CRIMINAL DIARIES: THE MEMBERS WRITE
The Author, Divya Sampath, is a 1st year student at the National University of Juridical Sciences. She is also a Member of the Society for Advancemnet of Criminal Justice (SACJ).
DNA Profiling- its reliability as evidence in establishing a case?
The most important issue in criminal and civil investigations has been that of the correct identification of criminals.[1] Simple as it may sound; the legal technicalities have always known to be graying the possibilities of establishing a correct co-relation between the physical evidence and the provided statement of facts and thus have been functioning under the fear of miscarriage of justice. Under such circumstances, an infallible method of establishing an evidentiary corroboration becomes necessary. Side by side, the contemporary crime scenario indicates a pressing need to equip and inculcate the necessary skills and competency to challenge certain sophisticated crimes involving high technology to satisfy the complex, multidisciplinary and multifarious needs of the law enforcing agencies and the criminal justice systems.[2] Science has always helped reaching logical and reliable conclusions, hence law has turned towards using forensic methods to establish a strong and reliable evidence to substantiate or negate a premise stated in a case. The best and certain method so far, had been the identification through DNA Profiling. This test exploits the occurrence of tandem-repetitive regions of DNA-minisatellite which are scattered through the human genome and links it to the accused for the purpose of evidence.[3] Researchers at Leicester University, England, isolated three human minisatellite DNA fragments by molecular cloning, each containing tandem repeats of closely related variants of a short consensus sequence. Using these cloned DNA fragments as probes to detect the homologous sequences in the restriction endonuclease-digested human DNA, they discovered DNA banding patterns ("fingerprints") that are completely specific to each person, which made DNA profiling an individualistic method of linking a criminal to the crime scene. It may seem like a reliable method of evidence corroboration, but highlighting on some of its drawbacks, we examine the arguments made by defense lawyers in early days of using DNA Profiling as criminal evidence. They would not fail to take the stance of the fact that a match had a probable chance occurrence .i.e. occurring among one in a five million; this would mean that in a country of 60 million people, there are twelve people who would match the profile. It would then translate to one in twelve chances of a suspect being guilty and considering the likelihood of an individual matching the genetic profile who would also have been a suspect in the same case for other reasons makes this method for establishing the case mentioned above very unreliable. Forensic sciences have undoubtedly matched up to the expectation of the judiciary in creating advanced and reliable technology to identify the criminals with precision in the past decade but the criminal minds are simultaneously working to escape prosecution and aren’t very far behind in manipulating evidences. In a study conducted by Nucleix, a life science company, the scientists published the following in the Journal of International Forensic Sciences “In vitro synthesized sample of DNA matches of any desired genetic profile can be constructed using standard molecular biology techniques without obtaining any actual tissue from that person”. Citing a case to substantiate the same is the case of the Phantom of Heilbronn[4], the police detectives found DNA traces from the same woman on various crime scenes in Austria, Germany and France — among them were murders, burglaries and robberies; only after the DNA of the "woman" matched the DNA sampled from the burned body of a male in an asylum in France, detectives began to have serious doubts about the DNA evidence under which the case was constructed. Given any circumstances is becomes unlikely for a deceased mad man to have committed the crime when he wasn’t even present in the crime scene. There are several DNA databases in existence around the world and are generally government controlled. They maintain a large DNA databases with the Combined DNA Index System, which hold over 5 million records and beyond.[5] The DNA from the scene of crime is tallied with the stored data and when a match is made to link a crime scene to an offender who has provided a DNA Sample to a databank, the established link is often referred to as a “cold hit”. A cold hit’s value in referring the police agency to a specific suspect is of less evidential value than a DNA match made from outside the DNA Databank, since there is a fear of misappropriation; cases like Heilbronn become a live example of such a fallacy. Another case is of a fake DNA implant; Dr John Schneeberger raped one of his sedated patients in 1992 and left semen on her underwear. The Police drew what they believed to be Schneeberger blood and compared its DNA against the crime scene semen DNA on three occasions, never showing a match. It turned out that he had surgically inserted a Penrose drain into his arm and filled it with foreign blood and anticoagulants[6] thereby leading to a failure of the traditional method of DNA profiling. In family paedophilia cases, the proof against the family members becomes difficult to establish since the DNA of all the family members are by and large similar.[7]
