Human Protection in Criminal Law - Essay Example

Criminal law Every one has the right to respect for his or her physical and mental integrity Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. Victim’s situation is one of the most important discussions of contemporary societies. We are dealing with the necessary double dimension of the State’s response to the violation of individual rights and interests. In one hand we have the punishment of the aggressor and in the other we have the guarantee of the victim’s protection, care, assistance and compensation.2 To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined this principle in its preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. The right to life is nowadays universally acknowledged as a basic or fundamental human right. It is basic or fundamental because "the enjoyment of the right to life is a necessary condition of the enjoyment of all other human rights."3 As indicated by the Inter-American Court of Human Rights in its Advisory Opinion on Restrictions to the Death Penalty (1983), the human right to life encompasses a "substantive principle" whereby every human being has an inalienable right to have his life respected, and a "procedural principle" whereby no human being shall be arbitrarily deprived of his life4 The Universal Declaration of Human Rights establishes an “internationally recognized set of standards applicable, to all persons without qualifications.”5 Its uniqueness lies in the fact that it represents a right which the International Covenant on Civil and Political Rights the International Covenant of Economic, Social and Cultural Rights and other international worldwide charter of rights, proclaiming universal and fundamental freedoms, which transcend national, religious, cultural and ideological factors. The Universal Declaration provides the foundation upon legal standards have been developed. Civil and political rights are those rights which historically have been regarded as the basic rights from which the whole philosophy of human rights developed.6 The National Human Rights Commission is itself an institution of governance - and expressly of good governance. It must therefore constantly aspire and seek to function with the highest standards of efficiency and integrity. The Commission remains convinced, in this connection, that transparency and accountability are essential to the handling of allegations concerning human rights violations, regardless of who is charged with such violations. The Commission is therefore gratified to note an increasing acceptance, in practice, of the recommendations that it has made in regard to matters affecting the armed forces, both in respect of individual complaints and in respect of instances of which it has taken cognizance suo motu. In the light of allegations of brutality in custody, the Commission felt it necessary to recommend to the Government that the country become a party to the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In earlier reports, reference was made to the correspondence between the then Chairperson and the then Prime Minister on this subject. The current criminal justice system relies on a plethora of persons for its enforcement often there is no connection between agencies involved and misunderstandings of lack of understandings is there 7 The pleasure of the people and welfare of the society are said to be the twin objectives of criminal justice.8 The problem plaguing India’s criminal justice are diverse, but broadly they pertain misguided objectives of criminal justice.1. Exertion of undue influence on authorities involved in meeting out justice.2. Lack of sincerity and expertise. Result of Omission The ancient doctrine that a man should be held responsible for any thing which he could be proved to have done, led naturally to the converse idea that a man could incur no liability if harm resulted as the result of his doing nothing at all.9 This doctrine has persisted to the present day in so far that no one is held criminally responsible at common law for the harmful consequences of his omission to act, whether that omission be careless or intentional unless the prosecution can prove10 that he was under a legal obligation to take action in the particular circumstances in which he was placed11 It seems that with few exceptions no duty under the common law rests upon a person to take action to protect others unless he was directly or indirectly undertaken so to do12 .One exception is the duty which rests upon every citizen to aid and assist a police officer in the execution of his duty in order to preserve the peace when reasonably called upon and reasonably able to do so. Another exception is that of parents who by virtue of their parenthood are automatically under a common law duty to provide for their children and to protect them from harm 13 and under the Children and Young Persons Act 1933 poverty 14 As now amended by the Children and Young Persons Act 1963.is no longer any excuse for any parents who fail to provide adequate food, clothing, medical aid etc. for the child and young persons.15 Except like the above instances we can see that in all other