Showing posts with label The Code of Criminal Procedure. Show all posts
Showing posts with label The Code of Criminal Procedure. Show all posts

 Introduction 

The legal system of India is based on an extremely important concept “innocent until proven guilty”. This concept simply states that until and unless an accused is proven guilty for committing an offence and is only under an ongoing trial, the accused cannot be termed as a criminal. 

Henceforth, due to this concept, the general citizens and the arrested individuals have been granted certain rights that cannot be seized under any circumstances. In India, the Indian Constitution and the Criminal Procedure Code provide certain rights to the arrested individuals. 

Rights of an Arrested Person guaranteed under The Constitution of India, 1949 and The Code of Criminal Procedure, 1973

  1. Right to know the grounds of arrest

Section 50(1) of the Code of Criminal Procedure, 1973 (Crpc) deals with the right to know the grounds of arrest. 

If a subordinate officer makes an arrest under Section 55 of the Code of Criminal Procedure, 1973 (Crpc) then before arresting that officer must show the accused a written Order. The Order must have in writing that the senior officer of the subordinate officer has designated him to do so. If the subordinate officer does not show such written Order to the accused then the arrest is termed “illegal”. 

Under Section 75 of the Code of Criminal Procedure, 1973 (Crpc), if an arrest is made after the issue of a warrant then also it is a mandate for the officer arresting to inform the accused of his grounds of arrest. 

  1. Right to silence and right against self-incrimination. 

It is the duty of the police officers to ask questions to the arrested accused. However, it is at the discretion of the accused whether to answer or not answer such questions. The arrested accused has a right to remain silent and not answer the questions asked by the police authorities. The silence of the accused cannot be used against him either by the prosecution or by the police official. As per the right against self-incrimination mentioned under Article 20(3) of the Constitution of India, 1949, it cannot be stated that the accused is silent because he is guilty. 

  1. Right to be released on bail 

If an individual is arrested for a bailable offence then it is the duty of the police to inform him about his right to be released on bail. Here, Section 50(2) of the Code of Criminal Procedure, 1973 (Crpc) deals with the information regarding the right to be released on bail. 

  1. Right to be taken before a Magistrate without delay

Under Section 56 and Section 76 of the Code of Criminal Procedure, 1973 (Crpc), if an arrest is made either with a warrant or without a warrant, it is the duty of the police officer to produce the arrested person in front of the judicial officer without any unnecessary delay. 

  1. Right not to be detained for more than 24 hours

According to Section 57 and Section 70 of the Code of Criminal Procedure, 1973 (Crpc), no police officer has the authority to detain an arrested individual for more than 24hours without judicial scrutiny. It is the right of an arrested accused to be produced before the Magistrate within 24 hours of arrest. 

  1. Right to free legal aid

Under Section 41D and Section 303 of the Code of Criminal Procedure, 1973, free legal aid is provided to an accused individual who is incapable of paying legal fees. Such free legal aid is provided by the Legal Services Authority. But a condition imposed is that this legal aid can only be given before the initiation of a trial. 

  1. Right to hire a legal practitioner 

Article 22(1) of the Constitution of India, 1949 provides the arrested accused a right to hire a legal practitioner of choice.

  1. Right to a fair and speedy trial 

Article 21 of the Constitution of India, 1949 guarantees the right to a fair and speedy trial. This provision was created to prevent the secret release of a Conviction Order of any accused. Here, a speedy trial refers to an offence whose maximum punishment is 2 years. In such offences, police have a duty to complete the investigation within 6 months of the offence.

  1. Right to be examined medically 

If an arrested individual makes a request to be examined medically then under Section 54 of the Code of Criminal Procedure, 1973 he has the right to be examined medically. 

Conclusion

Hence, the phrase “Innocent until proven guilty”, makes it very evident that in India the burden of proof to prove any allegation lies upon the prosecution. Until and unless, an accused is proved guilty, he or she cannot be considered a criminal. An accused person is an entity who has been alleged to have committed an offense. Our Indian Constitution and CrPC provide certain rights to an arrested person that cannot be taken away. 

This article discusses the most important rights provided to the arrested persons and the duties of a police officer that has to be kept in mind while making an arrest.

References 






The article is written by Sneha Mahawar, a  law student at Ramaiah Institute of Legal Studies. This article discusses the rights of an individual when he is arrested, the procedure of making an arrest, and the duties of a police officer in an arrest. 

 INTRODUCTION:

The right to liberty, a fundamental right provides us the right to ask for bail. Anticipatory bail means seeking a temporary bail in anticipation of an arrest on the accusation of a non-bailable offense having committed by him and is mentioned under section 438 of the Code of Criminal Procedure (CrPC). It was recommended by the Law Commission of India in its 41st report. 

The report said “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days… Apart from false cases, where there are reasonable grounds for holding that a person accused of an offense is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him to first to submit to custody, remain in prison for some days and then apply for bail.” [1] In this article, I will be talking about section 438 of CrPC. I will also discuss the procedure to file an anticipatory bail, factors, refusal, and some important case laws of anticipatory bail.

SECTION 438 OF CrPC:

The provision of anticipatory bail was brought into power as a tool to keep a check on the gross misuse of the power of arrest. Section 438(1) of CrPC reads “When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offense, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail.” [2]

Contrary to ordinary bail, anticipatory bail gives the authority to a person to seek bail and be released even before the arrest is made. In Gurbaksh Singh Sibia and the Ors v/s State of Punjab, the hon’ble Supreme Court Constitution Bench led by the then Chief Justice Y.V. Chandrachud ruled out the scope of the power of the judiciary to make legal decisions on their discretion in the matter of anticipatory bail and also emphasized on its importance. Hence it was observed that “It may perhaps be right to describe the power (of anticipatory bail) as of an extraordinary character. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise.” [3]

PROCEDURE:

First, the concerned police officer is approached by the public prosecutor. The public Prosecutor will talk with the police officer and if there is no F.I.R. (First Information Report) filed, the prosecutor will be convinced that there is no need for anticipatory bail. Hence, the judge will also support the following statement made by the public prosecutor and will verbally ask the particular lawyer to withdraw the anticipatory bail. The lawyer will make an oral prayer to his/her client for seven days pre-arrest notice. If the bail application is rejected in Sessions Court, a person can apply for the same in High Court. If the bail is rejected in High Court, it can be further applied to the Supreme Court. If an F.I.R. is filed against a person, the investigating officer will send a notice of arrest. As soon as one receives the notice, he/she should apply for the anticipatory bail following the same procedure as mentioned above.

FACTORS:

The Hon’ble Supreme Court has laid down a detailed and exhaustive list of factors that are to be kept in mind while granting anticipatory bail. These factors are as follows:
· Severity and nature of the accusation and also the role of the accused must be clear and easy to comprehend.
· Possibility of the applicant absconding from the processes of law.
· The possibility that the accused can repeat the same or similar and other offenses.
· Cases where the main objective of accusing the other person is injuring or humiliating the accused.
· In high magnitude cases, granting of anticipatory bail can impact a large number of people.
· There can be the possibility of the accused tampering with the evidence or threatening the complainant.
· Frivolity in prosecution should always be considered.
· Cases require custodial interrogation.

REFUSAL:

There are certain criteria which if the concerned case fulfills, can be the ground for refusing to grant bail. These are:
· The court looks at whether there is any possibility of the applicant absconding in the event of granting the bail. If there prevails even the slightest possibility of this happening, the court can refuse to grant the bail.
· The applicant previously undergone imprisonment on conviction in any cognizable offense can be the ground of refusal.
· When a case for an affordable declares to steady incriminating material.
· If it comes into the view of the court that there are chances that the applicant might influence the investigation of the case to his advantage, the court can refuse the bail.
· If the prima facie case with which the applicant has been charged can be made out.

