India has approximately over 385 million children i.e. 42% of its population, the largest for any country in the world, placing an enormous responsibility on the state & nation to rear these, as responsible law abiding citizens. They are the representatives of the future of a nation. However, the dawn of industrialization, urbanization, mobilization, resulting in cultural variations, has eroded the existing protective structure making the juvenile more vulnerable to social maladjustment.[1] Juvenile delinquency is a gateway to adult crime. So every society ought to evolve a proper education, training & guidance, to get their mirth in the society.
The concept of Juvenile Justice as a phenomenon, developed in the 19 century. Earlier no concept of rights of children were adhered to & both the child & adult were treated at par. They were prosecuted in ordinary courts, subjected to same penalties ( death penalty & life imprisonment ) & served their sentence along with hardened, habitual criminals in the same prisons. This led to breeding of young criminals in the cells. However, in the middle of the 19 th century the sufferings of the children, drew the attention of the radical reformist, to bring about a change, for, what a child needs, is not, so much of a reformation as formation.[2] So, the emphasis shifted from protecting the society from a delinquent child, to protecting the child from a delinquent society. This led to the enactment of Children Act of 1960 which was subsequently re-enacted as Juvenile Justice Act, 1986. This act has been repealed by the Juveniles Justice (Care and Protection of Children) Act, 2000.
This Act intends to consolidate and amend the law related to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.[3]
Indian Constitution under Article 15(3), Article 39 Cl. (e)&(f), Article 45 & 47, impose a primary responsibility of ensuring the needs of children and of protecting their basic Human Rights. The General Assembly of United Nations, adopted the Convention on Rights of the Child in November, 1989 and laid the standards to be followed by all member States in protecting the interest of the child. It also emphasized on social re-integration of child victims.[4] The new Act has been enacted to meet the international standards prescribed in the Convention on Rights of the Child, United Nations Standard Minimum Rules for the Administration of Juveniles Justice1985, United Nations Rules for Protection of Juveniles Deprived of the Liberty, 1990.[5]
Child in need of care and protection[6] under the Act means –
1) Who is found without any home or settled place or abode and without any ostensible means of subsistence,
2) Who resides with a person (whether a guardian of child or not) and such person –
a) Has threatened to killed or injure the child and there is a reasonable likelihood of the threat being carried out.
b) Has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being, abused or neglected by that person,
3) who is mentally or physically challenged or ill child or children suffering from terminal disease or incurable disease having no one to support or look after,
4) Who has parents or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,
5) Who does not have parent and no one is willing to take care of or whose parent have abandoned him or who is missing and run away child whose parents cannot be found after reasonable injury,
6) Who is being or is to grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,
7) Who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
8) Who is being or is likely to be for unconscionable gains,
9) Who is victim of any armed conflict, civil commotion or natural calamity,
The Act has increased the age of a child to be governed by the Juvenile Act & has deleted the difference between the male & female child. All children who have not completed the age of 18 years will be given the benefit under the Act.
If an inquiry has been initiated against a Juvenile in conflict with the law or a child in need of care & protection & during the course of such inquiry, the Juvenile ceases to be so, than irrespective of the provision under the Act or any other law in force, the inquiry shall continue & orders will be issued in respect of such a person as if he continues to be a Juvenile or a child. Arnit Das v. State of Bihar, 2001 Cri. L.J.4238
Juveniles indulge in deviant behaviour despite the unbridled efforts of the penologists to curb & restrict the menace. It has emerged as a global phenomena & is being dubbed as a social disease by sociologists, psychologist, psychoanalyst, psychiatrists, criminologists & jurist etc. The factors contributing to increase in criminality among youth are –
1. Economics Factors : Background of the juvenile often betray a life of deprivation. They usually hail from low income groups or from socially backward communities. They are forced to break the law generally to survive & indulge in begging, engage in prostitution, shoplifting & other serious crimes. They often become vulnerable & are exploited by the bad elements of the society.
But however among the privileged lot, economic factors work to produce delinquency in a different manner. Rich parents are either too busy to spend time with there children or are so career oriented that they consider spending time with children as wastage. They are willing to buy anything & everything for the child so long he is out of the way or does not demand attention or time. Vested with enormous wealth, absence of parental control, care & affection & with inexperience they plunge into – the world of sin and crime. Neglected, lonely and depressed they find resort in excessive drinking, smoking and drug addiction. They experiment with sex and drugs – ‘the good things in life’ at such a young age. Youth no longer can be perceived as innocent far less angels. They endlessly look for thrills as boredom and loneliness frustrates them. “The thrill for stronger & stronger stimuli is almost like an addiction” which often leads to violence.
2. In a world confronted with cut throat competition, technological changes and cultural variations, juvenile prowl tirelessly for a better deal so as to liberate themselves from the economic strains that there parents were accustomed to. As images of realizing there cherished aspirations play constantly on there mind, failure to achieve makes them violent & aggressive. Further, lack of opportunities or denial of opportunities frustrate them and they do not hesitate to commit the most vulnerable crimes to achieve what they dream & want in life.
3. Disintegration of the joint family system has deprived the child of set values & behavioural codes to conduct himself in a society. They usually deviate & fall prey to mischief mongers who divulge them into delinquency. Juveniles coming from broken homes, polygamous set up & crowded homes usually acquire manipulating, intriguing & hostile tendencies which are usually destructive. Such juveniles usually look for role models outside the family to identify himself with. This hour of identity crisis may tilt the balance in favour of deviant behaviour.[8]
4. Increasing industrialization has resulted in amazing migration of the rural population to the urban areas in an urge to uplift their dwindling socio-economic status, by opting for gainful occupations. Passion to achieve something makes them prone to opt for residing in urban slums and unplanned congested localities.[9] These further make them vulnerable to crime.
