions and the advent of British rule the Indian society succumbed or we can

probably say adjusted or adapted and aligned itself to the adversarial system of

justice dispensation which prevails even today but with a lot of changes which

have been time and again being made to it to suit to the needs of the changing

times. In today’s world one needs to have a receptive, broad and open mind in

order to solve various problems which are discussed in chapter one being faced by

our justice system. Since it is evident that a change is required in our criminal

justice system and there is a need to adhere to recourse to alternative methods of

dispute resolution even in criminal cases instead of making a major change we

firstly have to see the common features of a trial and the procedure which is

followed by our courts or system for the administration of criminal justice and its

flaws which is discussed as further. 

At the outset of this chapter the researcher would like to state that owing to paucity

of time and nature of topic selected the researcher has limited his scope of study to

a certain specific offences only and would be dealing with them and the lacuna

which exists in the administration procedure followed and which particular

technique of ADR can be used to curb the said problems and side by side would

result in a fair and expeditious trial.

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1) Criminology

Criminology is the scientific study of the nature, extent, causes, and control of

criminal behavior in both the individual and in society. Criminology is an

interdisciplinary field in the behavioral sciences, drawing especially upon the

research of sociologists (particularly in the sociology of

deviance), psychologists and psychiatrists, social anthropologists as well as on

writings in law.

Areas of research in criminology include the incidence, forms, causes and

consequences of crime, as well as social and governmental regulations and reaction

to crime. For studying the distribution and causes of crime, criminology mainly

relies upon quantitative methods. The term criminology was coined in 1885 by

Italian law professor Raffaele Garofalo as criminological. Later, French

anthropologist Paul Topinard used the analogous French term criminologie.

2) Definition of Administration of Justice

The Administration of Justice Program involves the study of the theory and

practice of law enforcement, police work, the court and corrections systems. Law

enforcement, whether as a line police officer, deputy sheriff, marshal, or state

traffic officer, offers a rewarding opportunity to serve society. Specialized

officers such as game wardens, forest rangers, or criminal investigators make

unique contributions throughout our state and nation. They investigate crime,

present cases in court and render other service to the justice system and the

people.

The personnel, activity and structure of the justice system - courts and police - in

the detection, investigation, apprehension, interviewing and trial of persons

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suspected of crime. In R. v Sampson, Justice Borins had before him an application

to exclude evidence obtained pursuant to illegal wiretapping.

Therefore, the defence alleged, to allow the tainted evidence would bring the

administration of justice into disrepute: "administration of justice, with particular

reference to the criminal law, is a compendious term that stands for all the

complexes of activity that operate to bring the substantive law of crime to bear, or

to keep it from coming to bear, on persons who are suspected of having committed

crimes.

It refers to the rules of law that govern the detection, investigation,

apprehension, interviewing and trial of persons suspected of crime and those

persons whose responsibility it is to work within these rules. The administration of

justice is not confined to the courts; it encompasses officers of the law and others

whose duties are necessary to ensure that the courts function effectively. The

concern of the administration of justice is the fair, just and impartial upholding of

rights, and punishment of wrongs, according to the rule of law."

3) Meaning of Administration of justice

Administration of justice means management of the judicial system. The objective of it is to

guarantee the individuals freedom and to give protection to their rights. A person dejected from

all sides knocks at the door of justice; hence the acquisition of justice is the natural desire of a

human being. If he is returned even from that door the very purpose of establishment of the state

is defeated. It is due to the significance of justice that during the various periods of history no

ruler could deny the importance of it. The only reason behind it was that it was the

judiciary of the time that guaranteed and protected the rights of the people. Where the

government exceeded the limitsof its powers and interfered in their lawful rights and freedom it

was the Judiciary that came to the rescue of the oppressed subjects.

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Judiciary is supreme over executive and legislature in the sense that the

laws however ideal and good those may be, and the executive however honest and efficient may

be, the disputes do arise among the people and until those are not determined and decided

correctly and the right owner is not provided his due right, the peace cannot come in the society.

Thus justice is prior to peace. A country may survive even in the presence of the worst and

harshest laws but it cannot where there is no justice. Legislature makes laws with the intention

that Judiciary should decide accordingly. Executive has the power and force to make the people

abide by the decisions of the Judiciary. Advancement and progress of every society depends

upon the good administration of justice. Where administration  of justice is destroyed the society

perishes in no time. 

To maintain internal peace and defend against external aggression are the

two main functions of a state in the modern sense. Internal peace requires the rights guaranteed

by law are fully protected. If there is any violation there must be an arrangement where the

complainant may go and seek his remedy. To provide justice to its citizens is the basic

responsibility of the State. And to achieve this and practically each state is to establish

institutions to run its affairs. And one such institution is Judiciary. It is established to

administer justice among the people

4) School of thought

In the mid-18th century criminology arose as social philosophers gave thought to crime and

concepts of law. Over time, several schools of thought have developed. There were three main

schools of thought in early criminological theory spanning the period from the mid-18th century

to the mid-twentieth century: Classical, Positive, and Chicago. These schools of thought were

superseded by several contemporary paradigms of criminology, such as the sub-culture, control,

strain, labeling, critical criminology, cultural criminology, postmodern criminology, feminist

criminology and others discussed below.

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5) Classical School

The Classical School, which developed in the mid 18th century, was based

on utilitarianphilosophy. Cesare Beccaria, author of On Crimes and Punishments (1763–

64), Jeremy Bentham, inventor of the panopticon, and other classical school philosophers argued

that:

1. People have free will to choose how to act.

2. Deterrence is based upon the notion of the human being as a 'hedonist' who

seeks pleasure and avoids pain, and a 'rational calculator' weighing up the

costs and benefits of the consequences of each action. Thus, it ignores the

possibility of irrationality and unconscious drives as motivational factors.

3. Punishment (of sufficient severity) can deter people from crime, as the costs

(penalties) outweigh benefits, and that severity of punishment should be

proportionate to the crime.

4. The more swift and certain the punishment, the more effective it is in

deterring criminal behavior.

The Classical school of thought came about at a time when major reform

in penology occurred, with prisons developed as a form of punishment. Also, this

time period saw many legal reforms, the French Revolution, and the development

of the legal system in theUnited States.

6) Positivist School

The Positivist school presumes that criminal behavior is caused by internal and

external factors outside of the individual's control. Thescientific method was

introduced and applied to study human behavior. Positivism can be broken up into

three segments which include biological, psychological and social positivism.

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7) Italian School

Cesare Lombroso was an Italian Sociologist working in the late 19th century who

is sometimes regarded as the father of criminology. He was one of the largest

contributors to biological positivism and was founder of the Italian school of

criminology. 

Lombroso took a scientific approach, insisting on empirical evidence, for studying

crime. Considered as the founder of criminal anthropology he suggested that

physiological traits such as the measurements of one's cheek bones or hairline, or a

cleft palate, considered to be throwbacks to Neanderthal man, were indicative of

"atavistic" criminal tendencies. This approach, influenced by the earlier theory

ofphrenology and by Charles Darwin and his theory of evolution, has been

superseded. Enrico Ferri, a student of Lombroso, believed that social as well as

biological factors played a role, and held the view that criminals should not be held

responsible when factors causing their criminality were beyond their control.

Criminologists have since rejected Lombroso's biological theories, with control

groups not used in his studies.

8) Sociological positivism

Sociological positivism suggests that societal factors such as poverty, membership

of subcultures, or low levels of education can predispose people to crime. Adolphe

Quetelet made use of data and statistical analysis to gain insight into the

relationship between crime and sociological factors. He found that

age, gender, poverty, education, and alcohol consumption were important factors

related to crime. Rawson W. Rawson utilized crime statistics to suggest a link

between population density and crime rates, with crowded cities creating an

environment conducive for crime. 

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Joseph Fletcher and John Glyde also presented papers to the Statistical Society of

London on their studies of crime and its distribution. Henry

Mayhew used empirical methods and an ethnographic approach to address social

questions and poverty, and presented his studies in London Labour and the London

Poor.  Émile Durkheim viewed crime as an inevitable aspect of society, with

uneven distribution of wealth and other differences among people.

9) Differential Association (Subcultural)

Crime is learned through association. The criminal acts learned might be generally

condoning criminal conduct or be justifying crime only under specific

circumstances. Interacting with antisocial peers is a major cause of crime. Criminal

behavior will be repeated and become chronic if reinforced. When

criminal subcultures exist, many individuals can learn associatively to commit

crime and crime rates may increase in those specific locations.

10) Chicago School

The Chicago school arose in the early twentieth century, through the work

of Robert E. Park, Ernest Burgess, and other urban sociologists at the University of

Chicago. In the 1920s, Park and Burgess identified five concentric zones that often

exist as cities grow, including the "zone in transition" which was identified as most

volatile and subject to disorder. In the 1940s, Henry McKay and Clifford R. Shaw

focused on juvenile delinquents, finding that they were concentrated in the zone of

transition.

Chicago School sociologists adopted a social ecology approach to studying cities,

and postulated that urban neighborhoods with high levels of poverty often

experience breakdown in the social structure and institutions such

as family and schools. 8

This results in social disorganization, which reduces the ability of these institutions

to control behavior and creates an environment ripe for deviant behavior. Other

researchers suggested an added social-psychological link. Edwin

Sutherland suggested that people learn criminal behavior from older, more

experienced criminals that they may associate with.

11) Social structure theories

This theory is applied to a variety of approaches within criminology in particular

and in sociology more generally as a conflict theory orstructural conflict

perspective in sociology and sociology of crime. As this perspective is itself broad

enough, embracing as it does a diversity of positions.

12) Social disorganization (neighborhoods)

Social disorganization theory is based on the work of Henry McKay and Clifford

R. Shaw of the Chicago School. Social disorganization theory postulates that

neighborhoods plagued with poverty and economic deprivation tend to experience

high rates of population turnover. These neighborhoods also tend to have high

population heterogeneity. With high turnover, informal social structure often fails

to develop, which in turn makes it difficult to maintain social order in a

community.

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13) Social ecology

Since the 1950s, social ecology studies have built on the social disorganization

theories. Many studies have found that crime rates are associated with poverty,

disorder, high numbers of abandoned buildings, and other signs of community

deterioration.

As working and middle class people leave deteriorating neighborhoods, the most

disadvantaged portions of the population may remain. William Julius

Wilson suggested a poverty "concentration effect", which may cause

neighborhoods to be isolated from the mainstream of society and become prone

to violence.

14) Strain theory (social class)

Strain theory, (also known as Mertonian Anomie), advanced by American

sociologist Robert Merton, suggests that mainstream culture, especially in

the United States, is saturated with dreams of opportunity, freedom and prosperity;

as Merton put it, the American Dream. Most people buy into this dream and it

becomes a powerful cultural and psychological motivation. Merton also used the

term anomie, but it meant something slightly different for him than it did

for Durkheim.

Merton saw the term as meaning a dichotomy between what society expected of its

citizens, and what those citizens could actually achieve. Therefore, if the social

structure of opportunities is unequal and prevents the majority from realizing the

dream, some of them will turn to illegitimate means (crime) in order to realize it.

Others will retreat or drop out into deviant subcultures (gang members, "hobos":

urban homeless drunks and drug abusers).

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I) Sub culture theory

Following on from the Chicago school and Strain Theory, and also drawing

on Edwin Sutherland's idea of differential association, subcultural theorists focused

on small cultural groups fragmenting away from the mainstream to form their own

values and meanings about life.

Albert K. Cohen tied anomie theory with Freud's reaction formation idea,

suggesting that delinquency among lower class youths is a reaction against

the social norms of the middle class.Some youth, especially from poorer areas

where opportunities are scarce, might adopt social norms specific to those places

which may include "toughness" and disrespect for authority. Criminal acts may

result when youths conform to norms of the deviant subculture.

Richard Cloward and Lloyd Ohlin suggested that delinquency can result from

differential opportunity for lower class youth. Such youths may be tempted to take

up criminal activities, choosing an illegitimate path that provides them more

lucrative economic benefits than conventional, over legal options such as minimum

wage-paying jobs available to them.

British subcultural theorists focused more heavily on the issue of class, where

some criminal activities were seen as 'imaginary solutions' to the problem of

belonging to a subordinate class. A further study by the Chicago school looked at

gangs and the influence of the interaction of gang leaders under the observation of

adults.

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II) Control theories

Another approach is made by the social bond or social control theory. Instead of

looking for factors that make people become criminal, these theories try to explain

why people do not become criminal. Travis Hirschi identified four main

characteristics: "attachment to others", "belief in moral validity of rules",

"commitment to achievement" and "involvement in conventional activities".The

more a person features those characteristics, the less the chances are that he or she

becomes deviant (or criminal). On the other hand, if those factors are not present in

a person, it is more likely that he or she might become criminal.

Hirschi expanded on this theory, with the idea that a person with low self control is

more likely to become criminal. A simple example: someone wants to have a big

yacht, but does not have the means to buy one. If the person cannot exert self-

control, he or she might try to get the yacht (or the means for it) in an illegal way;

whereas someone with high self-control will (more likely) either wait or deny

themselves that want, or seek an intelligent intermediate solution such as to join a

yacht club to obtain access to using a yacht by group consolidation of resources

without violating social norms.

Social bonds, through peers, parents, and others, can have a countering effect on

one's low self-control. For families of low socio-economic status, a factor that

distinguishes families with delinquent children from those who are not delinquent

is the control exerted by parents or chaperonage. In addition, theorists such as

Matza and Sykes argued that criminals are able to temporarily neutralize internal

moral and social behavioral constraints through techniques of neutralization

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III) Symbolic interactions

Symbolic interactionism draws on the phenomenology of Edmund

Husserl and George Herbert Mead, as well as subcultural theory andconflict

theory.This school of thought focused on the relationship between the powerful

state, media and conservative ruling elite on the one hand, and the less powerful

groups on the other. The powerful groups had the ability to become the 'significant

other' in the less powerful groups' processes of generating meaning. The former

could to some extent impose their meanings on the latter, and therefore they were

able to 'label' minor delinquent youngsters as criminal.

These youngsters would often take on board the label, indulge in crime more

readily and become actors in the 'self-fulfilling prophecy' of the powerful groups.

Later developments in this set of theories were by Howard Becker and Edwin

Lemert, in the mid 20th century.[26] Stanley Cohen who developed the concept of

"moral panic" (describing societal reaction to spectacular, alarming social

phenomena such as post-World War Two youth cultures (e.g. the Mods and

Rockers in the UK in 1964, AIDS and football hooliganism).

IV) Labeling Theory

Labeling theory refers to an individual being labeled in a particular way and was

studied in great detail by Howard Becker .It arrives originally from sociology but

is regularly used in criminological studies. It is said that when someone is given

the label of a criminal, they may reject it or accept it and go on to commit crime.

Even those that initially reject the label can eventually accept it as the label

becomes more well known particularly amongst their peers. This can become even

more profound when the labels are about deviancy and it is said they can lead to

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deviancy amplification. Klein (1986) conducted a test which showed that labeling

theory affected some youth offenders but not others.

V) Individual theories

a) Trait theories

At the other side of the spectrum, criminologist Lonnie Athens developed a theory

about how a process of brutalization by parents or peers that usually occurs in

childhood results in violent crimes in adulthood. Richard Rhodes' Why They

Kill describes Athens' observations about domestic and societal violence in the

criminals' backgrounds. Both Athens and Rhodes reject the genetic inheritance

theories.

b) Rational choice theory

Rational choice theory is based on the utilitarian, classical school philosophies

of Cesare Beccaria, which were popularized by Jeremy Bentham. They argued that

punishment, if certain, swift, and proportionate to the crime, was a deterrent for

crime, with risks outweighing possible benefits to the offender. In Dei delitti e

delle pene (On Crimes and Punishments, 1763–1764), Beccaria advocated a

rational penology.

Beccaria conceived of punishment as the necessary application of the law for a

crime: thus, the judge was simply to conform his sentence to the law. Beccaria also

distinguished between crime and sin, and advocated against the death penalty, as

well as torture and inhumane treatments, as he did not consider them as rational

deterrents.

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This philosophy was replaced by the Positivist and Chicago Schools, and not

revived until the 1970s with the writings of James Q. Wilson, Gary Becker's 1965

article titled "Crime and Punishment "and George Stigler's 1970 article "The

Optimum Enforcement of Laws".

Rational choice theory argues that criminals , like other people, weigh costs/risks

and benefits when deciding whether or not to commit crime and think

in economic terms. They will also try to minimize risks of crime by considering the

time, place, and other situational factors.

Gary Becker, for example, acknowledged that many people operate under a high

moral and ethical constraint, but considered that criminals rationally see that the

benefits of their crime outweigh the cost such as the probability of apprehension,

conviction, punishment, as well as their current set of opportunities. From the

public policy perspective, since the cost of increasing the fine is marginal to that of

the cost of increasing surveillance, one can conclude that the best policy is to

maximize the fine and minimize surveillance.

With this perspective, crime prevention or reduction measures can be devised that

increase effort required to commit the crime, such as target hardening. Rational

choice theories also suggest that increasing risk of offending and likelihood of

being caught, through added surveillance, police or security guard presence,

added street lighting, and other measures, are effective in reducing crime.

One of the main differences between this theory and Jeremy Bentham's rational

choice theory, which had been abandoned in criminology, is that if Bentham

considered it possible to completely annihilate crime (through the panopticon),

Becker's theory acknowledged that a society could not eradicate crime beneath a

certain level.

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For example, if 25% of a supermarket's products were stolen, it would be very easy

to reduce this rate to 15%, quite easy to reduce it until 5%, difficult to reduce it

under 3% and nearly impossible to reduce it to zero (a feat which would cost the

supermarket so much in surveillance, etc., that it would outweigh the benefits).

This reveals that the goals of utilitarianism and classical liberalism have to be

tempered and reduced to more modest proposals to be practically applicable.

Such rational choice theories, linked to neoliberalism, have been at the basics

of crime prevention through environmental design and underpin the Market

Reduction Approach to theft  by Mike Sutton, which is a systematic toolkit for

those seeking to focus attention on "crime facilitators" by tackling the markets for

stolen goods that provide motivation for thieves to supply them by theft.

c) Routine activity theory

Routine activity theory, developed by Marcus Felson and Lawrence Cohen, draws

upon control theories and explains crime in terms of crime opportunities that occur

in everyday life. A crime opportunity requires that elements converge in time and

place including

(1) A motivated offender

(2) Suitable target or victim

(3) Lack of a capable guardian. 

A guardian at a place, such as a street, could include security guards or even

ordinary pedestrians who would witness the criminal act and possibly intervene or

report it to police. 

Routine activity theory was expanded by John Eck, who added a fourth element of

"place manager" such as rental property managers who can

take nuisance abatement measures.

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d) Biosocial theories

Biosocial criminology is an interdisciplinary field that aims to explain crime and

antisocial behavior by exploring both biological factors and environmental factors.

While contemporary criminology has been dominated by sociological theories,

biosocial criminology also recognizes the potential contributions of fields such

as genetics, neuropsychology, and evolutionary psychology.

e) Marxist Criminology

In 1968, young British sociologists formed the National Deviance Conference

(NDC) group. The group was restricted to academics and consisted of 300

members. Ian Taylor, Paul Walton and Jock Young - members of the NDC -

rejected previous explanations of crime and deviance. Thus, they decided to pursue

a new Marxist criminological approach. In The New Criminology, they argued

against the biological "positivism" perspective represented by Lombroso, Hans

Eysenck and Gordon Trasler.

According to the Marxist perspective on crime, "defiance is normal - the sense that

men are now consciously involved…in assuring their human diversity." Thus

Marxists criminologists argued in support of society in which the facts of human

diversity, be it social or personal, would not be criminalized.They, further,

attributed the processes of crime-creation not to genetic or psychological facts, but

rather to the material basis of a given society.

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CHAPTER – II

PROCEDURE FOR ADMINISTRATION OF CRIMINAL JUSTICE

The procedure of administration of criminal justice in our country is divided into

three stages namely investigation, inquiry and trial. The Criminal procedure code

1973 provides for the procedure to be followed in investigation, inquiry and trial,

for every offence under the Indian Penal Code or under any other law. Now before

discussing the procedure of administration there are certain basic terms one should

be aware of these being;

Section 2 (g) defines “Inquiry” means every inquiry, other than a trial, conducted

under this Code by a Magistrate or court; and section 2 (h) defines "Investigation"

includes all the proceedings under this Code for the collection of evidence

conducted by a police officer or by any person (other than a Magistrate) who is

authorized by a Magistrate in this behalf,

Therefore for a dispute to be resolved the said case has to go through the three

stages i.e. inquiry investigation and trial and after this process is completed the

judgment of the court is passed by the judge who decides the case and its outcome.

Although the said process appears to simple and plain on paper but in practicality

is cumbersome and time consuming which is defeating the main essence of a

criminal system i.e. fair and expeditious justice and hence warrants a change now.

The three stages: namely investigation, inquiry and trial are as follows

Investigation is a preliminary stage conducted by the police and usually starts after

the recording of a First Information Report (FIR) in the police station. Section

154 provides that any information received in the police station in respect of a

cognizable offence shall be reduced into writing, got signed by the informant and

entered in the concerned register.

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Section 156(1) requires the concerned officer to investigate the facts and

circumstances of such a case without any order from the Magistrate in this behalf.

If Magistrate receives information about commission of a cognizable offence he

can order an investigation. In such cases citizen is spared the trouble and expense

of investigating and prosecuting the case.

Section 157 of the code provides for the procedure for investigation which is as; if

the officer-in-charge of a police station suspects the commission of an offence,

from statement of FIR or when the magistrate directs or otherwise, the officer or

any subordinate officer is duty-bound to proceed to the spot to investigate facts and

circumstances of the case and if necessary, takes measures for the discovery and

arrest of the offender.

It primarily consists of ascertaining facts and circumstances of the case, includes

all the efforts of a police officer for collection of evidence: proceeding to the spot;

ascertaining facts and circumstances; discovery and arrest of the suspected

offender; collection of evidence relating to the commission of offence, which may

consist of the examination of various persons including the accused and taking of

their statements in writing and the search of places or seizure of things considered

necessary for the investigation and to be produced at the trial; formation of opinion

as to whether on the basis of the material collected there is a case to place the

accused before a magistrate for trial and if so, taking the necessary steps for filing

the charge-sheet. The investigation procedure ends with a submission of a police

report to the magistrate under section 173 of the code this report is basically a

conclusion which an investigation officer draws on the basis of evidence collected.

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Now the second phase is, Inquiry dealt under sections 177-189 of the code which

consists of a magistrate, either on receiving a police report or upon a complaint by

any other person, being satisfied of the facts.

Lastly, the third stage is trial. Trial is the judicial adjudication of a person’s guilt or

innocence.Under the Crpc, criminal trials have been categorized into three

divisions having different procedures, called warrant, summons and summary

trials. Section 2(x) of the Crpc defines Warrant-case i.e. “Warrant-case” means a

case relating to an offence punishable with death, imprisonment for life or

imprisonment for a term exceeding two years; A warrant case relates to offences

punishable with death, imprisonment for life or imprisonment for a term exceeding

two years. Trial of warrant cases is dealt under sections 238-250 of the code.