It is true that every method of evidence corroboration has its own drawbacks, but what we finally have to see is, how far we can rely on its advantages over its drawbacks; how far is it convincing when applied to test in a trial of a real life simulation that goes beyond the scientific laboratory. Also, the sole reliance on forensic techniques alone could be another reason for miscarriage of justice that was feared otherwise in the beginning of this essay. Over the past decade we have seen that DNA profiling has been of immense help in solving cold cases that once couldn’t be solved through eye witnesses, stock witness or even confessions that were induced by third degree treatment.[8] Today a successful establishment of a DNA profile has known to induce confessions even without a third degree treatment; one such case was of a driver sexually assaulting a fifty seven year old woman suffering from Alzheimer’s disease in a bus of which he was in charge. The woman when interrogated could not remember who had attacked her but the police investigations however revealed that only the bus staff could have committed the rape and the driver of the bus became the prime suspect. His blood was analyzed for a DNA profile. The profile matched that of the semen recovered from the person of the victim. When the driver was confronted with the evidence, he confessed to the crime without much verbal persuasion.[9] In another infamous case of the “the South Side Strangler” a rapist assaulted and strangled three women to death. For a long time the police could not identify the so called south side strangler since they believed through several eye witnesses that he was of black origin. Yet the prime suspect was a man of Hispanic origin. The attorney of the victim could easily establish a case of mistaken identity as his client wasn’t a black as alleged by the eyewitnesses. The jury, however, took the DNA profile as evidence and compared it with the semen on the body of deceased and established Mr. Lopez as the “South Side Strangler”. [10]
DNA fingerprinting is a powerful tool for forensic identification. However, there is a need for the scientific community to agree on clear guidelines for the procedures and standards needed to ensure reliable DNA fingerprinting. Legislators should also consider whether licensing and profiency testing should be required in forensics.[11] At present, DNA profiling and forensic science is virtually free from the shackles of quality assurance, quality control and standardization of tools and techniques for the extent of data generation, yet the paradox results that clinical laboratories must meet higher standards to be allowed to diagnose a sceptic throat than forensic labs must meet to put a defendant on death row is widely debated.[12] Once this is assured, reliance on DNA profiling will substantially find its place as an almost infallible evidence corroboration in the courts.
[1] Forensic Science In Criminal Investigation And Trail, Chapter 20- DNA Profiling, pp 1117
[2] Forensic Science In Criminal Investigation And Trail, Chapter 20- DNA Profiling, pp 1119
[3] Kent Bottles, The western Journal of Medicine-DNA fingerprinting -Application for resolving medical, legal and criminal issues. pp 595 (1998)
[4] DNA clues in hunt for 'faceless' serial killer, Telegraph, Germany, April 14, 2008
[5] National DNA Index system. Fbi.gov.in
[6] R vs S. (S.J.), 1999 CanLII 12790 (SK QB)
[7] “Science of the future: Identifying the criminal through their family members”.
[8] ^Supra note 1.
[9] Ibid 8
[10] Timothy Spencer v. Edward Murray, 18 F.3D 237.
[11] Forensic Science in criminal Investigation and trails, DNA profiling pp 1145.
The Author, Prathima R. Appaji, is a 3rd Year Student at the National University of Juridical Sciences. She is also a Student Member of the Society for Advancement of Criminal Justice (SACJ).
EUTHANASIA - IS RIGHT TO DIE A FUNDAMENTAL RIGHT?
The purpose of this paper is to explain the issues involved in the topic. The paper starts with an introduction before delving into the discussion of the topic with relevant case laws. I will be concluding the paper with my opinion on what the present law should strive to achieve.
Over the years the Judiciary of our country has given conflicting judgments regarding euthanasia. According to the House of Lords Select Committee on Medical Ethics, euthanasia means ‘a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering"[1]. The word euthanasia is derived from the Greek word eu for good and Thanatos for death, meaning ‘good death’.[2] Euthanasia is generally used to describe a killing that is prompted by some humanitarian motive. Debates have arisen revolving around these issues due to the ‘sanctity of life’ which is accorded high importance in our society. It is in these debates that the very existence of this new ‘right to die’ as a fundamental right is questioned.
