Rape as a Crime versus Rape as a Punishment: What is going on in India?

Written By Garima Tiwari

Indian village council orders sisters to be raped and paraded naked after their brother elopes with married woman.[i]

This recent news and few other similar incidents evoke a number of sentiments. Of course, it is an illegal order with no statutory backing, yet it is an order of the “members of the society” or as are called “Kangaroo Courts” . And it raises pertinent issues about the perception of women in India within a complex web of Caste, Culture, Religion and a family –community system still very patriarchal. While the Nirbhaya Delhi Gang rape case is still sore and the Government’s “security regime” -in place, headlines of “sentencing to rape”, create a mismatch in legal and societal standards. This post loosely  puts forth ideas on how the simple formula of merely punishing the offender does not even look like a step forward in acknowledging the deep seated problem in a complex society like India. Continue reading

Early Release in International Criminal Law

Written by: Jonathan Choi

The drama of international criminal justice is mostly in the initial conviction and sentencing; few reporters investigate what happens to the convict after she is locked away, and few academics consider why or how she is released. Continue reading

Undertrials :Sentenced without Conviction

Written by Garima Tiwari

Undertrial

“The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulation of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity.”[i]    -Supreme Court of India (2013)

The Supreme Court in the above case granted bail to Thana Singh who had been languishing in an Indian prison for more than 12 years, awaiting the commencement of his trial for an offence under the narcotics law.

An undertrial, or a pre-trial detainee denotes an un-convicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence she/he is accused to have committed. He is an accused who is assumed to be innocent till proven guilty. He is in custody only to ensure that he appears at court as required or is available to answer questions during investigations. There is no other reason for him to be in prison Undertrials constitute 64.7% of the total prison population in India. There are over 2.41 lakh undertrial prisoners in India.[ii] An extensive investigation across the country has exposed a dark sub-culture thriving in jails across the country, not very different from the murky underworld of organised gangs and criminals. In the absence of proper legal aid, the poor and the vulnerable, especially women and youngsters, unwittingly become part of the sordid system.[iii]

Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Many prisoners remain in prisons for long period because of the delay in trial.

              The grant of bail[iv] is one important remedy available to reduce pre-trial detention. [v] Indian courts have reiterated that the grant of bail should be the rule rather than the exception. Because they are considered to be less likely to abscond or interfere with the investigation, bail provisions in non-bailable offences are more liberal if the accused is under sixteen, a woman, sick or infirm.[vi] Despite sounding fair, the bail provisions and their implementation are highly discriminatory. But the prisoners are unable to serve surety and as has been mentioned in the Legal Aid Committee appointed by the Government of Gujarat noted[vii]:

The bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail.

As the UN Human Rights Committee (UNHRC) noted, pretrial detention can therefore negatively impact the presumption of innocence,[viii] and should be used only as a “last resort.”[ix] States should only detain individuals pending trial where it is absolutely necessary. International and regional human rights instruments are explicit as to the limited circumstances under which pretrial detention is permissible. The UNHRC has stated that,

“bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party.”[x]

In criminal proceedings, following the first appearance before a judicial officer, European Court of Human Rights Article 5(1) only permits detention when it is reasonably necessary to prevent further offenses or flight.[xi] Thus, international standards strongly encourage the imposition of noncustodial measures during investigation and trial and at sentencing, and hold that deprivation of liberty should be imposed only when non-custodial measures would not suffice.

Most of those in the Indian prisons are poor, indigent, illiterate or semi-literate. They do not know that they are entitled to free legal aid or that they can be released on personal bond. They therefore, continue to be in jail for long periods. Lack of adequate legal aid and a general lack of awareness about rights of arrestees are principal reasons for the continued detention of individuals accused of bailable offences, where bail is a matter of right and where an order of detention is supposed to be an aberration. [xii]

The overuse of detention is often a symptom of a dysfunctional criminal justice system that may lack protection for the rights of criminal defendants and the institutional capacity to impose, implement, and monitor non-custodial measures and sanctions. It is also often a cause of human rights violations and societal problems associated with an overtaxed detention system. One of the fundamental elements of human rights law which importance grew over time is the concept of “Fair Trial”. Taking this into account, the question rises how far the application of the fair trial rights stretches into the pre trial stage of investigation. Answering this question is far from easy and as Safferling points out correctly, it is by no means obvious what the fair trial concept really encompasses and what the singular rights within this concept really stand for.[xiii]

In India, apart from the Prisoners Act, 1984, there is a Model Prison Manual in place and the various judicial pronouncements have made it clear that prisoners are entitled to human rights, the most important of which is presumption of innocence till proven guilty.

In 1982-83, the All India Jail Reforms Committee under Justice A.N. Mulla came out with suggestions for prison reform. Yet to be implemented, the committee had recommended that undertrial prisoners should be lodged in separate facilities, away from convicted prisoners. It had also called for quick trials, simplification of bail procedures and suggested that bail should be granted to the accused as a matter of right unless the prosecution could prove that releasing the accused on bail endangered the security of society.[xiv]  Another suggestions is that it should be made mandatory for the jail authorities to educate them about their rights and provide them legal aid. The plight of the wrongfully confined prisoners is compounded when jail authorities refuse to release information about them in public domain. One very relevant solution is Section 436A of the Indian Criminal Procedure Code states that the maximum period for which an undertrial prisoner can be detained without being released is not more than 50% of the maximum imprisonment specified for the charge he/she is booked for, except if the offence attracts death as the maximum punishment. According to the law, such prisoners can be released on personal bond if they cannot furnish bail. This provision is hardly used by authorities. Public-spirited citizens and lawyers could also take up these matters. The prison authorities should display the updated information every month on their website and also display hard copies of the information in every prison in a place where prisoners have access.