The Crpc provides for two types of procedure for the trial of warrant cases i.e. By a

magistrate, tribal by a magistrate, viz., those instituted upon a police report and

those instituted upon complaint. In respect of cases instituted on police report, it

provides for the magistrate to discharge the accused upon consideration of the

police report and documents sent with it. In respect of the cases instituted

otherwise than on police report, the magistrate hears the prosecution and takes the

evidence. If there is no case, the accused is discharged. If the accused is not

discharged, the magistrate holds regular trial after framing the charge, etc. In

respect of offences punishable with death, life imprisonment or imprisonment for a

term exceeding seven years, the trial is conducted in a session’s court after being

committed or forwarded to the court by a magistrate.

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A summons case means a case relating to an offence not being a warrant case,

implying all cases relating to offences punishable with imprisonment not

exceeding two years. In respect of summons cases, there is no need to frame a

charge. The court gives substance of the accusation, which is called “notice”, to the

accused when the person appears in pursuance to the summons.

The court has the power to convert a summons case into a warrant case, if the

magistrate thinks that it is in the interest of justice. The provisions regarding the

procedure to be followed in summons case is dealt under section 251-259 of the

Crpc.

Summary trials are dealt under section 260 – 265 of the Crpc the procedure is as

provided; the high court may empower magistrates of first class to try certain

offences in a summary way where as second class magistrates can summarily try

an offence only if it is punishable only with a fine or imprisonment for a term not

exceeding six months. In a summary trial no sentence of imprisonment for a term

exceeding three months can be passed in any conviction. The particulars of the

summary trial are entered in the record of the court and in every case which is tried

summarily in which the accused does not plead guilty the magistrate records the

substance of the evidence and a judgment containing a brief statement of the

reasons for the finding

21

The common features of the trials in all three of the aforementioned procedures

may be roughly broken into the following distinct stages:

I) Framing of charge or giving of notice.

This is the beginning of a trial. At this stage, the judge is required to weigh the

evidence for the purpose of finding out whether or not a prima facie case against

the accused has been made out. In case the material placed before the court

discloses grave suspicion against the accused that has not been properly explained,

the court frames the charge and proceeds with the trial. If, on the contrary, upon

consideration of the record of the case and documents submitted and after hearing

the accused person and the prosecution in this behalf, the judge considers that there

is not sufficient ground for proceeding, the judge discharges the accused and

records reasons for doing so. 

The words “not sufficient ground for proceeding against the accused” mean that

the judge is required to apply a judicial mind in order to determine whether a case

for trial has been made out by the prosecution. It may be better understood by the

proposition that whereas a strong suspicion may not take the place of proof at the

trial stage, yet it may be sufficient for the satisfaction of the court in order to frame

a charge against the accused person.

The charge is read over and explained to the accused. If pleading guilty, the judge

shall record the plea and may, with discretion convict him however if the accused

pleads not guilty and claims trial, then trial begins. Trial starts after the charge has

been framed and the stage preceding it is called inquiry. After the inquiry, the

charge is prepared and after the formulation of the charge the trial of the accused

starts. A charge is nothing but formulation of the accusation made against a person

who is to face trial for a specified offence. It sets out the offence that was allegedly

committed.22

II) Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses before

the court. The statement of witnesses is on oath. This is called examination-in-

chief. The accused has a right to cross-examine all the witnesses presented by the

prosecution  Section 309 of the Crpc further provides that the proceeding shall be

held as expeditiously as possible and in particular, when the examination of

witnesses has once begun, the same shall be continued day-to-day until all the

witnesses in attendance have been examined.

III) Statement of accused

The court has powers to examine the accused at any stage of inquiry or trial for the

purpose of eliciting any explanation against incriminating circumstances appearing

before it. However, it is mandatory for the court to question the accused after

examining the evidence of the prosecution if it incriminates the accused. This

examination is without oath and before the accused enters a defense. The purpose

of this examination is to give the accused a reasonable opportunity to explain

incriminating facts and circumstances in the case.

IV) Defence Evidence

If after taking the evidence for the prosecution, examining the accused and hearing

the prosecution and defence, the judge considers that there is no evidence that the

accused has committed the offence, the judge is required to record the order of

acquittal .However, when the accused is not acquitted for absence of evidence, a

defence must be entered and evidence adduced in its support. The accused may

produce witnesses who may be willing to depose in support of the defence. The

accused person is also a competent witness under the law. The accused may apply

for the issue of process for compelling attendance of any witness or the production

23

of any document or thing. The witnesses produced by him are cross-examined by

the prosecution.

The accused person is entitled to present evidence in case he so desires after

recording of his statement. The witnesses produced by him are cross-examined by

the prosecution. Most accused persons do not lead defence evidence. One of the

major reasons for this is that India follows the common law system where the

burden of proof is on the prosecution, and the degree of proof required in a

criminal trial is beyond reasonable doubt.

V) Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that when

examination of the witnesses for the defence, if any, is complete, the prosecutor

shall sum up the prosecution case and the accused is entitled to reply. The same is

provided for under section 234 of the code.

VI) Judgment

After conclusion of arguments by the prosecutor and defence, the judge

pronounces his judgment in the trial. Here it is relevant to mention that the Crpc

also contains detailed provisions for compounding of offences. It lists various

compoundable offences under table 1 of the Indian Penal Code which may be

compounded by the specified aggrieved party without the permission of the court

and certain offences under table 2 that can be compounded only after securing the

permission of the court compounding of offences also brings a trial to an end.

Under the Crpc an accused can also be withdrawn from prosecution at any stage of

trial with the permission of the court. If the accused is allowed to be withdrawn

24

from prosecution prior to framing of charge, this is a discharge, while in cases

where such withdrawal is allowed after framing of charge, it is acquittal.

The above described is the process how a trial takes place for dispensation of a

criminal case although this six stepped procedure looks plain and simple it suffers

from many inherent lacunas which become the reasons for delay and hampers an

expeditious trial and not to forget the option of appeal is again there where the state

or the criminal has option to appeal to appellate court and as well as seek a

permission to file a special leave petition to the supreme court where in again all

this process is repeated except for the fact that the supreme court only deals with

cases where there is a question of law involved.

PROBLEMS OF OUR TRIAL PROCEDURE WHICH POSE AS HURDLES

TO SPEEDY DISPENSATION OF CASES;

I) Investigation not rusted by the laws and the court themselves

Investigation though is the foundation of the Criminal Justice System but is

unfortunate that it is not trusted by the laws and the courts themselves the same can

be explained by a perusal of sections 161 and 162 of the Criminal Procedure Code

which provides that the statements of the witnesses examined during investigation

are not admissible and that they can only be used by the defence to contradict the

maker of the statement, the confession made by accused is also not admissible in

evidence. The statements recorded at the earliest stage normally have greater

probative value but can't be used in evidence.

25

II) Suppress of truth and forwarding falsehood.

It is common knowledge that police often use third degree methods during

investigation and there are also allegations that in some cases they try to suppress

truth and put forward falsehood before court for reasons such as corruption or

extraneous influences political or otherwise.

Unless the basic problem of strengthening the foundation is solved the guilty

continue to escape conviction and sometimes even innocent persons may get

implicated and punished.

III) Non co operative attitude due to excessive workload

Secondly the police officers face excessive work load due to lack of manpower and

the public at large is non co-operative because of the public image of the police

officers and there is lack of coordination with other sub-system of the Criminal

Justice System in crime prevention to add to the agony there is a lot of misuse of

bail and anticipatory bail provisions, more over due to Political and executive

interference police is directed for other tasks which are not a part of police

functions. It may be apt to point out that the rank of the IO investigating a case also

has a bearing on the quality of investigation. The minimum rank of a station house

officer (SHO) in the country is sub inspector (SI). However, some of the important

police stations are headed by the officers of the rank of Inspector. It has been

observed that investigations are mostly handled by lower level officers, namely,

HC and ASI etc.

26

IV) Investigation not conducted y police

The senior officers of the police stations, particularly the SHOs generally do not

conduct any investigations themselves. This results in deterioration of quality of

investigations. It is therefore necessary to address ourselves to the problems and

strengthen the investigation agency. Furthermore the common citizen is not aware

of the distinction between cognizable and non-cognizable offences. There is a

general feeling that if anyone is a victim of an offence the place he has to go for

relief is the police station. It is very unreasonable and awkward if the police were

to tell him that it is a non-cognizable offence and therefore he should approach the

Magistrate as he cannot entertain such complaint.

V) Investigation rendered fruitless

The investigation of a criminal case, however good and painstaking it may be, will

be rendered fruitless, if the prosecution machinery is indifferent or inefficient. One

of the well-known causes for the failure of a large number of prosecutions is the

poor performance of the prosecution. In practice, the accused on whom the burden

is little engages a very competent lawyer, while, the prosecution, on whom the

burden is heavy to prove the case beyond reasonable doubt, is very often

represented by persons of poor competence, and the natural outcome is that the

defence succeeds in creating the reasonable doubt on the mind of the court.

VI) Notorious problem in the trail courts granting of frequent adjourning

The most notorious problem in the functioning of the courts, particularly in the

trial courts is the granting of frequent adjournments on most flimsy grounds. This

malady has considerably eroded the confidence of the people in the judiciary.

Adjournments contribute to delays in the disposal of cases. They also contribute to

hardship, inconvenience and expense to the parties and the witnesses. The witness

27

has no stake in the case and comes to assist the court to dispense justice. He

sacrifices his time and convenience for this. If the case is adjourned he is required

to go to the court repeatedly. He is bound to feel unhappy and frustrated. This also

gives an opportunity to the opposite party to threaten or induce him not to speak

the truth therefore the right to speedy trial is thwarted by repeated adjournments.

VII) Service of summons on the accused

one of the major causes for delay even in the commencement of trial of a criminal

case is service of summons on the accused. The Code of Criminal Procedure

provides for various modes of service. Section 62 of the Code provides that

summons shall be served by a Police Officer, or subject to such rules being framed

by the State Government, by any officer of the Court or other public servant.

Unfortunately rules have not been framed by many State Governments to enable

service otherwise than through police officers. Since the Criminal Procedure Code

itself provides for other means of service namely through registered post in the

case of witnesses, it should also provide for service on accused through facilities of

courier service, fax where available.

VIII) low judge population ratio

our country suffers from low judge population ratio because of which the pendency

of work increases therefore the judges take a long time in delivering judgments this

again adds to enlargement of the time frame of a case to be decided from its

intuition point because of which the litigants feel that litigation is a time

consuming and lengthy procedure the two areas which need special attention for

improving the quality of justice are prescribing required qualifications for the

judges and the quality of training being imparted in the judicial academics.

28

Since the above problems curb the speedy dispensation of cases the researcher in

order to provide or seek a solution for remedying and trying to move away from

the old colonial shackles has undertaken to research upon this topic where the main

research ground would be whether introduction ADR techniques in certain

criminal cases would lead to speedy dispensation of cases without calling in for a

major infrastructural change for this very same purpose the researcher has chosen

six particular sections which would be dealt further where each section would be

explained along with a its classification and which method of trial is followed and

by using a certain technique of ADR in trial of that particular offence would lead to

expeditious and fair trial as when compared to the traditional litigation method ,

The researcher owing to paucity of time and since compulsory compromise is not

possible all criminal cases the researcher has undertaken to propose the following;

Adding more offences under section 320

(1) Table from the table under section 320

(2) i.e. offence which are to be compounded with the permission of the court

should now be allowed to be compounded without eh permission of the court

where both the parties agree to settle the matter and refer the said matters for

mediation instead of normal trial procedure.

IX) Sending all maintenance and family discord matters

Sending all maintenance and family discord matters under section 125 Crpc for

mediation using family group conferencing method instead of normal court trial.

29

Using victim offender mediation method for cases under section 323 IPC i.e.

HURT.

Using victim offender mediation method for cases under section 379 IPC i.e. Theft.

Using victim offender mediation method or early neutral evaluation method for

cases of Criminal breach of trust dealt under section 405-408 IPC.

Sending cases of defamation dealt under section 499 IPC for mediation.

For the sake of brevity the researcher would divide the scope of introducing ADR

techniques into two chapters being scope of ADR in Code of Criminal procedure

where in section 320 and section 125 would be dealt with and the next following

chapter would be discussing about introducing ADR techniques in the substantive

criminal law i.e. IPC and would deal each section as a sub part of the next chapters

where in the following would be its sub –sub parts;

30

CHAPTER- III

ADMINISTRATION OF JUSTICE THEORIES OF PUNISHMENT

TYPES OF THEORIES

Theories may be of following kind:

1. Deterrent Theory

2. Retributive Theory

3. Reformative Theory

4. Expiatory Theory

5. Preventive Theory

Punishment according to dictionary- involves the infliction of pain or forfeiture,

it is infliction of penalty. chastisement or castigation by the judicial arm of the

state. If the sole purpose behind punishment is to cause physical pain to the

wrongdoer, it serves little purpose. However, if punishment is such as leads him

to realize the gravity of the offence committed by him, and to repent at once for

it, it may be said to have achieved its desired effect.

There are many theories of concerning the justification of punishment. It is clear

that the philosophy of punishment will affect the actual standards of liability laid

down by the law.

As SALMON observes, the ends of criminal justice are four in number, and in

respect of the purpose so served by it, punishment may be distinguished as

31

1. - Deterrents

2. - Reventive

3. - Reformative

4. - Retributive.

5. – Expiatory

1) Deterrent theory

punishment is before all things deterrent and the chief end of the law of crime is

to make the evil-doer an example and warning to all who are like minded with

him. According to this theory, offences are result of a conflict between the

interests of the wrong-doer and those of society. The aim of punishment is to

dissolve the conflict of interests by making every offence. “Avail has vargain to

the offender” (famous words of Corne).

This theory has been criticed on the ground that it is ineffective in cases where

crime is committed under severe mental stress. In such cases to punish the

wrongdoer to deter him is meaningless.

2) Preventive theory-

punishment is, preventive or disabling. Its primary and general purpose being to

deter by fear, its secondary and special purpose is wherever possible and

expedient, to prevent a repetition by wrongdoer by the disablement of the

offender. The most effective mode of disablement is the death penalty, which in

practice, in time of peace, is confined to the crime of murder, though it is legally

possible for treason and certain form of piracy and arson.

A similar secondary purpose exists in sub penalties as imprisonment and

forfeiture of office, the suspension of driving licenses and in the old penalty of

exile. The aim of this theory is not to repeat the crime the crime but this theory

32

takes no note of criminal. It prefers to disable the wrong-doer from committing

any more crime but it ignores one of the basic object of the criminal law, i.e. to

reform the criminal.

3) Reformative theory.

A crime is committed as a result of the conflict between the character and the

motive of the criminal. One may commit a crime either because the temptation of

the motive is stronger or because the restrain imposed by character is weaker.

The deterrent theory by showing that crime never pays separate the motive.,

while the reformative theory seems to strengthen the character of the man so that

he may not become victim of his own temptation. This theory would consider

punishment to be curative or to perform the function of medicine.

According to this theory crime is like a disease. . This theory maintains that you

can cure by killing.

The ultimate aim of reformists is to try to bring about a change in the personality

and character of the offender, so as to make him a useful member of society.

4) Retributive theory-

retributive punishment, in the only sense in which it is admissible in any rational

system of administering justice, is that which serves for the satisfaction of that

emotion of retributive indignation which in all healthy communities is strived up

by injustice. This was formerly based on theory of revenge.-“tooth for tooth” and

“eye for eye”.

Today, on the other hand, this theory is based on the idea that punishment is the

necessary alkali to neutralize the evil effects of crime. The idea behind the

retributive punishment is that of the restoration of the moral character, the

appraisement of the disturbed conscience of society itself and the maintenance of

the sovereign power of the state which becomes aggrieved when a crime is

committed and inflicts punishment to set matters of right. Though the system of

33

private revenge has been suppressed, the instincts and emotion that lay at the

root of these feelings are yet present in human nature.

Therefore, according to this moral satisfaction that the society obtains from

punishment can not be ignored.

On the other hand, if the criminal is treated very leniently or even in the midst of

luxury, as the reformative theory would have it, the spirit of vengeance would

not be satisfied and it might find its way through private vengeance. According

to this theory eye for eye and tooth for tooth is deemed to be a complete and

really sufficient rule of natural justice.

In the last, we can easily say that the only logical inference from the reformative

theory, if taken itself, is that they should be abandoned in despairs as no fit

subject for penal discipline. The deterrent and disabling theories on the other

hand, regard such offenders as being pre-eminently those with whom the criminal

law is called upon to deal.

The application of purely reformative theory, therefore would lead to astonishing

and inadmissible results. The perfect idea of criminal justice is based on neither

reformative nor the deterrent principle exclusively, but the result of comprise

between them.

In this it is the deterrent principal which possesses predominant influence. It will

not be out of place to mention here that Gandhi ji “hate the sin and not the

sinner”, is merely a philosophical assertion and can not furnish a practical guide

in the administration of justice.

34

5) Expiatory Theory

Expiation both as a theological and as a criminological concept is examined in

conjunction with two sociological concepts—socialization and differential

association—to develop a new perspective on prison rebellions and on both prison

and social reform. In the conventional wisdom, expiation is considered a sound

justification for imprisonment.

A man commits a crime: he must "pay," must atone for it. On the basis of an

examination of the traditional concept of expiation, this article suggests new

implications for the criminal justice system. Studying the implications of

socialization and differential association within a larger, legal- moral dimension

evokes what some might regard—and dismiss out of hand-as a more startling

proposal: that society at large should be held at least partially responsible for

crimes whose guilt is normally imposed solely on the imprisoned offender.

CONTENT OF THE SECTION AND ITS EXPLANATION.

Which technique of ADR to be used for resolution of that dispute and matching the

dispute resolution process which would lead fair and expeditious trial .

A case law showing delay caused due to following of normal trial procedure with

reference to that particular section and how usage of a particular technique of ADR

would resolve the said problem or where already such changes are being

incorporated or have been recommended by the Courts.

Now further we would move to the next chapter where in the researcher would

discuss about introducing ADR techniques in the Code of criminal procedure,

1973.

35

Types and definitions of crime

Both the Positivist and Classical Schools take a consensus view of crime — that a

crime is an act that violates the basic values and beliefs of society. Those values

and beliefs are manifested as laws that society agrees upon.

However, there are two types of laws:

Natural laws are rooted in core values shared by many cultures. Natural laws

protect against harm to persons (e.g. murder, rape, assault) or property (theft,

larceny, robbery), and form the basis of common law systems.

Statutes are enacted by legislatures and reflect current cultural mores, albeit that

some laws may be controversial, e.g. laws that prohibit cannabis use

and gambling. Marxist criminology, Conflict criminology and Critical

Criminology claim that most relationships between state and citizen are non-

consensual and, as such, criminal law is not necessarily representative of public

beliefs and wishes: it is exercised in the interests of the ruling or dominant

class. The more right wing criminologies tend to posit that there is a

consensual social contract between State and citizen.

Therefore, definitions of crimes will vary from place to place, in accordance to the

cultural norms and mores, but may be broadly classified as blue-collar

crime, corporate crime, organized crime, political crime, public order crime, state

crime, state-corporate crime, and white-collar crime. However, there have been

moves in contemporary criminological theory to move away from liberal

pluralism, cultureless and postmodernism by introducing the universal term 'harm'

into the criminological debate as a replacement for the legal term 'crime'.

36

Theory of criminal justice

The theory of criminal justice is the branch of philosophy of law that deals

with criminal justice and in particular punishment. The theory of criminal justice

has deep connections to other areas of philosophy, such as political

philosophy and ethics, as well as to criminal justice in practice.

Some important questions considered in the theory of criminal justice are

What is criminal justice

How is criminal justice distinct from other kinds of justice (or is it in fact

distinct)

Some questions specific to the topic of punishment are

Should we punish

Why should we punish

Whom should we punish

How should we punish

How much should we punish

37

CHAPTER - IV JUSTICE AND CRIMINAL JUSTICE

1) How is criminal justice distinct from other kinds of justice

Typically, legal theorists and philosophers consider four distinct kinds of justice:

corrective justice, distributive justice, procedural justice, and retributive justice

Criminal law falls under retributive justice, a theory of justice that considers

proportionate punishment a morally acceptable response to crime. Retributive

justice is perhaps best captured by the phrase lex talionis (the principle of "an eye

for an eye"), which itself traces back to the book of Exodus.

The principle of lex talionis received its most well known philosophical defense

from Immanuel Kant . Criminal law is no longer considered a purely retributive

undertaking; deterrence figures prominently in the justification of the practice and

in the rules themselves.

2) Criminal justice systems

There are at least two questions, raised by H. L. A. Hart, in connection with

criminal justice which do not directly concern punishment but are more closely

related to a criminal justice system as a whole.

Why establish any institution of punishment at all?

Why establish this institution with its special concepts, principles of legislation,

adjudicative procedures, and permissible penalties rather than some other

panochas.

38

3) Punishment

Different theories of criminal justice can usually be distinguished in how they

answer questions about punishment. To avoid issues of semantics, in this section

we must agree that punishment is a penalty imposed by a legal system along with

(or because of) a stigma of wrong doing or law breaking. This definition

deliberately excludes penalties unrelated to wrongdoing or lawbreaking, even

when imposed by a legal system. It also distinguishes or at least restricts this

definition from the one used in operant conditioning.

4) Should we punish

The answer to this question is important as a negative answer makes further

questions about punishment irrelevant. In fact, if we answer no, then the theory of

punishment does not even belong in the theory of criminal justice.

Most theories answer yes, that there are at least some criminals or criminal

acts that should be punished. However, this question should not be so easily

dismissed as there are theories which do answer no. Consider, for example,

Pacifism. Also, certain versions ofrestorative justice might optimistically make the

claim that punishment is unnecessary.

5) Whom should we punish

We should punish criminals. Unfortunately, the answer is not that simple. Should

we punish only lawbreakers, or other wrongdoers? Should we punish all criminals?

39

Often, the answers to these questions are interrelated with the reasons for

punishment.

For example, if the reason for punishment is rehabilitation, then we should not

punish criminals who show genuine remorse. In practice, this is difficult to

determine.

The question of whether only lawbreakers can be punished is connected to the

validity of retroactive laws. Whether wrongdoers can and should be punished

under retroactive laws was particularly important around the end of World War II.

Many Nazi war criminals were tried under laws which were not in place at the time

they committed their so-called crimes. Although their actions were wrong, their

punishment brings up important issues. Punishment under retroactive laws can not

possibly accomplish deterrence.

6) How should we punish

Different methods of punishment can be evaluated based on effectiveness, cost

efficiency, and on moral grounds.

There is a principle in certain versions of retributive theory that can be stated as

"an eye for an eye". This principle argues for punishment in kind with the harm

that was caused by the wrongdoer.

Cruel and unusual punishment is outlawed in many legal systems, presumably on

moral grounds.

7) How much should we punish

Deterrence theory argues that the amount of punishment should be the minimum

required to achieve the desired amount of deterrence. Most versions of retributive

justice argue that the amount of punishment should be proportional to the amount

of harm caused. Reform theory argues that the amount of punishment should be

enough to cause reform in the offender.

40

However, some theories would argue that the amount of punishment is not

important at all. For example, if the purpose of punishment is incapacitation, the

fact that a jail sentence is undesirable to the offender is irrelevant.

CHAPTER – V ADMINISTRATION OF JUSTICE SYSTEM

1 Setting the Stage 

2 Public Confidence 

3 Dispute Resolution as a Whole 

4 Allocation and the Use of Resources 

5 A Unified Management/Administrative Model 

6 Changing Attitudes, Roles and Responsibilities 

7 Management of Cases 

8 Additional Areas 

9 The Modern Civil Justice System 

1) SETTING THE STAGE

No civilized society can remain stable without a mechanism whereby its

members can resolve their disputes peacefully and, where necessary, in a

binding fashion. The alternative to such a mechanism is chaos at best, and

unbridled violence at worst.

