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Criminal Justice: A Human Rights Perspective of the Criminal Justice Process in India Criminal Justice: A Human Rights Perspective of the Criminal Justice Process in India
Criminal Justice: A Human Rights Perspective of the Criminal Justice Process in India
by Dr. K.I. Vibhute
Edition: 1st, 2004
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Product Details:
Format: eBook, Hardback
Pages: 401 pages
Publisher: Eastern Book Company
Language: English
ISBN: 8170128242
Dimensions: 24.2 CM X 2.33 CM X 16 CM
Shipping Weight: 2.000(Kg)
Publisher Code: EA/877, A/824
Date Added: 2018-12-26
Search Category: ebooks
Jurisdiction: Indian
Overview:

Reforms in the criminal justice system have been a matter of frequent review and debate in India. In March 2003, the Malimath Committee submitted its report, suggesting a sort of overhauling of the fundamentals of criminal jurisprudence. It suggested the idea of fair, efficient and humane administration of criminal justice for restructuring and redefining operational orbits of all the constituent state functionaries 'investigatory, prosecutory, adjudicatory and custodial' of the criminal justice delivery system.

The present anthology,'Criminal Justice: A Human Perspective of the Criminal Justice Process In India', incorporating thought provoking essays written by scholars from India and abroad and edited by Prof. (Dr) K.I.Vibhute, endeavors to delve deep into the'human rights perspective' of the individuals'accused, prisoner and victim of crime' who come in contact with the State, vital State functionaries' the police, prosecution, courts and peno-custodial correctional institutions?that are responsible for ensuring 'Criminal Justice'. As such, time and text both were significant in conceiving this treatise on Criminal Justice and Human Rights.

The compilations of essays, in this background, also offer extensive deliberations on 'criminal law and human rights', 'criminal justice', and 'human rights enforcement', which would prove useful to Lawyers, Judges, Academics, Human Rights Activists and Administrators.

List of Contributors
A. David Ambrose,
John Samuel,
N.R. Madhava Menon,
B.B. Pande,
K.D. Gaur,
Parmanand Singh,
B.V. Trivedi,
Rajeev Dhavan,
Hans Albrecht,
K.N. Chandrasekharan Pillai,
Ravi Nair

Reviews

 

  • Gujarat Law Reporter: Every Rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both House agree that the rule should not be made, the rule shall thereafter have effect only in such modified from or be of no effect, as the case may be so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

    The Committee proposes to do this, however by eviscerating many fundamental rights guaranteed by the Constitution. The Committee recommends drastic increase in the powers of Judges and the police by altering the fundamental principles of this system. It also suggests to erode the safeguards provided in Evidence Act, 1872. It seeks to move the Indian judicial system from an adversial system to an inquisitorial one. In shutting, adversial system toward an inquisitorial system, modelled on continental European system, the Committee blames the adversial system because it "lacks dynamism" as it has "no lofty ideal to inspire".

  •  
  • The Academy Law : His study shows that there are various limitations for individuals rights in Asian societies than in the West. He has rightly concluded that Asian societies subject individual rights to collective, communitarian and family welfare.

    The book entirely deals with the human rights of the victims of crime. At least in the case of compensation to victims, the legal system should come forward and acknowledge the reality that crimes are committed against the victim and his family and not against the State. Considering this fact, State should change its attitude towards victims of crime and make the compensatory scheme more reachable.

  •  
  • Delhi Law Review: Criminal Justice Administration has a always been a fascinating theme. Even during our childhood days we spent innumerable hours playing criminal police, lockin-lockout and punishing the culprit games, which caught our imagination because the evoked infantile anxienties, fears and joys.

    Criminal law can be defined normatively as something good or desirable, because it functions to prevent or resolve social conflicts between the law-abiders and the law-breakers. It is such conceptualisation of criminal law that is taught in law classes and academies and also believed as a gospel truth by a large bulk of the consumers of criminal law, who unequivocally accept the consensus based criminalisation myth. In contrast to this much better known view, criminal law can also be perceived neutrally, as a set of power resource, which is neither good nor bad.