CASE LAWS:

· Sri H D Kumarswamy vs. State of Karnataka [4] – In this particular case, the court granted interim anticipatory bail and directed the Lokayuktha Police to release the petitioner.
· Siddharam Satlingappa Mhetre vs. State of Maharashtra [5] – In this case, an application was submitted by Mr. Bhushan stating that the appellant has been falsely incriminated and also that he was not likely to abscond and he has already joined the investigation. He also stated that his client was not likely to misuse his liberty while on bail. Hence, there was no ground to decline the bail request by the appellant.
· Suresh Vasudev vs. State [6] – In the case mentioned, it was observed that section 438(1) of CrPC applies only to the non-bailable offences. It was found that the section itself especially prescribes that any order passed under this section would be effective only after the person concerned has been arrested.
· Case of re Digendra Sarkar [7] – In the following case, it was held that anticipatory bail can be granted when there is no “First Information Report” and there is no case registered of non-bailable offense against the accused.

CONCLUSION:

Section 438 is a provision that is concerned with the fundamental right of personal liberty of an individual. This section is entitled to the benefit of the innocent who in anticipation of an arrest can seek bail. Yes, this section can be seen as a boon in the cases where either a person is falsely accused of the crime or where the accused person will follow all the criteria of the bail and will help the court and the authorities to do their job. In short, anticipatory bail acts as a protective shield for the innocent to protect themselves and their personal liberty as mentioned under article 21 of the Indian Constitution.

FOOTNOTES

1. Law Commission Report No. 41- The Code of Criminal Procedure,1898 (Vol. 1)
2. THE CODE OF CRIMINAL PROCEDURE, 1973
3. 1980 AIR 1632, 1980 SCR (3) 383
4. 2020 SCC OnLine Kar 2285
5. (2011) 1 SCC (Cri) 514
6. 1978 CriLJ 677
7. 1982 Cri LJ 2197 at p. 2199 (Cal): 1982 (2) Cal HN 317
Image Source
Author: Ananya Tewari

































 Introduction

The laws of our country, India is an extremely wide concept. There are more than 1200 laws in our nation. According to the National Crime Bureau’s (NCB’s) 2018 report, there were more than 50,00,000 lakh criminal cases filed in the year preceding the reporting year. 
In such a scenario it is of utmost importance to know about the penal laws and the procedure of implementing them. Both IPC and CrPC are an indispensable and integral part of India’s criminal justice system.

Classification of Laws

All Indian laws can be classified into two major types namely, substantive laws and procedural laws. Substantive laws define the offence and prescribe the punishment awarded for such offences, whereas, procedural laws implement the substantive laws and which machineries to be followed for the purpose. In the absence of procedural laws, substantive law is of no meaning because it does not deter and without the deterrent effect, empty threats and punishments have no justification.

Indian Penal Code (IPC)

In the year 1834, India’s 1st Law Commission was appointed which was chaired by Lord Thomas Babington Macaulay and four other members. The commission was assigned three major tasks, namely,
→ Codification of India’s penal laws.
→ Defining laws for individuals who were neither Hindus nor Muslims.
→ Codification of civil and criminal procedural laws.

The Law Commission prepared a draft penal code in 1837 which was implemented in 1860 after proper review and analysis. The Indian Penal Code, 1860 mainly drafted by LordThomas Babington Macaulay and due to this reason it is also known as “Macaulay’s Code”.

Criminal Procedure Code (CrPC)

Criminal Procedure Code (CrPC) is considered as the main legislation which prescribes the procedure for criminal law implementation in India. It prescribes the procedure relating to detection of crime, apprehension of a suspected criminal, collection of evidence, determination of guilt or innocence of the suspect, imposing suitable punishment on the guilty.

In the ancient days, East India Company did not have their own courts, every ruler had its own justice system and every province had their own court. But after the revolt of 1857, the British Crown took the administration into its own hand. Thereafter, the British Parliament passed and enacted the Criminal Procedure Code, 1861 with the purpose of establishing a uniform criminal procedure for the entire country.

In 1955, the 1st Law Commission was set up of independent India which was chaired by M. C. Setalvad. This commission studied the CrPC thoroughly and submitted a report in 1969 which contained various recommendations and suggestions that were incorporated in the Criminal Procedure Code, 1973 and came into force on 1st April 1974. While the draft was prepared which contained the recommendations and suggestions, three major points were taken into consideration, namely,
→ Every accused shall get a fair trial in accordance with the principles of natural justice.
→ Every effort shall be made to avoid unnecessary delay in investigation and trial.
→ The entire procedure shall not be complicated, and every section of the community shall be able to understand such procedure formulated.

IPC vs. CrPC

Indian Penal Code (IPC) is a substantive law as it contains the definition of all the offences, essential ingredients of an offence to be called an offence, and the punishment to be awarded for all such offences. Thus, whenever there is a commission of an offence, the police authorities use the IPC to prepare the charge sheet.

All the process after preparation of a charge sheet is procedural in nature and part of Criminal Procedure Code (CrPC). The after-work like when can the offender be granted bail, when can the offender apply for bail, collection of evidence, investigation procedure, trial procedure, production before a magistrate, etc.

INDIAN PENAL CODE

CRIMINAL PROCEDURE CODE

IPC is a substantive law.

CrPc is procedural law.

IPC was enacted in 1860.

CrPC was enacted in 1973

IPC contains 511 sections and 23 chapters. 

CrPC contains 484 sections, 2 schedules, 56 forms, and 37 chapters. 

IPC defines offences and prescribes punishments for such offences. 

CrPC deals with the procedure of investigation, interrogation, evidence collection, arrest, trial, bail, etc. 

Conclusion

Hence, both the Indian Penal Code and Criminal Procedure Code are an integral part of our criminal justice system. Either of them has no meaning and justification in the absence of others. Moreover, both laws help in removing evils from society and protect society from lawbreakers and criminal offenders. Lastly, the Indian criminal justice system runs majorly on these two legislations.

References

https://legodesk.com/legopedia/difference-between-ipc-and crpc/#:~:text=The%20IPC%20provides%20a%20substantive,for%20each%20one%20of%20them.&text=The%20primary%20goal%20of%20CrPC,Criminal%20Procedure%20is%20procedural%20law
https://keydifferences.com/difference-between-indian-penal-code-ipc-and-criminal-procedure-code-crpc.html
https://enhelion.com/blogs/2020/08/01/what-is-the-difference-between-ipc-and-crpc/
Image Source
Author: Sneha Mahawar, Ramaiah Institute of Legal Studies.

 PROBATION

As we know, there are different types of punishment theories used to punish the offenders. But "RETRIBUTIVE THEORY" is a famous one during ancient times. Retributive Theory is a type of theory in which the offenders are treated in the same way as victims. For example, A convicted of throwing acid into the face of B, which results in blinding her. according to retributive theory, A should be blinded for his punishment. But in modern time there is a new theory comes forward "REFORMATIVE THEORY" according to this theory crime should be finished not the criminals. This theory follows a principle of reforms. One should get a chance to reform himself into a good human being. PROBATION is based on this theory.
Probation is a testing period or says a time period in which a person who has committed a crime for the first or low nature of crime has to obey the law and to be supervised under a probation officer rather than being in a jail or prison. The condition is to obey the rules under probation bond or on a promise of good behaviour. Mainly this concept is organized to reform the criminals because when a person/young offenders committed a crime and sent to jail he will be imprisoned with hardened criminals with which offenders may become aggressive or say when a person imprisoned society will never accept a criminal and there will be no chance or very less chance to reform themselves into a good citizen. For this purpose probation is uniformed to reform the offenders. If you commit a crime that is not a grave offense then the court before deciding a quantum of a sentence with a warning and rules release you on a probation period under the supervision of the probation officer.
 
Once said by Mahatma Gandhi, HATE THE CRIME, NOT THE CRIMINALS. Why? Because a person is not a born criminal, due to the influences or behavior of the society with any type of discrimination like poverty, insanity, lower costs, etc. a mind of a person affected on a very serious note, and due to these circumstances arises where a person becomes a criminal for revenge or say to fit in society. Hence, we need to hate the crime or remove the crime from society, not a criminal.