The nature and extent of juvenile delinquency has shown a tremendous rise. Approximately 93% of all heinous crime were committed by young novices. A report of the National Crime Records Bureau states that young people in the age group of 14 to 20 years are responsible for 50 % of all crimes committed in the country. A total of 9,339 Indian Penal Code cases were Registered against juveniles during 1998 showing an increase of 18.1 % over 1997.[10] In Special & Local law, cases registered against juveniles went up by 36.2% during 1998 as compared to 1997.[11] Of the total juveniles involved in crime in 1998, 77.5 % were either illiterate or had education only up to primary level.[12] This makes them highly vulnerable to fall prey to temptations, inducement and mechanization by vested groups to embark on a path of criminality.
Juvenile Delinquency should be tackled on the basis of two fundamental assumptions :
(a) Young offenders should not be tried but they should rather be corrected.
(b) They should not be punished but reformed so they should be tried by Juvenile Courts and Neglected Delinquents by Child Welfare Boards.
The Indian Penal Code and the Criminal Procedure Code, 1973 contain special provisions relating to juvenile offenders, their treatment and procedure.
It specifically states that a child below the age of seven is “doli incapex” that is incapable of committing a crime. ‘Nothing is an offence which is done by a juvenile below the age of seven years.’ He is presumed to be innocent in the eyes of law.
‘Nothing is an offence which is done by a juvenile above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct at that occasion.’
It states that whenever an offence is committed by a person who at the time of its commission is below twenty one years of age and offence committed is other than the one punishable with death penalty & life imprisonment, then he should be awarded a lenient punishment depending on his past history, character, circumstances in which he committed the act labeled as an offence and whether he was capable of knowing what he was doing is right or wrong. Whether he was capable of knowing but incapable of appreciating his acts as he was intoxicated without his knowledge. A person can be released on probation for a period not exceeding three years on entering into a bond with or without sureties.
SECTION – 27 lays down a lenient treatment to Juveniles below sixteen years age if they commit an offence other than the one punishable with death or life imprisonment.
To protect and prevent stigmatization and embarrassment, the juvenile is not subjected to the ordinary law courts but are governed by the Control Act i.e. The Juvenile Justice (Care And Protection of Children) Act, 2000 which lays down a different procedure for trial, adjudication and punishment. The consensus is that as far as possible young adult offenders should be saved from the labeling process and the contaminating effect of criminal justice system.
The juvenile justice act 2000 provides for care protection, treatment, development and rehabilitation of Juveniles. The gradual breakdown of the traditional means of societal control particularly in the family and community, the expanding rural urban drift, rapid industrialization has generated a strong tendency for increasing centralization of the authority in the hands of the state to reform irregular behaviour of the juveniles. Every type of juvenile misbehaviour is not to be described as delinquency because it maybe an offshoot of the process of developing or a byproduct of the conditions over which a juvenile himself might have no control. The responsibility vests in state to rationalize policies governing the administration of juvenile justice, on the basis of progressive move towards decriminalization, depenalization, diversion and deinstitutionalization to the extent possible so as to be in consonance with the socio – cultural conditions of the country. The act is divided into Five chapters & seventy sections.
(1) To lay down a uniform legal framework for juvenile justice so as to ensure that a child under no circumstances is lodged in a jail or police lock up.
(2) To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the preview of juvenile justice system.
(3) To establish norms and standards for the administration of justice in terms of investigation and prosecution, adjudication and disposition, care and protection.
(4) To develop appropriate linkages and co-ordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected & socially maladjusted children.
(5) To constitute special offences in relation to juveniles and provision for punishment.
(6) To bring the juvenile justice system in the country in conformation with the United Nations Standard Minimum Rules for the administration of juvenile justice.
The juvenile justice act contemplates a vigorous use of the inherent potentials of the community for dealing with juveniles indulging in delinquent behaviour so as to bring them within the mainstream of social life. The Act authorizes the state government to constitute Juvenile Justice Board comprising of a judicial magistrate first class and two social workers of which at least one must be a female.[14] A Magistrate will be designated as the principal magistrate. Every magistrate so appointed must have a special knowledge of child psychology. Members must have been actively involved in health, education or welfare activities related to children for at least seven years.[15] Persons appointed as members can be removed by the state government if :-
(1) He has being found guilty of misuse of power.
(2) Has been Convicted of an offence in involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence,
(3) He fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three fourth of the sittings in a years.[16]
There must be at least two members present including the principal magistrate at the time of final disposable of the case. In case of difference of opinion the majority decision shall prevail. The Juvenile Board exclusively has the power to deal with proceeding under the Act.[17]
The court will first determine the age of the juvenile to analyze whether he is to be governed by the Act or under the criminal law of the land. For ascertaining the age of the accused an inquiry has to be conducted by a competent authority by giving equal opportunities to the parties to adduce oral & documentary evidence.[18] Such an inquiry must be conducted within four months[19] unless extraordinary circumstances permit otherwise. This would culminate either in treating him as a juvenile and subject him to the provisions of Juvenile Justice Act 2000 or an adult offender. The court has to determine the fact that which is the material date, the date at the time of commission of the offence or at the time when the juvenile is brought to the court. The court held that the date he is brought before the court is relevant. Arnit Das v. State of Bihar, 2000 SC 2264. The Juvenile apprehended by the police shall be placed under the charge of special Juvenile police unit and then forwarded during the pendency of inquiry to the observation homes. The proof of age is ascertained from entry in the school register. If it is doubtful medical evidence would prevail over it. Sunil Kumar v. State of U.P., 2000 Cri.L.J. 4687. Proceeding pending on the date of the Act will be concluded under the old Act. Lallan Singh v. State of U.P. 2002 (4) All India Criminal Law Reporter 947.