Unreasonable delay in the disposition of disputes is, indeed, "the enemy of

justice and peace in the community". It leads inevitably to unreasonable costs. It

breeds inaccessibility. It fosters frustration, and frustrates fairness. The

administration of justice falls into disrepute.

41

a) People become alienated.

Patterns of this nature have been developing in Ontario over the past number of

years. Unacceptable delays and mounting costs, with their attendant

implications for inaccessibility and mistrust of the system, have become

endemic.

Backlogs are mushrooming on the crowded urban calendars of Toronto, Ottawa,

Windsor, Brampton, New market and Whit by, to name only the hardest hit

centers. There is more civil litigation. It is more complex. It takes longer to

prepare, to settle and to try. It is fostered by an increasingly "rights-oriented"

and litigious society; enhanced in the prism of mass media coverage; and

nurtured by a continuing onslaught of legislation from all levels of government

giving people more and more opportunities to go to court.

These developments pose serious threats to the civil justice system which,

simply put, is in a crisis situation.

b) The Civil Justice Review

The Civil Justice Review has been established at the joint initiative of the Chief

Justice of the Ontario Court of Justice and the Attorney General for Ontario to

address these problems and to propose "specific and implementable solutions"

for them. Its mandate is,

to develop an overall strategy for the civil justice system in an effort to provide a

speedier, more streamlined and more efficient structure which will maximize the

utilisation of public resources allocated to civil justice.

42

In addressing the concept of a modern civil justice system, and what its features

should be, we determined that we would measure our recommendations against

the following criteria, which we see as the legitimizing principles underlying

such a system.

c) These benchmarks are:

Fairness

Affordability

Accessibility

Timeliness

Efficiency and Cost-Effectiveness

Accountability, and

A Streamlined Process and Administration

d) Characteristics of the Modern Civil Justice System

To meet these benchmarks, in our view, a modern civil justice system for

Ontario must have at least the following characteristics:

It must have the confidence of the public, and the public must have a

legitimate and meaningful involvement in the way the system works.

It must be properly and adequately funded and resourced.

It must focus on "dispute resolution" as a whole, and make available to the

public, on an institutional basis, both the traditional court adjudication

processes and the whole panoply of alternative dispute resolution ("ADR";)

43

techniques which enable parties to work out their disputes on their own or

with the assistance of a third party.

Its courts must be presided over by an impartial and completely independent

judiciary, the members of which must be of the highest calibre and character

and who must be representative of the society they are being entrusted to

judge. As the civil justice system evolves, judges, we believe, will be called

upon to bring skills as case managers and general dispute resolvers to their

role as well.

Its administration must likewise be staffed by qualified and trained

personnel at all levels.

It must feature a unified management, administration and budgetary model

for the administration of the justice system, featuring clearly defined lines of

responsibility.

It must be equipped with modern computer and electronic technology to

enable the participants in the system to work effectively as an integrated

whole.

It must operate under the model of cash flow management, a time and event

managing system which facilitates early resolution of cases, reduces delay

and backlogs, and lowers the cost of litigation. Cash flow management shifts

the overall management of cases through the time parameters from the Bar --

where it has traditionally been -- to the judiciary, streamlines the process,

permits the introduction of ADR techniques, and creates an environment

where judges, administrators and quasi-judicial officials can work together

to integrate the various elements of the system into a co-ordinated whole.

44

These themes and concepts are developed in more detail throughout this, our

First Report and will continue to evolve, in consultation with the various

participants in the justice system, as we work toward our Final Report later this

year. What follows in the remainder of this Chapter is a brief commentary on the

more significant features, in order to set the context for our recommendations.

2) PUBLIC CONFIDENCE AND PARTICIPATION

In order for the public to have a feeling of confidence in the integrity of their

civil justice system they are entitled to:

Timely and affordable civil justice

Be able to understand the system which provides that justice, at least in its

fundamental elements if not in its procedural complexities and,

Basic, straightforward, information to assist it when it comes into contact

with the system.

As the noted American jurist, Justice Felix Frankfurter, expressed it:

"The Court's authority, consisting of neither the purse nor the sword, rests

ultimately on substantial public confidence in its moral sanction"

Like most other institutions in to-day's society, the Courts are the subject of

increasing scrutiny by the public and the media. This scrutiny makes it ever

more apparent that the Court be worthy of the public confidence which is the

ultimate basis for societies willingness to accept it's decisions.

This is particularly so at a time when the Charter of Rights and Freedoms has

placed the Courts at the centre of many controversies which in former days were

the sole preserve of the Legislatures and Parliament. At the same time, new and

45

proliferating legislation in areas such as family law, consumer protection law,

environmental law, class actions and tax and corporate-commercial law -- to

name only a few -- is placing the civil justice system in the public eye on a daily

basis.

As a result, the public is demanding more of a say about what goes on in the

justice system, and the ability to participate in a meaningful way in affecting

what happens. As the public member of the Review put it, there is presently

"no meaningful and substantive role for the citizen in the justice system. Citizens

are less willing today to place blind faith and trust in institutions, in professionals

and in elected officials. They are more demanding of accountability, more insistent

on openness and more determined to be involved in actively shaping our

institutions. 

The Civil Justice Review agrees that the public must be given a more

participatory role in the civil justice system, and we have elaborated on this

view in the Chapter called "Changing Attitudes, Roles and Responsibilities.

3) DISPUTE RESOLUTION AS A WHOLE:

The courts and adr, or, the "multi-door" approach

Civil justice is a foundational institution in our society. We believe that the State

has an obligation to make available to its members the means by which their

disputes may be resolved, peacefully, through the medium of independent,

objective and fair third party intervention.

This involves more, in our times, than simply the presence of courts as we have

traditionally known them, albeit, the adjudicative role of an independent

judiciary will remain a central and indispensable aspect of any civil justice

46

system. Experience in our own and most other jurisdictions shows us that the

vast majority of all cases settle before trial. We need to focus our attention on

the process for disposition of this great majority of cases, as well as continuing

to concentrate on those that do go to trial.

In a broader sense, then, "the Court" should become a "dispute resolution

centre" -- a place where people go to have their differences resolved in a fashion

which is most appropriate to their particular situation. This may involve resort to

one or another of the wide panoply of "alternative dispute resolution" ("ADR")

techniques that are available or it may involve resort to the traditional litigation

path towards court adjudication. In either case the State, in our opinion, has an

obligation to ensure that these options are available to the members of the

public. This is what is meant by the "multi-door" concept of dispute resolution.

There are a variety of "doors" through which disputants may go, in order to find

the best method of resolving their differences.

ADR is not a panacea, but among its strengths is the veritable smorgasbord of

techniques which it makes available to enable the parties to create procedures

and solutions that are tailor-made for their circumstances. The public should

have access, within the rubric of its civil justice system, to these alternative

mechanisms for finding a resolution to their own disputes themselves, either on

their own or with the assistance of a third party.

At the same time, it remains essential -- indeed, fundamental -- that the civil

justice system provide an impartial and fair tribunal to determine the parties'

disputes in a binding fashion, when they cannot do so themselves. This tribunal

we know traditionally as a "Court".

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4) THE ALLOCATION AND USE OF RESOURCES

The modern civil justice system will re-think the way it utilizes its resources. It

will re-allocate existing resources in an effective way and it will invest in new

resources which will enable it to provide a higher quality of justice in a less

costly and more efficient manner in the long term. By "resources" we are

referring to human resources, technology, physical facilities and funding.

a) Human Resources

People perform different functions and roles in the justice system. We

must see that they are able to do so in the most effective manner possible

in order to ensure the highest quality of justice. This means that the civil

justice system must allocate its personnel, in the course of processing its

case load, in a fashion which facilitates the right people performing the

right tasks at the right stage in the proceedings

The people working in the system must be highly qualified, and they must

be provided with the necessary support and training to permit them to

perform their functions and roles properly.

Judges are responsible for adjudicating, for assisting the parties in

settling, and -- in their evolving roles as case managers -- for managing

the flow of cases through the system. Court administrators are responsible

for administration, for managing the operation of the system and for

maintaining the necessary infrastructure to ensure that the system can and

does work.

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We believe that in between the case processing functions performed by

court administrators, on the one hand, and those performed by judges, on

the other hand, there is a wide range of activities which can be dealt with

more expeditiously and in a more cost-effective manner by non-

administrators and non-judges. These activities do not require a judge for

their performance, but they do require legal training, some case

management and ADR skills, and the ability to exercise discretion and

make decisions of a quasi-judicial nature. We are proposing the creation

of an officer of the Court to be known as a "Judicial Support Officer" to

fill this role.

As will be apparent in the reading of this First Report, we are proposing

that judges, court administrators and judicial support officers can most

effectively carry out their roles in the context of a system of caseflow

management.

We recommend that they do so in "case management teams" consisting of

judges, judicial support officers and case management co-ordinators, and

that the concept of "judicial teams" be extended across the province to

facilitate the implementation of this approach.

In this way, we see judges, quasi-judicial officials and administrators

being able to devote their time and energies in the most effective manner

to their true functions and roles in the system.

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b) An Independent Judiciary

To ensure the requisite high quality of justice and the fair and impartial

determination of matters coming before the Courts, a strong, and

completely independent judiciary is essential. An independent judiciary is

one of the hallmarks of our free and democratic society. This is not just a

trite platitude: any reforms to the justice system must be measured against

the need to preserve that value.

In addition, those who are appointed to the judiciary must be of the

highest calibre, experienced in the practice of law and in life, and

reflective of the make-up of the society whose people they are being

asked to judge. With case flow management techniques likely to become

more prevalent, judges need to acquire skills in utilizing ADR processes

and in the management of case loads as well.

c) Courthouses and Facilities

A civil justice system requires courthouses and facilities for the trial and

disposition of cases. They are expensive, but they are also an important

symbol that justice is present in the community.

Modern courthouses must be designed to meet the needs of the modern

justice system. They will be centres for dispute resolution in a caseflow

managed system, not simply centres for the disposition of cases by trial.

Accordingly, they must be designed to accomodate the exigencies of such

a system. They will require real courtrooms for the trial of those actions

which must be tried, but they will also require other rooms and facilities

for case management activities, ADR processes and case conferences.

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Their efficient use of court facilities will depend on their flexibility and

adaptability while equipped with up-to-date multi-media technology

capacity.

d) Technology

Our vision of the civil justice system will require a modern computer and

electronic technology infrastructure. Nothing less will enable the

participants in the system to work effectively as an integrated whole, and

to provide the necessary information and data for the management of the

system.

Automation in Ontario is modest, at best. While there are some

applications in operation in various locations -- particularly in connection

with the three case management pilot projects in Windsor, Sault Ste Marie

and Toronto -- and while the Ministry is currently gathering operating

data from across the Province and inputing it into a computer data base,

these efforts are sporadic, not necessarily compatible, and insufficient.

What is needed is a province-wide network and system that will allow

those who work in the civil justice system to have access to common data

banks that will generate reliable statistical data for analysis and

management purposes and that will eliminate at least part of the

avalanche of paper which is engulfing and paralysing the system.

There are many applications of computer and electronic

technology available on the commercial market and ready for utilisation

to-day, which could make the system function more effectively. Although

they involve initial capital expenditures in terms of hardware, software

and training, these technologies will save money in the long run and are

51

worth the investment. They include -- to name but a few -- applications

which permit:

Electronic filing of documents directly from lawyers offices to the

court data bank;

Imaging, to input documents brought to the courthouse by litigants

acting on their own behalf and who do not have the equipment for

electronic filing;

Automatic payment by debit or credit card;

Video conferencing;

The generation of accurate statistics for purposes of financial and

administrative management;

The scheduling of cases, motions, case conferences and most other

"events" in the system;

The storage of data with much smaller space requirements and in a

manner that makes it accessible simultaneously by anyone requiring

and entitled to access, from anywhere, for any number of purposes

related to the processing of cases.

Apart from the enhanced management information that would be

generated from the investment in these technologies, the amount of

savings in terms of reduced paper flow, reduced storage and the re-

allocation of staff will be very significant.

The Bench, the Bar, Government, and the rule-makers need to embrace

the concept of modernizing the civil justice system so that the

introduction of technology will flow smoothly.

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e) Proper and Adequate Funding

The modern civil justice system must be properly and adequately funded.

At present, the Ontario Government allocates 0.54% of its total budget to

courts administration. If one takes into account the revenues generated by

civil justice through fees, the annual net allocation to courts

administration is closer to 1/4 of 1%. This has been the pattern for many

years. At the same time, courts administration's share of the budget for the

entire Ministry of the Attorney General has been progressively

decreasing, due in part to the increase in funding for Legal Aid.

What is required, in our opinion, is a complete re-evaluation of the way in

which resources are allocated and protected for Courts Administration. At

the moment, the budget for Courts Administration is buried in the overall

budget of the Ministry of the Attorney General.

In our view, it should be separated and dealt with on its own footing,

particularly in light of our suggestion for a unified management model.

When funding considerations for the administration and infrastructure of

the justice system are mixed in with overall ministry priorities -- many of

which are understandably "policy" or "program" oriented -- they are too

easily "shunted to the rear" in the face of competing demands for

diminishing resources.

The justice system is not a black hole down which governments must

simply pour more money, more judges and more resources. The system

must be accountable and made to operate in a way that demonstrates the

effective use of existing resources already allocated to it. However, the

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effective utilization of existing resources and the judicious investment of

new and additional resources are both pivotal to a properly functioning

civil justice system.

We have attempted to identify practical efficiencies which can be

introduced within the civil court system and which will lead to savings.

This, coupled with the streamlined and cost-effective nature of the new

system that we are proposing, will lead to an availability of resources

which, we believe, will provide the primary source of the funding needed

to effect the changes we propose.

Technology initiatives are one area where the investment of new funds is

justifiable. That new investment now will pay dividends in terms of

savings and efficiencies which will allow for re-investment to support the

modern civil justice system.

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5) A UNIFIED MANAGEMENT/ADMINISTRATIVE MODEL

At the present time, the management and budgetary administration of justice in

Ontario is in bi-furcated hands.

Management and administration are partly the responsibility of the judiciary, but

primarily the responsibility of Courts Administration. Budgeting is solely within

the purview of Courts Administration, and through it, the Executive branch of

government and the Legislature.

Judges are accountable for matters of administration bearing directly on the

exercise of their judicial function. Primarily, this responsibility embraces control

over the lists and the scheduling of cases, and over the assignment of judges and

courtrooms for the hearing of those cases. This responsibility is a necessary

adjunct to the preservation of the institutional independence of the judiciary.

On the other hand, the Ministry of the Attorney General -- the major litigant in

the courts -- is responsible for the budget which enables the judiciary to perform

these "judicial administration" functions. At the same time, the Ministry,

through its Courts Administration branch, is responsible for virtually all other

matters which provide the infrastructure to enable the judiciary to perform their

general judicial functions. The statutory jurisdiction over staff, the

administration budget generally, financing, technology, organization and

physical facilities rests with the Ministry.

The lack of a unified model, with a single line of accountability and clear lines

of authority has led to increasing difficulties, and increasing friction between the

Ministry and the Judiciary. General fiscal restraints, as governments endeavour

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to spread existing resources over an increasing array of public demands, have

enhanced these difficulties and frictions, and made it urgent that they be

addressed, in the interests of an effectively operating justice system.

Compounding the problems has been a culture which has historically kept

communications between Judiciary and Ministry to a minimum, on the theory

that a judge's task is to adjudicate and an administrator's, to administrate.

We have concluded that the justice system can no longer function effectively in

Ontario unless and until a single authority, with clear lines of responsibility and

accountability, is established to deal with all administrative, financial and

budgetary, and operational matters relating to court administration in the

Province. This is an issue which cuts across the boundaries of the civil justice

system, itself, and affects the system as a whole. Nonetheless, we believe that it

must be dealt with if the civil justice system, in the long run, is to become

effective.

In a Chapter entitled "Creating a Responsible Justice System Structure" we have

recommended that steps be taken immediately to establish a single issue task

force for the purpose of developing an implementable proposal for the creation

of a unified management, administration and budgetary structure for the court

system in Ontario.

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6) CHANGING ATTITUDES, ROLES AND RESPONSIBILITIES

One of the most frequently asked questions during our consultation phase --

usually, but not always, by the public -- was,

"Who's in charge here?"

Partly this was a reflection of the tensions and inefficiencies springing from the

lack of an effective management, administration and budgeting system referred

to above. Partly it was a recognition that those who are the participants in the

civil justice system -- judges, administrators and lawyers, in particular -- do not

seem to share a sense of common responsibility for the operation of the system.

We have mentioned the difficulties and tensions between Ministry and

Judiciary. The Bar, too, plays an integral role in the administration of the

system. It represents the clients who use the system in the system. It has

influence through that very representation and through various professional

organizations and its governing body, the Law Society of Upper Canada. Like

its co-participants in the system, the Bar occasionally marches to the tune of its

own drummer (or drummers) as well.

All of this has led to these three constituencies becoming "the three solitudes".

We are happy to be able to report that the walls between the "three solitudes"

appear to be falling. There is a growing recognition that a sense of co-

management of the system and of shared responsibility for its results is essential

to making it operate in a proper fashion, in the interests of the public. The

Chapter entitled "Changing Attitudes, Roles and Responsibilities" elaborates on

this theme.

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7) MANAGEMENT OF CASES

The Civil Justice Review recommends the establishment of caseflow

management on a Province-wide basis.

The results of the three pilot projects in Windsor, Sault Ste Marie and Toronto

have demonstrated that case management works if it is properly resourced,

effectively planned, and the people working within the system are adequately

trained. It promotes the earlier resolution and disposition of cases, reduces delay

and backlog, ultimately lowers the cost of litigation, and, consequently, adds to

the satisfaction of litigants.

Case flow management is a concept which offers great potential, in our opinion,

for combining and co-coordinating the various disparate elements of the civil

justice system and for integrating them into a more effective whole. The creation

of judicial teams across the Province, and of case management teams involving

judges, judicial support officers and case management co-ordinators is central to

this concept. Circuiting of judges from one Region to another is also an

important feature of this province-wide orchestration of resources and

personnel.

We develop this notion more fully in that portion of the Report dealing with

"Management of Cases".

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8) ADDITIONAL AREAS

Family matters, small claims and landlord and tenant matters receive separate

attention in the Report. They are the three areas of civil justice that touch people

the most.

Family law was a subject which dominated the public consultation phase of the

Review. Family disputes engender enormous hardship, cost and emotional

strain. We have endeavoured to reflect the concerns expressed and to set out a

proposal which will alleviate at least some of the strains created by the system.

The new process will be resolution focused. Information Services will be made

available to the public to provide explanations about court proceedings -- what

is required, and what may be expected; about the impact of parental separation

and court proceedings on children and the services available to assist in that

regard; and about alternative dispute resolution resources that are available.

Early judicial intervention is proposed for most cases, even before the first

motion or interim relief. The development of standard affidavits setting out the

essential information required for interim relief is encouraged, in an attempt to

minimize what we were frequently told was the forever damaging aspect of

many of the "affidavit wars" between spouses.

With respect to Small Claims Court and Landlord and Tenant matters, we have

put forward some preliminary observations and proposals. Further studies are

being done in these areas in connection with the fundamental issues group of the

Civil Justice Review, however, and we will return to these subjects again in our

Final Report.

In connection with the Rules governing the practice in the Court, we have made

a number of suggestions regarding the need for more responsiveness and de-

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mystification. In particular, however, we have recommended that the proposal

put forward by the Simplified Civil Rules Subcommittee regarding a procedure

for cases involving money or property valued at under $40,000 be adopted. The

principle recommendations of that proposal are the elimination of oral

examinations for discovery and the elimination of cross-examinations on

affidavits in interlocutory matters, in those types of cases.

9) THE MODERN CIVIL JUSTICE SYSTEM:

what will it look like in 10 years

What, then, in summary, is the vision for the modern civil justice system of the

next decade and the beginning of the next century? We began this Overview by

noting the guiding principles underlying the deliberations of the Civil Justice

Review:

a) Fairness

b) Affordability

c) Accessibility

d) Timeliness

e) Accountability

f) Efficiency and cost-effectiveness

g) A streamlined process and administration

Based upon our deliberations to date, and measured against the foregoing

benchmarks, we offer the following concept:

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THE MODERN CIVIL JUSTICE SYSTEM IN 10 YEARS: WHAT WILL

IT LOOK LIKE

It will focus on DISPUTE RESOLUTION AS A WHOLE,

Cantering on a "MULTI-DOOR CONCEPT", and

Featuring an INDEPENDENT AND CIRCUITING COURT,

employing CASE FLOW MANAGEMENT as the vehicle for: 

screening cases into appropriate streams;

processing those cases in accordance with given time parameters which will be enforced;

Integrating the various dispute resolution techniques and case management mechanisms into a co-ordinated whole encouraging early resolution.

Utilising the right blend of judicial, quasi-judicial and administrative personnel to do so.

Small Claims and Landlord and Tenant matters will be dealt with separately and

in a more simplified fashion.

Underpinning all of this will be a strategically and properly funded infrastructure

of facilities, computer and electronic technology and properly trained personnel, all

administered through A unified management, administrative and budgetary

structure with clear lines of responsibility and accountability; and finally, The

system will be made as simplified and understandable as reasonably possible, and

will provide methods to incorporate public participation and accountabilitiy in a

legitimate way

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CHAPTER – IV THE CRIMINAL AND CIVIL JUSTICE SYSTEMS

There are a number of differences between the civil and criminal justice systems

I) Criminal Justice System: In the criminal justice system, the crime victim

reports a crime to law enforcement who may investigate. If an arrest is made

following an investigation, and there is sufficient evidence to go forward, a

prosecutor files charges against defendant and pursues prosecution. The act that

caused the harm is known as a “crime” in the criminal justice system. Today the

criminal justice system perceives crime to be committed against the state. This

perception explains a lot about why the system works as it does. In the criminal

case, the prosecutor is the attorney for all of the people of the state/jurisdiction, and

does not act on behalf of the individual victim. The prosecutor controls all key

decisions of the case, including whether to charge a defendant with a crime and

what crime to charge, and whether to offer or accept a plea deal or go to trial. The

penalties imposed if the defendant is found guilty can include

incarceration/imprisonment, fines and forfeitures, probation, community services,

and sometimes restitution to the individual victim. The burden of proof in criminal

matters is “beyond a reasonable doubt,” which is much more difficult to achieve

than the “preponderance of evidence” standard used in most civil cases.

II) Civil Justice System: Regardless of whether a criminal prosecution was

undertaken, or whether defendant was found not guilty, crime victims may still be

able to seek justice by filing a civil lawsuit against the person or persons the victim

believes caused the victim harm. The civil justice system does not determine an

offender’s guilt or innocence, but works to determine whether the offender is liable

for the harm caused to the victim. In pursuing the civil lawsuit, the victim, who

usually hires a private attorney, controls all of the key decisions of the case,

including whether to accept a settlement offer or go to trial.