Law presupposes a society of normal individuals with certain general instincts and self-preservation is the most general instinct of human beings[3]. Hence any form of euthanasia is condemned in many societies as it goes against the morals of the society. The law of such society is in a form that penalizes such acts in the interest of the public. In India the very act of attempting euthanasia or mercy killing is considered as another form killing with intention. However no society remains static and in recent times the cry for legalizing euthanasia has been growing within the legal community and in the society in general. J.S.Mill said in his ‘On Liberty’ that the public has no authority to interfere in a personal decision of a person to end his life. It is based on this idea that V.S.Deshpande said that every person has the liberty to be or not to be[4]. Under Article 21 of the Constitution, the right to life has been expanded to mean more than just mere animal-like existence[5]. Over the years this right has been extended to include right to privacy[6], right to speedy trial[7], right to education[8], right to shelter[9] and most important of them all, the right to live life in dignity. The supporters of right to die are of the opinion that right to life does not mean imposition of a life filled with pain. They believe that a life of misery with absolutely no hope for the future is not worth living. Situation is no better for the mentally challenged and those confined to bed, who have to depend on others throughout their lives. Individual’s liberty to choose between life and death is held in the highest pedestal by those who favor euthanasia. All this culminated in the P. Rathinam[10] case where for the first time; the Divisional Bench of the Supreme Court held that Article 21 included ‘the right not to live a forced life’ and that an attempt by the State to prevent the individual in the fulfillment of this right was unconstitutional. The court also held that §306 of the Indian Penal Code, 1860, which penalizes anyone who assisted in suicide of another was unconstitutional as the person was merely helping another to attain his fundamental right and as such was not committing any crime.
On the other side people who are opposing the legalization of euthanasia argue that by doing so the very value that society places on the sanctity of life is destroyed. Right to life according to the Gyan Kaur[11] case is for the protection of life and liberty and not to smother life itself. According to them it does not include right to die within its ambit because doing so would make the parent right worthless. Just as death is the exactly opposite to life, so is right to die and right to life. Euthanasia is an unnatural form of death and cannot be compared to other fundamental rights. According to B.B.Pande for decades we have been expanding right to life in terms of all those conditions that are beneficial to the free flow and full growth of life and not conditions that would lead to the snuff out of life itself. He called the movement of right to die as ‘a movement in the reverse direction’.[12]
This long standing debate was finally decided in the Aruna Shanbaug judgment given by the Supreme Court on 7th March, 2011. The Court broke new ground by paving the way for passive euthanasia. In this case the now 63 year old Aruna was sexually assaulted in King’s Edward Memorial Hospital, Mumbai 37 years ago. This brutal act has left her unable to talk, move or eat on her own. She is being looked after by the staff of the hospital where the heinous act took place. The writ petition was filed by a Pinki Virani under Article 32. Though the Supreme Court declared that Pinki Virani had no locus standi, as she was not Aruna’s parent, spouse, close relative or next friend, the Court allowed the petition because of the crucial question it raised. The Court differentiated between passive euthanasia and active euthanasia, allowing only the former. According to the judgment passive euthanasia was the withdrawal of life-sustaining drugs and/or life support systems and active euthanasia involves injecting a potent to advance to the death of such people. It is to be allowed only for patients who are brain dead or in a permanent vegetable state and on whom according to the doctors cannot be revived even with the use of the most advanced medical aid. With this the Court also laid down an elaborate procedure which includes the requirement of the approval of atleast the Division Bench of the High Court.[13] One of the main reasons that was given by the Court for refusing to grant passive euthanasia for Aruna was based on a medical report that though she was in a permanent vegetable state, she was still not brain dead. She did not need a heart-lung machine and could breathe on her own while her body performed other involuntary functions without any help.[14]
In the growing popularity of the ‘movement in the reverse direction’, there is no simple solution to the issues this movement. Though euthanasia has been legalized in countries such as Netherlands, Finland, Sweden, Belgium and many more, legalizing it in India will produce very different and highly complex problems. India is a country of many cultures and religions, each of which has their own reservations against suicide. With this there is our Constitution which guarantees basic necessities of life to all its citizens. Though the Aruna judgment should be applauded for its comprehensive procedure to reduce its misuse, there is no guarantee that is would be implemented without faults and loopholes. The supporters of euthanasia claim that if stringent measures are taken by asking the patient’s choice, the doctor’s opinion and the relative’s wishes, euthanasia would be a boon. However as there is a complete ignorance, inadequacy and inefficient medical information system, there are negligible chances of taking the patient’s informed decision. Also there is the danger of misuse of this system wherein doctors and relatives force patients to choose or choose for them.