The parents or guidance of the child if found must be present before the Board when the Juvenile is produced.[23] The Probation officer will inquire into the family background.[24] The juvenile can be brought before a competent authority not only by a police officer but by any other person or organization duly authorized. The proceedings of the Juvenile Board are informal, strictly confidential and in the nature of a conference between a judge, probation officer, social worker, child and the parents. The issue is why the child committed an offence and not whether he has done it or not. The act denies access to the press and even the right to counsel is not available unless special permission of the Juvenile Welfare Board is taken. The Board can dispense with the presence of Juvenile. The Juvenile Board is satisfied that an offence has been committed then it can :-
a) allow the Juvenile to go home after advice and admonition.
b) direct the Juvenile to participate in group counseling
c) order the Juvenile to perform community service.
d) order the parents of the Juvenile or the Juvenile himself pay a fine if he is above fourteen years age and earning.
e) direct the Juvenile to be released all probation of good conduct under care of parent or guardian on executing a bond with or without surety for a period not more than three years or make an order directing the Juvenile to be sent to special home if he is over seventeen years but less then eighteen for the period of two years or till he ceases to be a Juvenile. A person can be realized even early if the probation officer submits the report of his good behaviour and reformation.[25] No Juvenile can be sentenced to be death or life imprisonment or sent to a prison in default of payment of fine.[26] The Act forbids joint trials of Juvenile and adults offenders.[27] The powers vested in the Board may be exercised by the High Court and the Court of Session whenever the proceedings come before them in Appeal. Any person aggrieved by the decision of the Juvenile Court can file an appeal within 30 days against the order of conviction to the Court of Session.[28] Decision of the Court of Session is final and conclusive. No second appeal lies. High court can however call for the record to determine its legality.[29] No appeal lies against the order of acquittal passed by a Juvenile court.[30]
A juvenile accused of a bailable or nonbailable offence is arrested and brought before a juvenile court then irrespective of the provisions of Criminal Procedure Code, shall be released on bail with or without surety but shall not be released if there appears a reasonable ground for believing that –
(1) That it is likely to bring him into association with any known criminal or
(2) To expose him to moral danger or
(3) That his release would defeat the ends of justice.[31]
The Act Specifically Prohibits the publication of the name, address or identity of Juvenile.[32] Any Juvenile in conflict with the law if he escapes from the observation or special home then he shall be arrested an brought back to the home no proceeding instituting against him however information will be given to the Board.[33] Any form of cruelty, assault, exposure or willful neglect to a juvenile whether physical or mental is punishable with imprisonment for a term of six months or fine.[34]
Abetment of the offence punishable up to one year and fine.[35] A juvenile suffering from an infectious dangerous disease, in sane, leprosy or addicted to drugs, requiring prolonged medical treatment, maybe sent to an approved place to ensure proper treatment.[36] Whosoever, employs Juvenile for the purpose of begging shall be punished with imprisonment for an term up to three years and fine.[37]
Any one Intoxicate a child or subject him to drugs without the order of the medical practitioner shall be punished with imprisonment for a term of three years and fined.[38] Any one employing a child in hazardous works or keeps in bondage shall be punished with imprisonment for three years and fine.[39] Observation homes not only provides juvenile, facilities for accommodation, maintenance, medical examination and education but also provide vocational training for useful occupation. The state government can release a juvenile from juvenile home & grant him a written license permitting him to live with or under the supervision of any responsible person named in the license who is consenting to take charge of him to educate & train him. Failure would result in revocation or forfeiture of the license. Institutional care is resorted to as a last mode if restoration to parents or guardian, release on advice and admonition, placement on probation or discharge on fine is not considered appropriate. This positive liberal approach provides flexibility in the treatment of the juvenile ensuring behavioural development and responsiveness to therapeutic devices. It also attempts to protect the basic human rights. It is an obligation cast upon the state government and union territory administration to constitute advisory boards to advice on matters related to the establishment and mobilization of the resources and co-ordination among various agencies. This interaction enables the boards to make optimum use of various sectors of socio economic welfare in the development of the juvenile justice system.
The Juvenile Justice Act & The Ministry of Welfare has incorporated a provision for creating a juvenile justice fund. It would be exclusively utilized for the welfare and rehabilitation of juveniles. This can be raised from voluntary donations, contributions by organizations. The Ministry has evolved strategies to provide full coverage to services rendered under the Act. This has resulted in setting up of 27 juvenile welfare boards, 189 juvenile courts, 280 observation homes, 36 juvenile homes & 46 after care homes for juveniles all over the country. Maharashtra having the maximum number of juveniles, has 152 such institutions to handle and reform them. It is followed by Uttar Pradesh and Karnataka at 70 & 52 respectively. The Ministry has proposed to institute various awards to felicitate people working for this noble cause.[40]
The Juvenile Justice Act, 2000 assigns a very sensitive role to the police who is the first representative of the law on streets. The police department is the first agency that comes in contact with juvenile delinquents. This finest experience is the deciding factor in the child’s future conduct. It is therefore important that case of juvenile be handled by expert who is conscious of the role he may be playing in the life of the children, their future and through them the lives of others who would be influenced by social contacts.
The police officer who apprehends a juvenile has to determine whether he is a neglected juvenile or a juvenile delinquent. To determine this he can conduct a preliminary inquiry to ascertain his age & then commence proceedings accordingly under the Juvenile Justice Act or the criminal law. The police has been vested with a discretion to release or not to release a juvenile on bail after his arrest and before producing him before a magistrate Discretion must be exercised carefully, conscientiously and diligently to justify the Trust reposed in him by law and to the welfare of the child. This he can do if he has a gift of observation, psychological traits to deal with children in moral danger and fair knowledge of varied social conditions prevailing in his jurisdiction. Police can undertake special programmes of patrolling high delinquency areas and places of entertainment.[41] Police can also launch a drive to educate the juveniles about there legal obligations and responsibilities. They can detect pre-delinquency behaviour and bring it to the notice of parents, teachers and others to take timely corrective action. It organize recreational activities for children living in high delinquency areas to enable them to spend there leisure hour in a constructive fashion under proper guidance and benevolent supervision.[42] They should understand the causes behind juvenile delinquency and use force with utmost restrain. Police actively co-operates with the civil administration in restricting juvenile delinquency through educative publicity, highlighting what parents and community can do to prevent it.