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The act that caused the harm is known as a “tort” in the civil justice system. In the

civil case, the victim is seeking to be compensated (usually with money) for the

damages that he or she suffered as a result of defendant’s tort. The amount of

evidence needed to win in most civil cases (or what is known as the burden of

proof) is a “preponderance of evidence.” This burden of proof essentially means

that one side’s evidence must be more persuasive than the other; this is far lower

than the burden necessary in a criminal case. Statutes, known as “statutes of

limitation,” set time limits on how long you have to file a civil suit following the

harm you suffer. These time limits vary from state to state. If a lawsuit is filed after

expiration of the statute of limitations it will be dismissed as time-barred.

3) Different between criminal and civil justice system

a) How the Criminal Justice System works

The Criminal Justice System is split into 3 national sections: The Ministry of

Justice, which oversees the magistrates' courts, the Crown Court, the Appeals

Courts, the Legal Services Commission and the National Offender Management

Service (including prisons and probation); the Home Office, which oversees the

police and the Attorney General's Office, which oversees the Crown Prosecution

Service, the Serious Fraud Office and the Revenue and Customs Prosecutions

Office.

 

The Police investigate cases gathering evidence that they then present to the Crown

Prosecution Service which then decides whether to continue with the case or not. If

a case is continued, it then moves to the various courts in the land be they at

magistrates level or Crown court. In certain cases the Police do have the power to

issue a warning or a caution to an offender and if this happens the offender will not

go before a court.

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The purpose of the Criminal Justice System (CJS) is to deliver justice for all, by

convicting and punishing the guilty and helping them to stop offending, while

protecting the innocent. It is responsible for detecting crime and bringing it to

justice; and carrying out the orders of court, such as collecting fines, and

supervising community and custodial punishment.

 

The CJS measures its performance using 5 categories or ‘indicators’: •      Indicator 1: Bringing offences to justice •      Indicator 2: Increasing public confidence •      Indicator 3: Victim and Witness satisfaction •      Indicator 4: Addressing race dis proportionality •      Indicator 5: Asset recovery 

Bringing offences to justice is a key measure of the effectiveness of the CJS.

An offence is said to have been brought to justice when a recorded crime results in

an offender being convicted, cautioned, issued with a penalty notice for disorder

(PND), a warning, or having an offence taken into consideration (TIC).

Indicator 1 supports improved performance in bringing serious violent, sexual and

acquisitive offences to justice. Data has been published on both the volume of such

offences brought to justice, and the volume of recorded crime.

 

Improving public confidence is important because the CJS relies on public co-

operation and involvement to function effectively. The level of public confidence

in the CJS is measured through a series of questions in the British Crime Survey

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(BCS). The BCS is a continuous survey of adults aged 16 or over living in private

households in England and Wales.

 Two questions serve as key performance measures: •      How confident are you that the CJS as a whole is effective? •      How confident are you that the CJS as a whole is fair? The level of public confidence for each of these measures is defined as the

proportion who says that they are 'very' or 'fairly' confident.

 

Indicator No. 3 measures how satisfied victims and witnesses are with the support

they received from the police and other criminal justice agencies. The indicator has

two linked measures:

 

•      Victim satisfaction with the police: this assesses victims' experience of

reporting a crime and the initial police response. It is measured through surveys

with victims carried out by police forces.

 

•      Victim and witness satisfaction with the CJS: this assesses the experience of

victims and witnesses in cases where a charge is brought or which go to court. It is

measured through the Witness and Victim Experience Survey (WAVES).

Indicator No. 4 is measured through the roll-out of the Minimum Data Set (MDS)

programme. Its purpose is to equip LCJBs with a robust ethnicity dataset on

suspects, defendants and offenders experiences, with accompanying guidance on

data use and analysis.

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The MDS aims to empower Local Criminal Justice Board’s (LCJB’s) to identify

local dis proportionality issues and tailor effective solutions that will work for

them. In addition to the MDS a series of diagnostic tools assist LCJBs in

identifying and addressing the causes of dis proportionality in those areas which

are not covered by the MDS, or are particularly challenging:

 •      Employment (recruitment, retention and progression) •      Prosecution of hate crimes •      Victim and witness satisfaction •      Sentencing decisions •      Bail decisions •      Arrests The aim of Indicator No. 5 is to reassure the public that crime does not pay;

increase public confidence; reduce harm; deter, disrupt and detect criminals;

remove criminal role models and secure compensation for victims of crime.

Asset recovery comprises:

 

•      Confiscation •      Cash forfeiture •      Civil recovery and tax recovery •      International recovery LCJBs have targets for the confiscation element.

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Confiscation Orders: confiscation orders are obtained and enforced by various

agencies at local, regional and national level. At the local level, LCJBs have set

themselves targets for the value collected from the enforcement of confiscation

orders and also for the volume and value of new confiscation and restraint orders

obtained at court. Only Her Majesty's Courts Service (HMCS) and Crown

Prosecution Service (CPS) Branch are responsible for meeting the LCJB 2009/10

target.

 

Alongside indicators 1 to 5, key areas of enforcement activity are measured to

monitor delivery at operational level to ensure that offenders comply with the

sentences and orders of the court. To achieve this, LCJBs have set themselves

targets on measures to improve the speed and efficiency with which Community

Penalty Breaches are resolved, and to improve defendant attendance.

 

Financial Penalties: in previous years, LCJBs have also had targets for fine

enforcement. From 2009/10, these targets are owned solely by Her Majesty's

Courts Service (HMCS).

b) How the Civil Justice System works

This is a story of  how the civil justice system works to resolve disputes between

individuals or organizations. Twenty-year-old media student Mei Hsu needs help

because she thinks she's been treated unfairly.

She thinks media tycoon Max Million stole her idea. She takes him to the High

Court and sues him for damages.

The idea

The meeting

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The surprise

Getting legal help

What if Mei didn't get legal aid?

Starting the case — proceedings are filed

Interim injunction considered — will the shows be pulled off air?

What if the interim injunction were granted?

Initial conference

What if both they agreed to attend a settlement conference?

Judicial settlement conference

A High Court trial is set

The High Court Trial

The Judge's decision — Mei wins her case

i) The idea

At a basketball game, Mei Hsu sees Sam Dunk, a famous basketball player,

signing autographs for some fans. He is listening to his MP3 player and seems

more interested in the music than talking to his fans. The fans also seem interested

in what music Sam is listening to.

Mei Hsu is a twenty-year-old media student. She doesn't know whether she wants

to go into broadcasting or advertising. But she does know she wants to work where

she can use her creativity and energy to tell people about cool events. She is young,

energetic, enthusiastic, and full of ideas.

Seeing Sam gives Mei an idea. What if you combined radio music shows with

sports personalities? What if you got sports celebrities to host programmes of their

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favorite music? Mei gets so excited she rushes home to write down her idea about

"Sports DJs":

Sports DJs

Famous sportspeople to DJ radio shows

Radio shows would have themes that suit the sport or athlete

Music genre suitable for audience aged 15 to 40

Radio show could be simulcast on the web and, potentially, as a TV show

Radio shows will promote NZ music only, to qualify for funding from NZ on

Air.

ii) The meeting

Mei has met Max Million, the owner of national radio station Smash FM, during

her media studies. Max has been in the industry for more than twenty years and is

very experienced in managing radio programming. Mei contacts Max and sets up a

meeting to talk about her idea.

When they meet, Mei first asks Max to promise to keep this information

confidential — secret. Max agrees and promises not to give the idea to any rival

companies.

Mei presents her idea. She thinks it is original and brilliant, but Max Million seems

unimpressed — he even looks like he is falling asleep through Mei's presentation.

Mei is upset when Max says he won't take the idea further — in particular, he's

concerned about where the funding would come from.

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iii) The surprise

Six months later, Mei turns on her favourite radio station, Hush FM, and is

surprised to hear Sam Dunk hosting the "Hip-Hop Hour". Her amazement grows as

she listens to "Smooth Silky Sounds", hosted by a soccer star, "Techno Times",

hosted by a tennis player, then "Rugby Rock", hosted by a rugby player. Mei

checks out the Hush FM website and finds that the programmes are being

simulcast over the web. She's really upset when she sees that Hush FM is a

subsidiary company of Smash FM, owned by Max Million.

iv) Getting legal help

Mei doesn't know what to do. The High Court building is just across the road from

her media studies school, so she decides to start there, and she tells the person on

the counter her story. The court staff can't give legal advice, so they suggest that

she talks to a lawyer. Court staff are not normally qualified in law, and legal

advice should only be given by someone properly qualified.

When Mei explains her story to the lawyer, he advises her to make an application

for an interim injunction. It would immediately stop the radio station using her idea

without her authorization. He also suggests that she apply for legal aid as she is a

student with little money. Legal aid is a grant or loan that covers the legal costs of

taking a claim to court.

Based on Mei's story, her lawyer thinks she has a claim of about $500,000. This

claim would have to be filed in the High Court, which can deal with claims over

$200,000.

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v) Starting the case — proceedings are filed

Mei's counsel files these documents:

An application for an interim injunction — a document that shows precisely

what Mei is applying for

An affidavit in support — a document that is "sworn" as true and correct and

shows evidence of why Mei's application should be successful

A notice of proceeding — a document that tells the defendant that a claim has

been filed against them

A statement of claim — a document that gives details of the claim that the

plaintiff is bringing against the defendant. This is often referred to as the

substantive claim

An application to have the fee waived (the lawyer's fee ignored) because Mei is

getting legal aid. Someone can also apply to have the fee waived if they cannot

pay the filing fee on a document, or where the case has significant "public

interest" This means it is a case about an important subject that affects a lot of

people, and that the public has a right to know about.

vi) What if the injunction were granted

The radio station would have to stop the Sports DJ shows.

The amount of Mei's claim for damages could be reduced.

Mei could sell her idea to another radio station.

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vii) Initial conference

The court gives Mei's claim an initial conference. This is a meeting at the start of

the case. All the preliminary issues are discussed and directions are timetabled. (A

direction is a task that the parties — Mei, Max and their counsel — have to

complete to prepare the case for trial.)

An Associate Judge runs the initial conference. Mei is interested in what will

happen to her claim, so she chooses to attend the conference with her lawyer. Max

Million and his lawyer are also present.

The Associate Judge thanks Mei and Max for their attendance and explains that

they don't have to attend the conference if they don't want to. Their counsel would

normally handle the preliminary issues, directions, and timetable. Then the

Associate Judge, Mei's counsel, and Max's counsel discuss what is required for the

case.

viii) Judicial settlement conference

The Associate Judge makes directions about what will happen from here and offers

a "judicial settlement conference". This is an informal meeting where the parties

can try to settle the case. A Judge acts as a referee, gives guidance and sets rules to

ensure that the conference is fair.

Mei and Max discuss the matter with their counsel and tell the Associate Judge that

a settlement conference would not help them. They want their day in court.

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ix) What if both they agreed to attend a settlement conference

The case could settle in total.

The case could settle in part, with the balance sent to trial.

The case could fail to settle and be sent to trial.

x) A High Court trial date is set

The Associate Judge then sets the matter down for trial before a High Court Judge

who has jurisdiction to give a decision on a substantive matter. This means the

Associate Judge arranges for a High Court Judge who can decide on a "substantive

matter", to try Mei's case. The trial is allocated a date of hearing (given a date), and

counsel and the parties go away to prepare for the case.

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PUNISHMENT ARE AVAILABLE IN CIVIL SYSTEM

Capital Punishment

Capital punishment, Death Penalty, or execution is the infliction of death upon a

person by judicial process as a punishment for an offence. Crimes that can result

in a death penalty are known as capital crimes or capital offences. The practice

of capital

Punishment is as old as government itself. Capital punishment or in easier terms

the death penalty is applied to people who have done various forms of bad

behavior. Method of execution are crucifixion, stoning, drowning, impaling, and

beheading but in such present time execution is formed by lethal gas or

injections, electrocution, hanging, or shooting.

The debate whether the death penalty should be abolished or not is one of most

long lasting and impassioned debates going on in the civil society and political

sphere in India. Some subscribe to the “eye for an eye” or “life for life”

philosophy, while others believe that sanctioned death is wrong. Former Chief

Justice of India and now NHRC Chairperson K G Balakrishnan has favoured

continuance of this provision, but he seems to have forgotten the other side.

Most supporters of death penalty believe that it is justified on one or more of the

following grounds: as means of revenge/justice, as a deterrent to others, to

prevent any danger of re-offending and it is cheaper than life imprisonment

where criminal will stay whole life in prison on tax payers’ money.

But some human rights organizations oppose the death penalty on one or more of

the following grounds: killing someone is always inhuman and it is like

murdering legally, there is no evidence of deterrent effect ( indeed the available

evidence seems to show there is no effect), life without parole is just as effective

a way to prevent someone re-offending as finishing them, saving money can 74

never be a justification for taking someone's life and mistakes are bound to

happen. In India, death sentence was last carried out in 2004 when one

Dhananjay Chatterjee was hanged for rape and murder of a 14-year-old girl in

Kolkata. Here the question to ask is, has the execution of Dhananjay Chatterjee

stopped rapes in our society? Has the number of rape cases declined? No, these

crimes are increasing day by day. If we look at hanging cases, there is hardly any

positive effect of death penalty.

In my view if we look at our national crime statistics, death penalty has not

proved to be a deterrent. The reality is that the death penalty is a barbaric

exercise in which no civilized society should participate. Capital punishment is a

flawed aspect of the judicial system in our country. So many instances prove that

the criminal justice system (CJS) is riddled with errors, corrupt officials, and

flawed practices, yet this system is still permitted to execute people. The system

needs an overhaul.

The death sentence to the terrorists evades logic as a fidayeen (suicide attacker)

like Kasab and Afzal Guru would only embrace death as their means to

martyrdom. These people are already prepared to die for beliefs. Besides this,

their execution will not guarantee end of further terror attacks against the country

but would rather be used by the extremist masterminds to instigate violence and

more hatred against India. If we are serious about dealing with terrorists, we

could do worse if we follow the Israeli example.

The death penalty has no place in modern society, so nobody's surprised that it's

still used in India, China and the United States. There is a punishment worse than

death; make the convict endure endless discussion about capital punishment.

The rigorous life in prison would be a far worse punishment than a swift death

and in the case of terrorists, they took the job fully prepared to die for their

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cause. The death penalty serves only to assuage a misplaced public sense of

retribution and as a tool for pandering politicians.

I strongly feel, we have to reform our laws especially for death penalty. Our laws

should be such that a punishment should be so rigorous that it should remind not

only to the offenders/ terrorists/culprits but also it should be a living example for

the people around him about his inhuman acts. Each day and night, he should

regret his acts of crime and at the same time it should act as deterrent.

WHAT PUNISHMENT ARE AVAILABLE IN CRIMINAL SYSTEM

Punishment

Punishment (also known as discipline or penalty) is the authoritative imposition of

something undesirable or unpleasant on, or the removal of something desirable or

pleasant from, a person, animal, organization or entity in response

to behavior deemed unacceptable by an individual, group or other entity. The

authority may be either a group or a single person, and punishment may be carried

out formally under a system of lawor informally in other kinds of social settings

such as within a family.Negative consequences that are not authorized or that are

administered without a breach of rules are not considered to be punishment as

defined here. The study and practice of the punishment of crimes, particularly as it

applies to imprisonment, is called penology, or, often in modern texts,corrections;

in this context, the punishment process is euphemistically called "correctional

process". Research into punishment often includes similar research into prevention.

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Fundamental justifications for punishment

include: retribution, deterrence, rehabilitation, and incapacitations such as isolation

in order to prevent the wrongdoer's having contact with potential victims.Of the

four justifications, only retribution is part of the definition of punishment and none

of the other justifications is a guaranteed outcome.

If only some of the conditions included in the definition of punishment are present,

descriptions other than "punishment" may be considered more accurate. Inflicting

something negative, or unpleasant, on a person or animal, without authority is

considered eitherspite or revenge rather than punishment.In addition, the word

"punishment" is used as a metaphor, as when a boxer experiences "punishment"

during a fight. In other situations breaking the rules may be rewarded, and is

therefore without negative consequences, and so cannot be considered punishment.

Finally the condition of breaking (or breaching) the rules must be satisfied to be

considered punishment.

Punishments differ in the degree of severity of their unpleasantness, and may

include sanctions such as reprimands, deprivations of privileges or liberty,

fines, incarcerations, ostracism, the infliction of pain, and the death

penalty. Corporal punishment refers to punishments in which pain is intended to be

inflicted upon the transgressor. Punishments may be judged as fair or unfair in

terms of their degree of reciprocity and proportionality. Punishment can be an

integral part of socialization, and punishing unwanted behaviour is often part of a

system of pedagogy or behavioral modification which also includes rewards.

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CHAPTER- VII DEFINATIONS IN PHILOSOPHY

Various philosophers have presented definitions of punishment. Conditions

commonly considered necessary to properly describe an action as punishment are

that

1. It be imposed by an authority,

2. It involve some loss to the supposed offender,

3. It be in response to an offence, and

4. The person (or animal) upon whom the loss is imposed be deemed at least

somewhat responsible for the offence.

1) In psychology

Introduced by B.F. Skinner, punishment has a more restrictive and technical

definition. Along with reinforcement it belongs under the Operant

Conditioning category. Operant Conditioning refers to learning with either

punishment or reinforcement. It is also referred to as response-stimulus

conditioning. In psychology, punishment is the reduction of a behavior via

application of an adverse stimulus ("positive punishment") or removal of a pleasant

stimulus ("negative punishment"). Extra chores or spanking are examples of

positive punishment, while making an offending student lose recess or play

privileges are examples of negative punishment. The definition requires that

punishment is only determined after the fact by the reduction in behavior; if the

offending behavior of the subject does not decrease then it is not considered

punishment. There is some conflation of punishment and aversives, though an

aversive that does not decrease behavior is not considered punishment in

psychology.

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2) In socio-biology

Punishment is sometimes called retaliatory or moralistic aggression; it has been

observed in all species of social animals, leading evolutionary biologists to

conclude that it is an evolutionarily stable strategy, selected because it

favors cooperative behavior.

3) Scope of application

Punishments are applied for various purposes, most generally, to encourage and

enforce proper behavior as defined by society or family. Criminals are punished

judicially, by fines, corporal punishment or custodial sentences such as prison;

detainees risk further punishments for breaches of internal rules. Children, pupils

and other trainees may be punished by their educators or instructors

(mainly parents, guardians, or teachers, tutors and coaches) — see Child discipline.

Slaves, domestic and other servants used to be punishable by their masters.

Employees can still be subject to a contractual form of fine or demotion. Most

hierarchical organizations, such as military and police forces, or even churches,

still apply quite rigid internal discipline, even with a judicial system of their own

(court martial, canonical courts).

Punishment may also be applied on moral, especially religious, grounds, as

in penance (which is voluntary) or imposed in a theocracy with a religious police

(as in a strict Islamic state like Iran or under the Taliban) or (though not a true

theocracy) by Inquisition.

4) History and rationale

A principle often mentioned with respect to the degree of punishment to be meted

out is that the punishment should match the crime. One standard for measurement

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is the degree to which a crime affects others or society. Measurements of

the degree of seriousness of a crime have been developed. felony is generally

considered to be a crime of "high seriousness", while amisdemeanor is not.

5) Possible reasons for punishment

There are many possible reasons that might be given to justify or explain why

someone ought to be punished; here follows a broad outline of typical, possibly

conflicting, and justifications.

6) Deterrence (prevention)

One reason given to justify punishment is that it is a measure to prevent people

from committing an offence - deterring previous offenders from re-offending, and

preventing those who may be contemplating an offence they have not committed

from actually committing it. This punishment is intended to be sufficient that

people would choose not to commit the crime rather than experience the

punishment. The aim is to deter everyone in the community from committing

offences.

7) Rehabilitation

Some punishment includes work to reform and rehabilitate the wrongdoer so that

they will not commit the offence again. This is distinguished from deterrence, in

that the goal here is to change the offender's attitude to what they have done, and

make them come to see that their behavior was wrong.

8) Incapacitation and societal protection

Incapacitation as a justification of punishment refers to the offender’s ability to

commit further offences being removed. Imprisonment separates offenders from

the community, removing or reducing their ability to carry out certain crimes. The

death penalty does this in a permanent (and irrevocable) way. In some societies,

people who stole have been punished by having their hands amputated.

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9) Retribution

Criminal activities typically give a benefit to the offender and a loss to the victim.

Punishment has been justified as a measure of retributive justice,  in which the goal

is to try to rebalance any unjust advantage gained by ensuring that the offender

also suffers a loss. Sometimes viewed as a way of "getting even" with a wrongdoer

— the suffering of the wrongdoer is seen as a desired goal in itself, even if it has

no restorative benefits for the victim. One reason societies have administered

punishments is to diminish the perceived need for retaliatory "street justice", blood

feud and vigilantism.

10) Restoration

For minor offenses, punishment may take the form of the offender "righting the

wrong", or restitution. Community service or compensation orders are examples of

this sort of penalty.

11) Education and denunciation

Punishment can be explained by positive prevention theory to use the criminal

justice system to teach people what are the social norms for what is correct, and

acts as a rein forcement.

Punishment can serve as a means for society to publicly express denunciation of an

action as being criminal. Besides educating people regarding what is not

acceptable behavior, it serves the dual function of preventing vigilante justice by

acknowledging public anger, while concurrently deterring future criminal activity

by stigmatizing the offender. This is sometimes called the "Expressive Theory" of

denunciation. The pillory was a method for carrying out public denunciation

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CHAPTER – VIII CRIMINAL JUSTICE SYSTEM

Criminal justice is the system of practices and institutions ofgovernments directed

at upholding social control, deterring and mitigating crime, or sanctioning those

who violate laws with criminal penalties and rehabilitation efforts. Those accused

of crime have protections against abuse of investigatory and prosecution powers.

CRIMINAL JUSTICE SYSTEM

The criminal justice system consists of three main parts:

(a)  Legislative (create laws)

(b) Adjudication (courts)

(c)  Corrections (jails, prisons, probation and parole).

In the criminal justice system, these distinct agencies operate together both under

the rule of law and as the principal means of maintaining the rule of

law within society.

For the purposes of section 8(6) of the Criminal Appeal Act 1995 and section

194A(6) of the Criminal Procedure (Scotland) Act 1995, the criminal justice

system includes, in particular, the investigation of offences and the treatment of

offenders.

1) Goals

In the United States, criminal justice policy has been guided by the

1967 President's Commission on Law Enforcement and Administration of Justice,

which issued a ground-breaking report "The Challenge of Crime in a Free

Society". This report made more than 200 recommendations as part of a 82

comprehensive approach toward the prevention and fighting of crime. Some of

those recommendations found their way into the Omnibus Crime Control and Safe

Streets Act of 1968. The Commission advocated a "systems" approach to criminal

justice, with improved coordination among law enforcement, courts, and

correctional agencies.The President's Commission defined the criminal justice

system as the means for society to "enforce the standards of conduct necessary to

protect individuals and the community."

The criminal justice system in England and Wales aims to "reduce crime by

bringing more offences to justice, and to raise public confidence that the system is

fair and will deliver for the law-abiding citizen." In Canada, the criminal justice

system aims to balance the goals of crime control and prevention, and justice

(equity, fairness, protection of individual rights).In Sweden, the overarching goal

for the criminal justice system is to reduce crime and increase the security of the

people.Overall, criminal justice plays a huge role throughout society as a whole in

any place.

2) Law 

Law is a system of rules usually enforced through a set of institutions. The purpose

of law is to provide an objective set of rules for governing conduct and maintaining

order in a society.