Probation is derived from Latin word Probate, which means to prove or to test. "JOHN AUGUSTUS" is known as a father of probation. Or in other words, John Augustus developed the word probation. Which is organized for the purpose to prove or test a young offender, when a young offender committed to jail he/she end up living with hardened criminals in jail which may provoke them to do something more grave through which the life of a young person becomes miserable or went downhill due to which he/she might never try to be a good person in a society. Probation helps those young offenders or a person who commits a less grave crime to be a good person.

LAWS WHICH GOVERN PROBATION IN INDIA

1. CRIMINAL PROCEDURE CODE, 1973

Before amendment section 562 of criminal procedure code, 1898 deals with probation but after amendment section 360 of Cr.P.C., 1973. It is defined that, "when a person under the age 21 years is convicted for an offense punishable with fine or with imprisonment for a term of 7 years or less or women or a person under the age of 21 years not punishable with death or imprisonment for life and they have not been convicted before then the offender should be released on probation for good conduct with entering in a probation bond which includes rules to obey with or without sureties. any person who convicted for theft, theft in a building, or an offense punishable with not more than 2 years imprisonment or any offense with a fine only" can be released on probation. Or if the court thinks fit, has insanity or unsoundness or any other reason feels to release the offender on probation. Under section 361 of Cr.P.C.,1973 it is mandatory for a judge to record a reason for not giving probation to an offender under section 360 of Cr.P.C.

2. PROBATION OF OFFENDERS ACT, 1958

Under section 13 of this act probation officer appointed by the state government or any exceptional case, any other person with the opinion of the court is fit to act as a probation officer. Section 6 of the probation of offenders act, 1958 the judge has to give a reason as to why probation is not granted to the offender below the age of 21 years.

If a offender released on probation under the supervision of a probation officer with some rules which he has to follow if not, the probation officer reports the same to the court, and a warrant has been issued against the offender to convict him.

ESSENTIALS OF GRANTING PROBATION:

1) While granting probation court should keep in mind that the offender is not a habitual offender. Habitual offenders are those who have a habit to commit a crime or who have a conviction history, they don't get probation.

2) While granting probation court should know the nature of the offense. If the offense is of such nature that its punishment is more than 7 years or say a capital punishment or imprisonment for life, then the court will not grant probation to the offender.

3)  While granting probation character of the offender also considered an essential point. If the character of the offender is bad in the society that he is of aggressive nature, violent, abusive then the court will not grant probation to such offender.

4) While granting probation circumstances of the case is also an essential view. It is non-avoidable to know in which circumstances the offender commits the crime. Suppose the offender commits theft for his need or necessity then he can be released on probation but on the other hand, he robbed a bank then it is not considered under necessity he will not get probation.

CONDITIONS OF PROBATION

There is a time scheduled for an offender who released on probation, on which he has to meet the probation officer on the violation of which the probation can be canceled. Submitting to random drug testing if he/she using any kind of drugs or intoxicated materials the probation can be canceled and a conviction order can be issued against the offender. The offender has to avoid places on which generally criminals present.

TYPES OF PROBATION

Firstly, supervised probation is probation in which the offender is supervised by a probationer officer on the regular basis. Secondly, unsupervised probation is probation under which the offender is free from direct supervision of the probation officer but the offender should obey the probation bond/rules. 
Thirdly, community control probation is a type of probation under which if an offender wants to go outside for school, meeting, etc. is allowed with a tracking device wraped on the offender's ankle to trach the offender.

PAROLE

You may have heard this word before so many times from someone that "I am out on parole" or "he is on parole" but you may don't know what exactly parole is. Parole is a temporary release of prisoners who agree to follow some conditions, it is a kind of option for prisoners based on good behavior.

Parole is also a reformative theory which gives chance to prisoners to reform themselves into a good person. Parole is effective for prisoners because after getting parole they think positively about the law system and try to reform themselves for more opportunities to get out of jail. Sometimes prisoners after getting parole and watch the condition of their family think positive and keep in mind not to do any time of offense gain.
Parole is originated from the French word "Je donna ma parole" which means I give my word. In the previous time, there was a concept of the release of a person from a person who promises to return after a fixed time. It is a kind of parole. A parolee is a person released on parole.

The main objective of parole is to decrease the burden on prisons, there are so many prisoners in jail that it becomes difficult for officials to manage them. There is a ticket of leave concept which gives freedoms to the good prisoner. After that, there is a point when the court thinks that there must be a parole system in the justice system like if there is a prisoner with good behavior in the jail then he can be released on parole which can be beneficial for the prisoners to make their good image in the society. It is a type of reward for them to correct themselves.

Parole is used as a correctional process. There is no hard and fast rule in India to grant parole it is totally an administrative action. It also results in no. of prisoners in jail because due to this reward most of the prisoners try to reform them into useful persons for society or to develop their value or image in the society. There are no. theories that support the concept of parole like grace, contract, custody, exhausted rights theories.

KINDS OF PAROLE:

I. CUSTODY PAROLE

Custody parole is generally granted for a specific period and in specific circumstances which is very important for prisoners to make contact with their families or society. As you can see in the name of this parole it is a kind of custody where a prisoner be released for some time and after the completion of what prisoner bring back to prison by a police officer. There are some circumstances where custody parole granted.:
a) If there is a death of any of the family members of the prisoner and he is in prison then he shall be released on custody parole. Suppose the prisoner is the only child of the dead person then the prisoner will be released on parole for some time. As we know it is a right of a dead person to get a peaceful buriel hence, it is an important role of custody parole to do so. It is not important that if he/she the only child then he/she gets parole it is the right of a prisoner to get parole if there is a death of their family member.
b) Marriage or family member, if there is a marriage in the family of the prisoner and their presence is important then the prisoner can be released on parole.
c) Serious illness of family member, if there is someone in the family of prisoner seriously ill and there is no one except prisoner to take care of them then the offender can be released on parole.
d) Any other situation where the presence of a prisoner is important or necessary.
Under custody parole, a prisoner is surrounded by police officers for the parole period, and when the period over the prisoner sent back to the prison by a police officer.

II. REGULAR PAROLE

Regular parole is parole under which a prisoner released on parole on the basis of terms and conditions prescribed. A parolee has to follow the rules prescribed accordingly on the violation of which can result in cancel of parole and further conviction.

There are no police officers with parolees under regular parole like custody parole. Prisoners released on trust that they will follow the guidelines or rules accordingly. It is at the discretion of the authority to grant this type of parole on good behavior. There are some grounds on which regular parole granted:-
a. Serious illness of a family member of the prisoner.
b. Marriage of any family member of the prisoner then he can get regular parole.
c. Delivery of the child of a wife of a prisoner and there is no one to take care of her then he can be released on regular parole.
d. Serious damage to the family or property of the offender or of a family member then he can be released on regular parole.

There are some rules defined for parolee like, if a prisoner released on regular parole, parolee can not marry someone, parolee can not go to bar or clubs for enjoyment because drugs and intoxication items can not be used by a parolee, parolee can not go outside after sunset and parolee is not allowed to leave the state or the city or country without prior permission.

DIFFERENCE BETWEEN PAROLE AND PROBATION. Probation is granted to an offender before the court decides the quantum of the sentence. Or in other words, probation is granted to an offender when he/she is not convicted.
Whereas, parole is granted when an offender is already in the prison.
B. Parole can be temporary or permanent.
Probation is permanent until the offender does something against the probation bond
C. Probation is a suspension of sentence of an offender to give them a chance to live in society and reform them into useful person Parole is a release of a prisoner before the expiry of sentence to serve a better time in society.
D. Probation is another way of jail because the offender is released but under the supervision of a probation officer. Parole is a type of conditional release from prison because once the period over prisoners needs to come back to prison.
E. Probation is granted by the court; Parole is granted by a parole board.
Hence, probation and parole both are important for our law system to reform prisoners and offenders into useful persons or to make/develop a better country.
Image Source
Author: HITAKSHI MAGGO, FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY


 Introduction

A very prominent jurist William Blackstone said: “Better that ten guilty persons escape than that one innocent suffer.” The term ‘Wrongful Conviction’ refers to the state of being proved guilty. It is a judgment of guilt in a court of law. An individual can be wrongfully convicted due to a lot of reasons such as false confessions, eyewitness misidentification, improper forensics, etc. The only way by which these victims are released is via DNA exonerations. In the last few years, the rate of wrongful conviction has increased gradually.
                                                 
As per the studies it is stated that after an individual who was wrongfully convicted is released that individual suffers a great deal. He is a victim who faces a psychological, financial, emotional, social crisis. It also greatly affects his lifestyle as he has uncountable sleepless nights, haunting nightmares, anxiety, mistrust, etc. Most of the victims of wrongful confinement suffer from Post-Traumatic Stress Disorder (PTSD).