INTERPOL has recommended the following preventive measures to be taken by the police in the field of juvenile delinquency.[43]
(1) spotting areas of juvenile delinquency, detection of minors in moral or physical danger, idle and vagrant juveniles, juveniles begging or indulging in parasitical activities.
(2) juveniles in situations disposing them to prostitution, drug addiction or delinquency.
(3) detection of prostitution and proxamitism in juveniles.
(4) Localization, identification and penetration of juvenile gangs indulging in crime or violent behaviour.
(5) Guidance of juvenile first offenders by police officers working in association with the family and social welfare workers.
(6) Mixed night patrols (police monitors and social workers) for visiting public halls and places of amusement which have a floating juvenile clientele.
(7) Detection of criminogenic families or families with a retarded level of education (alcoholic families or families where father is constantly out of work).
(8) Action intended to restore moral and civic standards in schools.
(9) Police clues for organizing and effectively supervising leisure hours of juveniles.
(10) Supervision of all juvenile gatherings likely to lead violent behaviour.
The constitution of special police units all over the country will definitely help in restricting the growing menace of juvenile delinquency.
Despite the good offices of the government, the system is far too officious in its dealing with delinquents and neglected children. The governments sincere efforts to establish an efficient juvenile system is far from reality as the ground realities reveal a dismal picture.
The members of juvenile welfare boards do not sit on all five days they are not aware of the provisions of the Act. They lack legal qualifications and are incompetent to handle serious cases. Absence of sufficient funds, lack of infrastructure and poor maintenance results in hasty disposal of cases. Training and counselling a necessity for rehabilitation is neither done nor encouraged. The observation homes are overcrowded, understaffed as a result juveniles stay over an a year in violation of the Act. Attendants lack training in child psychology and are incapable of reforming them to enable them to lead a normal life. These homes have become institutions of child abuse rather than rehabilitation.[44] Further, the children entering these institutions soon realize that even after there discharge they cannot settle in life. The juvenile court has failed to prevent them from being stigmatized and labeled. They are generally viewed by the people, schools, armed forces and employers – the society generally – as criminals. The effort of the court to treat children guilty in a non criminal way has not been achieved as they are labeled as junior criminals. So the efforts of the juvenile act to ensure regenerative treatment has still to be realized so that the juvenile is brought back into the main fold of the society without being a threat to it.
The Juvenile Justice (Care & Protection of Children) Act, 2000, advocates a new concept of justice by making special provisions to ensure that they are not subjected to the provisions of criminal law, secrecy is maintained and publicity strictly avoided to prevent humiliation and embarrassment to the juvenile. Certain concrete steps should be initiated to ensure proper functioning & must be taken up by the government & NGO’S. These are:
(1) The Act undoubtedly is very well drafted but its administration and implementation is faulty. There is an urgent need of devoted, dedicated, sincere, and determined staff trained to handle juveniles.
(2) There should be effective co-ordination between various state administrators to bring efficiency and effectiveness in the functional machinery. Essential funds must be provided by the govt. and private organizations
(3) To prevent juvenile delinquency educators interacting with children must be capable of understanding and providing special care and attention. They should :
(a) develop a new value system in which school should be a force working against discrimination and rejection experienced by pupils drawn from low classes.
(b) make the school a instrument for fostering work attitudes, self-esteem and job skills to improve the employability of graduates coming from deprived areas.
(c) provide school experiences designed to improve the self image of delinquency prone children.
(4) The Community must step in to provide a sense of belongingness to the juveniles desperately in need of. This initiative would give them the identity to bring themselves back from where they had drifted away. Emphasis should be on understanding the child psychology, his attitude, reasons for deviance socio-economic position, his family background to provide treatment, counselling and compassionate understanding to his or her requirements. The effective establishment of after care organization is a necessity to ensure actual reformation. These organizations would assist the child when he leaves the observation home to lead an honest, industrious and meaningful life in a conducive environment.
The juvenile justice system is an effort to establish a social therapy based on benevolent intentions towards juvenile delinquents. The juvenile justice system is a movement towards decriminalization and depenalization, for every man is born good but circumstances transform him into a criminal.
“If every saint has a past, every sinner has a future.”
The objective is thus to recreate this good child by bridging the gap between the institutional treatment and the process of re-assimilation into the society.
© Chawla Publications (P) Ltd.
Era of science and technology has promoted a new dynamic social order that is not only highly competitive but also reflects the transformation in industrialization, demographic transition, and integration of a global economy. On one hand knowledge explosion and awareness has aggravated crimes like trafficking, illicit trade in human beings, atrocities on minorities etc but on the other hand it has also equipped the enforcement agencies with sophisticated techniques to identify speakers through image analysis, search crime scene through finger print, skull and facial superimposition, DNA test and through forensic biology. Therefore science and technology are playing a predominant role in the Criminal justice system of the country. The cardinal rule of criminal justice is that
“Everyone charged with a criminal offence shall have a right to be presumed to be innocent until proved guilty in accordance with law. But at the same platform it should not amount to denial of justice to the victim who approaches the system under a believe that his rights would be protected and insured.”
Growth of science and technology has resulted in emergence of a new category of genetic variation that is Deoxyribose Nucleic Acid. In this process, an expert extracts DNA from the nuclei of white blood cells Or from hair follicle cells that cling to the roots of the hair that have fallen or have been pulled out or from saliva, brain tissue, teeth pulp etc.[1] This sample is first digested with an enzyme which cuts it into fragments at specific sites. These sites present in an individuals DNA, dictates the no. and size of DNA fragments generated by the enzyme. This process is repeated with several enzymes which cuts at different sites and thus sufficient information is gathered to construct a genetic finger print of a person.[2] The location of fragments is detected with X-ray films. It produces a picture of a strip of 46 fine thread like structures called chromosomes. These resemble the bar codes used for identifying goods at a store.