The oldest known codified law is the Code of Ur-Nammu, written in the Sumerian

language circa 2100 BC-2050 BC. The preface directly credits the laws to king Ur-

Nammu of Ur. In different parts of the world, law could be established

by philosophers or religion. In the modern world, laws are typically created and

enforced by governments. These codified laws may coexist with or contradict other

forms of social control, such as religious proscriptions, professional rules and

ethics, or the cultural mores and customs of a society.

Within the realm of codified law, there are generally two forms of law that the

courts are concerned with. Civil laws are rules and regulations which govern

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transactions and grievances between individual citizens. Criminal law is concerned

with actions which are dangerous or harmful to society as a whole, in which

prosecution is pursued not by an individual but rather by the state. The purpose of

criminal law is to provide the specific definition of what constitutes a crime and to

prescribe punishments for committing such a crime. No criminal law can be valid

unless it includes both of these factors. The subject of criminal justice is, of course,

primarily concerned with the enforcement of criminal law.

3) Policing

The first contact an offender has with the criminal justice system is usually with

the police (or law enforcement) who investigate the suspected wrongdoing and

make an arrest, but if the suspect is dangerous to the whole nation, a national

level law enforcement agencyis called in . When warranted, law enforcement

agencies or police officers are empowered to use force and other forms of legal

coercion and means to effect public and social order. The term is most commonly

associated with police departments of a state that are authorized to exercise

the police power of that state within a defined legal or territorial area of

responsibility. The word comes from theLatin politia ("civil administration"),

which itself derives from the Ancient Greek πόλις, for polis ("city"). The first

police force comparable to the present-day police was established in 1667 under

King Louis XIV in France, although modern police usually trace their origins to

the 1800 establishment of the Marine Police in London, the Glasgow Police, and

the Napoleonic police of Paris.

Police are primarily concerned with keeping the peace and enforcing criminal

law based on their particular mission and jurisdiction. Formed in 1908 the Federal

Bureau of Investigation began as an entity which could investigate and enforce

specific federal laws as an investigative and "law enforcement agency" in the

United States; this, however, has constituted only a small portion of overall

policing activity. Policing has included an array of activities in different contexts, 84

but the predominant ones are concerned with order maintenance and the provision

of services.

4) Courts

The courts serve as the venue where disputes are then settled and justice is

administered. With regard to criminal justice, there are a number of critical people

in any court setting. These critical people are referred to as the courtroom work

group and include both professional and non professional individuals. These

include the judge, prosecutor, and the defense attorney. The judge, or magistrate, is

a person, elected or appointed, who is knowledgeable in the law, and whose

function is to objectively administer the legal proceedings and offer a final

decision to dispose of a case.

In the U.S. and in a growing number of nations, guilt or innocence (although in the

U.S. a jury can never find a defendant "innocent" but rather "not guilty") is decided

through the adversarial system. In this system, two parties will both offer their

version of events and arguetheir case before the court (sometimes before a judge or

panel of judges, sometimes before a jury). The case should be decided in favor of

the party who offers the most sound and compelling arguments based on the law as

applied to the facts of the case.

The prosecutor, or district attorney, is a lawyer who brings charges against a

person, persons or corporate entity. It is the prosecutor's duty to explain to the

court what crime was committed and to detail what evidence has been found which

incriminates the accused. The prosecutor should not be confused with a plaintiff or

plaintiff's counsel. Although both serve the function of bringing a complaint before

the court, the prosecutor is a servant of the state who makes accusations on behalf

of the state in criminal proceedings, while the plaintiff is the complaining party in

civil proceedings.

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A defense attorney counsels the accused on the legal process, likely outcomes for

the accused and suggests strategies. The accused, not the lawyer, has the right to

make final decisions regarding a number of fundamental points, including whether

to testify, and to accept a plea offer or demand a jury trial in appropriate cases.

It is the defense attorney's duty to represent the interests of the client, raise

procedural and evidentiary issues, and hold the prosecution to its burden of proving

guilt beyond a reasonable doubt. Defense counsel may challenge evidence

presented by the prosecution or present exculpatory evidence and argue on behalf

of their client. At trial, the defense attorney may attempt to offer a rebuttal to the

prosecutor's accusations.

In the U.S., an accused person is entitled to a government-paid defense attorney if

he or she is in jeopardy of losing his or her life and/or liberty. Those who cannot

afford a private attorney may be provided one by the state. Historically, however,

the right to a defense attorney has not always been universal. For example,

in Tudor England criminals accused of treason were not permitted to offer

arguments in their defense. In many jurisdictions, there is no right to an appointed

attorney, if the accused is not in jeopardy of losing his or her liberty.

The final determination of guilt or innocence is typically made by a third party,

who is supposed to be disinterested. This function may be performed by a judge, a

panel of judges, or a jury panel composed of unbiased citizens. This process varies

depending on the laws of the specific jurisdiction. In some places the panel (be it

judges or a jury) is required to issue a unanimous decision, while in others only a

majority vote is required. In America, this process depends on the state, level of

court, and even agreements between the prosecuting and defending parties. Some

nations do not use juries at all, or rely on theological or military authorities to issue

verdicts.

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Some cases can be disposed of without the need for a trial. In fact, the vast

majority are. If the accused confesses his or her guilt, a shorter process may be

employed and a judgment may be rendered more quickly. Some nations, such as

America, allow plea bargaining in which the accused pleads guilty, nolo

contendere or not guilty, and may accept a diversion program or reduced

punishment, where the prosecution's case is weak or in exchange for the

cooperation of the accused against other people.

This reduced sentence is sometimes a reward for sparing the state the expense of a

formal trial. Many nations do not permit the use of plea bargaining, believing that

it coerces innocent people to plead guilty in an attempt to avoid a harsh

punishment.

The entire trial process, whatever the country, is fraught with problems and subject

to criticism. Bias and discrimination form an ever-present threat to an objective

decision. Any prejudice on the part of the lawyers, the judge, or jury members

threatens to destroy the court's credibility. Some people argue that the often

Byzantine rules governing courtroom conduct and processes restrict a layman's

ability to participate, essentially reducing the legal process to a battle between the

lawyers. In this case, the criticism is that the decision is based less on sound justice

and more on the lawyer's eloquence and charisma. This is a particular problem

when the lawyer performs in a substandard manner. The jury process is another

area of frequent criticism, as there are few mechanisms to guard against poor

judgment or incompetence on the part of the layman jurors. Judges themselves are

very subject to bias subject to things as ordinary as the length of time since their

last break.

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Manipulations of the court system by defense and prosecution attorneys, law

enforcement as well as the defendants have occurred and there have been cases

where justice was denied.

5) Corrections

Offenders are then turned over to the correctional authorities, from the court

system after the accused has been found guilty. Like all other aspects of criminal

justice, the administration of punishment has taken many different forms

throughout history. Early on, when civilizations lacked the resources necessary to

construct and maintain prisons, exile andexecution were the primary forms of

punishment. Historically shame punishments and exilehave also been used as

forms of censure.

The most publicly visible form of punishment in the modern era is the prison.

Prisons may serve as detention centers for prisoners after trial. For containment of

the accused, jails are used. Early prisons were used primarily to sequester criminals

and little thought was given to living conditions within their walls. In America,

the Quaker movement is commonly credited with establishing the idea that prisons

should be used to reform criminals. This can also be seen as a critical moment in

the debate regarding the purpose of punishment.

Punishment (in the form of prison time) may serve a variety of purposes. First, and

most obviously, the incarceration of criminals removes them from the general

population and inhibits their ability to perpetrate further crimes. A new goal of

prison punishments is to offer criminals a chance to be rehabilitated. Many modern

prisons offer schooling or job training to prisoners as a chance to learn a vocation

and thereby earn a legitimate living when they are returned to society. Religious

institutions also have a presence in many prisons, with the goal of teaching ethics

and instilling a sense of morality in the prisoners. If a prisoner is released before

his time is served, he is released as a parole. This means that they are released, but

the restrictions are greater than that of someone on probation.

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There are numerous other forms of punishment which are commonly used in

conjunction with or in place of prison terms. Monetary fines are one of the oldest

forms of punishment still used today. These fines may be paid to the state or to the

victims as a form of reparation. Probation and house arrest are also sanctions

which seek to limit a person's mobility and his or her opportunities to commit

crimes without actually placing them in a prison setting. Furthermore, many

jurisdictions may require some form of public or community service as a form of

reparations for lesser offenses. In Corrections, the Department ensures court-

ordered, pre-sentence chemical dependency assessments, related Drug Offender

Sentencing Alternative specific examinations and treatment will occur for

offenders sentenced to Drug Offender Sentencing Alternative in compliance with

RCW 9.94A.660.

Execution or capital punishment is still used around the world. Its use is one of the

most heavily debated aspects of the criminal justice system. Some societies are

willing to use executions as a form of political control, or for relatively minor

misdeeds. Other societies reserve execution for only the most sinister and brutal

offenses. Others still have outlawed the practice entirely, believing the use of

execution to be excessively cruel or hypocritical.

6) Academic discipline

The functional study of criminal justice is distinct from criminology, which

involves the study of crime as a social phenomenon, causes of crime, criminal

behavior, and other aspects of crime. It emerged as an academic discipline in the

1920s, beginning with Berkeleypolice chief August Vollmer who established a

criminal justice program at the University of California, Berkeley in

1916.Vollmer's work was carried on by his student, O.W. Wilson, who led efforts

to professionalize policing and reduce corruption. Other programs were established

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in the United States at Indiana University, Michigan State University, San Jose

State University, and the University of Washington. As of 1950, criminal justice

students were estimated to number less than 1,000. Until the 1960s, the primary

focus of criminal justice in the United States was on policing and police science.

Throughout the 1960s and 1970s, crime rates soared and social issues took center

stage in the public eye. A number of new laws and studies focused federal

resources on researching new approaches to crime control. The Warren

Court (the Supreme Court under Chief Justice Earl Warren), issued a series of

rulings which redefined citizen's rights and substantially altered the powers and

responsibilities of police and the courts. The Civil Rights Era offered significant

legal and ethical challenges to the status quo.

In the late 1960s, with the establishment of the Law Enforcement Assistance

Administration (LEAA) and associated policy changes that resulted with

the Omnibus Crime Control and Safe Streets Act of 1968.

The LEAA provided grants for criminology research, focusing on social aspects of

crime. By the 1970s, there were 729 academic programs in criminology and

criminal justice in the United States. Largely thanks to the Law Enforcement

Education Program, criminal justice students numbered over 100,000 by 1975.

Over time, scholars of criminal justice began to include criminology, sociology,

and psychology, among others, to provide a more comprehensive view of the

criminal justice system and the root causes of crime. Criminal justice studies now

combine the practical and technical policing skills with a study of social deviance

as a whole.

Criminal justice degree programs at four-year institutions typically include

coursework in statistics, methods of research, criminal justice, policing, U.S court

systems, criminal courts, corrections, community corrections, criminal procedure,

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criminal law, victimology, juvenile justice, and a variety of special topics. A

number of universities offer a Bachelor of Criminal Justice.

7) History

The modern criminal justice system has evolved since ancient times, with new

forms of punishment, added rights for offenders and victims, and policing reforms.

These developments have reflected changing customs, political ideals, and

economic conditions. In ancient times through the Middle Ages, exile was a

common form of punishment. During the Middle Ages, payment to the victim (or

the victim's family), known as wergild, was another common punishment,

including for violent crimes. For those who could not afford to buy their way out

of punishment, harsh penalties included various forms of corporal punishment.

These included mutilation, branding, andflogging, as well as execution.

Though a prison, Le Stinche, existed as early as the 14th century in Florence,

Italy, incarceration was not widely used until the 19th century. Correctional reform

in the United States was first initiated by William Penn, towards the end of the

17th century. For a time,Pennsylvania's criminal code was revised to

forbid torture and other forms of cruel punishment, with jails and prisons replacing

corporal punishment. These reforms were reverted, upon Penn's death in 1718.

Under pressure from a group of Quakers, these reforms were revived in

Pennsylvania toward the end of the 18th century, and led to a marked drop in

Pennsylvania's crime rate. Patrick Colquhoun,Henry Fielding and others led

significant reforms during the late eighteenth and early nineteenth centuries.

8) Modern police

The first modern police force is commonly said to be the London Metropolitan

Police, established in 1829 by Sir Robert Peel, which promoted the preventive role

of police as a deterrent to urban crime and disorder.[21] In the United States, police

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departments were first established in Boston in 1838, and New York City in 1844.

Early on, police were not respected by the community, as corruption was rampant.

In the 1920s, led by Berkeley, California police chief, August Vollmer and O.W.

Wilson, police began to professionalize, adopt new technologies, and place

emphasis on training and professional qualifications of new hires. Despite such

reforms, police agencies were led by highly autocratic leaders, and there remained

a lack of respect between police and the community. Following urban unrest in the

1960s, police placed more emphasis on community relations, enacted reforms such

as increased diversity in hiring, and many police agencies adopted community

policing strategies.

In the 1990s, CompStat was developed by the New York Police Department as an

information-based system for tracking and mapping crime patterns and trends, and

holding police accountable for dealing with crime problems. CompStat has since

been replicated in police departments across the United States and around the

world, with problem-oriented policing, intelligence-led policing, and other

information-led policing strategies also adopted.

CRITICISM AGAINST THEORY’S OF PUNISHMENT IN ADMINISTRATION OF

JUSTICE

According to the Humanitarian theory, to punish a man because he deserves it, and

as much as he deserves, is mere revenge, and, therefore, barbarous and immoral. It

is maintained that the only legitimate motives for punishing are the desire to deter

others by example or to mend the criminal. When this theory is combined, as

frequently happens, with the belief that all crime is more or less pathological, the

idea of mending tails off into that of healing or curing and punishment becomes

therapeutic. Thus it appears at first sight that we have passed from the harsh and

self-righteous notion of giving the wicked their deserts to the charitable and

enlightened one of tending the psychologically sick. What could be more amiable?

One little point which is taken for granted in this theory needs, however, to be

made explicit. The things done to the criminal, even if they are called cures,

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Will be just as compulsory as they were in the old days when we called them

punishments. If a tendency to steal can be cured by psychotherapy, the thief will no

doubt be forced to undergo the treatment. Otherwise, society cannot continue. My

contention is that this doctrine, merciful though it appears, really means that each

one of us, from the moment he breaks the law, is deprived of the rights of a human

being.

The reason is this. The Humanitarian theory removes from Punishment the concept

of Desert. But the concept of Desert is the only connecting link between

punishment and justice. It is only as deserved or undeserved that a sentence can be

just or unjust. I do not here contend that the question "Is it deserved?" is the only

one we can reasonably ask about a punishment. We may very properly ask whether

it is likely to deter others and to reform the criminal. But neither of these two last

questions is a question about justice. There is no sense in talking about a "just

deterrent" or a "just cure." We demand of a deterrent not whether it is just but

whether it will deter. We demand of a cure not whether it is just but whether it

succeeds. Thus when we cease to consider what the criminal deserves and consider

only what will cure him or deter others, we have tacitly removed him from the

sphere of justice altogether; instead of a person, a subject of rights, we now have a

mere object, a patient, a "case."

The distinction will become clearer if we ask who will be qualified to determine

sentences when sentences are no longer held to derive their propriety from the

criminal's deservings. On the old view the problem of fixing the right sentence was

a moral problem. Accordingly, the judge who did it was a person trained in

jurisprudence; trained, that is, in a science which deals with rights and duties, and

which, in origin at least, was consciously accepting guidance from the Law of

Nature, and from Scripture. We must admit that in the actual penal code of most

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countries at most times these high originals were so much modified by local

custom, class interests, and utilitarian concessions, as to be very imperfectly

recognizable. But the code was never in principle, and not always in fact, beyond

the control of the conscience of the society. And when (say, in Eighteenth Century

England) actual punishments conflicted too violently with the moral sense of the

community, juries refused to convict and reform was finally brought about.

This was possible because, so long as we are thinking in terms of Desert, the

propriety of the penal code, being a moral question, is a question on which every

man has the right to an opinion, not because he follows this or that profession, but

because he is simply a man, a rational animal enjoying the Natural Light. But all

this is changed

AMCAP JOURNAL / VOL. 13, NO. 1-1987 149

When we drop the concept of Desert. The only two questions we may now ask

about a punishment are whether it deters and whether it cures. But these are not

questions on which anyone is entitled to have an opinion simply because he is a

man. He is not entitled to an opinion even if, in addition to being a man, he should

happen also to be a jurist, a Christian, and a moral theologian. For they are not

questions about principle but about matter of fact; and for such cuiquam in sua arte

credendum. Only the expert' 'penologist" (let barbarous things have barbarous

names), in the light of previous experiment, can tell us what is likely to deter: only

the psychotherapist can tell us what is likely to cure. It will be in vain for the rest

of us, speaking simply as men, to say, "but this punishment is hideously unjust,

hideously disproportionate to the criminal's deserts." The experts with perfect logic

will reply, "but nobody was talking about deserts. No one was talking about

punishment in your archaic vindictive sense of the word. Here are the statistics

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proving that this treatment deters. Here are the statistics proving that this other

treatment cures.

What is the trouble

The Humanitarian theory, then, removes sentences from the hands of jurists

whom the public conscience is entitled to criticize and places them in the hands of

technical experts whose special sciences do not even employ such categories as

Rights or Justice.

It might be argued that since this transference results from an abandonment of the

old idea of Punishment, and, therefore, of all vindictive motives, it will be safe to

leave our criminals in such hands. I will not pause to comment on the simple

minded view of fallen human nature which such a belief implies. Let us rather

remember that the' 'cure" of criminals is to be compulsory; and let us then watch

how the theory actually works in the mind of the Humanitarian. The immediate

starting point of this article was a letter I read in one of our Leftist weeklies. The

author was pleading that a certain sin, now treated by our Laws as a crime, should

henceforward be treated as a disease.

And he complained that under the present system the offender, after a term in gaol,

was simply let out to return to his original environment where he would probably

relapse. What he complained of was not the shutting up but the letting out. On his

remedial view of punishment, the offender should, of course, be detained until he

was cured. And of course the official straighteners are the only people who can say

when that is. The first result of the Humanitarian theory is, therefore, to substitute

for a definite sentence (reflecting to some extent the community's moral judgement

on the degree of ill-desert involved) an indefinite sentence terminable only by the

word of those experts-and they are not experts

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In moral theology nor even in the Law of Nature-who inflict it. Which of us, if he

stood in the dock, would not prefer to be tried by the old system?

It may be said that by the continued use of the word Punishment and the use of the

verb "inflict" I am misrepresenting the Humanitarians. They are not punishing, not

inflicting, and only healing. But do not let us be deceived by a name.

To be taken without consent from my home and friends; to lose my liberty; to

undergo all those assaults on my personality which modern psychotherapy knows

how to deliver; to be remade after some pattern of "normality" hatched

in a Viennese laboratory to which I never professed allegiance; to know that this

process will never end until either my captors have succeeded or I have grown

wise enough to cheat them with apparent success who cares whether this is called

Punishment or not? That it includes most of the elements for which any

punishment is feared-shame, exile, bondage, and years eaten by the locust-is

obvious. Only enormous ill-desert could justify it; but ill-desert is the very

conception which the Humanitarian theory has thrown overboard. If we turn from

the curative to the deterrent justification of punishment we shall find the new

theory even more alarming. When you punish a man in terrorism, make of him an

"example" to others, you are admittedly using him as a means to an end; someone

else's end.

This, in itself, would be a very wicked thing to do. On the classical theory of

Punishment it was of course justified on the ground that the man deserved it. That

was assumed to be established before any question of "making him an example"

arose. You then, as the saying is, killed two birds with one stone; in the process of

giving him what he deserved you set an example to others. But take away desert

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and the whole morality of the punishment disappears. Why, in Heaven's name, am

I to be sacrificed to the good of society in this way?-unless, of course, I deserve it.

But that is not the worst. If the justification of exemplary punishment is not to be

based on desert but solely on its efficacy as a deterrent, it is not absolutely

necessary that the man we punish should even have committed the crime. The

deterrent effect demands that the public should draw the moral, "If we do such an

act we shall suffer like that man."

The punishment of a man actually guilty whom the public think innocent will not

have the desired effect; the punishment of a man actually innocent will, provided

the public think him guilty. But every modern State has powers which make it easy

to fake a trial. When a victim is urgently needed for exemplary purposes and a

guilty victim cannot be found, all the purposes of deterrence will be equally

AMCAP JOURNAL / VOL. 13, NO. 1-1987 151

Served by the punishment (call it "cure" if you prefer) of an innocent victim,

provided that the public can be cheated into thinking him guilty. It is no use to ask

me why I assume that our rulers will be so wicked. The punishment of an innocent,

that is, an undeserving, man is wicked only if we grant the traditional view that

righteous punishment means deserved punishment. Once we have abandoned that

criterion, all punishments have to be justified, if at all, on other grounds that have

nothing to do with desert. Where the punishment of the innocent can be justified on

those grounds (and it could in some cases be justified as a deterrent) it will be no

less moral than any other punishment. Any distaste for it on the part of a

Humanitarian will be merely a hang-over from the Retributive theory. It is, indeed,

important to notice that my argument so far supposes no evil intentions on the part

of the Humanitarian and considers only what is involved in the logic of his

position.

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My contention is that good men (not bad men) consistently acting upon that

position would act as cruelly and unjustly as the greatest tyrants. They might in

some respects act even worse. Of all tyrannies a tyranny sincerely exercised for the

good of its victims may be the most oppressive. It may be better to live under

robber barons than under omnipotent moral busybodies. The robber baron's cruelty

may sometimes sleep, his cupidity may at some point be satiated; but those who

torment us for of their own conscience. They may be more likely to go to Heaven

yet at the same time likelier to make a Hell of earth.

Their very kindness stings with intolerable insult. To be "cured" against one's will

and cured of states which we may not regard as disease is to be put on a level with

those who have not yet reached the age of reason or those who never will; to be

classed with infants, imbeciles, and domestic animals. But to be punished, however

severely, because we have deserved it, because we "ought to have known better," is

to be treated as a human person made in God's image. In reality, however, we must

face the possibility of bad rulers armed with a Humanitarian theory of punishment.

A great many popular blue prints for a Christian society are merely what the

Elizabethans called "eggs in moonshine" because they assume that the whole

society is Christian or that the Christians are in control. This is not so in most

contemporary States. Even if it were, our rulers would still be fallen men, and,

therefore, neither very wise nor very good. As it is, they will usually be

unbelievers. And since wisdom and virtue are not the only or the commonest

qualifications for a place in the government, they will not often be even the best

unbelievers. The practical problem of

AMCAP JOURNAL / VOL. 13, NO, 1-1987

Christian politics is not that of drawing up schemes for a Christian fellow-subjects

under unbelieving rulers who will never be perfectly wise and good and who will

sometimes be very wicked and very foolish. And when they are wicked the

Humanitarian theory of Punishment will put in their hands a finer instrument of

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tyranny than wickedness ever had before. For if crime and disease are to be

regarded as the same thing, it follows that any state of mind which our masters

choose to call "disease" can be treated as crime; and compulsorily cured.

It will be vain to plead that states of mind which displease government need not

always involve moral turpitude and do not therefore always deserve forfeiture of

liberty. For our masters will not be using the concepts of Desert and Punishment

but those of disease and cure.

We know that one school of psychology already regards religion as a neurosis.