 


Table Of Contents:
I. Understanding the Rights-Based discourse:
Opportunities and Challenges
                   1. Introduction 1
                   2. Exploring the Human Rights Discourse 2
                   3. Towards a Pluralistic History of Human Rights Discourse 5
                   4. Rhetoric, Politics, Ethics and Praxis of Human Rights 9
                      (A) The Rights Language Turn 9
                      (B) Rights as Politics 14
                      (C) Rights as Ethics 19
                      (D) Rights as Praxis  22

II. Province of the Concept of Human Rights Determined:
A Jurisprudential Overview
                   1. Theoretical Basis for a Balanced Concept of Human Rights 25
                   2. Development of Human Rights Law: A Tilt in the Balance 26 
                   3. Hohfeldian Scheme and Re-Balancing the Concept of Human Right 29
                   4. Concluding Remarks 31 

III. Reflections on the Internationalisation of Penal Law 33
                   1. Penal Internationalisation 33
                   2. Jurisdictional Pluralism 34
                   3. Penal Culture(s) 35
                   4. Enforcement Problems 37
                   5. Penal Institutions In Crisis 38
                   6. Conclusions 40

IV. Symbolic Criminal Law without Limits: A German Perspective 41
                    1. Context  41
                    2. Critique of the Constitutional Court Reasoning 43
                      (A) Freedom rights and the principle of commensurateness 47
                      (B) Delimitation of basic legal principles 45
                      (C)Pseudo-empirical grounding for interpretation of the law 48
                      (D)Normative contradictions and circular logic 51
                      (E)The ignorance of the damaging effects of drug policy 51
                      (F)Crimes without victims - crimes without guilt 54
                      (G)The definition of harm by cumulating of non-harm 55
                      (H)The procedural law solution of de-penalisation 56
                      (I)Continued inequality of law in action 57
                      (J)Flexibility of the definition of ''large quantities'' 
                         for distribution 58
                      (K)Consumer responsibility with alcohol - not with illegal drugs! 58
                      (L)Alcohol not conceived of as a psychoactive substance 59
                   3. The Dissenting Votes 60
                   4. Conclusion 61

V. Human Rights: Asian and Western Perspectives
                   1. Introductory Remarks	 62
                   2. Philosophical Assumptions 64
                   3. North-South/East-West Perspectives 65
                      (A) Socio-economic Rights versus Civil and Political Liberties 65
                      (B) Absolutism versus Relativism: The 'Asian Values' Debate 67
                      (C) The Instrumentality of Democracy 69
                      (D) The Instrumentality of a Free Market Economy 70
                      (E) The Fountains of Freedom 71
                      (F) Human Rights and Religious Restraints 73
                      (G) Individualistic versus Collectivist Notions 74
                      (H) Rights and Duties 75
                      (I) Human Rights or Human Dignity? 75
                      (J) Human Rights and Private Centres of Power 76
                   4. Moral Superiority of the West: Myth or reality? 77
                   5. Concluding Remarks 80

VI. Criminal Justice System in India - Bane of Human Rights
                   1. Introduction 82
                   2. Public Policy Issues 82
                   3. Police Reforms and Human Rights 87
                   4. Secessionist Movements, Terrorism and Human Rights 92
                   5. Summing Up 96 

VII. Human Rights and the Criminal Justice Systems
                   1. Introduction 97
                   2. Human Rights-A Global Concern 97
                   3. Human Rights and Criminal Justice System In India 
                      - A Legislative Paradigm 99
                   4. Conclusion 104

VIII. Human Rights and Criminal Justice Administration in India
                   1. Introduction 105
                   2. Legislative Recognition to Human Rights Principles in India 106
                      (A) Human Rights Measures under the Constitution 106
                      (B) The General and Special Law Measures 106
                   3. Judicial Evolution of Human Rights-Friendly Criminal Justice 
                       Administration 107
                      (A) Limitations on the Power of Arrest 107
                      (B) Ensuring Humane Conditions of Investigations  108
                      (C) Restrictions on Indiscriminate Prosecution and 
                          Fabrication of False Evidence  109
                      (D) New Rationalisation of a Right to Bail 110
                      (E) Limiting Police Remand 111
                      (F) Recognizing a Pre-sentence Hearing Right 112
                      (G) Restitutive Sentencing  112
                   4. Criminal Justice Administration: Human Rights Blind Spots 113
                      (A) Excessive Powers of Arrest 113
                      (B) Taking Citizen's Liberty Lightly 114
                      (C) Sentencing Power sans Guidelines 115
                      (D) Differential Enforcement of Criminal Laws 116 
                   5. Conclusion 116