There is also this independent argument supporting the Aruna judgement that though this is the age of science and technology where medicine has changed our state of health, there is no cure for the painful and incurable diseases. Even with the existence of pain alleviating medicines, very small number of people can afford it in a country such as ours. Also no amount of medicines can make the pain of a person confined to bed, or a person mentally challenged go away. It cannot ease the ache a family who has to watch their loved ones suffer and endure years of torture before passing away. In the light of these reasons the author is of the opinion that though neither passive nor active euthanasia should be legalized, it should be allowed on a case by case basis in the rarest of situations. As for the people who are waging a war demanding euthanasia, they at the very least deserve the right to breathe their last in peace.
[1] N M HARRIS, THE EUTHANASIA DEBATE, J R ARMY MED ( 2001).
[2] Abdul Subhan, It is outrageous and impractical in India, THE HINDU (Kolkata) March 13, 2011.
[3] B.R.SHARMA, ANUP SHARMA, D.HARISH, ABOLITION AND RESTORATION OF SECTION 309 OF THE INDIAN PENAL CODE,ANIL AGARWAL’S INTERNET JOURNALOF FORENSIC MEDICINE AND TOXICOLOGY, (2006).
[4] V.S.Deshpande, To Be or Not To Be, (1984)3 SUPREME COURT CASES (JOURNAL SECTION) 10.
[5] Sunil Batra v Delhi Administration, AIR 1978 C 1675.
[6] Olge Tellis v Bombay Municipal Corporation, AIR 1986 SC 180.
[7] Hussainari Khatoon v Home Secretary,Bihar, AIR 1979 SC 1360.
[8] Mohini Jain v State of Karnataka, AIR 1992 SC 1858 and Unni Krishnan v State of Andhra Pradesh, AIR 1993 SC 2178.
[9] Shantistar Builders v NK Totame, AIR 1990 SC 630.
[10] AIR 1994 SC 1844.
[11] AIR 1996 SC 946.
[12] B.B.Pande, Right to Life or Death? For Bharath, both cannot be "Right”, (1994) 4 SUPREME COURT CASES (JOURNAL SECTION) 19.
[13]Dhananjay Mahapatra, Passive Euthanasia gets SC approval, THE TIMES OF NDIA (Kolkata) MARCH 8, 2011.
[14]Dhananjay Mahapatra, Caregivers keep Aruna Alive, THE TIMES OF INDIA (Kolkata) MARCH 8, 2011.
The Author, Aditi, is a 3rd Year Student at the National University of Juridical Sciences. She is also a Student Member of the Society for Advancement of Criminal Justice (SACJ).
Forensic Psychology: Scientific and Legal Aspects of Narcoanalysis
Introduction
High magnitude of technology is making its mark in every field in today’s scenario, the criminal field being no exception. Fancy thefts and murders with no satisfactory trail of evidence is no longer just a subject of a cinematic sequence. These new advances have posed new challenges in front of the legal regime, which it strives to meet through parallel developments in the form of techniques like Narcoanalysis, which help in collection of evidence. Narcoanalysis is one of the few acceptable techniques of forensic psychology in India. However, recent developments have revived the ever-existing debate between the constitutional validity of these techniques as against the human rights concerns. Many technical loopholes in this technique have also surfaced, thereby questioning its scientific reliability as well. This paper strives to understand the process of narcoanalysis, and trace the developments in the scientific and legal frameworks with regard to the technique of narcoanalysis and the aids it provides in the criminal investigation, thereby trying to ascertain its current status in the field of criminal investigation, gathering of evidence and trail. Lastly, it strives to locate the scope of more specialized techniques of Forensic Psychology through the inferences gained from the case of narcoanalysis.
Narcoanalysis: The Process
The term narcoanalysis is derived from the Greek word narkc meaning ‘anesthesia’ or ‘torpor’. It is a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a sleep-like, semi-conscious state, which is exploited by the therapist to extract information. Experts inject the subject with hypnotics like Sodium Pentothal, Sodium Amytal, Phenobarbital, etc. under the controlled circumstances of the laboratory. The dose varies according to the person's sex, age, health, mental attitude and will power.[1] The subject who is put in a state of hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions. The principle that works behind this process is that a person is able to lie by using his imagination. In the narcoanalysis test, the subject's self-consciousness, imaginative power and reasoning faculties are suppressed by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie or manipulate his answers. In such semi-conscious state efforts are made to extract "probative truth" about the crime.[2]
The team that performs this test on the subject in India comprises of an anesthesiologist, a psychiatrist, a forensic psychologist, an audio-videographer, and supporting nursing staff. The anesthesiologist administers the drug in the required amount on the subject. After the subject reaches the hypnotic stage, which is the second of the four stages reached in the process, the forensic psychologist questions the subject and then prepares a report about the revelations, which is accompanied by a compact disc of audio-video recordings.[3] As it is the forensic psychologist who asks the questions, the efficient workability of this process requires good co-ordination between the investigating officers and the psychologist. The resultant questions must be adequately suggestive to induce the subject to reveal relevant information. They must be adequately specific and within the valid legal framework.