instances it is only where a person has by his own conduct undertaken the responsibility that he incur any liability for failing to take steps to assist or serve another. Acts Prohibited by Law16 Only those acts that the law has chosed to forbid are crimes. An act how so ever reprehensible it may be is not a crime unless prohibited by law. No crime is committed when a soldier in a battlefield shoots an enemy. The act being authorized by law the killing is not actus reus of crime for there is a lawful justification for it. Similarly no crime is committed when a person exercising his lawful right of private defence causes harm to another. Likewise if an onlooker who happens to be a good swimmer does not rescue a child about to be drawned in a pond, he is not liable for any offence because there is no duty on his part to rescue a Person .An act of omission to be punishable must be an illegal omission or a breach of legal duty.17 Illegal omission to produce a document before a public servant by a person legally bound to do so, S 175, omission to assist a public servant when called upon to do so. For instance a jailor, who starves the prisoner in his charge, to death is guilty of murder. The jailor Act amounts to an illegal omission to discharge his legal obligation to provide meals to the prisoner. 18 Causation in Crime. An event is very often the result of a number of factors. A factor is said to have caused a particular event, if without that factor, the event would not have happened. Thus a man is said to have caused the actus reus of a crime. The act must be the causa causans means immediate cause of the effect. If the result is too remote and accidental in its occurrence, then there is no criminal liability. Causation and Negligence The difficulty of causation arises very often in cases of negligence. Actus reus should be casually connected to the act, which should be proved to be negligent. To impose criminal under this section, it is essential to establish that death is the direct result of rash and negligent act of the accused. It must be the causa causans – the immediate cause and not enough that it may be causa sine qua non means the proximate cause.19 The Supreme Court held that for an offence u/s 304 – A IPC, the mere fact that an accused contravened certain rules or regulations in the doing of an act which caused the death of another , does not establish that the death was the result of the rash and negligent act.20 Minimal Causation. When the death of a person is caused after medical treatment, we cannot say that death was caused due to improper treatment. S299 IPC states that if an act causes death i.e. death could have been avoided by giving proper treatment then act shall be deemed to have caused death and the person will be criminally liable. The Supreme Court held that the mere fact were not sufficient for holding a person as a culprit there should be evidence to prove the charge. The connection between primary cause and the death should not be too remote.21 In Pt. Parmananda katara v Union of India22 that it is the professional obligation of all doctors to extend medical aid to the injured immediately to preserve life, without waiting for complying all legal formalities. Article 21 of the Constitution casts an obligation on the state to preserve life. In several leading cases also, it was proved that criminal negligence of doctor amounts to professional negligence. (IDE Asian Law Series No.3 P 196 : Judicial systems and reforms of Asian Countries : India Rash or Negligent Act Under S 32 IPC the act includes illegal omissions, so if an illegal omission occurs as a result of negligence which results in death then the application of this section comes. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury Death Must Be the Direct Result To impose Criminal liability under this section it is to establish that death is the result of the rash and negligent act. It must be Causa causans and there should also be a direct nexus between death and act. Rash or negligent act in Medical treatment Courts have repeatedly held that great care should be taken before imputing rashness or negligent act on a professional man acting in the course of professional duty. However, In John Oni Akerele’s case, doctors were criminally not liable.23 Concluding Observation The functioning of the Commission for Human Rights in a country such as ours, which is itself going through a process of accelerated and sometimes volatile change, must consider many levels of thought and endeavour. In the immediate sense, it must seek to redress with utmost care, method and alacrity, the daily representations that are addressed to it by individuals or groups, complaining often with searing intensity of the violation of their rights by public servants, as a consequence of acts of negligence, arbitrariness or even of abject cruelty. At another level, the Commission must itself be pro-active: it must, suo motu, take cognizance of occurrences that disturb its conscience, that, prima facie or more egregiously point to assaults on the dignity and self-worth of the people of this country and that fly in the face our Constitution, our laws and