I personally feel that after an individual is wrongfully convicted that individual loses faith in the system of justice and is more prone to perform crimes. The convict is psychologically ill until proper care is taken off. But even after the convicted is released his life can never go back to normal as he will be haunted by the dreadful terrors of prison which he had to face without any fault on his part.
Reasons for Wrongful Conviction

False Confessions

Many big politicians, businessmen, etc. pay out a huge amount of cheques to the witnesses for making a false statement and hide the truth. Such false confessions result in the wrongful conviction of an individual whose entire life is brought to ashes.

Eyewitness Misidentification

Sometimes the eyewitnesses present at the spot of crime misidentify the criminal as someone else and the wrong individual is convicted. The eyewitnesses can not always be trusted as human memory can take leaps and at the same time functions wrongfully as well.

Improper Forensics

The forensics report can be tampered with or even sometimes the reports are not accurate enough which leads to wrongful confinement of the non-crime committer. The forensics reports are of utmost importance and if they have tampered then the future of the accused is doomed.

Remedy

The only remedy available to the victims of wrongful conviction is that the judiciary grants monetary compensation or damages to the victims under Article 32 of the Constitution of India, 1949 and Article 226 of the Constitution of India, 1949. This is the reason these two articles are considered as the heart of our Indian Constitution without which thousands of individuals would suffer as their fundamental rights would have encroached.

Case Laws

Rudul Shah vs. State of Bihar, 1983

In this case, the petitioner, Rudul Shah was illegally imprisoned for 14 years. A writ of habeas corpus was filed demanding his immediate release. The Supreme Court held that if by the wrongful act of the state any right of an individual is violated, then that individual will receive compensation and be granted a compensation of Rs. 30,000/-.

Ram Lakhan vs. the State of UP

In this case, the petitioner, Ram Lakhan was illegally imprisoned for 11 days and fought a legal battle for 10 years. A writ was filed for compensation. The Supreme Court ordered a compensation amount of Rs.15 lakhs to the petitioner who fought a prolonged legal battle for ten years and also spent 11 days in jail.

S. Nambi Narayanan vs. State of Kerala

In this case, an ISRO scientist was wrongfully accused of espionage. After a long legal battle of 24 years, the Supreme Court awarded Rs. 50 lakh as compensation to him. The fact that restitution was granted 24 years post the wrongful conviction significantly reminds the need to ‘rectify wrongdoings promptly’.

Conclusion

Hence, a proper and more systematic system of justice shall be created so that no innocent individual shall suffer wrongfully. Moreover, a proper compensation policy for victims of wrongful confinement shall also be formulated. There is a need for a uniform compensation legislative framework. Wrongful conviction not only affects the victim but also his family, and even after the convict’s release no amount of compensation can bring him the time, reputation, respect, etc. he has lost to his family and friends. Thus, before convicting an individual all the aspects shall be rechecked so that no individual’s future and life are doomed.

References

https://innocenceproject.org/causes-wrongful-conviction./
https://www.lawctopus.com/academike/the-lost-right-to-compensation-of-wrongfully-convicted-victims-a-critique/#:~:text=Over%20the%20last%20few%20years,%2C78%2C600
https://eji.org/issues/wrongful-convictions/
Image Source
Author: Sneha Mahawar, a law student at Ramaiah Institute of Legal Studies.


INTRODUCTION

This research will address arguments for and against the use of the Death Penalty. This study will be a library and internet-based using both primary and secondary evidence that it will give a clear understanding. 
Some of the arguments against capital punishment are a miscarriage of justice and its cost. Capital punishment has been used as any other normal punishment in countries that are still using it. They have adopted it to be part of their own culture or their traditional way of punishing criminals. Capital Punishment has been long debated for a long period and they are International conventions that have been protesting against the use of Capital Punishment such as the American Civil Liberties Union, Amnesty International etc. Some scholars who have done this research before argued that the use of capital punishment since BC till the present day was being influenced by religion, political interests and culture. 

Capital Punishment is questioned as an immoral act but on the other hand, some scholars argued that execution of one murderer is better than risking lives of many people in the society who will end up being his victims. This study also be looking on when Capital Punishment was introduced in the. The research study will also be looking into the rarest of rare cases a principle based on Capital Punishment criteria which Indian Courts used to distinguish crimes that deserve Capital Punishment.

In Bachan Singh vs State of Punjab (1980) (2 SCC 684) the Constitution hence of Supreme Court of India propounded that Capital Punishment can be imposed only on the rarest of rare cases. This principle is not applicable in other countries like Saudi Arabia, UAE and USA. They have certain cases that they give death penalty for. Back in the day in USA, there were conflicting questions on which crimes were deemed suitable for the death penalty.

Even though the Americans put crimes in the same category as the British, such as murder there was roughly any argument that execution was the right punishment for them (Banner 2002). This study will add to existing information on death penalty and help us understand arguments raised for and against the use of death penalty. All doubts will be cleared without bias after we reach a balanced conclusion on this research work.

As we all know, Capital Punishment has been a debatable question for a long time and it has been in use since 18th century B.C. However, this practice has been seen a total evil as humans have the right to live and this act has been seen as a violation of (Article 21 of the India Constitution) whereas, other countries have been seeing Capital Punishment as an effective way of reducing serious crimes like murder etc in the country by instilling fear in people through the use of this method.

ARGUMENTS AGAINST THE USE OF CAPITAL PUNISHMENT

1. Value for human life 

We all know that human life is rated as the most valuable and l support that statement to a greater extent. Even those that are against the death penalty supports the point too. They acknowledge the fact that human life is so precious that even wickedest criminals like murderers’ rights to live should not be violated.

According to scholarly views on the value of life when it comes to Capital Punishment, a criminal’s life cannot be destroyed by the criminal’s wretched behaviour, even if they commit murder or capital crimes. However, others who are against Capital Punishment don’t stretch their points that far because they only go against Capital punishment when people are being executed for crimes like adultery that are not so serious like murder. They believe that life should be conserved except for crimes that cannot be given an exception to. Those in support of Capital Punishment should give an explanation for their actions.

2. Right to live

A protestation is that a human can deprive human rights and that murderers deprive their right to live and life. Article 28 of the UAE Constitution procures the guilty shall be assumed innocent until substantiated innocent in a lawful and decent trial[1] This article safeguards the people so that the innocent doesn’t get to be executed for crimes they did not commit.

A protestation is that a human can deprive human rights and that murderers deprive their right to live and life. Article 28 of the UAE Constitution furnishes that an offender shall be assumed virtuous until substantiated guilty in a legal and decent trial.[2]
This article safeguards the people so that the innocent doesn’t get to be executed for crimes they did not commit this. In other words, it preserves the right to live to the innocent since a fair trial is done equally without bias. For Saudi Arabia, the state protects human rights in accordance with Shariah according to articles l have read.
Aristotle illiterates that an evil man is way more dangerous and harmful than any other scariest animal on the planet. In the same line of point of view, Thomas Aquinas propounded that Capital Punishment and its laws made killing which is a wrong deed into something that is right as a way of paying back the evil deed done by the criminal who would have committed murder or a capital crime. 

3. Execution of the innocent

The utmost conventional and biggest potent disputation against the death penalty is that eventually, innocent people will become victims and yet they will be on the death row because of misjudgements and blunders that are in the justice system. People make mistakes, even lawyers and jurors they not always right.