IX. Human Rights-A Bird's-eye View of the Indian Prespective
                   1. Preliminary Remarks 119
                   2. Universal origin of Human  119
                   3. Concept of Duty and Asian  121
                   4. Struggle for Independence 121
                   5. Fundamental Rights and Directive Principles 122
                   6. Summing up 127

X. Rights of the Accused-Some Reflections on the Legislative Scheme in India
                   1. Introduction 129
                   2. Rights of the accused - Some Reflections 130
                       (A) Right to Life 130 
                       (B) Right to Speedy Trial 131
                       (C) Right to Counsel 132
                       (D) Right to Free Legal Aid 133
                       (E) The Right to a Fair Trial 134
                       (F) Right against Double Jeopardy 134
                       (G) Right against Self-incrimination 135
                       (H) Right against 'Third-degree' Methods 135
                       (I) Right to Fair Treatment 137
                   3. Conclusions 139

XI. Human Rights and Criminal Justice System in India:
A Reflection on their Mutual Contextual Nexus
                   1. Introduction
                   2. Genesis Of Human Rights 141
                   3. Criminal Justice System In India 142
                       (A) Police and Prosecution 142
                       (B) Non-registration of Cases 143
                       (C) Arbitrary Arrest  144
                       (D) Custodial Crimes  144
                       (E) Prisons  145
                       (F) Delay in Disposal of Cases 147
                   4. Current Correctional Philosophy 148
                   5. Human Rights Initiatives in Prisons 148
                   6. Conclusion  150 

XII. The Malimath Committee's Proposals for Reforms in Criminal Justice System in India: A Human Rights Reflection
                   1. Overview 152
                   2. The Pitfalls of the Malimath Committee's Proposed Shift
                      From An Adversarial To Inquisitorial System 154
                       (A) The Danger of the Selective Incorporation of Aspects 
                           of the Inquisitorial system  154
                       (B) Summary of the Recommendations  155
                           (i) Adverse inferences  155
                           (ii) Defence statement  155
                           (iii) Transforming Section 311 156
                           (iv) Standard of proof - inner conviction 156
                           (v) Investigative magistrate 156
                           (vi) Bad character evidence  157
                       (C) Seeking the Truth, or Simply More Convictions?  157
                       (D) The Effect of Removing the Right to Silence 158
                       (E) Delusions of Gender-sensitivity 159
                   3. Conclusion 163

XIII. Looking Back and Forging Ahead: Reflecting on the National Human Rights Commission's (NHRC) Sixth Report (1998-99)
                   1. Five Years in the Life of The Commission 164
                   2. The Complaint Jurisdiction  166
                       (A) The Overall Docket  166
                       (B) Illustrative cases 177
                   3. Human Rights Policies, Promotional Tasks and
                      Socio-Economic Rights 194
                       (A) Policy concerns on Terrorism and State Atrocities 194
                       (B) Social Justice Concerns 196
                       (C) Statutory Reform and Treaties 197
                       (D) Public Education Liaison and Logistic Support  198
                   4.Into the Next Millennium  199

XIV. Protection of Human Rights through Public Interest Litigation in India
                   1. Introduction 200
                   2. The Evolution of PIL  200
                   3. Features of PIL 202
                   4. Governmental lawlessness and repression203
                       (A) Custodial Violence 203
                       (B) Terrorism and Insurgency 206
                       (C) Violence against Women 207
                       (D) Bonded Labour 209
                       (E) Children 210
                   5. Role of National Human Rights Commission (NHRC)212
                       (A) Composition212
                       (B) Functions, Powers and Procedure 212
                       (C) Performance of the NHRC 213
                           (i) Terrorism and Insurgency 213
                           (ii) Custodial Deaths, Rape and Torture213
                           (iii) Systematic Reform: Police, Prisons and other Centres
                                of Detention 214
                           (iv) Handling of Complaints: Illustrative Cases 214
                   6. Concluding Remarks 217