When this particular neurosis becomes inconvenient to government what is to

hinder government from proceeding to "cure" it? Such "cure" will, of course, be

compulsory; but under the Humanitarian theory it will not be called by the

shocking name of Persecution.

No one will blame us for being Christians, no one will hate us, no one will revile

us. The new Nero will approach us with the silky manners of a doctor, and though

all will be in fact as compulsory as the tunica molesta or Smithfield or Tiburon, all

will go on within the unemotional therapeutic sphere where words like "right" and

"wrong" or "freedom" and n "slavery" are never heard,. And thus when the

command is given every prominent Christian in the land may vanish overnight into

Institutions\ for the Treatment of the Ideologically Unsound, and it will rest with

the expert gaolers to say when (if ever) they are to re-emerge. But it will not be

persecution. Even if the treatment is painful, even if it is life-long, even if it is

fatal, that will be only a regrettable accident; the intention was purely therapeutic.

Even in ordinary medicine there were painful operations and fatal operations; so in

this. But because they are "treatment," not punishment, they can be criticized only

by fellow-experts and on technical grounds, never by men as men and on grounds

of justice.

This is why I think it essential to oppose the Humanitarian theory of Punishment,

root and branch, wherever we encounter it. It carries on its front a semblance of

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Mercy which is wholly false. That is how it can deceive men of good will. The

error began, perhaps, with Shelley's statement that the distinction between Mercy

and Justice was invented in the courts of tyrants. It sounds noble, and was indeed

the error of a noble mind. But the distinction is essential. The older view was that

Mercy' 'tempered" Justice, or (on the highest level of all)

AMCAP JOURNAL I VOL. 13, NO. 1-1987 153

Mercy and Justice had met and kissed. The essential act of Mercy was to pardon;

and pardon in its very essence involves the recognition of guilt and ill-desert in the

recipient. If crime is only a disease which needs cure, not sin which deserved

punishment, it cannot be pardoned. How can you pardon a man for having a gum-

boil or a club foot? But the Humanitarian theory wants simply to abolish Justice

and substitute Mercy for it. This means that you start being" kind" to people before

you have considered their rights, and then force upon them supposed kindnesses

which they in fact had a right to refuse, and finally kindnesses which no one but

you will recognize as kindnesses and which the recipient will feel as abominable

cruelties. You have overshot the mark.

Mercy, detached from Justice, grows unmerciful. That is the important paradox.

As there are plants which will flourish only in mountain soil, so it appears that

Mercy will flower only when it grows in the crannies of the rock of Justice:

transplanted to the marshlands of mere Humanitarianism, it becomes a man-eating

weed, all the more dangerous because it is still called by the same name as the

mountain variety. But we ought long ago to have learned our lesson. We should be

too old now to be deceived by those human pretensions which have served to usher

in every cruelty of the revolutionary period in which we live. These are the'

'precious balms" which will' 'break our heads."

There is a fine sentence in Bunyan: "It came burning hot into my mind, whatever

he said, and however he flattered, when he got me home to his house, he would sell

me for a slave." There is a fine couplet, too, in John Ball: Beware ere ye be woo

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Know your friend from your foe. One last word. You may ask why I send this to an

Australian periodical. The reason is simple and perhaps worth recording; I can get

no hearing for it in England. c. S. Lewis (1898-1963) was a British essayist,

novelist, and poet, and on the faculty of Magdalen College, Oxford, when he wrote

this article. *Reprinted from C. S. Lewis (1949), The humanitarian theory of

punishment, The Twentieth Century: An Australian Quarterly Review, 3(3), 5-12.

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CHAPTER – IX

THEORIES OF PUNISHMENT REPRESENT DIFFERENT STAGES

Discipline and Punish: The Birth of the Prison (is a 1975 book by the French

philosopher Michel Foucault. An analysis of the social and theoretical mechanisms

behind the massive changes that occurred in western penal systems during the

modern age, it focuses on historical documents from France. Foucault argues

against the idea that the prison became the consistent form of punishment due

mainly to the humanitarian concerns of reformists. He traces the cultural shifts that

led to the prison's dominance, focusing on the body and questions of power. Prison

is a form used by the "disciplines", a new technological power, which can also be

found, according to Foucault, in places such as schools, hospitals, and military

barracks.

As Follows:-

1 Torture

2 Punishment

3 Discipline

4 Prison

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1) Torture

Foucault begins by contrasting two forms of penalty: the violent and chaotic public

torture of Robert-François Damiens, who was convicted of attempted regicide in

the mid-18th century, and the highly regimented daily schedule for inmates from

an early 19th century prison (Mettray). These examples provide a picture of just

how profound the changes in western penal systems were after less than a century.

Foucault wants the reader to consider what led to these changes. How did western

culture shift so radically?

He believes that the question of the nature of these changes is best asked by

assuming that they weren't used to create a more humanitarian penal system, nor to

more exactly punish or rehabilitate, but as part of a continuing trajectory of

subjection. Foucault wants to tie scientific knowledge and technological

development to the development of the prison to prove this point. He defines a

"micro-physics" of power, which is constituted by a power that is strategic and

tactical rather than acquired, preserved or possessed. He explains that power and

knowledge imply one another, as opposed to the common belief that knowledge

exists independently of power relations (knowledge is always contextualized in a

framework which makes it intelligible, so the humanizing discourse of psychiatry

is an expression of the tactics of oppression). 

That is, the ground of the game of power isn't won by 'liberation', because

liberation already exists as a facet of subjection. "The man described for us, whom

we are invited to free, is already in himself the effect of a subjection much more

profound than himself."The problem for Foucault is in some sense a theoretical

modelling which posits a soul, an identity (the use of soul being fortunate since

'identity' or 'name' would not properly express the method of subjection—e.g., if

mere materiality were used as a way of tracking individuals then the method of

punishment would not have switched from torture to psychiatry) which allows a

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whole materiality of prison to develop. In WHAT IS AN AUTHOR Foucault also

deals with notion of identity, and its use as a method of control, regulation, and

tracking.

He begins by examining public torture and execution. He argues that the public

spectacle of torture and execution was a theatrical forum the original intentions of

which eventually produced several unintended consequences. Foucault stresses the

exactitude with which torture is carried out, and describes an extensive legal

framework in which it operates to achieve specific purposes. Foucault describes

public torture as ceremony.

The intended purposes were:

To make the secret public (according to Foucault the investigation was kept

entirely secret even from the accused). The secret of the investigation and the

conclusion of the magistrates was justified by the publicity of the torture.

To show the effect of investigation on confession. (According to Foucault

torture could occur during the investigation, because partial proofs meant

partial guilt. If the torture failed to elicit a confession then the investigation was

stopped and innocence assumed. A confession legitimized the investigation and

any torture that occurred.)

Reflecting the violence of the original crime onto the convict's body for all to

see, in order for it to be manifested then annulled by reciprocating the violence

of the crime on the criminal.

Enacting the revenge upon the convict's body, which the sovereign seeks for

having been injured by the crime. Foucault argues that the law was considered

an extension of the sovereign's body, and so the revenge must take the form of

harming the convict's body.

"It [torture] assured the articulation of the written on the oral, the secret on the

public, the procedure of investigation on the operation of the confession; it made it

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possible to reproduce the crime on the visible body of the criminal; in the same

horror, the crime had to be manifested and annulled. It also made the body of the

condemned man the place where the vengeance of the sovereign was applied, the

anchoring point for a manifestation of power, an opportunity of affirming the

dissymmetry of forces."

Foucault looks at public torture as the outcome "of a certain mechanism of power"

that views crime in a military schema. Crime and rebellion are akin to a declaration

of war.

The sovereign was not concerned with demonstrating the ground for the

enforcement of its laws, but of identifying enemies and attacking them, the power

of which was renewed by the ritual of investigation and the ceremony of public

torture.

Some unintended consequences were:

Providing a forum for the convict's body to become a focus of sympathy and

admiration.

Redistributing blame: the executioner rather than the convict becomes the locus

of shame.

Creating a site of conflict between the masses and the sovereign at the convict's

body. Foucault notes that public executions often led to riots in support of the

prisoner. Frustration for the inefficiency of this economy of power could be

directed towards and coalesce around the site of torture and execution.

Public torture and execution was a method the sovereign deployed to express his or

her power, and it did so through the ritual of investigation and the ceremony of

execution—the reality and horror of which was supposed to express the

omnipotence of the sovereign but actually revealed that the sovereign's power

depended on the participation of the people. Torture was made public in order to

create fear in the people, and to force them to participate in the method of control 105

by agreeing with its verdicts. But problems arose in cases in which the people

through their actions disagreed with the sovereign, by heroizing the victim

(admiring the courage in facing death) or in moving to physically free the criminal

or to redistribute the effects of the strategically deployed power.

Thus, he argues, the public execution was ultimately an ineffective use of the

body, qualified as non-economical. As well, it was applied non-uniformly and

haphazardly. Hence, its political cost was too high. It was the antithesis of the more

modern concerns of the state: order and generalization. So it had to be reformed to

allow for greater stability of property for the bourgeoisie.

2) Punishment

The switch to prison was not immediate. There was a more graded change, though

it ran its course rapidly. Prison was preceded by a different form of public

spectacle. The theater of public torture gave way to public chain gangs.

Punishment became "gentle", though not for humanitarian reasons, Foucault

suggests. He argues that reformists were unhappy with the unpredictable, unevenly

distributed nature of the violence the sovereign would inflict on the convict. The

sovereign's right to punish was so disproportionate that it was ineffective and

uncontrolled. Reformists felt the power to punish and judge should become more

evenly distributed, the state's power must be a form of public power. This,

according to Foucault, was of more concern to reformists than humanitarian

arguments.

Out of this movement towards generalized punishment, a thousand "mini-theatres"

of punishment would have been created wherein the convicts' bodies would have

been put on display in a more ubiquitous, controlled, and effective spectacle.

Prisoners would have been forced to do work that reflected their crime, thus

repaying society for their infractions. This would have allowed the public to see

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the convicts' bodies enacting their punishment, and thus to reflect on the crime. But

these experiments lasted less than twenty years.

Foucault argues that this theory of "gentle" punishment represented the first step

away from the excessive force of the sovereign, and towards more generalized and

controlled means of punishment. But he suggests that the shift towards prison that

followed was the result of a new "technology" and ontology for the body being

developed in the 18th century, the "technology" of discipline, and the ontology of

"man as machine."

3) Discipline

The emergence of prison as the form of punishment for every crime grew out of

the development of discipline in the 18th and 19th centuries, according to

Foucault. He looks at the development of highly refined forms of discipline, of

discipline concerned with the smallest and most precise aspects of a person's body.

Discipline, he suggests, developed a new economy and politics for bodies. Modern

institutions required that bodies must be individuated according to their tasks, as

well as for training, observation, and control. Therefore, he argues, discipline

created a whole new form of individuality for bodies, which enabled them to

perform their duty within the new forms of economic, political, and military

organizations emerging in the modern age and continuing to today.

The individuality that discipline constructs (for the bodies it controls) has four

characteristics, namely it makes individuality which is:

Cellular—determining the spatial distribution of the bodies

Organic—ensuring that the activities required of the bodies are "natural" for

them

Genetic—controlling the evolution over time of the activities of the bodies

Combinatory—allowing for the combination of the force of many bodies into a

single massive force107

Foucault suggests this individuality can be implemented in systems that are

officially egalitarian, but use discipline to construct non-egalitarian power

relations:

Historically, the process by which the bourgeoisie became in the course of

the eighteenth century the politically dominant class was masked by the

establishment of an explicit, coded and formally egalitarian juridical

framework, made possible by the organization of a parliamentary,

representative regime. But the development and generalization of

disciplinary mechanisms constituted the other, dark side of these processes.

The general juridical form that guaranteed a system of rights that were

egalitarian in principle was supported by these tiny, everyday, physical

mechanisms, by all those systems of micro-power that are essentially non-

egalitarian and asymmetrical that we call the disciplines. (222)

Foucault's argument is that discipline creates "docile bodies", ideal for the new

economics, politics and warfare of the modern industrial age - bodies that

function in factories, ordered military regiments, and school classrooms. But, to

construct docile bodies the disciplinary institutions must be able to (a)

constantly observe and record the bodies they control and (b) ensure the

internalization of the disciplinary individuality within the bodies being

controlled. That is, discipline must come about without excessive force through

careful observation, and molding of the bodies into the correct form through

this observation. This requires a particular form of institution, exemplified,

Foucault argues, by Jeremy Bentham's Panopticon. This architectural model,

though it was never adopted by architects according to Bentham's exact

blueprint, becomes an important conceptualization of power relations for prison

reformers of the 19th Century, and its general principle is a recurring theme in

modern prison construction.

The Panopticon was the ultimate realization of a modern disciplinary

institution. It allowed for constant observation characterized by an

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"unequal gaze"; the constant possibility of observation. Perhaps the most

important feature of the panopticon was that it was specifically designed so that

the prisoner could never be sure whether they were being observed at any

moment. The unequal gaze caused the internalization of disciplinary

individuality, and the docile body required of its inmates. This means one is

less likely to break rules or laws if they believe they are being watched, even if

they are not. Thus, prisons, and specifically those that follow the model of the

Panopticon, provide the ideal form of modern punishment. Foucault argues that

this is why the generalized, "gentle" punishment of public work gangs gave

way to the prison. It was the ideal modernization of punishment, so its eventual

dominance was natural.

Having laid out the emergence of the prison as the dominant form of

punishment, Foucault devotes the rest of the book to examining its precise form

and function in our society, laying bare the reasons for its continued use, and

questioning the assumed results of its use.

4) Prison

In examining the construction of the prison as the central means of criminal

punishment, Foucault builds a case for the idea that prison became part of a

larger "carceral system" that has become an all-encompassing sovereign

institution in modern society. Prison is one part of a vast network, including

schools, military institutions, hospitals, and factories, which build a panoptic

society for its members. This system creates "disciplinary careers" for those

locked within its corridors. It is operated under the scientific authority

ofmedicine, psychology, and criminology. Moreover, it operates according to

principles that ensure that it "cannot fail to produce delinquents."Delinquency,

indeed, is produced when social petty crime (such as taking wood from the

lord's lands) is no longer tolerated, creating a class of specialized "delinquents"

acting as the police's proxy in surveillance of society.

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The structures Foucault chooses to use as his starting positions help highlight

his conclusions. In particular, his choice as a perfect prison of the penal

institution at Mettray helps personify the carceral system. Within it is included

the Prison, the School, the Church, and the work-house (industry) - all of which

feature heavily in his argument. The prisons at Neufchatel, Mettray,

and Mettray Netherlands were perfect examples for Foucault, because they,

even in their original state, began to show the traits Foucault was searching for.

They showed the body of knowledge being developed about the prisoners, the

creation of the 'delinquent' class, and the disciplinary careers emerging

OFFENCES, SENTENCES, SENTENCING & COMPOUNDING

1) Lord denning punishment views

Punishment is the way in which society expresses its denunciation of wrong doing

and in order to maintain respect for law, it is essential that punishment inflicted for

grave crimes should adequately reflect the revulsion felt by the great majority of

the citizens. For them it is a mistake to consider the object of punishment as being

deterrent or reformative or preventive and nothing else. The truth is that some

crimes are so outrageous that society insists on adequate punishment because

wrong doer deserves it, irrespective of whether it is deterrent or not.

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2) Punishment must be severe

Punishment must be severe enough to act as a deterrent but not too severe to be

brutal. Similarly punishments should be moderate enough to be human but cannot

be too moderate to be ineffective.

3) Sentencing considerations

Sentencing aspects that are relevant for consideration by courts are more or less

laid down by courts all over the world except where the statute provides a

minimum mandatory sentence. Factors that influence sentencing process have been

clearly settled by a series of court pronouncements. For imposing substantial

punishment many aspects are taken into account. Similarly for reducing the

quantum, factors which mitigate are also taken into account. Therefore in the

sentencing process both these factors are taken together.

Emmins in his On Sentencing (Martin Vasiked) lists out various factors under

the head of seriousness of offence which is the key concept.

Several sub-heads indicate when the seriousness of the offence is aggravated,

where the victim is especially vulnerable that is where the offender takes

advantage of a helpless person; a very young or very old or handicapped person.

He also speaks of breach of trust. This arises in a case where somebody takes

advantage of a person who is interested in his career or a person who abuses his

office. A premeditated crime executed with professionalism also is an aggravation.

Excessive violence, offences by a group or

an offence committed by a person on bail for a particular crime which is prevalent

in an area and causes public concern are all cited as aggravating factors. He also

lists factors which mitigate the seriousness of the offence. Offence committed

under grave provocation, offender acting in circumstances though they may not

amount to a defence to decide culpability. Other factors listed by him are young 111

age of offender, old age of offender, offender’s previous character, clean record,

where the offender has performed meritorious service, where the offender shows

remorse, offender pleading guilty. Serious illness of the offender, effect of

sentence on the family, passage of time after he committed the offence and trial are

also germane and are extenuating factors. These are some of the criteria or

guidelines according to Emmins which will have to weigh with a Judge who passes

the sentence.

4) Need for sentencing guidelines

The Indian Penal Code prescribed offences and punishments for the same. For

many offences only the maximum punishment is prescribed and for some offences

the minimum may be prescribed. The Judge has wide discretion in awarding the

sentence within the statutory limits.

There is now no guidance to the Judge in regard to selecting the most appropriate

sentence given the circumstances of the case. Therefore each Judge exercises

discretion accordingly to his own judgment. There is therefore no uniformity.

Some Judges are lenient and some Judges are harsh. Exercise of unguided

discretion is not good even if it is the Judge that exercises the discretion. In some

countries guidance regarding sentencing option is given in the penal code and

sentencing guideline laws. There is need for such law in our country to minimise

uncertainty to the matter of awarding sentence. There are several factors which are

relevant in prescribing the alternative sentences. This requires a thorough

examination by an expert statutory body.

Although many countries have abolished death penalty in view of the increasing

violence and deterrence having failed organised crime, terrorism, bomb blasts

resulting in killing of innocent people etc., compel the retention of death sentence.

Law Commission also states that time is not ripe for abolition of death sentence.

Section 354 (3) Cr.P.C makes imprisonment for life the normal punishment and the

same section requires that in case a death sentence is imposed, special reasons are

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to be given and the Supreme Court in Bachaan Singh’s case held that in the rarest

171 of the rare case the same can be given and enumerated circumstances in which

it should be granted and further in Macchi Singh’s case they laid down some more

requirements namely the manner of the murder, the motive for the commission of

offence, the anti-social nature of crime, the magnitude of the crime and the

personality of the victim such as innocent child and helpless woman or a victim

over whom the murderer is in a position to dominate or the victim is a public

figure.

The Law Commission in its 47 th report says that a proper sentence is a composite

of many factors, the nature of offence, the circumstances extenuating or

aggravating the offence, the prior criminal record if any of the offender, the age of

the offender, the professional, social record of the offender, the background of the

offender with reference to education, home life, the mental condition of the

offender, the prospective rehabilitation of the offender, the possibility of treatment

or training of the offender, the sentence by serving as a deterrent in the community

for recurrence of the particular offence.

Offenders also have to be classified as a casual offender, an offender who casually

commits a crime, an offender who is a habitual, a professional offender like

gangsters, terrorist or one who belongs to Mafia. There should be different kinds of

punishments so far as the offenders are concerned. Similarly in fixing a sentence

many factors are relevant, the nature of offence, the mode of commission of the

offence, the utter brutality of the same, depravity of the mind of the man.

Sentences contemplated by Section 53 of IPC are death, imprisonment for life, and

forfeiture of property or fine.

Some times the courts are unduly harsh, sometimes they are liberal and we have

already adverted to aspects which Supreme Court said are relevant in deciding as

to what are the rarest of the rare cases for imposing death sentence and even in

such matters uniformity is lacking. In certain rape cases acquittals gave rise to

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public protests. Therefore in order to bring about certain regulation and

predictability in the matter of sentencing, the Committee recommends a statutory

committee to lay guidelines on sentencing guidelines under the Chairmanship of a

former Judge of Supreme Court or a former Chief Justice of a High Court

experienced in criminal law with other members representing the prosecution, legal

profession, police, social scientist and women representative.

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CHAPTER - X

NEED FOR NEW KINDS OF OFFENCES AND NEW TYPES OF

PUNISHMENTS

Disqualification from holding public office, removal from the community etc. are

some of the measures that should be introduced and not punishment in a prison.

These punishments are not custodial in nature. Far reaching reforms have taken

place in England and the year 2000 is a watershed and 172 enactments like the

Powers of the Criminal Court Sentencing Act, 2000 modifying earlier laws were

enacted introducing a whole range of new and novel punishments, postponement

of sentencing, suspended sentence of imprisonment, supervision during

suspension, community sentences, community rehabilitation order, financial

penalties and reparation orders, parenting orders for children, confiscation order,

disqualification orders etc., are many of the changes that have been brought out.

Even in India under the Motor Vehicle’s Act a disqualification for holding a

license can be a part of punishment. Dismissal of a public servant from service for

criminal misappropriation and breach of trust is an additional measure of

punishment. Under the Representation of the People’s Act there is disqualification

in the event of proved electoral mal practices or on account of conviction.

In other words instead of conventional punishments enumerated in Sec.53 of the

Penal Code which was enacted in 1860 nothing has been done to reform the system

of punishment. The U.K. Powers of Criminal Courts Sentencing Act of 2000

contains general provisions regarding a community orders and community

sentences and a curfew order, community rehabilitation order, a community

punishment order, a community punishment rehabilitation order, a drug treatment

and testing order, attendance order, a supervision order, an action plan order are

all covered by the definition of community order and community sentences and

monitoring of orders. These orders have certain limitations. Curfew orders are

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those by which a person convicted of an offence is required to remain at a place

specified or different places on different dates. It is not custodial in nature.

In a community rehabilitation order a convicted person may be kept under the

supervision of a named authority to secure his rehabilitation or protecting the

public from such an individual or to prevent further crime. In respect of sexual

offenders or persons who have a mental condition or those who are drug addicts or

addicted to alcohol various provisions have been enacted with a view to

rehabilitate the individual, take him off the drugs or alcohol and enable him to live

as a decent human being. Supervision orders and sentence orders are also treated

as forms of punishments in addition to fines. The Power of Criminal Courts

Sentencing Act, 2000 provides for a compensation order.

1) Mandatory minimum punishment

In Indian law, so far as the custodial punishments are concerned there are

certain offences for which maximum term is provided and also provisions

for mandatory minimum punishment Section 397, 398 IPC, PC Act, NDPS

Act, PFA Act provide for mandatory minimum punishments. Since some of

these offences are offences against society as a whole, against public health,

against the safety or well being of society at large, such punishment should

be retained.

2) Amendment bill of 1978

IPC Amendment Bill of 1978 was the first attempt made to bring about

certain changes in sentencing which remained static from the time IPC was

enacted. Prior to this a 173 bill had been enacted in 1972 which suggested 3

new forms of punishment externment Section 17(A) compensation for

victims-14(8) and Public Censure 74(C). However, in 1978 externment as a

form of punishment was rejected. Community service [74(A)],

compensation to victims [74(B)] and Public Censure [74(C)] and

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disqualification for holding office 74(D) were proposed. Community Service

is in vogue in many countries UK., USSR, Zimbabwe uses it. Recently

Government of Andhra Pradesh has initiated a move to introduce the same.