A witness can end up pointing at the wrong person and that person will end up being executed for a crime he did not commit. When this is fastened with the deformities in the justice system it becomes unavoidable that innocent people will be convicted and executed for capital crimes they didn’t commit. Where the death penalty is practised such blunders will never be made right and the family of the victim will have the justice system to blame. Capital Punishment adopted an irrevocable action by the state and it will take more lives of innocent people.

Presuming the human rights system remains flawed the danger of executing innocent victims will not the least bit be removed.[3] According to Amnesty statistics approximately 130 people sentenced by death penalty from 1973 in the USA have been said to be innocent and they have been released from death row after their innocence was proven to the courts of law.

This problem and the debate on the ground is not against capital punishment per se, but its merely disregarding the way it is applied. Some of the nations, for example, the USA and Saudi Arabia have executed people who were verified to be mentally ill. It's predominantly acknowledged that people should not be sentenced for their conduct except if they have a guilty mind, which stipulates them to b aware of what they are doing and knowing that it’s not right.

Hence people who are mentally ill should not be imprisoned, not to mention being executed. This does not defend against mentally ill people who have committed atrocities or felonies from being restricted in safe mental hospitals or organisations. It is an act to safeguard to public and citizens or the nation for safety reasons and not to sentence the deranged person to a punishment.

Moreover, it is not right to enforce the death penalty on those who have at best low capacity for doing things with their own will and for principled influence. An argumentative debate which is more difficult for moral dilemma arises in the situation whereby the criminal who was mentally stable at the time they committed a crime and during the trial but later on develops signs of being mentally ill before the execution.

4. Retribution and the innocent

The subject matter of the execution of people who are not guilty is a hindrance for the retribution controversy. if there is an introspective stern of executing victims who are not guilty then one of the main objectives of retribution that people should get what they deserve like if you kill you deserve to be killed too is defiled by the contemporary imposition of the death penalty in all nations where flaws have taken its vicinity.

Some intellectuals argue that the death penalty is not certainly inherited as retribution for murder, as well as incessantly for a peculiar type of murder. They propounded that, in America as a conservative estimate, solitarily a few of murderers are verily executed, and that impeachment of the death penalty on a haphazardly nominated indeterminate a few of criminals do not sum up to an embodiment of coordination of retribution. In as much as the death penalty is not used retributively, it is not right to use retribution to simplify the death penalty.

This assertion would have no practicality or utility in a community that implemented Capital Punishment frequently for differs kinds of murder.

Scholars who support the concept of retribution oppose the use of the death penalty because they have a belief that capital punishment fends for inadequate retribution. They debate that life imprisonment devoid of the feasibility of bail or discharge or release conditionally inflict too much pain and agony to the criminal than an ache-less death subsequent to a short jail term he would have saved.

An addition example, for a terrorist who plans a suicide bombing death penalty, will end up making that person a martyr, this will be inferior retribution than being sentenced to life in imprisonment without any hope to be exonerated.

It is contemplated that retribution is implied in a specific way in the case of Capital Punishment. Offences besides murder are not awarded punishments that illustrates the crime. Taking, for instance, rapists are not disciplined by sexual assault and guilty criminals of assault are not publicly beaten up.

According to Camus and Dostoevsky[4], they pinpointed that the retribution in the scenario of the death penalty was not equal because the preemptive pain and agony of the offender before execution would possibly override the preemptive agony of the offender of the crime.

However, some scholars illustrated that the retribution debate is mistaken because Capital punishment inflicts multiple punishments. This, the execution and the preceding are put on hold and this is an incompatibility to the crime.
Several criminals are held awaiting on death row for a very extended long time. American the standard time waiting approximately around 10 years.[5]

In countries like Japan, the criminals are only filled in information about their execution instants beforehand it is planned. The upshot of this is that every single day of their life is survived as if it’s their last.

5. Brutalising the law, state and individuals

Statistical data shows that Capital punishment leads to atrocities in society and an increment in the murder rate cases. In America, a lot of murder takes place in States where the death penalty is still being practised there. Around 2010, the murder rate in the states where capital punishment has been banned was approximately 4.01% per 100,000 residents. In states wherein Capital Punishment is still in action, the rate was 5.00%.

These estimates are in relation to the statistics from the FBI. The void between Capital punishment in the states that are still using it and states that have abolished it rose extensively from 4%[6] Violent people may be infuriated and consequently more prone to commit murder or capital crimes. The death penalty is implied to generate a distasteful connection between the law and chaos.

Nevertheless, in numerous ways the statute is necessarily correlated with violence, it redresses violent crimes by using punishments that deprive and restrict humans of their freedom. Profoundly the law always pertains with commotion in that its purpose includes protecting a systematic society from tragic incidents. Regardless, an intense case can be formulated that lawful uproar is totally incompatible from the unlawful commotion and that when it is utilised, it is employed in a manner that everyone can catch a glimpse of its reasonable and practical way.

Death Penalty may corrupt the community in an unusual and actual crucial way, one that has significances for the commonwealth's liaison with all residents.

6. People are not responsible for their acts

This is not a contention against the death penalty itself, but against correlating it inaccurately. It's naturally acknowledged that humans should not be castigated for their own acts otherwise if they carry a guilty mind which compels them to recognise what they are committing and that it's heinous.

Hence people who are not mentally stable should not be sentenced, not to mention being executed. This doesn't preclude absurd people who harbour horrible things being constrained in protected mental organisations. This is achieved for community insurance, not to chastise the insane criminals.

Furthermore, it is wrong to inflict the death penalty on those who have at adequately a frontier ability for consideration and for ethical implement. An additional complicated ethical dilemma occurs in the lawsuit of criminals who occurred sane at the period of their offence and prosecution but who formulate indications of lunacy before undergoing execution.

7. Death penalty unnecessary

This is certainly more of a political assertion than a moral one. It is established on the political precept that a nation should fulfil its responsibilities in the shortest flight, detrimental and restrictive manner feasible.
· The government executes a deficit to redress crime, as a norm to conserve a methodical and complacent society. It should accomplish that in the limited destructive manner conceivable.
· The death penalty is the extensively detrimental retribution unrestricted, so the government should merely employ it if no less fatal penalty if applicable.
· Other penalties will invariably facilitate the government to fulfil its purpose of redressing offence suitably.
· Hence, the state should not use capital punishment

One manner of resolving the matter is to discern whether states that don't employ death penalty have been competent to discover additional penalties that facilitate the state to penalise killers in such a way as to conserve a standardised and complacent society. If such governments subsist, therefore, the death penalty is unfair and should be withdrawn as extremely destructive to the nation as a whole.

ARGUMENTS IN SUPPORT OF CAPITAL PUNISHMENT

Retribution argument: - 

· all evil remorseful criminals deserve to be sentenced
· solely immoral people earn to be penalised
· evil people earn to be redressed in probability to the harshness of their transgression

This assertion acknowledges that genuine righteousness compels people to agonise for their crime and to endure in a manner applicable to the violation. Every culprit should obtain what their infringement deserves and in the lawsuit of a murderer what their offence merits are death.

Some people discover that this assertion suits with their intrinsic feeling of justice. It is frequently substantiated with the statement "An eye for an eye".[7] However, to affirm like that illustrates a comprehensive misconception of what that Old Testament idiom precisely implies. Moreover, the Old Testament connotation of "an eye for an eye" is that simply the immoral should be castigated, and they should be penalised neither lightly nor harshly.

It is unquestionable that those who are killed cannot commit more offences. Some of the people don't believe that this is enough defence for killing a person and insist that there exist additional systems to assure the criminals do not repeat the same crime exceptionally life imprisonment without the probability of parole.

Moreover, there have existed cases of individuals breaking out from jail to manslaughter again furthermore, these cases occur remarkably in unusual scenarios. Nevertheless, many people don't acknowledge that life confinement without parole protects the nation sufficiently. The culprit may stop to be a threat to the public, but he continues to be a threat to jail crew and other inhabitants. The execution would eliminate that threat and fear.[8]

There is an argument called the Japanese argument and it is merely a short debate. Japan utilises capital punishment killing roughly 3 criminals in a year. A remarkable motive for conserving death penalty has taken forward by some of the Japanese psychologists who contend that it has a significant amount of psychological aspect to exploit in the vitality of the Japanese who subsist under serious tension and pressure at the workplace.