XV. Abuse of Investigatory Powers: 'Policing' the Police in India in Pursuit of Safeguarding Human Rights of Accused in the Criminal Process
                   1. Introduction 219
                   2. The Police and The Use Of Force:
                      The Legal Regime In India-A Paradigm 220
                   3. 'Policing' the Police: Legislative, Judicial 
                       and Institutional Approach 227
                       (A) Legislative Approach: Existing and Proposed 227
                       (B) Protection of Human Rights Act, 1993: A Rights' Institution 232
                       (C) Judicial Approach233
                       (D) Approach of the National Human Rights Commission 237
                   4. 'Police Excesses' & 'Custodial Violence': Accountability Of 
                      The Police 238
                   5. Conclusion 240

XVI. Law of Confession and Right against Torture: Balancing Societal Interest and Individual's Right-Need for Legislative Action
                   1. Introductory Remarks 243
                   2. Human Rights against Torture 244
                   3. Confession 245
                   4. Confession and State Acts 247
                   5. Conclusion and Suggestions 249

XVII. Towards a Human Rights' Friendly Police-A Blueprint
                   1. Introduction 253
                   2. Causes for Popular Dissatisfaction with Police 253
                   3. What can be done and by whom? 254
                       (A) Reforms from Within the Police 254
                       (B) Reforms that the Government has to Undertake 255
                       (C) Reforms which People themselves can Initiate 256
                   4. Conclusion 256

XVIII.The Death Penalty: International and Human Rights Perspectives on the Future of Capital Punishment
                   1. Introduction: The Death Penalty-Ongoing Concerns 257
                   2. The Legal Framework of Imposing and Enforcing the Death Penalty,
                   Political Developments and Empirical Information on Executions 258
                       (A) The Legal Framework of the Death Penalty 258
                       (B) Capital Punishment in Practice 260
                   3. International and European Penal Policies
                      and the Death Penalty 261
                   4. Problems of Threatening, Imposing and Enforcing 
                      the Death Penalty from A Human Rights Perspective 262
                       (A) Introduction 262
                       (B) Equal Treatment, Arbitrariness and the Death Penalty 265
                       (C) The Death Penalty and the Question of Deterrence267
                       (D) The Death Penalty and Public Opinion 268
                       (E) The Imposition of the Death Penalty 
                           and the Right to have a Fair Trial 269
                       (F) The Death Penalty and Possible Errors in Judgment 269
                    5. Summary 270 

XIX. Delayed Execution of Death Sentence in India: A Human Rights-oriented Jurisprudence and Jurists' Prudence
                   1. Sentence Of Death: Legislative and Judicial Policy 272
                   2. Delay In Execution Of Death Sentence as an Extenuating Factor
                   and the Supreme Court in Search of Guiding Principles275
                   3. Concluding Remarks 283

XX. Prison as Punishment-Time for a New Approach?
                    1. Introduction 286
                    2. The Spread of Imprisonment 286
                    3. The Scope of Imprisonment Today2 87
                    4. The Problems Associated with Imprisonment 289
                       (A) Overcrowding 289
                       (B) Infection and Disease 291
                       (C) Human Rights Abuses 291
                       (D) Vulnerable Groups 292
                       (E) Discrimination 293
                    5. International Human Rights Framework 293
                    6. Prison Reforms and The International Standards 295
                    7. Reducing the use of Imprisonment 296
                    8. Reductions in the Prison Population 297
                       (A) Reducing Pre-trial Detention 297
                       (B) Alternatives to Prison 298
                    9. Imprisonment and Development Policy 299
                    10. Restorative Justice 300
                    11. Conclusions 301

XXI. Human Rights, Constitutions and Prisoners: A Global Perspective 302
                    1. Introduction 302
                    2. Prisoners' and Human Rights: A Global Perspective 302
                       (A) Governments constantly emphasise the 'Problem of Crime' 302
                       (B) Prison Populations 303
                       (C) Traditional View: Prisoners do not have Rights 304
                       (D) International Developments 305
                       (E) Changes in Attitudes 306
                    3. Prisoners' Human Rights: A Survey Of 
                      Constitutional Perspectives 307
                       (A) Recent Constitutions 307
                       (B) Some Constitutions of the 1990s 307
                       (C) What Rights might Prisoners Claim? 309
                           (i) Due Process310
                           (ii) Special forms of constraint 310
                           (iii) Physical security of prisoners 311
                           (iv) Access to reading matter 314
                           (v) Voting 314
                           (vi) Access to the media 317
                           (vii) Sex and family life 318
                           (viii) Privacy 318
                           (ix) HIV positive prisoners 319
                           (x) Religious observance320
                           (xi) Consideration for parole 321
                           (xii) Privatisation 321
                           (xiii) Monitoring and complaints 322
                           (xiv) Other rights 323
                    4. Conclusion and Suggestions324