treaty obligations, occurrences that have sometimes even resulted from incitement to violence in the name of caste, language, ethnicity or religion. At a third level, the Commission must focus its attention on, and also, bring to the forefront of the nation’s consideration, those factors which, in its view, militate against a proper respect of the rights of the people of India. They can be administrative or structural - as seen in the glaring inadequacies of our criminal justice system, which has long been overdue for systemic reform and overhauling of the jurisprudential system. They can result from the impacts of acts of terrorism and the violence that it begets. They can relate to the economic and social policies that have been pursued, or failed to be pursued, in the fifty years since Independence and which, for all of the efforts made, have nevertheless left us with an illiteracy level higher in number than the entire population of the country at the time of Independence and countless of our children losing their youth - and sometimes their lives - working in hazardous industries, rather than receiving the free and compulsory education that the Courts have determined to be their fundamental right and upon which this Commission has been insisting. The Commission has, in some measure, reason to be gratified that, five years after it was established, and it has come to assume a place of relevance in the life of the nation. It recalls only too well that, at the time of its establishment, few in the country had a clear idea of what a Human Rights Commission could or should do, and of those who were familiar with the Statute of the Commission, many were openly sceptical as to whether it provided a sound-enough basis on which an effective national institution could be built. Human Rights and Administration of criminal justice system • There be a process of progressive and massive decriminalization of offences now recognised and made culpable as penal offences. They should be treated as merely actionable wrongs for which compensation and not punitive action is the appropriate remedy. • The class of compoundable offences under the Indian Penal Code (IPC) and other laws should be widened. • In the disposal of arrears of criminal cases, experienced criminal lawyers be requested to work as part-time judges on a particular stipulated number of days on the pattern of ‘Recorders’ and ‘Assistant-Recorders’ in the United Kingdom. There is an existing provision in the Criminal Procedure Code for honorary Judicial Magistrates, which has not been imaginatively utilized, or its potential realized even in part. • The system of plea bargaining is introduced on the pattern of recommendations already made by the Law Commission of India. • Magistrates and Sessions Judges while remanding persons under trial to judicial custody should clearly indicate in the very order of remand the terminus a quo. The judicial remands should be self-limiting and should indicate the date on which the under-trial prisoner would automatically be entitled to go to bail in terms of the conditions prescribed by the Supreme Court. • There should be a comprehensive training package for programmes of training of all judicial personnel and all Court administrators. • In the proportion of population-judge ratio, India is today amongst lowest in the world; this needs to be rectified. Bibliography Charter of fundamental rights of the European Union, Article 3, Right to the integrity of the Person, European parliament, retrieved 19 November 2007, . 27th Conference of the European Ministers of Justice, Victims: Place, Rights and Assistance, Report presented by the ministry of justice of Yerevan, 2006, retrieved 19 November 2007, . Przetacznik, F, The Right to Life as a Basic Human Right, Human Rights Journal, 1976, P.589-603, retrieved 19 November 2007, . Inter American court of human rights, ICHAR s Advisory Opinion OC-3/83, 1983, Series A, no. 3, p. 59, retrieved 19 November 2007, . Legal and human rights issue in AIDS, The Universal Declaration of Human Rights, 2002, retrieved 19 November 2007, . Human Rights Act 1993, An Instrument of Social Utility, retrieved 19 November 2007, . Yojana, Historic Legal Quagmire, Ankur Gupta, V. 50, 2006, P.75. Ibid., P.77. Cecil. J. W, Turner “Kenny’s out lines of Criminal Law. Universal Law Publishing Co.Pvt.Ltd. 3rd edn, Delhi. R v Edwards (1838)8c, P.611. International Covenant on Civil and Political Rights. R v. Barrett (1846)2c. R v. Brown (1841). R v Senior (1899). Amended by The Children’s and Young Persons Act, 1963. Kaur, K. D, Criminal Law and Criminology, Deep and Deep Publications Pvt Ltd, N.Delhi, ed. 2006. S 43 IPC Om Prakash V State of Punjab. Suleman Rahiman Mulaini v State of Maharashtra, AIR1968 SC 829 (830) Cri LJ 1013, Ambalal D Bhatt v State of Gujarat, AIR 1972 SC 1150. Moti Singh v. State of U.P AIR1964 SC900. Pt. Parmananda Katara v. Union of India (22) AIR 1989 SC 2039, IDE Asian Law Series Judicial systems and reforms of Asian Countries, India, 2001, No.3, P 196, retrieved 19 November 2007, . Sharma, R. K, The King AIR 1943 PC 72, Medico-legal update, 2005, retrieved 19 November 2007, .   Read More