The statement takes off that capital punishment enhances the notion that horrible things happen to those who merit it. This enhances the unfavourable assumption that nice things will transpire to those who are authentic. The validity of capital punishment gives a psychological clearance from accordance by strengthening the possibility that there will exist a compensation in scheduled duration.

This statement appears to be certified by Japanese general belief. Those who stand in favour presently embody 81% of the population which is the authorised statistic. However, there is yet a slight but increasingly clamorous abolitionists activity in Japan. From a moral sense of view, this is an extremely debatable argument that if lawfully killing a few people will lead to an embodiment amount increase in satisfaction therefore, that is a sensible thing.

To sum up the study, it is undeniable to say capital punishment will remain to be the most debatable question as both sides carry more weight. According to the research study and analysis, the writer believes that capital punishment should be reinstated only for crimes like murder, terrorism and rape that amounts to death or not because they are the most unethical brutal crimes a human being could ever commit against a fellow human being. However, on the other hand, capital punishment should be banned because it takes a lot of risk innocent people might end up losing their lives whilst the guilty walks freely. Thus, it is valid to say Capital punishment will remain a difficult question to address as it is surrounded with many theories each state or nation feels right to follow.

[1] UAE Enewsletter, https://u.ae/en/about-the-uae/the-constitution-of-the-uae
[2] UAE Enewsletter, https://u.ae/en/about-the-uae/the-constitution-of-the-uae
[3] Amnesty international org, https://amnesty.org.in/
[4] Capital Letter’s page 135. Title: Hugo, Baudelaire, Camus and death penalty.
[5] Death Penalty Information Centre, https://deathpenaltyinfo.org/
[6] FBI Uniform Crime Report, from Death Penalty Information Centre
[7] Bible verse Old Testament, Leviticus 24:19-21
[8] The death penalty, https://deathpenaltycurriculum.org/student/c/about/arguments/arguments.PDF
Image Source

ABSTRACT

 This paper endeavors to give a voice to all those women who were and are abused in India. A vast majority of women experience daily abuse that is extremely severe and many of them live under the threat of murder.
A big number of these women report needing medical care for their injuries. There are women who do not necessarily report the incidents of abuse, reasons largely being both personal and societal. This is one of those crimes which is often hidden away in shadows. And this seems like an even bigger problem that the authorities and the loved ones do not know who to help.

Domestic violence is usually gender-neutral, religion-neutral, and relation specific. It usually occurs between people in a close and intimate relationship. It means it happens in heterosexual relationships as well as same-sex relationships, irrespective of religions. It is safe to say now that domestic violence is a universal problem. But majority of victims of domestic violence acts are women.

It is very difficult to identify that one is trapped in an abusive relationship. But, experts believe it’s a crime that is preventable. It is also very important to break the cycle of abuse and also to talk about it, share it with some one we love. The cycle of abuse knows no boundaries; it has in many cases proven to be life threatening and even life-taking.

Battered Woman Syndrome is usually equated with Post-Traumatic Stress Disorder (PTSD) where a woman could develop a learned helplessness which causes her to believe she deserves the abuse and she cannot escape from it. Not all battered women suffer from PTSD, but a sufficient number does. It is important to understand the mental state of battered women who end up killing their batterers.

Statistics reveal that it is very important so as to create the inclusion of a certain kind of law in order to adjust with the changing society. This paper discusses the issue of protecting the battered women. There could be a possibility that though it is probable for situations to arise that pilot a woman to attempt suicide, it is just as possible that instead of hurting herself, she commits an act of violence towards the abuser. This paper emphasises that the law should also recognise that adjacent surroundings could cause the woman to kill. Suicide and divorce are not the only alternatives for abused female victims of domestic violence. They may also have a detrimental impact and could end up killing their abusive partners.

The cover of battered woman needs to be established in its own chapter within the group of defenses to a charge of homicide. The experience of battered women does not seem to fit into the literal requirements to these three exceptions of IPC namely private defence, provocation and necessity. It is very difficult for the battered women to prove these three defences evidently. Therefore, the Indian law needs to allow the battered woman defense its own legal pillar upon which to stand.

Religion and Patriarchy: Reasons for women subordination and suppression

The design that the husband has ownership over his wife is symbolised in different ways in religion. Often, among all religions, man’s role has been superior to that of woman. Almost all the world’s religions depreciate women to some extent. Stories of gender based violence done in the name of religion are customary since Biblical times. Religion is time and again seen as an obstruction to gender parity. 

In Hindu scripture, women are both upheld and respected. But the roles of women are subordinate to that of men. Many religious groups, including Roman Catholics and Orthodox Jews, allow only men to be clergy. During the time of Budhha, it was believed that the meticulous responsibility of a wife is to bear an offspring for her husband, and provide him devoted service and marital happiness. In the Ten Commandments, the wife is considered as a piece of property listed alongside her husband’s possessions. Women are often looked as inferior species, which are to be owned like cattle.

In Biblical times, if a man ever violated a virgin, it was counted as a property offense against the woman’s father. It was regarded as violating a male’s property rights. It shows that men were considered to be both owners and lords of their women.

In Synagogue reverence, women were assigned severely receptive part and they were refrained the oral reading of the law.
Rabbis believed that it was better that the words of law should be burned than be shared with women. It would be right to say that in some manner religion also shaped men’s treatment of women by giving them moral excused to limit their women.

Women are expected to maintain even a certain dress code and particular attire like wearing a hijab. These kind of social hostilities are being inflicted upon women since ages and even though it might not result in their direct harassment but it surely instructs them on what and how to dress. Almost all religions in some way show rigidity in the code and conduct of woman. These religions are legitimised by the society at large and this stereotypical portraying of women results in denial of religious freedom and make them even more submissive. Such female suppression is pervasive over all religions. The refutation of religious freedom prevents women from being considered at the table and from being heard, contributing to gender inequality.

In order to close the gender gap and empower women, it is imperative that religious freedom become a factor that is taken seriously and acted upon.

Patriarchy

Discrimination is a critical aspect of patriarchy. Women are often limited to the domestic sphere. Patriarchy is deeply rooted in the fabric of society and it is sadly regarded as a standard routine. Even Aristotle used to call males active and females passive.

Women abuse inexorably stems from patriarchal society. Maltreating women has always been an intrinsic feature of the patriarchal culture. It places stern constrictions on the roles and conduct of females with diverse taboos and their under representation in decision making. The gender chasm is deepened by embedding and reinforcing prejudiced gender allotment of roles for men and women.

The conventions never allow a woman to be with two men at a time. Only women and daughters are expected and burdened with being chaste whereas the rogue and rascality of sexual behaviour & abuse is accepted and promoted for men in the society. The sad thing is that even highly developed societies are growing to be more patriarchal whether we like it or not.

Women are believed to be subordinate to men because men usually provide them with the resources and are in a dominant position. Marriage is common in every religion and it results in men maintaining control, dominance and exploitation over women. With marriage, men believe their wives must always be sexually available to them. Such gender-power relations have an express blow on women’s subordination in the society.

The ancient Vedic belief of Ardhangini of her husband which means half body, meaning husband and wife are equally important in the concept of marriage is to be found only in the scriptures. The wife bears her husband’s surname, dropping her father’s name. It seems as if she has no identity of her own.

Girls are expected to shift their loyalties from parents and siblings to her husband and in laws. Her social status is dependant on her husband’s status in the family. Women have been subjected to misbehaviour, ill- treatment, not only outside but also inside their homes. Women are often pushed down by men. A woman is always associated with a man. All men take women’s inferior destiny for granted. Every force in the society flattens her into an object- housework, child bearing and sexual lavishness. It is correct to say that sexism is the underbelly of human suffering. These beliefs weaken the marital system and domestic violence can gain a stronghold. It is safe to say that patriarchy explains the instances of male violence.