The degree of biological variation is so high that every individual produces a unique band pattern just as every individual has a unique set of fingerprints.[1] These contain the entire information about the development of an individual, its characteristics, susceptibility to diseases, formation of cells and tissues, physical characters etc in the form of genes. Genes consist of chemical, complex long – chained nucleic acid-DNA.
DNA is responsible for providing characteristic individuality to a person. The individual constitution of parents, the biological process through which eggs and sperms are formed, their union during fertilization sufficiently ensures that except the twins no two individuals could ever be conceived with exactly the same biological set up.[1] This biological specification is one which is being exploited by the forensic scientists for the benefit of police investigations.
This DNA analysis is used to determine the identity of the criminal. Samples of blood, semen, skin, hair, perspiration, teeth, tissue, saliva etc. found at the crime scene are subjected to a DNA test. Since DNA of every individual varies so if from the scene of crime varied samples of blood, saliva, broken hair and finger prints are collected and DNA analysis is conducted. It would conclusively prove whether they belonged to a single individual or more than one persons were responsible for the crime. Possibility cant be ruled out that those implicated by the investigating agencies and subjected to a trial due to mistaken identity or lack of evidence, might not have committed the offence. Actual offender might have taken benefit of the loops in investigation and escaped the provisions of law.
In a similar chord if evidence is collected from the scene of crime – death of a victim of sexual assault. The forensic scientist would examine minutely and gather every possible sample from which evidence could be attained. He would examine the injuries on the body, wounds, the weapon if any used and collect blood stains from different places at the crime scene including those on the clothes. He would take finger print impressions from the glass, door and all other things to derive his conclusions. He can look for any other kind of impressions or stains on carpets, floor or on grass or mud. A DNA analysis of the finger prints, blood, hair can be derived to ascertain the identity of the person who committed the offence. This analysis would also assist the agency in determining the number of persons who committed the assault. The blood groups of the victim and assaulters can be deciphered. This technology would disclose the identity of the offender so that no innocent person is charged for the offence as in criminal law we go with the presumption that no innocent person should be subjected to a penalty, even though ten criminals have to be released.
This scientific material evidence would facilitate the enforcement agencies in proving beyond reasonable doubt the guilt of the accused and exonerate the innocent from suffering.[1]
Forensic scientists assist the enforcement agencies to the scene of crime and collect samples meticulously and accurately so that their evidentiary value is neither lost nor restricted.
Development of DNA data banking technique has further opened new arenas in investigation and forensic science. Earlier,science was not so advanced to give us DNA comparisons nor scientists had experimented with DNA database. But today it is possible. DNA collected from the sweat on a baseball cap discarded by a rapist at one crime scene can be compared with the DNA in the saliva from the bite mark on a different rape victim. Similarly skin cells shed on a ligature of a strangulated victim can be compared with the suspects blood or saliva sample.
DNA molecules are miniature medical records.[1] They are effective tools for surveillance. Databank of tissue samples contain a detailed information on genetic mapping of individuals who have earlier been convicted of offences.[2] Sample recovered from crime scene or the person of the offender can be matched with the existing DNA PROFILE in a databank. If it matches, it can be safely concluded that the same individual committed the crime, for which he was earlier charged and punished or charged but not subjected to a penalty as evidence was insufficient. Grave errors in prosecution evidence has led to colossal miscarriage of justice. Mistakes are made since our system does not guarantee ‘justice’ but guarantees ‘chances’.[3] Chances of seeking justice have improved with the development of science of DNA fingerprinting and DNA data banking.
The investigative agency vested with investigating powers under Section 156[1] & 157[2] of CrPC collects samples of blood, hair, skin for DNA analysis from suspected offenders or those arrested. It can match these samples against the samples recovered from the crime scene and available in the data bank. This would facilitate in concluding that suspecting persons or habitual offenders are re-indulging into criminality. Therefore deterrent punishment has to be awarded to restrict this menace. If it does not match then either the person is a first time offender or he has always succeeded in evading arrest at the hands of enforcement agencies. It can be incorporated into the normal process of appealing against a guilty verdict.
he govt. to look at its policies, laws, flaws in the functioning of the enforcement agencies, mistakes made in the investigation, search, gathering and corroborating of material evidence. Statistics in USA reveals that since 1973, some 90 death row inmates had been exonerated by discovery of new evidence, just hours before the scheduled executions.[1] This technology is one of the basis for convincing the govt. to abolish death penalty. State cannot give life to an individual who has been falsely implicated and eliminated, [2]therefore it is more appropriate to award life imprisonment.
In India the use of science and technology in administration of justice is still at a preliminary stage. We are constituting forensic laboratories equipped with modern sophisticated techniques to conduct DNA analysis as well as to set up DNA data banks where information related to criminals, suspected offenders can be stored. This would facilitate and speedup up the work of the investigative agencies. Further classification can be made in storing the data according to the nature of the offence and the type of offence.In future whenever crime is committed forensic scientist and investigative agencies can analyze the evidence and compare it with the profiles in the data banks.
In sexual offences or homicide cases enforcement agencies heavily relies on DNA samples to ascertain the identity of the offender and the causes of death or assault. In such offences FIR is usually launched after a time gap. Medical examination may or may not be conducted, if conducted it is after a delay resulting in depleting the evidence and giving option of doubt and addition of colored version. Material evidence are forwarded to the forensic laboratory after sufficient delay. So, by using this technology evidence can be gathered, analysed and compared with the DNA fingerprint of the offender charged or suspected or any other male member of the family whose credentials can be doubted. The chances of the abuser taking advantage of the flaws in law can be depleted. Burden of the investigative agencies would be decreased as the identity of the offender is sufficiently proved. Enforcement agencies are playing a pivotal role aided with scientific technology to usher in a new era where both function in harmony with the administration of justice.