Significance of Narcoanalysis
The idea of the attempt to use drugs in criminal interrogation first came up when in 1922, Dr. Robert House, a Texas physician who had used scopolamine as an anesthetic in obstetrical cases claimed that the drug, which was otherwise used to erase painful experiences can actually be used to extract intact knowledge. He injected this drug into two convicted criminals in the Dallas County Jail and interviewed them. He was able to establish their innocence to his satisfaction.[4]
The process of narcoanalysis is associated with the field of forensic psychology[5], which is a relatively recent and rapidly developing discipline. While psychological techniques like forensic hypnosis are still not permitted in India, the process of narcoanalysis has gained prominence. With the loopholes in the witness accounts and other non-scientific sources of evidence, forensic techniques are increasingly proving their utility in the Indian scenario. Of these, techniques like narcoanalysis have additional advantages. In India, the collection, preservation and analysis of the forensic evidence often fall prey to the administrative and academic inefficiencies. In many cases, the evidences are tampered with, decayed or completely destroyed till they are collected and sent for examination. The experts who examine them are also in some cases incapable of appreciating the value of the evidence due to lack of expertise or equipment. Secondly, the physical scientific evidence has not gained that much popularity and usage because their technicalities are often difficult to tackle for the non scientific officials including the investigators and the judges. Judges particularly are vested with the responsibility of ascertaining the value of such evidences.[6]As such their full potential is not realized.
Psychological techniques, including narcoanalysis do not suffer from many of these drawbacks. It strives to harness the memory of the subject by extracting useful information. Therefore, the evidence obtained from these techniques is not perishable and generally cannot be tampered by external forces. The technical aspect of these processes is in their technique and not their results. As such, they can be easily understood and appreciated by the investigators, lawyers and judges.
Gradual developments have shown the utility of this technique in many areas. It can be used for the determination of capacity of an accused to stand trial. It can also be used to test the veracity of any given material witness by way of corroboration, impeachment, or disqualification, to extract confessions or admissions of suspected or unsuspected crimes, misdeeds, deviational allegiances, indiscretions, or intelligence information of any sort, to extract other evidence or clues usable against the subject, and so on. Some of the secondary usages of the technique may also include estimation of the potentialities of a convicted offender for the court’s guidance in sentencing, determination of good character of the subject or the witness, etc. Many times, this technique is also used as a coercive threat.[7]
In India, The first narcoanalysis was done in the Forensic Science Laboratory, Bangalore in 2001 on an individual associated with offences committed by Veerappan.[8] It was also used in 2002 in the Godhra carnage case and in the Telgi stamp paper scam, Nithari serial killing, Mumbai train blasts, Arushi’s murder case etc. It also came up in the cash for vote scandal in the parliament recently.[9]
Narcoanalysis: Scientific Drawbacks and Legal Hurdles
Scientific and technological advances become irrevocable traits of the culture-however drastic the problems of assimilation and adjustment they engender, and however disturbing the value choices they pose.[10]
Similar is the case with narcoanalysis. Since its prevalence in the legal arena as a tool to extract evidence and advance the investigation, many arguments have stemmed from the perspective of the rights of the accused, constitutional guarantees, and basic human rights in general. As such the debate has been going on, weighing different perspectives of individual liberty on one hand and the greater good of the community on the other.
Scientific Drawbacks
A major argument that goes against the process of narcoanalysis enumerates its lack of precision and reliability. As discussed earlier, the correct dose of the drugs that need to be administered for the test depends upon a variety of factors, some of which are very difficult to determine. Inappropriate dosage can prove harmful in both ways. While in case of inadequate dosage, the subject may deceive the operator by faking the semi-conscious state even when enough dosage has not been administered on him to trigger it for real. Also, inappropriate dosages of these drugs may have adverse effects of the health of the subject as well, and in some cases may also prove fatal. As such a highly qualified physician is required to administer these tests.