However, in community sentences certain restrictions regarding age etc are

suggested. The accused must be less than 18 years.

3) Offences alternative to punishment

The offence must be one for which the punishment by way imprisonment

must be less than 3 years. It is an alternative to punishment and there

should be an upper and lower limit regarding duration of community service.

The court should be satisfied about the suitability of the accused for

carrying out the work.

4) White collar crimes

Public censure under Section 74 (C) was provided for white-collar crimes.

This was suggested as being in addition to punishment. Disqualification for

holding office was proposed under Section 74(B). This is also an additional

punishment applicable to holders of office and it is limited with respect to

the position and also the period. Unfortunately after the abortive attempt in

1978 no endeavour was made to re-introduce the same and the law since

1870 remains static.

5) Ensue uniformity and avoid uncertainties

To ensure uniformity and to avoid and uncertainties legislation such as

Criminal Courts Sentencing Act of 2000 which is in force in UK can be

thought of so that predictability and uniformity in so far as “Sentencing” is

concerned is assured. Section 78 of the English Act imposes limits on

imprisonment and detention in young offenders institutions. Sections 79 &

80 provide for general restrictions on description and custody of sentences

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and length of sentences. Presenter reports are also to be looked into Section

83 imposes certain restrictions on persons who are not legally represented.

6) Restriction and period of detention

Sections 89, 90, 91, 93 and 94 provide for restrictions, periods of detention

for persons below the age of 18 to 21 years. Suspended sentences,

suspension orders, special enactments like Sex Offenders Act of 1997, are

the changes brought out even in regard to a class of offences. Community

orders and community sentences are applicable where there is no sentence

fixed by law.

They cover a wide range To ensure uniformity and to avoid and

uncertainties legislation such as Criminal Courts Sentencing Act of 2000

which is in force in UK can be thought of so that predictability and

uniformity in so far as “Sentencing” is concerned is assured. 174 such as

curfew order, community rehabilitation order, and community punishment

order. A Drug treatment order, an attendance centre order, a suspension

order are part of the statutory changes.

7) Financil penalties

Financial penalties taking into account the offenders’ financial

circumstances, and fixing of fines, remission of fines, compensation orders

are provided. A review of compensation orders limits of fine to be imposed

on the young offender and a direction to the parent or guardian to pay fines,

compensation etc., are all fixed and statutorily regulated. Power to

confiscate the property used for Crime is covered by Section 143 of

Criminal Courts Sentencing Act of 2000. Forfeiture is also provided. We

have Shrama-dan, or NSS work which can be usefully introduced as part of

sentencing. ‘Janman-Bhoomi concept in vogue in Andhra Pradesh can be

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converted into a convicts wage to the community for the crime committed.

All these clearly show the changes and the emerging pattern in sentencing

and several other facts the aim of all of which is to bring about a

psychological change in the accused, to have an impact on the mind so that

the same may bring about certain reformation of the individual. It is time

that with the advancement of science, medicine and human psychology we

try to find out the etiology of the Crime in our country and to bring about

legislation which introduces a whole range of new and innovative

punishments some of which are enumerated in the preceding paragraphs.

PREPARING FOR EMERGING CHALLENGES

1) Pattern of crime changed

The last century has seen amazing change in the pattern of crime and the intensity

and impact of the same on society. Terrorism has become global in nature, and the

consequences of the same in terms of loss of life are phenomenal. Organised

crime and its ramifications are global. Economic offences are transnational in

operations and cyber crimes have no geographical limitation. Sexual offences,

child abuse, drug trafficking, trafficking in women and child, pornography,

hijacking of aircrafts are all crimes which have no limitations either in terms of

space or geographical boundaries and the Terrorism has become global in nature,

and the consequences of the same in terms of loss of life are phenomenal.

Organised crime and its ramifications are global. Economic offences are

transnational in operations and cyber crimes have no geographical limitation.

Sexual offences, child abuse, drug trafficking, trafficking in women and child,

pornography, hijacking of aircrafts are all crimes which have no limitations either

in terms of space or geographical boundaries and the impact of same affects the

entire society and the nation itself. Therefore the need to combat these emerging

crimes, which are bound to increase in number and in frequency, will have to be

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addressed and tackled. 175 impact of same affects the entire society and the nation

itself. Therefore the need

to combat these emerging crimes, which are bound to increase in number and in

frequency, will have to be addressed and tackled. The existing laws are inadequate

and therefore legislation and new policies of sentencing are the desideratum.

Man’s depredation of nature resulting in ecological imbalance, the concern for

preservation of forests, wild life, compassion for the other living beings which are

part of the Constitutional obligations have all resulted in new legislations being

nenacted.

The increasing importance towards the end of the last century of human rights

requires that punishments and sentencing should be consistent with Human Rights

Jurisprudence. Rights of disadvantaged sections, gender bias, and sexual

harassment in work places are all great concerns and elimination of all forms of

discriminations are getting statutory protection and recognition.

2) Sentencing criteria vogue till now

While these are the challenges and the tasks that we face, the sentencing criteria

that in vogue till now requires to be remedied and rectified as they are inadequate

sometimes ineffective and do not take into account the human rights angle and do

not provide adequate preventive and deterrent sentences to the new forms of

crimes that have exploded consequent on the advancement of science and

technology and the use of the same by criminals having ramifications which have

cross-border implications. Though some new legislations have been passed every

endeavour should be made to tackle and punish perpetrators of such crimes

adequately. These are serious matters involving policy considerations.

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3) Comprensive review of the Indian panel code

This Committee is not asked to undertake a general review of the Indian Penal

Code. That is a gigantic and time consuming task. The Committee has therefore

restricted its attention to suggesting a few amendments in the context of the general

reforms of the Criminal Justice System. The Committee is convinced that a

comprehensive review of the Indian Penal Code is long over due and should be

undertaken on a priority basis by a high power Committee. This is not an exercise

to be carried out by only lawyers and Judges. Public men and women representing

different walks of life and different school of thought, social scientists, politicians

etc should be on such a

Committee to recommend to the Parliament a better and progressive Penal Law

for the Country. Hence, it is recommended that a Committee should be appointed

to review the Indian Penal Code and to suggest creation of new kinds of offences,

prescribing new forms of punishments and reviewing the existing offences and

punishments.

ALTERNATIVE TO DEATH PENALTY

1) Imprisonment for life

Section 53 of the IPC enumerates various kinds of punishments that can be

awarded to the offenders, the highest being the death penalty and the second being

the sentence of 176 imprisonment for life. At present there is no sentence that can

be awarded higher than imprisonment for life and lower than death penalty. In

USA a higher punishment called “Imprisonment for life without commutation or

remission” is one of the punishments. As death penalty is harsh and irreversible

the Supreme Court has held that death penalty should be awarded only in the rarest

of rare cases, the Committee considers that it is desirable to prescribe a punishment

higher than that of imprisonment for life and lower than death penalty. Section 53

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be suitably amended to include “Imprisonment for life without commutation or

remission” as one of the punishments.

2) Imprisonment for life without commution or remission

Wherever imprisonment for life is one of the penalties prescribed under the IPC,

the following alternative punishment be added namely “Imprisonment for life

without commutation or remission”. Wherever punishment of imprisonment for

life without commutation or remission is awarded, the State Governments cannot

commute or remit the sentence. Therefore, suitable amendment may be made to

make it clear that the State Governments cannot exercise power of remission or

commutation when sentence of “Imprisonment for life without remission or

commutation” is awarded. This however cannot affect the Power of Pardon etc of

the President and the Governor under Articles 72 and 161 respectively.

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CHAPER – XI

SOCIAL DEFENCE IN ADMINISTRATION OF JUSTICE IN INDIA

Social defence is generally understood as the protection of society against crime

through a systematically organized and coherent action by both the State and civil

society. Though this term has long been in use in the criminological and

penological literature, the modes and modalities of achieving its inherent objective

have been shifting with the advancement in social sciences and behavioural

disciplines. Even today, because of the complexity of issues involved, it has not

been possible to evolve a wholly satisfactory theoretical framework for policy

formulation and programme development in this field. It is true that crime is

essentially an offshoot of the dis organizational process of society itself and, as

such, it is difficult of visualize a system that could completely neutralize an

‘aggression’ which originates from within. Then, in the absence of any fool-proof

theory of crime causation, it is beyond human capacity to create a society entirely

free from crime. Moreover, the definition of crime itself may vary from country to

country and within the same country from time to time, in keeping with the

changes in social structure, cultural values and normative expectations and no

single system can hold good for different situations. Despite this position, there is

a candid awareness that the objective behind social defence cannot be realized

merely by focussing on individuals who are recognized as offenders; it inevitably

requires also reaching out to those who are vulnerable to crime. Thus, the social

defence approach aims not only at perfecting the system that deals with offenders

but also at forestalling conditions that generate criminality. In this process, it

closely interacts with various sectors of socio-economic development in creating

an environment conducive to the prevention of crime and in mobilizing resources

appropriate for the treatment and rehabilitation of offenders in the totality of their

life situations.

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1) Crime Trends

a) The phenomenon of crime has baffled humankind down the ages. It is usually

explained as a by-product of the interaction that takes place between the individual

and his environment. But both these aspects being dynamic in character, the

prognosis of any socially deviant behavior becomes highly problematic. In fact, the

perception of crime is dependent on several variables, such as the fabric of a

society, the extent of which a particular behaviour is deemed anti-social and the

manner in which it is sought to be tackled. For instance, in India, as in other

developing countries, much of crime has hitherto been largely pulled back or

absorbed by the traditionally operative informal controls of the family, the

community and religion.

b) Changes in socio-economic milieu, and an increasing centralization of

authority in the hands of the State, crime situation is in a state of flux. Further, in

order to maintain an orderly functioning of the society in transition, there is an

exaggerated need for an effective enforcement of the existing laws, and even the

enactment of new laws, to adequately cope with the emerging forms and trends of

crime. In any case, the reported crime would always remain a small part of crime

as it permeates society, because of the intricate relationship between the growing

individual and his fluid environment and the limitations of the formal system in

plugging the malady at its genesis.

Such a reality only makes it imperative that the crime prevention and control

strategies must extend beyond the criminal justice system and integrate into

sectors in which individuals are born and they live and grow. From this viewpoint,

social defence as a comprehensive approach towards ameliorating conditions

responsible for social maladjustment, deviance and crime gains significance.

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c) Nevertheless, crime as detected and reported by the concerned official

agencies is the safest way to analyzing the problem and determining its trends.

According to the statistics published by the National Crime Record Bureau, while

the incidence of crime has been steadily rising, crime rate (incidence of crime per

lakh of population) is maintaining pace with the increase in the general population

over the last five decades. Though the crime rate is still much lower than that in

many other countries, the pattern of crime surely signifies certain alarming

features. For instance, the share of violent crimes, including murder, attempt to

commit murder, culpable homicide not amounting to murder, dowry deaths,

kidnapping and abduction, decoity, preparation and assembly for decoity and

robbery, riots and arson, and rape, has increased substantially over the last four

decades. These crimes not only endanger life, property and safety of the people

but also pose a serious threat to public peace.

Similarly, economic offences including smuggling, money laundering, tax evasion,

export and import offences, drug trafficking, trafficking in cultural property,

bribery and corruption, etc., are also manifesting a challenging trend in terms of

sophistication, precision and modus operandi on the part of organized syndicates.

There are enough indications that, in the years to come, with the development of

information technology and telecommunications and the acceleration of economic

activities within and across national borders, organized crime is bound to acquire a

much more volitional and disruptive form. The emergence of terrorism,

environmental crime, cyber crime, etc., are most ominous for a developing country

like India.

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2) Crime and Development

a) The nexus between crime and development, especially in the wake of

globalization, liberalization of trade and commerce and free market economy, has

been clearly recognized at various international fora. The world community is

gravely concerned about the baneful effect of crime on the peace, progress and

prosperity of nations. Many countries have seen as to how crime thwarts the

development process, undermines human dignity and disrupts the well-being and

welfare of people. It is invariably found that the development process, if not

property monitored, tends to become criminogenic. While economic development

is essential to satisfy human needs and to raise living standards it could also

unleash forces of social disintegration, disharmony and disorganization, unless

prompt steps are taken to counteract its negative fall-out. Failure to balance both

the social and economic aspects of development has led many a nation to face a

chaotic situation, rampart with crime and human misery. There is an ample

evidence to surmise that unbridled economic growth is liable to push the poor, the

weaker and the disadvantaged into further marginalization and vulnerability to

abuse and exploitation and to their eventual induction into crime, both as

offenders and victims. Being in the throes of an unprecedented development

process, India has an opportunity to learn from the mistakes of others and to

vigorously pursue its declared policy of economic growth with a ‘human face’.

b) From the standpoint of social defence, the development process must be

geared towards ensuring social justice, protecting human rights and providing for

an equitable sharing of socio-cultural and economic opportunities by one and all.

Any development process which destroys the self-generating and self-sustaining

capacity of the people, alienates certain sections from the mainstream of social

and economic life, widens the gap between the rich and the poor, intensifies ethnic

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and caste conflicts, and erodes public confidence in the rule of law, is socially

destructive and, thus, breeds crime.

History shows how an imbalanced development can stir social strife, racial

discriminations, religious bigotry and fragmentation of society, and how

authoritarian governance deprives people of a life compatible with human dignity.

In a democratic structure like that of India, the development process has to aim at

economic prosperity with social justice in which people have to be the first and the

last and the poorest of the poor will have to be in the centre-stage.

Such a course would certainly call for a concerted action, on the part of both the

State and civil society, towards restoring human rights of the poor, nurturing their

creative potentials, building their capacity to assert for legitimate needs, enhancing

their knowledge, skills and competence, and reinforcing their intellectual and

material resources so as to enable them to stand on their own and to bargain for a

better quality of life. While the government tends to rely mainly on a trickle-down

approach, civil society has to work from bottom upward in helping the poor to

shape their destiny and to secure their place in society with dignity.

3) Poverty Factor

a) Irrespective of the debate that continues in academic circles on whether a

human being is a rational – economic or emotional-social animal, the importance

of poverty factor in crime could hardly be overlooked. While poverty per se cannot

be taken as a direct cause of crime, it does make individuals in stark deprivations

more prone than the others to social maladjustment and to their coming in conflict

with law.

The situation is further compounded when, in the wake of industrialization and

consequential urbanization, the poor migrants in search of livelihood, are found to

cluster around slums and squatter dwellings and to live in a state of social

marginality and economic neglect. It is, therefore, encouraging that the

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Government of India has provided a major thrust to poverty alleviation in the

national development plans.

A three-pronged strategy adopted to reduce poverty includes:

(i) Accelerated economic growth with a focus on sectors which

are employment intensive

(ii) Human and social development through basic minimum

services

(iii) Targeted anti-poverty programmes. A priority is placed on

agriculture and rural development, food and nutrition,

security for vulnerable sections of society, participation of

the poor in the development process, and empowerment of

women, scheduled castes and scheduled tribes and other

disadvantaged groups. As a result of various measures, the

poverty ratio is reported to have considerably declined in

the recent years. The present trend augers well for the

creation of just society committed to the rule of law.

b) For this purpose, the policies for poverty alleviation will have to be vigorously

pursued in the light of various civil, political, economic, social and cultural rights

that all people are equally entitled to under the Constitution of India. There is a

national consensus that comprehensive strategies need to be devised so that the

pattern of economic growth helps the poor and the down-trodden in improving

their lot. This would require not only a much larger investment on social services

but also more effective measures to establish that the delivery mechanisms are

non-discriminatory and the facilities created are accessible to the people at the

grass-root level.

In order to ascertain that the development benefits percolate down and are shared

by all on an equitable basis, irrespective of their socio-cultural and economic

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status, local bodies and people’s organizations will also have to be actively

involved in the implementation of various plan schemes.

People themselves will have to be sufficiently empowered to overcome poverty

through self-help endeavors, collective initiatives and participation in decisions

that affect their lives. While the government would be legitimately responsible for

policy formulation and programme development; representatives of civil society

will have to be closely associated in making the process more transparent and

accountable to people. With the

globalization of national economy the obligation of multinationals, business houses

and financial institutions towards protecting the rights and interests of the poor has

to be clearly spelt out. Of course, in a free society, the media has to serve as a

powerful agent in promoting a social climate conducive to a solidarity with the

poor in their fight against poverty.

c) It is well accepted that the strategies for poverty alleviation have to evolve

within the framework of social justice for which the rule of law is a pre-requisite.

Though law by self cannot eradicate poverty, it can definitely contribute to the

national efforts towards this end by intervening specifically in three broad areas:

(i) Combating such crimes as are responsible for the disruption of economy,

social cohesiveness and security of people;

(ii) Curbing conditions which perpetuate abuse and exploitation of the socially

marginalized or economically backward groups in society

(iii) Protecting human rights and interests of the poor in the administration of

justice. In this process, the criminal justice system as a whole may have to

undergo radical reforms by way of the rationalization of the relevant laws and, if

necessary, the enactment of new laws, modernization and strengthening of

enforcement machinery and of its methods and apparatuses, and a purposeful use

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of various social support systems in enhancing its operational coverage,

institutional capacity and organizational efficiency.

In responding to crimes which adversely affect the well-being of people, the legal

system must constantly sharpen its teeth and plug loopholes as they come to fore.

In the background of a fast changing socioeconomic scenario, the courts may soon

have to discard its ‘hands off’ doctrine towards the issues of survival and

sustainability of people, in favour of a judicial security and even intervention

when the human rights and interests of the poor are found in jeopardy.

4) Vulnerable Groups

a) Among various groups subjected to social inequalities, cultural discrimination

and economic handicaps, the condition of women below poverty line is much more

precarious than that of their male counter-parts. Though a variety of schemes have

been introduced for their emancipation, women in India continue to be largely

dependent on and subordinated to men in different walks of life, and thus, to be

devalued and socially marginalized, particularly in the lower strata. When a family

is faced with any crisis, its female members suffer most and are rendered an easy

prey to various kinds of abuse and exploitation. Even when recognized as

offenders, they are more of a victim of situational compulsions than a perpetrator

of crime. Therefore, in the planning of programmes for social defence, a vigorous

drive has to be launched towards women’s empowerment and gender justice and

the criminal justice system has to act relentlessly against unscrupulous elements

degrading their status. Already, in pursuance of its Constitutional mandate, India

has enacted a number of laws to secure for women equal rights, to counter

offences and atrocities against them, and to provide support services for their

special care and protection. Along with various legal safeguards made available to

them, a stringent action is contemplated to check crimes directed against them,

which broadly fall under two categories:

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(i) crimes under the Indian Penal Code, such as, rape, kidnapping and

abduction, homicide for dowry or dowry death or their attempts,

torture, molestation, sexual harassment and importation of girls

(ii) crimes under special laws, such as, abrogation of their rights in the

family, marriage and work place, immoral traffic, dowry, child

marriage, indecent representation and commission of ‘Sati’. It is

however, being strongly felt that, as law alone cannot by itself

change age-old traditions and attitudes that subjugate women, the

whole society has to be mobilized in preventing crimes against

them.

b) Doubtlessly, the economic and social marginalization of the poor deprives a

vast population of children in the country of their right to grow normally in body

and mind. Increasing population with limited resources intensifies the problem of

survival and security of the poor, creating an environment of destitution,

desperation and despair for their children. As children constitute the supreme

national asset for the making of tomorrow, the failure of society to bring them up

as socially healthy individuals not only multiplies poverty but also leaves them

extremely fragile to withstand the onslaught of anti-social elements. Apart from a

widespread violence against such children within and outside the family, the

problems of child labour, child prostitution and child begging are some of the

most sordid forms of child abuse. In several cities, a large number of poor children

are found to be living or working on the street in search of livelihood through odd

jobs in extremely sub-human and hazardous conditions. A rising trend of the abuse

of children for unconscionable gain and their instrumental use in crime, and of

their transportation beyond national borders for nefarious purposes under the garb

of adoption, marriage or employment, is also a matter of grave concern. Though

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definite provisions exist in the substantive and special laws against all such

eventualities, there is wide gap between rhetoric and realitiy.

Now that India is signatory to the United Nations Convention on the Rights of the

Child, it is obligatory that the role of criminal justice system in protecting children

against victimization is redefined and translated into concrete action. Obviously,

there is a dire need for a thorough review of all the central and state laws

concerning children so as to bring these in tune with our cherished goals.

c) It is well accepted that the criminal justice system can function as an

enabling tool in the alleviation of extreme poverty by legally safeguarding the

rights and interests of the weaker sections of society. India has a first-hand

experience of setting in motion a host of democratic processes to resolve the

problems of social inequality and class divide, including the formulation of special

laws to provide a protective umbrella to all such social groups as are oppressed for

centuries. The overall strategy is to secure distributive justice and allocation of

resources to support programmes for the social, economic and educational

advancement of the weaker sections in general and Scheduled Castes and

Scheduled Tribes, Backward Classes and Minorities in particular. The protection

of Civil Rights Act, 1955 has totally abolished untouchability in any form.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

aims at protecting them against any injustice and any form of abuse or

exploitation. By enacting these laws, the concept of positive discrimination in

favor of the weaker has been extended to the field of criminal law. The penalties

prescribed in the special legislation, are more stringent than those for

corresponding offences in other laws. A speedy trial of cases coming within the

purview of these laws has been assured by the constitution of special courts in

major cities. While the legislation is seen to have a salutary impact on the process

of the desired social change, there is a strong public opinion that the problems of

the weaker sections of society need to be addressed in all their facets.

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It is also being increasingly realized that poverty is a complex problem, both a

cause and an effect of disorganization at the individual, familial and societal

levels, and, as such, has to be tackled through mutually reinforcing coordinated

efforts on the part of various law enforcement, social welfare and development

agencies. Indeed, the criminal justice system which is founded on the principles of

fairness and equity has to prove its credibility of being equally fair and equitable

to the poor as to the rich, in actual operation.

5) Correctional Strategy

a) In the backdrop of a rapidly changing crime situation, any action to interpret

principles underlying social defence into actual practices has to start with the

rationalization of sentencing policy. The penal policy should not only strive at

balancing the interest of society with that of the individual involved in crime but

also at addressing the plight of the victim. The range of dispositional alternatives

has to be so widened as to enable the court to place a person found guilty in a

setting which is most conducive to his mainstreaming.

The procedure to be adopted by the court has to be so streamlined as to make it

sure that a decision is arrived at not only in relation to the crime committed but

also on the basis of a thorough study of the personality and background of the

offender, and the circumstance in which the crime took place. Institutional

treatment has to be resorted to as the last measure, only when an offender poses a

real threat to public safety and peace and tran quility in the community. A

community-based option for treatment has also to be based on scientifically tested

and verifiable criteria. It needs to be fully appreciated that an offender placed on

community correction will have a much greater stake in social conformity than the

one being treated in a closed institution as a ‘social misfit’.

Even a non-institutional placement has to be carefully selected so as to retain, to

the maximum extent possible, the usefulness of the offender to himself, his family

and society. In order to ensure that the sentence is delivered in a fair, just and

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equitable manner, irrespective of the socio-economic status of the person

involved, the State has to stand for one who cannot by himself protect his

substantive and procedural rights. More importantly, the right of an accused to a

speedy trail which, in the case of the poor, seems to have been severely trampled

has to be restored by reinforcing the

6) judicial system.