 Women are encouraged to give birth multiple times in order to have a male child even if it means endangering her physical health with multiple pregnancies. Son preference propels the dogma of patriarchy. This implies that violence against women starts from birth by means of sex-selective abortions. Women often succumb while subscribing to the constituents of a patriarchal household and society, which remains unnoticed. But, it is also important to understand that battering or violence or any and all forms of violence do not impound to the precincts of wedlock.

What is Battered Women Syndrome? 

Most women dream of a fairytale prince when it comes to having a life partner or companion. Most of us want a kind of love we see on television, the kind we read about, who would sweep us off our feet, the kind that consumes us and love us more than anything in the world. But the sad reality is that, there is a great deal of underlying and outright violence in many intimate relationships and it goes undetected. Violence can begin at any stage of a relationship and may continue even after the relationship has ended. It is a pattern of controlling and aggressive behaviour that is intentional and calculated to exercise power and control within a relationship. It can happen to anyone, regardless of his/her social group, background, race, class, gender, religion, age, ability, disability, sexual orientation, or lifestyle. We are all vulnerable.

Psychotherapist Lenore Walker introduced the idea of Battered women syndrome in the late 1970s. According to her, BWS is a distinctive pattern of behaviour and emotions which can develop when a person experiences abuse by an intimate partner and tries to find out ways to survive. It is sometimes considered a subcategory of Post-traumatic stress disorder (PTSD). The facet of abuse includes behaviour like humiliation, coercive-control, extreme jealousy, rape, unwanted sexual contact, threats of punishment and verbal harassment.

With Battered Woman Syndrome, a woman may develop learned helplessness or psychological paralysis that can cause her to believe she deserves the abuse and cannot get away from it. It is caused by persistent and quite serious domestic abuse. It contributes to the victim’s inability to leave the batterer. The riveting fear of the batterer is entirely real to the victim. The victim starts to feel weak and possibly holds out the hopes that her abuser will stop hurting her and this is why the victim is afraid of leaving the abuser. The abused woman does not try to evade the pain- even if she can escape it. It is not an intrinsic trait. It develops over time after repeated abuse. It is referred by Walker as learned behaviour, conditioned during experiences when the person had no control over the situations. It can also lead to a lack of motivation in the victim to escape from such conditions. This perception is exceedingly hard to quake, and often requires demanding therapy and support in order to break it.

Cycle of violence

The cycle of violence is a pattern of repetitive behaviours that keep survivors locked in the relationship. This theory explains how and why the behaviour of a person who is abused continues to face such a violent situation. Many victims of domestic violence are trapped in this vicious cycle.

The tension building phase

This is the first phase where the minor incidents leave the victim to walk on eggshells. In this phase, the batterer gets edgy and the tension begins to build up and gradually escalate resulting in verbal, emotional or financial abuse. The batterer expresses frustration and resentment but not in an extreme form. The victim could attempt to pacify the batterer. This phase can be very frightening for people who have grown up in a loving and healthy environment. The victim feels as if the situation will explode if they do anything wrong. This phase may last for weeks or years until the tension has mounted to the breaking point.

Violent episode phase

This is the phase where the peak of violence is reached and the battering is severe. The perpetrator becomes habitual of this phase and the tension is released. It is the height of abuse by the batterer who uses violence to control and have power over the woman. It can last from a few minutes to several hours. This release of tension may soon become addictive. The perpetrator maybe unable to deal with his anger any other way. The woman in this phase may feel frightened, numb or helpless.

The honeymoon phase

The perpetrator maybe sorry or act like nothing happened, but is still interested in making up or may even promise never to do that again. The person feels ashamed of his behavior and feels remorse. They try to justify their actions to themselves and others. The violent offender may purchase gifts, and give the person affected attention. Both the persons might also be in denial as to how bad the abuse and violence was. The offender may also feel apologetic at this time and may make promise to change himself or may use alcohol or drugs as an excuse for his previous behaviour. At this point, the person experiencing the violence may feel confused and hurt because the batterer may act remorseful.

But this phase will soon fade away and the cycle of violence may begin again. Too often, women don’t even realise that they are trapped in this vicious cycle, and they become accustomed to it. They might tend to think how they can upset the man they love- by leaving him. The victim hands over one big part of their freedom to the abuser and then linger in shadows waiting for him to be a loving person again. The abuser however humiliates, constantly dismiss, lash out, scream, throw or break things, and hold the victim hostage to his demands.

Why stay? Why not leave? 

The biggest challenge to an abused woman is leaving her home and getting out of a relationship. The society always tends to stereotype the victims. Leaving one’s home is seen as shameful and a woman who walks out is often blamed for doing so, whatever the circumstances. Even when they suffer from extreme violence frequently, they don’t leave their homes because they feel that they do not have a safe place to go. Women’s subordination is a norm and they are socialised to silently tolerate the oppression. Finding the courage to walk away from a violent relationship is not an easy choice. They submit to the violence without complaint. Saving the family is considered as a priority even if it entails the cost in terms of pain and suffering or even death that abused women pay. Most women have no alternatives. The victim might fear that seeking help could invite unwelcome repercussions for her. Often, they are materially and economically dependent on their abuser and that is the reason they tolerate absolutely everything because they can’t fend for themselves. It becomes almost impossible to leave the batterer because of the fear of threats created by him to the victim or her children. In Indian society, the woman is advised to remain married to even a monster for the sake of her family’s status in society. These factors make it impossible for her to walk out of an abusive marriage. The autonomy of the victim of domestic violence is stripped off in an abusive relationship. It becomes fearful for the victim to make a decision on her own. Violence impacts the capacity to make independent decisions and it dehumanizes the victim. BWS is not to be understood as mental incapacity, but rather as a way to strike out the deepened fear and trauma.

In simple terms, it can be understood as injuries by the person who says I love you.
Woman who are victims of domestic violence have been identified for over a long time now. Domestic violence is an escalating pattern of abuse in which one partner establishes control through force, intimidation or the threat of violence. The abuse is secretive; it is never in front of anyone. The women in essence are unable to escape the vicious cycle of repeated torture inflicted on them. The threats may not be physically imminent; however there is a threat of such a nature so as to cause a psychological paralysis within the battered woman.

People who find themselves in an abusive relationship often do not feel safe or happy. However, they may feel unable to leave for so many reasons. The victim thus remains perpetually spellbound in the abusive relationship. The will to escape is eventually lost because of the learned helplessness state of mind.

Suicide: The domino-effect of BWS

Often suicide is overlooked as having a correlation with domestic abuse. They are both major public health crises and they are closely linked. Just as domestic violence, suicide is an issue in society which hides in the darkness, rarely discussed, but quietly having an impact on the society. It is widely accepted that women attempt suicide more than men, in the context of multiple health conditions, social difficulties and domestic abuse. Usually women internalise the subordinate status relative to male ascendancy in order to maintain harmony, peace and family honour. They are always socialized into adjusting under any and every circumstances.

It is our goal to not only understand the intersections of domestic violence and suicide, but also to promote the tools and resources available to the community for both domestic violence and suicide prevention. There is a great deal of underlying violence in intimate relationships, which is exacerbating the risk of suicide.

The distress, the sense of being captive or entrapment, hopelessness, helplessness arising from domestic abuse can sometimes cause the victims to feel that suicide “is the only way out”.

It is very important for doctors and experts to inquire if someone is coming with injuries of domestic violence, to know whether they are having suicidal thoughts. Similarly, the survivors of suicidal attempts need to be inquired whether domestic abuse is taking place.

If a person is experiencing domestic abuse, then the first step for the doctors and psychologists should be to create strategies to keep the person safe and help him/her develop coping skills. Motivational interviewing can help victims to understand why they are in abusive situations and help them make positive changes. The victims of both domestic violence and suicide attempters need to be assured the response they get is timely, effective, and non-judgmental. There is a need for an attempt to bring these two fields closer together in order to save lives. Yet the mental health and domestic violence fields have historically worked in isolation. But now that is starting to change. Each field needs to be educated about the other, or else the results can be deadly. Empathy is key.