Studies have also shown that the subjects under the effect of the so-called truth serums do not always speak the truth. As early as in 1949, study established that the confessions obtained through narcoanalysis included fantasies and delusions which were difficult to distinguish from reality and thus limited the credibility of the statements.[11] The effect of these tests also varies in cases of neurotics etc. Also, in case the subject is consuming some kind of drug already, the reaction of the consumed drug and administered drug can produce unanticipated results. If the subject is the abuser of other intoxicants, the process of narcoanalysis could fall to disinhibit him on account of the property of cross tolerance between Pentothal Sodium, which is a commonly used drug in the process, and certain other intoxicants. This could misdirect the investigation as it would be very easy for the subject to fake a hypnotic state and mislead the investigators.
The Daubert Standard evolved in Daubert v. Merrel Dow Pharmaceuticals Inc.[12] which is a famous U.S. case law in terms of expert scientific evidence lays down certain points to ascertain its reliability and thus admissibility. The standard laid down requires the given evidence to be based on a testable theory, peer reviewed, known error rate and controlling standards of the technique and lastly its general acceptance scientifically. As far as the case of Narcoanalysis is concerned, these standards are not clearly not met, as is evident by the discussion above.
The drugs used for this purpose, that is, Barbiturates, were initially used for facilitating communication with emotionally disturbed patients. Gradual clinical studies indicated that truth serums needed an emotional mental setup to effectively function in most cases. They are able to extract truth only in cases where the subjects have conscious or unconscious reasons for doing so. In other cases, the subjects are able to withhold information, lie or in some cases, suggest behavior that never in fact occurred.[13] As such, reliance on these tests in a court of law as a material piece of evidence can be dangerous.
No doubt, in some cases, the whole process has been regarded as overrated. It has also been argued that the results that the narcoanalysis seeks to obtain can be obtained without the drug administration as well by a skilled interrogator.[14] Also, it has been argued that the process can facilitate an easy alternative to the investigating officers to gather evidence, and this alternative is not always just to the subjects. As Sir James Stephen stated,
“It is far pleasanter (for the police officers) to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun looking up evidence” [15]
Legal Drawbacks
From the legal point of view, the technique of narcoanalysis seems to be in a direct conflict with the constitutional right against self incrimination as enshrined in Article 20(3) of the Constitution of India, right to privacy and right to health as part of Article 21 of the constitution. Moreover, it also raises issues concerning professional ethics regarding the physician-patient privilege. Some arguments have also described the technique as amounting to mental torture. Although voluntary use of this technique hasn’t been through many controversies, involuntary administrations of these tests have always been under a grey area.
Constitutional Issues: The main argument against narcoanalysis on constitutional grounds crops from Article 20(3) which provides for the right against forced incrimination. A subsidiary provision to this right is also embodied in the Criminal Procedure Code in the form of right to remain silent. It is argued that narcoanalysis infringes these rights by denying an individual his right to remain silent and extracting information from him in a state where his free will is almost nonexistent and his reasoning faculty is under adverse influence.
Also, extracting information in such a way may cause the subject to reveal personal information which may not be related to the case. Often in case of high profile criminals, the video tapes of such tests are made available to the media, as happened in the case of noted terrorist Abu Salem, which clearly amounts to an unnecessary intrusion in the subject’s privacy, and thus infringes Article 21.
Thirdly, administration of these drugs in proper dosages and under a highly qualified physician is of significant importance. Improper doses of the drugs that are used in these tests can prove dangerous as they may cause the patient to slip into coma, and in some cases may also be fatal. But often the standards mentioned above are difficult to achieve. As such it can also be looked upon as risking the subject’s right to health, thereby again invoking Article 21 of the constitution. All these complications also put the status of the evidence thus obtained from the revelations obtained from such techniques into grey area.
Human Rights Issues: Besides the already enumerated constitutional issues, the tests of narcoanalysis are also alleged to be a device of mental torture for the subject. This argument is in stark contradiction to the argument that these tests are a better way of extracting information than the third degree treatment given by the investigating officers. Human Rights activists argue that the use of drugs to extract confessions from the accused leads to the forced administration of these tests on the accused. In some cases, the accused and key witnesses are also threatened to be subjected to these tests. According to some human rights organizations, the use of the test as a threat itself shows the degree of mental torture that these tests can cause.[16] Also, many instances of these tests have shown that speech can be as aggressive and reprehensible as the physical act of torture.[17] Use of drugs, even in controlled amount, can cause various side effects on the mental and physical stature of the subject.