XXII. Human Rights of Prisoners
                    1. Introduction 327
                       The Kirit Ravjibhai Rawal Custodial Death case 327
                    2. The Human Rights Context in Prisons 328
                       (B)Inadequate Provision for Basic Needs 329
                       (C) Torture, Ill-treatment and Repressive Control 329
                       (D) Unequal Treatment and Privileges 330
                    3. Judicial Initiatives in Securing Prisoner's Rights 331
                    4. Conclusion - A Recipe for
                       Prisoners' Human Rights Observance 334

XXIII. Compulsory Hard Prison Labour and the Prisoners' Right to Receive Wages: Constitutional Vires and Judicial Voices
                    1. Introduction 336
                    2. Compulsory Hard Prison Labour and The Indian Penal Code: 
                    3. 'Forced Labour': Constitutional Scheme and Spirit 337
                    4. Compulsory Hard Prison Labour and A Prisoner's Right to
                       Receive Wages: Constitutional Vires And Judicial Voices 339
                       (A) Compulsory Hard Prison Labour: Constitutional Vires 
                           and Judicial Voices 339
                       (B) Prisoners' Right to Receive Wages and the Quantification
                       of Wages: Constitutional Tune and Judicial Tone 342
                           (i) Does a prisoner have the right to claim wages for his labour? 342
                           (ii) Does a prisoner have the right to receive 'reasonable' or 
                           'minimum' wages for his labour?344
                    5. Conclusion 347

XXIV. Justice to Victims of Crime: A Human Rights Approach
                    1. Introduction 350
                    2. Quest for Justice to Victims  of Crime 351
                    3. Compensation to Victims of Crime 352
                       (A)Compensation under the Fatal Accidents Act, 1855 352
                       (B)Compensation under the Motor Vehicles Act, 1988 352
                       (C)Compensation under the Criminal Procedure Code, 1973353
                           (i) Compensation as mitigating factor 355
                              (a) Compensation for murder 355
                               (b) Compensation for sexual assault 356
                       (D) Constitutional Remedy for Human Rights Violations 357
                       (E) Compensation under the Probation of Offenders Act, 1958 359
                    4. Conclusion and Suggestions 360 

XXV. Victim Compensation Law and Criminal Justice: A Plea for a Victim-Orientation in Criminal Justice
                    1. Introduction 362
                    2. Justice for Victims of Crime: A Requirement of Human Rights 363
                    3. Victim Compensation and the Law in India: A Sketch 363
                    4. Victim Compensation Fund - Proposed Paradigm 365
                       (A) The Compensation Board365
                       (B) Computation of Compensation367
                    5. Conclusion 368

XXVI. Justice to Victims of Crime: Emerging Trends and Legislative Models in India 370
                    1. Introduction 370
                    2. Justice to Victims of Crime and The Criminal Law System
                       In India: Legislative Framework 374
                       (A) Compensating Victims of Crime: Existing Legislative 
                           Spirit and 375
                           (i) The Code of Criminal Procedure, 1973 375
                           (ii) The Probation of Offenders Act, 1958 377
                             (a) Recovery and the payment of compensation 378
                             (b) Efficacy of the compensatory scheme: 
                                 Some observations 379
                       (B) Participation of Crime Victims in Criminal Process 380
                   3. Justice To Victims Of Crime And The Criminal Law
                      System In India: Emerging Trends And Legislative Paradigms 381
                      (A) Compensation as an 'additional punishment' under the IPC? 382
                      (B) Comprehensive Statutory & State Obligatory Crime Victim 
                          Compensatory Scheme? 384
                      (C) The Right to seek State Assistance Model? 387
                      (D)  The Crime Victim Participatory in Criminal Process Model? 388
                   4. Concluding Remarks 392

                    SUBJECT INDEX 396

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