Aided with strong scientific evidence the investigating officer can alter the conclusions otherwise derived. If samples of blood and body fluid are meticulously protected in forensic laboratories, then DNA database would work effectively. Innumerable trials where guilt and innocence was hotly contested but not airtight, they would have benefited from DNA analysis either to prove the guilt or establish the innocence.[1]
However use of science and technology has its own inherent Advantages and disadvantages. DNA fingerprinting analysis only provides the ‘proof of identity’ and not the ‘proof of guilt’ outrightly. It has to be closely monitored, contrasted and corroborated with other evidence to conclude that the person identified is the only person guilty of the commission of offence. DNA technology suffers from certain inherent defects.
It usually depends on the quantity of samples taken and analyzed. The sample must match beyond reasonable doubt. In OJ SIMPSONS trial if DNA was fool proof then he would have been convicted but he wasn’t. Further storing of DNA profile in data banks for future references has resulted in many ethical questions being raised. These are posing a threat to the use and development of this technology. Whenever forensic scientist are utilizing markers like ABO blood groups or any protein system for investigation then information gathered out of such test is limited and confined to that particular marker only[1] but when a DNA sample of an individual is available then an expert has an access to all genetic secrets of that individual.[2] Even though requisite technology is not yet available to gather all this information but potentiality of its use or misuse in future cannot be ruled out.
DNA left at the crime scene can also be affected by environmental factors like heat, sunlight, moisture and bacteria. Therefore not all DNA evidence will result in usable DNA profile.[1] DNA testing cannot tell the investigating officers : when the suspect was at the crime scene? or for how long ? Further access to such tests & legal services would be an insurmountable bar for the poor and less privileged in India.
The most controversial issue in DNA databases for law enforcement’s use in criminal investigation is question of coverage. Whose DNA profile should be stored in those databases.The range of possible coverage extends from convicted violent sex offenders, convicted homicides, to everyone arrested, to the entire population.[1]
The law enforcement agencies constituting of the Center State police has been vested with the investigative powers under Sections 154-176 of Criminal Procedure Code. Under Section 174 the police officer in charge of a police station or any other police officer specially authorized by the state govt., receives an information that a person has committed suicide or has been killed by another person or by an animal or by machinery or by accident or has died under circumstances giving a reasonable suspicion that some other person has committed an offence, he should immediately intimate to the nearest executive magistrate in power to hold inquest. He will then proceed to the place where the offence has been committed and the body of the deceased person in the presence of two respectable inhabitants of the area, he will make an investigation and draw a report of the apparent cause of death. He is required to describe such wounds,fractures, bruises and other marks of injury found on the body and also to state in what manner, by what weapon or instrument such marks appear to be inflicted.
Where investigation involves death of a women or suicide under mysterious circumstances, he is required to forward the body to the nearest civil surgeon without risk of putrefaction on the road as would render examination useless. He can search for material evidence and seize anything recovered. While exercising the powers conferred on him he can take the assistance of experts to conclude his investigation that the person accused has committed an offence.The Code empowers the District Magistrate,Sub-Divisional Magistrate and any Executive Magistrate to hold an enquiry.
Under Section 176 of CrPC the Magistrate is empowered to conduct an enquiry into the cause of death of a person in custody. He can make an examination of the dead body of any person who has been already interred in order to discover the cause of death.
Under Section 156 of the CrPC, any police officer without the orders of the Magistrate can investigate any cognizable case within the limits of his police station. No proceedings of a police officer can be called in question on the basis that the officer was not authorized to investigate. The investigative agencies are relying on these provisions to conduct investigation and to gather evidence to prove guilt of the accused beyond doubt.
Both law enforcing investigators and forensic scientist have a common goal that is detecting crime and solving the mysteries of crime. Investigative agencies are primarily relying upon set procedures and outdated techniques. Assistance of forensic science is taken only in exceptional or marginal number of cases as we do not have sufficient forensic laboratories in our country.
However if forensic scientist assist the investigative agencies at the scene of crime then they can lift the veil and unfold the truth. It would also help and facilitate the investigative agency in reconstruction of the sequence of the event, modus operandi of the criminal, motive of crime, knowledge about the victim and offender and methodology employed to collect evidence against the offender to bring him within the purview of law.
Forensic science serves as an integral component of criminal justice system. It is now well established that forensic laboratories are doing highly specialized and sophisticated analytical work. In India well equipped forensic laboratories are functioning at Mumbai, Kolkata, Delhi, Chennai, Hyderabad.
These forensic laboratories undertake diverse laboratory examination of physical evidence materials and there from provides reliable and irrefutable circumstantial evidence and strengthen the links in the chain of evidence to detect the guilty.[1] They help in the investigation of crime through scientific guidance by experts visiting the scene of major crimes. Necessary scientific training must be imparted to the investigating officers to create scientific awareness and use of scientific aids. The purpose of forensic science is to identify a material and then to compare it with the sample to establish the similarity of crime.
Biology and serology divisions engaged in examination of stains of blood,semen, saliva, hair, human and animal tissues to link the accused with the crime of homicide assault, rape. The blood group systems are genetically determined. DNA fingerprinting of biological materials has lead to individualization.[1] If DNA fingerprints are identical then identity is proved undoubtedly.
However gene frequencies must be established to provide a base for interpretation of findings. Methodological guidelines must be defined to ensure authenticity of results. Forensic scientists can advice on possible inconsistencies between the apparent death scene and the actual scientific findings so that appropriate conclusions can be drawn.
DNA analysis raises two major questions in post conviction cases thereby emphasizing the fact that DNA samples must be collected before the charges are framed rather than afterwards. This would allow the entire evidence to be reviewed and the criminal justice system with the aid of science and technology can overcome the existing problems. Questions raised are :
– Whether the system is receptive to evidence that it failed to provide justice in a particular case or cases.