Moreover, during the administration of these tests, it is really difficult to enforce legal safeguards like not adhering to leading questions etc.
Further, the question of free consent also raises concerns as far as the voluntary administration of these tests is concerned. Although the legal safeguards are in place to make the potential subject aware of the technique and its effects, factors like the influence of the police authorities, manipulation by the officials providing information, etc. cannot be ruled out. Also, the unreliable results of the tests can fall prey to the clever techniques of the accused in the form of media tactics and so on.
Also, once the administration of these drugs on the accused is permitted, gradual developments may validate such procedures to be applied on the victims as well. It is argued that in sensitive cases as that of rape, such use of these procedures may aggravate the suffering of the victim by causing further torture and mental agony.
The Selvi[18] Case: Current Legal Position in Narcoanalysis
In the Indian scenario, the legal position has been quite unclear until the Supreme Court judgment in the Selvi case. In many previous cases in various high courts, the opinions showed varied standpoints, many of which favored[19] the administration of these tests while the others disagreed. However, after the judgment, the legal position with respect to the technique of narcoanalysis, among others, has been clarified to a great extent.
The Supreme Court in this case accepted the utility of the tests in gathering of useful evidence for finding the missing links in the investigation. However, a detailed analysis of the major drawbacks of these types of tests and their implications, both in theory and in practice portrayed a significant imbalance between the common good of the community that the usage of these tests is argued to protect as against the individual liberties and constitutional guarantees, the latter being preferred by the apex court. The court, therefore, in light of various provisions of the Constitution, the Criminal Procedure Code and the Indian Evidence Act, was unable to uphold the validity of the test of narcoanalysis in its involuntary form of usage. Even the voluntary form of usage of the tests was validated with a line of caution.
The court in this case enumerated a set of guidelines for administering these tests, giving the statements made in valid narcoanalysis tests a status of a statement made to the police, thereby avoiding its direct use and facilitating its use for gathering material evidence.
As such the attitude of the Supreme Court in this regard clearly rules out any furtherance of the usage of the higher degree techniques of Forensic Psychology, especially of the nature of narcoanalysis, hypnosis, etc. The court has laid down sufficient guidelines for the legislature to strike a balance between the Public Interest that these techniques seek to serve, as well as the individual concerns of freedom and liberty. While showing its regard for the new developments in the scientific arenas, it has tried to amalgamate these advancements into the legal structure in a way that the basic rights of the individuals are protected. The detailed opinion of the court in the Selvi case significantly reflects the international position in this regard and has now made the legal position with regard to narcoanalysis a lot clearer. Nevertheless, it is for the legislature to provide a concrete shape to these guidelines of the court and support them with appropriate legislative advancements.
Conclusion
Scientific developments in the field of Forensic Psychology like narcoanalysis were perceived to be great assets in the field of collection of crucial evidence and conducting of investigation in the critical cases of corruption and terrorism, among others. However, its imperfections and risks soon came to light and gradually its role in the legal scenario faced several restrictions. Future developments can be expected to advance in a way so as to strike the crucial balance between the advanced methods of investigation and the rights of the subjects. As for the present scenario, a deep understanding of this technique needs to be done so as to understand its utility in the light of the risks involved, thereby ensuring that their usage does not compromise the basic rights and privileges available to the subjects. As such, until and unless a balanced position is acquired, further usage of psychological techniques of such nature will remain
[1] B.R. Sharma, Forensic Science in Criminal Investigation and Trail
[2] Syed Tzkir Inam, Scope of Narcoanalysis in Criminal Investigation, available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1681526
[3] Selvi v. State of Karnataka (2010) 7 SCC 263, 277
[4]Robert House, The Use of Scopolamine in Criminology, 18 TEX. STATE J. MED. 259 (1922)
[5] Forensic Psychology can be generally defined as the application of psychological knowledge to criminal justice system.