In India, as in many other countries, where most of the persons coming within the

purview of the criminal justice system are involved in crime under various kinds

of situational compulsions, correctional approach to crime control has to be

pursued as an integral part of the social development process. An analysis of crime

statistics would show that a large segment of offenders consists of the poor, the

illiterate and the unskilled. Such offenders are seen to be victimized twice: once,

when they are denied of their basic human needs in open society and forced to live

in a sub-culture of social marginality, and, again, when they are grinded in the mill

of criminal justice for having infringed the law. An increased investment on the

provision of correctional services in relation to these persons would be most

productive not only in reducing crime but also in improving the quality of life

among the strata the come from and are ultimately to return to.

In this regard, a priority attention needs to be given to raising the standards of

diagnostic, educational and developmental programmes with all the necessary

technical inputs, in close conjunction with community based welfare agencies.

There is no dearth of success stories in this regard but most of these have so far

been confined to a few bold experiments or to some individual initiatives.

It is high time that correctional measures are directed towards developing the

capacity, caliber and competence of persons in conflict with law in such a manner

as to assure that, after their passage through the criminal justice system, they

would be able to stand on their own as dignified and law-abiding citizens. Of

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course, the approach towards those who indulge in crime as a way of life and

refuse to understand the language of correction will have to be differentiated.

7) Prison Reform

a) Doubtlessly, prisons constitute the oldest and most widely used mode of

dealing with offenders. In the recent years, it has also been a subject of

unprecedented criticism, scrutiny and debate from the viewpoint of its social

defence role. It is well recognized that as long as certain types of offenders are to

be segregated from society in the interest of public safety, and are expected to

return as better human beings than what they were when incarcerated, the

institution of prison will have to play an important in the dispensation of justice.

However, there are several problems that prison administration is presently

confronted with in discharging its public safety and reformative functions. In

India, as in many parts of the world, imprisonment continues to be applied

indiscriminately and excessively, either as a convenient way of dealing with all

sorts of crime or because of the nonavailability or limited range of effective

alternatives. In the face of competing priorities, it is hard to mobilize adequate

resources to bring in the desired systemic reforms in terms of the necessary

infrastructure, scientific classification of inmates, diversification of prisons for

various categories of offenders, provision of correctional services and duly

qualified and professionally trained personnel to handle custodial and correctional

tasks. The problem of overcrowding and a swelling proportion of undertrials

among prison inmates has thrown the system hay wire.

As the judicial process further speeds up and the pendency of cases in courts

decreases, prison population will correspondingly multiply, because a much larger

number of accused persons are on bail and awaiting trail. There is also a real need

to establish appropriate linkages between institutional programmes and

community-based welfare resources to ensure that the processes of recovery,

reeducation and rehabilitation initiated in prisons are systematically followed up

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till the discharged prisoners are able to reintegrate themselves into society. What

is most urgently called for is the formulation of a national policy and bringing in a

basic uniformity in laws governing prisons, so that imprisonment as defined in the

Indian Penal Code has the same meaning, when actually executed, in every part of

the country.

b) Apart from the imperativeness of bridging the gap that exists between societal

expectations and operational realities, the prisons administration has to run on the

premise that its rehabilitative function can be accomplished only in an atmosphere

that fosters human rights of persons in custody and generates among them a will to

improve their quality of life. In this respect, the Supreme Court of India, discarding

its erstwhile ‘hands off’ doctrine in favor of a judicial intervention when the rights

of prisoners are found in jeopardy, has already enunciated three basic principles:

(i) A person in custody does not become a ‘non person

(ii) A prisoner is entitled to all human rights within the limitations of

imprisonment,

(iii) There is no justification for aggravating the suffering which is already inherent

in the process of incarceration.

Accordingly, the apex court has issued a number of directives for prison authorities

to afford to prisoners all such facilities for self-improvement and correctional

therapy as are consistent with their conditions of imprisonment.

Besides a detailed interpretation of the relevant Constitutional provisions, the

principles embodied in various United Nations instruments, to which India is a

party, have also been invoked in guiding this process. The framework laid down

by the Supreme Court of India to protect the rights and interests of prisoners has

far-reaching implications for prison reform in a futuristic perspective. It not only

entails a thorough overhauling of the prison administration but also an enlightened

participation on the part of civil society.

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c) The current emphasis on the humanization of prisons as an essential condition

for invigorating their reformative and rehabilitative role brings into focus the issue

of torture. Despite a high level of denial among the concerned authorities, torture

does exist in prisons broadly in three different ways.

First, there is a form of torture which may be intentional in nature and resorted to

against all canons of rules and regulations to ‘discipline’ a prisoner or to ‘set him

right’. It may happen sporadically but does take place when the custodian under

pressure loses his balance and the prisoner is totally at his mercy. No civilized

society would ever condone such an intentional torture.

Secondly, there is torture incidental to the sub-human conditions prevailing in

prisons, especially in developing countries. Such incidental torture has to be

prevented by adhering to certain minimum standards of institutional care in terms

of living conditions, basic needs and the necessary amenities and privileges to

treat prisoners as human beings.

Thirdly, there is an element of torture inherent in incarceration itself, when the

individual involved is deprived of his freedom and isolated from his family and

the community he belongs to.

This form of torture can also be considerably reduced, if not eliminated altogether,

by using prisons more selectively only for offenders who endanger public safety,

by enlarging the range of alternatives to imprisonment, and, even when a offender

is justifiably imprisoned, by providing him with ample avenues to maintain ties

with outside world, and a possibility for an early release as an incentive for good

behavior and responsiveness to correctional treatment. Abolition of torture other

than what is consequential to lawful sanctions is fast emerging as a vital issue of

prison reform to be addressed squarely.

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8) Juvenile Justice

a) It has long been accepted that children coming in confrontation with law,

because of their physical, emotional and mental immaturity, cannot be equated

with adults in terms of their culpability and accountability to crime. It is widely

held that delinquency is not merely an act of social deviance on the part of a child

but also a symptom of the failure of society to bring him up as wholesome

individual. At the same time, no society takes crime, even if it is committed by a

juvenile, as entirely value-free and expects it to be dealt with as such.

There is, however, a unanimous view that the problem must be dealt with on its

growth continuum by responding to all the situations before and after the onset of

delinquency. While India has chosen to achieve this objective through a single law

in the form of Juvenile Justice (Care and Protection of Children) Act, 2000, many

countries have formulated a separate law for delinquents vis-a-vis those

vulnerable. The United National Standard Minimum Rules for the Administration

of Juvenile Justice also concentrate only on children in conflict with law and other

categories of vulnerable children are envisaged to be catered to within their

families and communities under a welfare regime.

While much would depend on the manner in which the newly enacted law is

implemented on the ground, with children in the higher age group of 16 to 18

years now increasingly emulating adult role models in criminal behaviour, the

juvenile justice approach will have to undergo a progressive refinement in the

years to follow.

b) Significantly, the United Nations rules for juvenile justice incorporate some

salutary provisions for an active involvement of civil society at various stages of

the handling of juvenile offenders through the system. At the very initial stage, the

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police, the prosecution and other concerned agencies are proposed to be

empowered with a wide discretion to divert cases from the formal system to the

family and the community on a selective basis. A variety of disposition measures

are contemplated, such as, care, guidance and supervision, probation, community

service, financial penalties, compensation and restitution, intermediate treatment,

participation in group counselling and similar activities, foster care, living in

communities or other educational settings, etc. While institutionalization is thought

to be a disposition of last resort, non-institutional treatment has to provide

juveniles with necessary assistance, including education and vocational training in

order to facilitate the reformative process, and to mobilize volunteers and other

community welfare resources for rehabilitation. When a juvenile undergoes

institutional treatment, early recourse to conditional release under proper

supervision and community support has been suggested. A provision for semi-

institutional arrangements such as half-way houses, educational homes, day-time

centres, etc., has also been made to assist juvenile to reintegrate into society.

Though the new Indian law on Juvenile Justice also includes some of such

features, like association of volunteers and non-government organizations in the

screening, treatment and rehabilitation of children, the provision for foster care,

sponsorship and adoption among the modes of disposition, and linkages with

community based welfare agencies for rehabilitative purposes, the success would

naturally require a massive effort towards the mobilisation of various social

support systems.

9) Non-Custodial Measures

a) Whereas the rationale behind the segregation from society of certain types of

offenders in the public interest and their treatment in closed institutions is firmly

established, the correctional potential of non-custodial measures has yet to be fully

utilized in the administration of justice. Though probation as a form of

noninstitutional treatment of offenders under conditions of good behaviour, with or

without supervision, has been in practice since the British period, the country has 139

yet to provide a sound basis for its application on an extensive scale. Probation is

still generally perceived as a lenient approach rather than a selective device for the

treatment of offenders who are no threat to public safety. In fact, for want of

scientifically evolved criteria to be safely relied upon in the placement of offenders

in a non-institutional setting, the range of community corrections remains limited

and imprisonment continues to be followed as the most convenient course, even for

offenders whose institutionalization for short periods has no therapeutic value.

It is true that when non-custodial correctional measures are used arbitrarily,

without being resorted to on objective grounds, there is real danger of men of

means taking undue advantage and abusing the system as against those who would

really deserve but have no advocacy or support, and of the whole approach

becoming counter-productive and coming into public disrepute. It is, therefore,

necessary that a ground is prepared for community correction to prove its

credentials to function, if not more, as effectively as custodial correction in

reforming and rehabilitating offenders.

b) For this purpose, the United Nations Standard Minimum Rules for

NonCustodial Measures which seek to strike a proper balance between the interests

of the individuals involved in crime and those of society at various stages of the

criminal justice process, offer a blue-print for action and strategy.

In keeping with the principles of the observance of human rights, the requirements

of social justice, and the rehabilitation needs of offenders, the rules spell out a wide

range of disposition modalities at the pr-trial, sentencing and post-sentencing

stages. Apart from empowering the police and prosecution agencies to discharge

offenders under specified conditions, the suggested sentencing alternatives include:

verbal sanctions, such as admonition, reprimand and warning; conditional

discharge; status penalties, economic sanctions and monetary penalties;

confiscation or an expropriation order; restitution to the victim or a compensation

order; suspended or deferred sentence; probation and judicial supervision;

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community service order; referral to an attendance centre; house arrest; and any

other mode of non-institutional treatment or combination of various measures.

With a view to avoiding institutionalization and to secure early reintegration of

offenders into society, the post-sentencing dispositions to be tried out are: furlough

and half-way houses; work or education release; parole; remission and pardon.

Obviously, the implementation of such non-custodial measures would call for the

development of a scientific basis for the selection, placement and supervision of

cases, treatment processes, staffing resources, community participation, etc.

However, all these approaches are worth experimenting with so as to assess their

suitability to indigenous socio-cultural and economic conditions.

10) Public Participation

a) As crime is a social phenomenon, no system for its prevention and control

could ever be conceived without an active participation of the public. In fact,

public participation is an inseparable ingredient of the process that defines a

behaviour as crime and strives to tackle it.

Whereas the critical attitude of thepublic that abhors crime and cries for the

offender to be so punished as to become a deterrent for the others, is clearly

discernible, the positive role of the public in preventing conditions which

precipitate crime and in facilitating the offender to mend his behaviourand to

reintegrate into society has yet to be fully recognized. Of course, the public opinion

towards crime manifests in an ambivalent manner: while on one side, demanding

for a stringent action against those who offend, on the other hand, pleading for the

powers of those who administer punishment to be restrained and curbed. It is,

therefore, logical that civil society is encouraged to take a balanced view and to

guide the public in subscribing to a system that protects society against crime

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without impinging on the human rights of all those involved, whether as offenders

or victims.

For this purpose, civil society must be closely associated with the planning and

execution of crime prevention and criminal justice strategies, so that it sets a

direction for a momentum to public participation in this field, at the individual,

group and community levels. Civil society has to serve as the primary tool for the

desired transparency and accountability in the functioning of various penal

institutions established by the State to control crime. The edifice of social defence

can stand only on an enlightened participation of the public as the harbinger, the

means and the end of the process.

b) In the prevention of crime, voluntary organisations that spring from within

society have a definite advantage over official agencies in making a dent on the

problems that culminate into crime. A variety of situation-, problem- and

individual oriented approaches to crime prevention can be devised and

implemented through the self-help endeavours and collective initiatives of the

people themselves.

A situation oriented strategy would be based on an optimum use of all such

voluntary agencies as are engaged in protecting the vulnerable, like children,

women and other economically weaker or socially disadvantaged sections in

society against any form of abuse or exploitation which is likely to induce asocial

reaction. A problem-oriented strategy would bring within its ambit all such

activities and programmes as are initiated through voluntary action to tackle social

problems which have a nexus with crime. An individual-oriented strategy would

obviously require working with those who, under situational compulsions, have

fallen to a socially deviant behaviour and still have a chance to redeem.

In all these areas, voluntary organizations have to function in conjunction with

families, communities and other social institutions which have a bearing on the

process of resocialization. Apart from a direct intervention in situations and

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problems responsible for crime, voluntary organizations can be greatly

instrumental in moulding public opinion and in mobilizing social support for an

effective implementation of social legislation enacted to eradicate social evilssuch

as dowry, child marriage, ‘Sati’, beggary, prostitution, etc.

Most of these laws contain specific provisions for public participation in different

forms. Experience has abundantly shown that despite severe penalties prescribed in

the law against the perpetrators, such social evils continue to persist, mainly

because of the lack of public awareness about their ill-effects and the absence of an

enabling social environment for the measures to succeed. It is distressing to note

that, while a large number of voluntary organizations in social welfare are being

financially supported by the government, very few are really coming forth to work

for the mainstreaming of social deviants.

c) The need for public participation in the treatment and rehabilitation of

offenders in equally well established. The future of various non-custodial measures

is tied with not only the offender’s responsiveness to community correction but

also the extent to which the public is prepared to extend its helping hand in the

correctional process and to accept the offender within its fold. Besides adopting a

positive attitude towards the rationale and efficacy of community-based treatment,

the public can substantially contribute to the reformative process by providing

social and material inputs. In the sphere of institutional treatment, the public can

play a significant role in two broad ways: first, by supplementing correctional

programmes in custodial institutions, and, secondly, by serving as a bridge for the

offender’s transition from custody to free society.

From this angle, the question of even privatizing prisons is being hotly debated in

many countries. While a ‘handing over’ of prisons to private agencies may not be

feasible, there is a wide scope for a constructive involvement of non-governmental

organizations in strengthening the welfare content of prison programmes,

especially in the areas of education, vocational training and sociocultural and

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spiritual development of inmates. Further, appropriate linkages with the private

sector are inescapable in the specialized treatment of terminal illnesses, including

chronic drug addiction and HIV infection. The role of voluntary institutions in the

aftercare and follow-up of discharged prisoners so as to facilitate their reintegration

into society is quite obvious. There is, however, a strong view that public

participation in institutional treatment has to be highly selective so as not to take

any risk with security and safe custody. It, therefore, needs to be emphasized that

whereas any transfer or dilution of the responsibility that legitimately comes within

the purview of the State would be rather hazardous, civil society has every right to

know as to what transpires behind walls.

d) In conclusion, it may be reiterated that as no formal system has a complete

answer to the problem of crime, integrated efforts are needed to tackle the problem

at its very source. The social defence approach is based on the premise that the

criminal justice system by itself cannot undo such aberration of the wider socio-

economic system as are associated with crime. However, war against crime has to

be waged, if not to win, atleast to be ensure that it is not being lost. Even the

reduction in crime as a more realistic goal can be achieved only by extending

crime prevention and control measures beyond the criminal justice system and by

building these into a broader social action to curb conditions which produce crime.

Such a perspective requires focussing on two major areas:

(i) Prevention of crime by protecting various vulnerable groups within the

framework of social justice;

(ii) treatment of offenders in a just, fair and equitable manner, with due regard to

their human rights, and on the basis of a differential handling of individuals who

violate law under various kinds of situational compulsion vis-a-vis those who

perpetrate crime in an organized manner. While the prevention of crime would

necessitate forging of constructive linkages between the formal system and various

sectors of socio-economic development, the treatment of offenders would

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inevitably entail a progressive refinement of the criminal justice processes. With

newly emerging forms and trends of criminality, some of which are much more

volitional and disruptive in nature, a holistic strategy has to be worked out jointly

by various criminal justice, social welfare and development agencies. Such a

concept of social defence warrants not only a thorough reorganization of the

traditionally operative crime control mechanisms but also innovation of and

experimentation with new approaches in coping more effectively with the

changing crime scenario.

.

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CHAPTER – XII CONCLUSION AND SUGGESTIONS

1) CONCLUSION

Existing evidence does not support any significant public safety benefit of the

practice of increasing the severity of sentences by imposing longer prison terms. In

fact, research findings imply that increasingly lengthy prison terms are

counterproductive. Overall, the evidence indicates that the deterrent effect of

lengthy prison sentences would not be substantially diminished if punishments

were reduced from their current levels. Thus, policies such as California’s Three

Strikes law or mandatory minimums that increase imprisonment not only burden

state budgets, but also fail to enhance public safety. As a result, such policies are

not justifiable based on their ability to deter. Based upon the existing evidence,

both crime and imprisonment can be simultaneously reduced if policy-makers

reconsider their overreliance on severitybased policies such as long prison

sentences. Instead, an evidence-based approach would entail increasing the

certainty of punishment by improving the likelihood that criminal behavior would

be detected. Such an approach would also free up resources devoted to

incarceration and allow for increased initiatives of prevention and treatment.

Race-based differences in individual treatment are some of the most difficult

challenges in American society today, and these are particularly apparent in the

arena of criminal justice. Racial disparity in the criminal justice system is

widespread and its perpetuation threatens to challenge the principle that our

criminal justice system is fair, effective and just. If the criminal justice system is

to be viewed as fair, it needs the support and cooperation of the public.

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The perception or existence of racial bias or unwarranted racial disparities reduces

public confidence in the system, which will in turn affect public safety outcomes.

Criminal justice practitioners cannot eliminate all disparities from the system

alone. The high rates of minority involvement in the system reflect a complex set

of social, economic, and community problems; in many respects, minority

overrepresentation in the criminal justice system is the end result of disparate

treatment in other areas, such as equal access to education, jobs, sustainable

income, and affordable housing. Criminal justice practitioners might view

themselves as being in the unfortunate position of being responsible for repairing

racial differences over which they have little control.

We hope this manual offers feasible solutions through

describing ways by which practitioners can address bias at various points in the

system. We advocate for a systematic, holistic approach which considers the

long-term impact of decisions on the racial composition of the criminal justice

system. This should involve the use of resources, professionally informed

discretion, leadership, accountability, public in volvement, and coordination

among many participants in the system. Policymakers should remain involved and

informed about evolving best practices to eliminate the practice of disparate

treatment of persons of color within the criminal justice system. Moreover,

policymakers can advocate for reform through sponsoring legislation that

remedies racial and ethnic disparity in the criminal justice system. Practitioners,

policymakers, academics and advocates in the criminal justice field have a duty to

challenge themselves to lead a national conversation on the role of race in crime

and punishment. If jurisdictions can accomplish this successfully, we can expect

to see other fields follow suit. This would be an important step toward addressing

the racial disparity that permeates our society

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2) SUGGESTIONS

Some suggestions for criminal justice system reforms:

1) Videotape police interrogations of suspects and child witnesses. In no other

way can juries reliably judge the proper weight to give such evidence when

ultimately presented in court.

2) Enforce the right to jury trial, unanimous 12 person jury, and standard of proof

beyond a reasonable doubt in all criminal prosecutions. 

3) End the modern role of grand juries as the government's tool of inquisition,

and return them to their historic role of judging the government's case. Allow the

witnesses to have counsel and a genuine right against self-incrimination that the

government cannot get around as easily as they can now. End the long grand jury

terms that keep many classes of people off grand juries.

4) Establish a parent-child privilege, similar to the husband-wife privilege, that

encourages children to confide in their parents without fear that their secrets will

be revealed, and avoids the brutal practice of forcing children against their will to

act against their parents and destroy their own families. The parent-child

relationship is just as important and worthy of protection as the husband-wife

privilege.

5) Require that prosecutors turn over to the defense all information they and the

police have about the case and the witnesses, and that they do so as soon as

reasonably possible, well before trial. Require that prosecutors follow the same

ethical rules as other attorneys.

6) Abandon the practice of consistently using excuses to exclude defense

evidence at trial. This would include such things as finding a defense theory

"speculative" or "irrelevant." Let the defense present its theory and evidence

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whether the judge agrees with it or not. Allow the jury to resume its historic role of

judging the justness of a possible conviction under the facts and circumstances of

the case, so as to act as a check on runaway government power. 

7) Allow a defendant the right and opportunity to complain about his attorney,

fire his attorney, and be permitted to get a new attorney, more than once if he feels

it is necessary. Some limits on substitutions may be proper, but present practice in

many jurisdictions requires the defendant to be stuck with his first lawyer no

matter what, even if the lawyer doesn't take the time to investigate, or is

deliberately malicious, or insists his client plead guilty when the client insists he is

innocent.

8) Reinstate the rule that on appeal, an error is not "harmless error" unless

harmless beyond a reasonable doubt. Many unfair trial practices are upheld

because of dubious guesswork that the error probably didn't make any difference.

See, for example, the 2000 Sixth Circuit ruling in Maurino v Johnson. By that

standard, you may as well not have a trial at all, because the defendant would

probably be convicted anyway.

9) On appeal and habeas corpus, eliminate the whole pack of legal technicalities

such as finality, time limits, deferential standards of review, etc. that require courts

to refuse to hear legal claims presented by people who have been convicted. The

parade of arbitrary technicalities, beginning with the U.S. Supreme Court case of

Stone v. Powell (1976), prevent many prisoners from having their legal issues

fairly considered and having justice done.

10) End drug prohibition, which has never worked anyway, and redirect precious

resources to protecting citizens against actual crime.  This will also end the

practice of informantism, where any crime can be excused or reduced as long as

the criminal is willing to accuse someone else of involvement with drugs, which

often leads to injustice. Society will not be harmed by ending prohibition as many

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high ranking government leaders are former drug users, and if they could be

permitted to live their lives without arrest and imprisonment without serious

damage to society, so can the people unlucky enough to have gotten

caught.  Society will gain real benefits because drug prohibition causes significant

increases in crime and violence, much as alcohol prohibition did, and because

violent police raids will slow to a trickle, directed only against real crime.  Without

the oppression of drug prohibition, youth and minorities will not be so much a

constant focus for police harassment, and a violent angry youth culture will have

less place to take root.

11) Discard the legal fiction that forfeiture is not punishment, and allow

forfeitures only in connection with conviction for a crime. Require the government

to prove the facts, instead of requiring the citizen to prove he is innocent. Stop

practice of making forfeiture victim pay large sum of money and follow

complicated procedures in order to challenge forfeiture. End laws that say that

innocent owners can be forced to forfeit property. By ending drug forfeitures, we

will remove the major excuse and financial incentive for police to spend their

evenings stopping large numbers of cars (as is routinely done in some areas),

seizing money from helpless motorists (especially out-of-state motorists) for

forfeitures that fund their police departments, until they find a motorist with drugs

to arrest. .

12) Reverse the practice of making so many things new federal crimes. Reduce

federal criminal jurisdiction to its proper constitutional scope, punishing such

things as treason, counterfeiting, and piracy on the high seas, and have the states

exercise general police powers. Enforce Ninth Amendment limits on government

power. Maintain a federal presence that will ensure that states and localities treat

people fairly and constitutionally.

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