– Whether those cases reflect the defective methodology/process, in the criminal justice system.
Law enforcement agencies have a long way to go.They have not only to employ the technology for identification but also to ensure the right to privacy of the individual by safeguarding their genetic confidentiality.Cure lies in better justice delivery and policing – promoting equality, transparency, probity and social solidarity. Laws have to be framed by the center and state governments with the assistance of the enforcement agencies in such a manner that MISUSE of DNA technology can be restricted. Currently in India we do not have such laws since technology itself has just started growing but we definitely have to evolve rules and regulations on the footsteps of other nations which have constituted DNA Identification Acts.
DNA samples must be analyzed before the charges are framed as it would help in determining the relevancy of proceedings resulting in initiating a trial against the accused.
Due to use of DNA technology in future investigation of offences, it is less likely that innocent persons will be convicted. Investigative agency should be assisted by forensic scientist at the scene of crime. This would lead to reducing doubts regarding the credibility of enforcement agencies, less chances of depleting of evidence and speedy justice would be ensured.
There is a need to impart scientific training to the investigative officers to create necessary scientific awareness and to develop potential for optimal use of scientific aids within and beyond the laboratory.
Law enforcement agencies depend on the forensic sciences for gathering evidence. So in order to ensure fool proof evidence we require forensic laboratories with adequate, latest equipment, highly trained personnel, well kept critical records, maintenance of logs, organized laboratory manuals and documentation of specimens handled.
Not only do we require well equipped forensic laboratories but they should be widespread that is there is a need to set up a chain of full fledged forensic laboratories in India at Central, State and Regional level for rendering immediate scientific aids in timely detection of crime before the loss of valuable evidence.
DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant evidence. For example: if someone sneezes or coughs over the evidence. So, necessary precautions have to be taken to prevent contamination.
Proper collection, preservation, transportation and storage are pre-requisites. For example DNA sample should not be kept in plastic bags as these retain damaging moisture.
Though the specialized forensic scientist who handles the DNA profiles and the investigative agencies are separate entities, but they need to work in proper co-ordination and co-operate with each other to nab the offender. Both need to understand the role and importance of one another. Enforcement agencies must include forensic scientists within the set up, to trace the evidence left by offenders.
To deploy DNA test responsibly the commission need to think how to standardize ?, how to validate the information they produce ?, how to access new and emerging methodology? How to put forward well defined methodology? and how to communicate the judgement about these issues in form of policy.
Thus in context to Indian scenario where DNA technique is still in infancy stage following five core areas need to be addressed :
– Research and development
– Post conviction issues
– Crime scene investigation
– Legal issue {admissibility and post conviction relief}
– Laboratory funding {cost of database logs}
In the nutshell, DNA in Criminal Justice System has two-fold aspects –
1) To identify the criminal and
2) To exonerate the wrongly convicted.
Criminal Justice System with the backup of DNA technology can be an effective deterrent for future offenders. We have to evaluate the values of the society, how a society might be and should be reshaped by the technology in a positive manner and how technology should be shaped/adapted by our society to ensure a healthy, free from crime environment.
“The challenge is to learn how to govern, rather than be governed by the power of DNA”
© Chawla Publications (P) Ltd.
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]]>The History of mankind is a history of repeated injuries and usurpations on the part of man towards woman, having in direct object the establishment of tyranny over her.[1]
Discrimination all over the globe remains an ultimate reality. She is discriminated against by law and by custom, rendering her among the most vulnerable disabled and disadvantaged social groups. However, the emergence of women’s voice on law led to the convening of the First World Conference on Women in Mexico in 1975. The World community accepted the Declaration that ‘women have a right to equal treatment as men. No restrictions can be imposed on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.’ The Convention on Elimination of All Forms of Discrimination Against Women too provided for giving equal rights to women on equal terms. It concentrated on 3 core areas…..
1. The rational underlying international instruments which have been adopted relating to the status of women.
2. The motivation of states in adoption of such text.
3. The likely success of international law as a means of providing women with solutions to the problem which they face in exhibiting their role in the society.
The Fourth World Conference on Women at Beijing emphasized on women’s vision of a transformed world <196> a world where equality, peace, well-being for all may reign supreme.
Women’s empowerment emerged as a commonly used terminology at a world summit for social development at Copenhagen in 1995. Empowerment is a manifestation of redistribution of power that challenges the patriarchal ideology and male dominance and of gaining control over the sources.[1] Women empowerment is thus, an ideology which helped in breaking down the social, economic, educational, cultural and psychological barriers to upgrade their status from passive recipients to active participants and thus, ensure gender equality.
The agenda for women’s empowerment called upon to protect and promote equal rights and inherent dignity of women, removal of obstacles, to women’s participation in public life and decision making at all levels and to ensure equal access in their struggle for self-actualization and promotion of autonomy to ensure access to productive resources.[1]
Social empowerment implies promotion of social capabilities such as education, health, cultural aspects and women’s honour. Economic empowerment implies entitlement to employment, income, property, productive resources and equal distribution of benefits of development.
Despite the Constitutional guarantee of ‘Equality Before law’ and ‘Equal Opportunities for All’ prohibition on discrimination, gender inequities are among the most pervasive though deceptively subtle forms of inequality the world over. Socially, she is referred to as the ‘Better half of man’, ‘a futile giver’, ‘a sustainer of life’, without whose presence the survival of the world is impossible yet she is designated as weak, subordinate and second fiddle to man. She is defined in relation to men not in relation to themselves. ‘She is protected by the father in her childhood, by the husband in her adulthood and by the son in her old age’. She is never fit for independence. The patriarchal value system, the prevailing power structure and the traditional mind set of men wrapped with and rooted in the notions of inherent inequality between men and women restricts women’s empowerment. The social scenario perpetuates practices derogatory to the dignity of women, deny them free and equal access to ‘opportunity structure’ for self growth and development. She remains socially and economically invisible.