As Justice P.N Bhagwati, “It is high time that the public conscience is awakened and the government as well as the judiciary begins to realise that in the dark cells of our prisons there are a large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice – a commodity which is tragically beyond their reach and grasp.”[xv]

 


[i] Thana Singh v. Narcotics Bureau of Narcotics (23 January, 201)

[ii] National Crime Recorts Bureau Data 2012 (India)

[iv] The Indian Code of Criminal Procedure, 1973 does not define the term “bail” although offences are classified as bailable and non-bailable.

[v] The main bail and bonds provisions are provided in Chapter XXXIII of the Indian Criminal Procedure Code.

[vi] Handbook of Human Rights and Criminal Justice in India, by South Asia Human Rights Documentation Centre, Oxford University Press, 2nd edition, 2007, p. 62.

[vii]Report of the Legal Aid Committee appointed by the Government of Gujarat, 1971 (headed by Justice P.N. Bhagwati) (p. 185)

[viii] Human Rights Committee, Concluding Observations: Argentina, CCPR/CO/70/ARG (2000), para. 10.

[ix] United Nations Minimum Rules of Non-Custodial Measures, Principle 6.1

[x]  Hill v. Spain, Communication No. 526/1993, para. 12.3.

[xi] Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 6.

[xiii] SAFFERLING,CHRISTOPH J. Towards an International Criminal Procedure, Oxford 2001 p.26

[xv] Hussainara Khatoon and Others v. Home Secretary, State of Bihar AIR 1979 SC 1360.

Sound Sentencing? Aggravating Factors in Lubanga

Written by: Regina Paulose

Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month. Continue reading

WHICH CRIME? WHICH PUNISHMENT?

On 16th July 2013, Ali Ahsan Mojaheed was convicted of genocide by the Bangladeshi War Crimes Tribunal. Mojaheed was charged with genocidal acts involving multiple crimes including the  kidnapping and murder of certain individuals during the 1971 independence war against Pakistan. He was thereafter sentenced to death. This conviction added to the growing number of convicted felons for genocide, variously described as ‘the crime of crimes’. One could say that Mojaheed is, in many ways, unlucky.

Slightly less than a month before that-on 20th June, 2013-Stanislas Mbanenande, an ethnic Hutu from Rwanda, was also convicted of genocide. However the sentencing tribunal was different-a Swedish court. In convicting and holding him responsible for several massacres in Kibuye region, the court stated thus: “It has been proved that the purpose of the acts of which the defendant has now been convicted was to wholly or partly destroy the Tutsi ethnic group. The acts have therefore been assessed as genocide”[1]. The court then proceeded to sentence him to a life in prison. Mbanenande was, in some ways, unlucky.

Gaspard Kanyarukiga, who had earlier been convicted of genocide and extermination as a crime against humanity over the same Rwanda genocide, was only sentenced 30 years by the International Criminal Tribunal for Rwanda (ICTR). A slap in the wrist.

However, Mbanenande is lucky in many ways. He still has his life about him. Secondly, although he will likely spend a long time in prison, he will live in relative comfort-compared to the sordid conditions in the jails in Bangladesh for those unlucky enough to be convicted by the War Crimes Tribunal. Thirdly, it is likely that his sentence could be commuted for good behavior.  In fact he would definitely thank his gods if he were to read about the fate of Ali Ahsan Mojaheed Mr Mbanenande surely is lucky.

These disparate sentences for the same offence reveal the “absence of an articulated ICL philosophy of or justification for punishment and the dearth of sentencing principles”[2]. In reality, it is difficult to discern what the purpose of the sentences is, especially at the international arena. Whereas, admittedly, there has been an attempt to ensure internal consistency in the sentences within the international bodies, there is still a huge disparity between the sentences imposed by different tribunals. Again, there is a failure to take into account the maximum sentences to be imposed by domestic jurisdictions on the similar offences. A man who rapes a 12 year old girl in Kenya, for example, will be sentenced to a mandatory life sentence. However, the Kenyans being tried at the ICC for mass rapes-among other offences-will, if convicted, likely not be sentenced for more than 40 years. Charles Taylor’s sentence by the Special Court for Sierra Leone for “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history” resulted in a prison sentence of 50 years, notwithstanding the prominent role he played as a former head of state. Less for more!

The paradoxical argument one could make from such a scenario would be that if one is so inclined to commit certain crimes then s/he should do it in such a grave manner that it would attract the attention of the international community. It is better, it seems, to commit mass murder and to be tried by the International Criminal Court, than to kill an individual and be liable for capital punishment within the domestic jurisdictions.

In addition, it is important for international criminal law to develop its own theories for sentencing of offenders. If the sentences imposed are a reflection of the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”[3] then we need to seek why this is not being realized. Why do we always seem to have a Libya or a Syria after every Cote d’Ivoire or Kenyan experience?  Isn’t this an indication of the failure of the sentences to act as a prohibition for future offences. If, on the other hand, it is a process of expressing our (the international community’s) indignation at the actions of the perpetrators then surely more indignation ought to be captured at the international level. An understanding of what the intention of the sentences is at the international level is the only way to remove the present absurd realities that encourage “forum shopping”.


[2] Robert D. Sloane, The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, 43 STAN. J. INT’L L. 39 (2007)

[3] Preamble to the Rome Statute of the International Criminal Court