Domestic violence and suicide go hand in hand. The thought pattern about how useless we are never stops. Sometimes counselling doesn’t give us enough time to even scrape the surface. When a person is that beaten down, it is hard to sort out all the logistics of survival, such as where to live, and how to afford it. That is why domestic abuse is the most significant precipitants of female suicide. Humiliated, abused and powerless wives take their own lives to shift the burden of humiliation from themselves to their abusers.

It is believed that reduction of domestic violence will reduce suicidality in women. Some of these women however, choose the other route- they batter back.

BWS as a legal defence: When battered women batter back

The women who kill or fight back at their perpetrators are at a slight disadvantage by the legal system. These women are not considered victims in the eyes of many people because they fought back. Its time that we understand, sometimes killing is one of the fewer options left in order to escape or prevent from further abuse. These battered women feel inability to make decisions and exercise control over them. They feel docile, feeble, passive, blameless, susceptible, mortified, needy, unassertive, miserable and defenseless. In such a mental state, the victim might see no other option other than to retaliate. It is extremely hard for such women who are so conditioned to make peace with violence, to take affirmative steps to leave their relationships, and so they sometimes tend to resort to the extreme violence of killing their partners when no other viable option was available.

This act of killing or attempting to kill the abusive partners by their battered woman should be provided with a legal defence based on the justification that they committed such an act to protect themselves or someone else (their children) from further harm or death. It should be believed that domestic violence has such a major impact on a woman’s state of mind that it could make an act of homicide justifiable, even when there is no imminent danger to her. However, it is difficult for those who have never seen domestic violence, to understand how a sleeping man could be perceived as dangerous and also to understand how a woman can be so afraid of an unarmed man that she needs a weapon in order to feel equal. Sometimes a minor incident precipitates a flood of memories of previous battering incidents that makes the woman’s perception of further physical harm or even death more terrifying and quite real. In this fear, she can sometime kill the batterer, to prevent herself or her children. Expert witness testimony can explain her state of mind at the time of incident and can add context to the explanations of the killing. There are measurable psychological changes that occur due after exposure to repeated abuse. We need to understand the psychological impact of physical, sexual and serious psychological abuse on the battered woman. The impact of such trauma is deeply entrenched in the battered woman. Most of these women have never done anything bad in their lives. They were only trying to survive.

Women who kill their abusers may claim that the killing was committed in self-defence. The law considers self-defence as an act of justification. This means that the legal system does not consider self defence killing a morally culpable act; it concludes that the act was correct under the circumstances. The self defence stand needs to be proved that their actions meet the legal standards for a claim of self-defence. However, legally using self-defence to rationalize the killing of abusers by battered women is controversial and can be often problematic because of the kind of evidence that the defence needs to offer at trial to prove its case.

BWS needs to be integrated as a means to explicate the reasonability of the actions of women who kill their batterers in response to domestic violence. However, it is problematic because the battered woman usually kills the abusers when he is unarmed and there is no imminent danger to the woman. But when these battered women kill their abusers, there is usually a long history and pattern of violence in their relationship with the batterer. This raises the question why these women do not leave the relationships. Now the champions of Battered Women Syndrome explain this through the psychological dynamics involved in the intimate violent relationships. These maybe introduced at trial, often with the testimony of an expert witness. The expert witness testimony can be helpful in determining as to why the woman believed herself to be in imminent danger. The purpose is to provide the law with an alternative perspective for interpreting the woman’s actions. The role of the expert witness is also to provide information relevant to inferences they will have to make about the woman’s mind at the time of the killing.

The legal system needs to be open to accept the history and nature of such abuse as important factor for understanding the reasonableness of the victim’s actions as a “reasonable battered woman” rather than an ordinary reasonable person. The woman is generally not on equal physical grounds with the batterer, thus explaining her use of a deadly force against her partner.

How often women kill and who they kill and why is an important question to be pondered upon. The inclusion of this type of psychological defence would therefore imply that the law chooses to consider psychological mindset and situation of the person and the condition in which a reasonable person may act in such circumstances. The conformist model of rationality in law needs to consider the particular psychological and physical history of the defendant that the offender commits such an act which constitutes as a crime. The battered woman is always assumed as intending to kill the batterer and understood as a rational actor. The use of BWS will help the legal system to look under the surface and appreciate the reasons for such retaliation in order to change their outlook. It is time to understand the BWS is a grave psychological condition and it has reasonable merits to mitigate the liability of a committed offence. This defence should only be availed on the basis of different circumstances of each case and not be granted as a general exception to all battered women. It is important to shift the focus of the judiciary to the psychological state of the battered woman and their underlying fear and not to term as mentally invalid, but mentally in a helpless state. The defence of insanity or homicide only results in stricter punishment to the women who kill their battterers.

It needs to be understood that battered women kill to protect their battered psychological self and not just for physical self-defence.

CONCLUSION

Battered women sometimes act violently to protect themselves and end up killing their abusers because of the abusive and life threatening situations they are entangled with, acting in a concrete belief that it is the only way of self-preservation. It should be introduced in Indian law to explain the reasonability of a woman’s actions in self preservation against her batterer. Along with this, the society needs to be aware of the condition of “learned helplessness”. Also, to be clear, the law does not ever encourage any person to kill the other in order to escape from something vicious.

In conclusion, the BWS doctrine is a “defence necessity” based on the thought that women are trapped in a very difficult situation, their context should be considered while adjudicating such cases.

BWS should be viewed as the characteristic of a normal woman who is caught up in a dysfunctional relationship. The law requires a new standard of ‘battered woman’ along with a ‘reasonable man’. BWS should be looked upon as a concentrated version of the ‘self defence’ and ‘imminent danger’ claims. The woman’s subjective perception of threat needs to be analysed in each individual case. There is no prerequisite of immediate threat from the perpetrator for a defence, but rather the anticipation of the cyclical violence is enough to be under duress.

The societal-norms, cultural backgrounds and structural factors have always trained women to tolerate the cruelty inflicted upon them silently. Mostly women do not resort to aggression, rather end up committing suicides or attempting them. For India’s battered women, home is a prison sentence. It is evident that rampant domestic violence among women in India is a harsh reality.

BWS should have a separate place in the Indian legislature and needs an explicit recognition in IPC for an exception of murder. There is no causal link between the grave and sudden provocation and lack of self-control in the case of a battered woman. If the victim fails to respond to the immediate threat and violence by the aggressor, no defence is given to the victim because there was a ‘cooling-off period’ in which she must have regained control. The society needs to understand that there is no requirement of ‘sudden provocation’ in the case of battered women since provocation works differently in the case of BWS. The batter is incessant, perennial and long term which means it is not possible to know a specific trigger for the victim’s actions. The battered woman is always in a constant state of danger and re-experiences the trauma over and over again. There is always an apprehension of violent behaviour based on the past experience and it may not satisfy the test of ‘reasonable apprehension’.

BWS could be termed as an expanded notion of private defence. The history of abuse needs to be recognised even if there is absence of any recent non-provocative behaviour by the batterer. It is necessary to recognise BWS as a separate defence where the woman kills the batterer because of the repeated long-term abuse in order to decide their liability. The andocentric perspective needs to be shunned in order to understand the subjective experiences of the battered women for a gender-just law. It is time we move ahead of thinking that only men can retaliate, after all emotions are not gender biased. Anyone gravely hurt by repeated abuse or violence will at some point retaliate in one way or another. The cumulative provocation can break down at one point. These women need a stronger legal recognition and protection for their actions. The legal system can no longer be slow to accept such a narrative. Our nation is undeniably plagued by domestic violence, and we need good riddance. Its time we grant BWS complete judicial acceptance and the same status as all other homicidal defences. This could help in sending a message to the batterers that their behaviour will not be tolerated anymore. We are taught ‘Thou shall not kill” but we must also teach the society not to endure pain over and over again. It is hard to squeeze BWS into the current and existing defences of homicide, thus it becomes imperative to award it a separate column. Because of the judicial walls of discrimination, battered women in our society are inclined towards homicidal behavior. These tortured women should not bear the archaic judicial process when their acts were no more than retaliations.
Image Source