Educational Empowerment is a key to secure equality, justice and economic empowerment. It is self sufficient to make them cognizant of their legal and constitutional rights, opportunities of self expression and growth, welfare programmes for economic productivity and autonomous existence and a self- fulfilling life in he family and community.[1] Though, education has been made a fundamental right under Article 21-A of the Constitution yet it is not free from bias against women. They are viewed as passive recipients of development and emphasis is on their reproductive role while men assume productive role. They are denied opportunities to participate in decision making even if they are for her well being. She has no right to decide the matrimonial home, number of children, when and how her body is to become a vehicle of procreation and whether she would like to retain or abort the female foetus. Her consent is presumed. Social empowerment of women appears to be myth when the social patriarchs exercise exclusive power to declare that the parties would no longer be treated as husband and wife but brother and sister since they were from the same gotra and marriage is prohibited. The societal bias has multiplied the crime of female foeticide resulting in upsetting the male female sex ration. In Punjab there is 793 females per thousand males. Equality appears to be diminishing as at every platform she is discriminated. The Hindu Succession Act, 2005 merges the difference between son and daughter as it gives birthright to both son and daughter but this initiative of law has deprived the women love and affection of her brothers as she is viewed as a grabber of property who will claim her share.
Gandhiji had once remarked ‘I were born a women, I would rise in rebellion against any pretension on the part of man that women is born to be his plaything Man is born of a women, he is flesh of her flesh and bone of her bone’.
Women are overburdened. They constitute half the world’s population, perform nearly 2/3rd of its working hours, receive 1/10th of the world’s income and less than 1/100th of the world’s property are still regarded as passive participants, unproductive, even though they contribute more to the family income and play the dual role of baking the bread and earning it too.[1] Still her contribution to the economy is undermined. They are engaged in the rural and urban areas, in agriculture, domestic, organized and unorganized sector as skilled and unskilled laborers and are usually underpaid and exploited ,forced to work in low perks low status with no future prospects of security tenure ,gratuity, pension, paid leave ,old age care etc.in contrast to their male counterparts .They are victims of unemployment, job insecurity, social insecurity, sexual harassment at workplace. Though, women’s work participation increased from 22.7% in 1991 to 25.6% in 2001 but women’s status has neither improved nor have they gained economic independence. She continues to be a disadvantaged group as they are concentrated and segmented as wage earner, casual labourer, domestic servant while no legal safeguards are available to protect and promote her. Though innumerable laws have been enforced to ensure healthy working conditions and equal pay for equal work without discrimination, Equal remuneration to men and women for the same work , ensuring Maternity Benefits to women, still empowerment is restricted to a marginal group. The government introduced a number of schemes to economically empower women such as Sampoorna Grameen Rojgar Yojna for families below the poverty line where women were employed as wage earners, Swavlamban where woman were trained in non-traditional areas like electronics, garment making, watch making, computer etc, Swaymsidha <196> where aim was to ensure direct access to and control over the resources through a process of mobilization etc. It is the gender which determines her disadvantageous position with respect to men. Women suffer because they are women.
Constitution guarantees freedom, liberty and equality to women but its perceptions still appear to be beyond the reach of a common woman, who are poor unemployed, economically strained, less visible in the authority structure, suffer from barriers of patriarchal norms, physically and mentally abused, assaulted and treated as an appendage to man. These inequalities are a sad reflection of the gap between theory and practice. Women as a class is never a subject of legislation but appears as constituent element of religion, class, caste, community and family. The nexus between woman and law is still culture, caste and religion. This is a sufficient evidence to substantiate the claim that women are subjected to harassment extending from home to workplace and women’s empowerment is a slogan not a reality.
Social cultural divide which has split the country into nearly two contagious halves that is anti female bias in natality and post natality mortality. The patriarchal values are so deeply embedded in the culture that women themselves are not immune. As a second subordinate group in the society, women have idealized and internalized self-sacrificing roles and have developed a false consciousness which includes belief in appropriate lower wages and secondary leadership position.
With growth and advancement of society and development of new ideals of liberty, equality, fraternity and justice have generated social awareness. Women’s empowerment can be a success if following suggestions are implemented.
1. Women’s empowerment calls for gender perspective, where women is to be viewed as a human being worthy of self respect, dignity consistent and in conformity with the Constitutional legal provisions of equality and development. This will inculcate the ability to redefine oneself and to act effectively for oneself.
2. There is a need to create an environment through social and economic policies for complete development of women to enable her access to new information and skills to realize her potential.
3. Freedom is indivisible so is justice. The legal system should be strengthened and modified, altered, amended and regulated to restrict all forms of discrimination and to deduce measures to bail out women from their deplorable conditions .To empower women laws should be implemented in letter and spirit .
4. Social Engineering is required to empower women. There is a need to balance the working women’s interests in maintaining social morality and the institution of family in order to overcome the conflict with certain social institutions which still adhere to the patrilineal norms.
5. To ensure empowerment there is a need to create an awakening and awareness among women to question those perceived values rather than to humbly submit and accept them as a way of life. Woman by economic sustenance can project the notions of gender justice in every sphere so that equality in status and dignity can be realized.
6. To bring empowerment women should be mobilized to organize themselves so that they know their rights and are able to obtain support to exercise them. They should be involved in decision-making in enforcement machinery to protect the interests of women employed in various sectors where large-scale discrimination exists.
Thus, there is a need for a change from qualitative to quantitative. Empowerment of women would result in new understanding of power and experiment with way of democratizing and sharing power building new mechanisms for collective responsibility, decision making and accountability .The real challenge is to convert women’s empowerment rhetoric into reality that is to realize the substance of a slogan which has kindled hope in the hearts of woman all over the world. Thus, a holistic approach is required to empower woman practically.
© Chawla Publications (P) Ltd.