[6]See Daubert v. Merrel Dow Pharmaceuticals Inc. 113 S.Ct. 2786 (1993)
[7] George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly, Frederick C. Redlich, Drug-Induced Revelation and Criminal Investigation, 62 Yale Law Journal 315 (Feb. 1953), 320
[8] Bannur Muthai Mohan, Misconceptions About Narco Analysis, available online at http://www.issuesinmedicalethics.org/151co07.html
[9] Ritu Sarin, Truth Serum not so Truthful, available at http://www.indianexpress.com/news/truth-serum-not-so-truthful-house-panel/379147/
[10] Supra note 7, at 315
[11] Gerson & Victoroff, Experimental Investigation into the Validity of Confessions Obtained under Sodium Amytal Narcosis, 9 J. CLIN. PSYCHOPATHOLOGY 359 (1949)
[12] Supra note 5
[13] Supra note 7, at 319
[14] John M. Macdonald, Truth Serum, 46 The Journal of Criminal Law, Criminology and Police Science, 259, (1955) at 262
[15] Sir James Stephen, History of criminal law 442 (1883)
[16] Teena Thacker, UN Sees Narco Analysis As Torture, available at http://www.expressindia.com/latest-news/UN-sees-narcoanalysis-as-torture/321986
[17] Alison Winter, The Making of Truth Serum, available online at http://www.scribd.com/doc/12843363/The-Making-of-Truth-Serum
[18] Selvi v. State of Karnataka (2010) 7 SCC 263
[19] See, for instance, Rojo George v. Deputy Superintendent of Police, 2006 (2) KLT 197 (Ker)
The Author, Anupama Sharma, is a 3rd Year student at the National University of Juridical Sciences. She is also a Stedent Member of the Society for Advancement of Criminal Justice (SACJ).
CHALLENGING THE LAW OF ADULTERY
The purpose of a law framed in a society is to regulate human behavior in accordance with the social set up so as to maintain the morality and social order. Laws relating to marriage one of which is adultery has been framed to meet the similar purpose. The institution of marriage is a social and a legal contract wherein interpersonal relationships are developed. It is a union of two beings who share love, bond and affection. It is looked upon as a sacred entity and any intrusion in it which affects its sanctity is to be checked. Law of adultery is one such example which has been designed to deter the man not to enter into a physical relationship with someone else’s wife. Section 497 of IPC describes it as: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.” If we analyze the law and its effectiveness, it could be noticed that this law carries certain flaws in it. If we deal with the various possibilities or situations that the law is equipped to meet, we find that it falls short at various fronts.
To begin with, the very last line of this law has attracted controversy and debates. Why? and Should? Why is woman not to be held liable and Should she be punished as an abettor? The answer to the first question partly lies in our history and partly in our present society. The need for this law was for the situations existing in the historic times when in the male dominated society men used to have physical relationship with several women outside the institution of marriage and was akin to polygamy. In that backdrop to safeguard woman and to restrict man’s derogatory activities; such a law was introduced to serve as a deterrent to the society. At the same time; the law showed a soft corner to the woman by not penalizing her as in those times it was presumed based on the prevailing societal conditions that they were victims and subdued by men and their consent or willingness for the act was immaterial or rather they never raised an objection and passively submitted.
But times have changed and so has the society but the law remains the same! In today’s scenario when woman has excelled in almost every field and is empowered and independent; the overt protection given by the law is uncalled for and rather it stands as discriminatory. An assumption that man is the seducer and woman is always a victim is highly misleading. There are several situations when woman plays an equal part with full interest and willingness and yet alone the man is liable. So, to answer the question; whether the ‘woman’ should be held liable as an abettor; let us first understand the concept of ‘abettor’. IPC defines abetment in section 107 according to which a person is said to abet an act if he/she (a.) instigates any person to the act, (b.) conspires the act or (c.) intentionally aids by an act or an omission. Now before being judgmental, it needs to be discussed if there could be any situation where woman fits in the ambit of section107 of IPC and abet the act. Well the answer stands to be Yes. Thinking on practical terms there could be situations when a woman either is not happy and satisfied with her marital life or because of other emotional reasons she tries to lure another man or actively participates without objecting to the man’s acts in pursuance of developing physical contact; in such situations where she lures or behaves in a manner so as to seduce or entice the other man it would amount to instigating the act; and where she doesn’t object; it would amount to aiding by actively participating or by omitting to object. Thus, if observed from practical viewpoint such a possibility prevails where though the man is also involved but the initiation is from woman’s side. Gone are the days where women used to remain in shackles of men and the society. Today women are modern and independent and hence the undue protection and assumption of her innocence is unjust. Moreover, the objective of the law is to be a deterrent for the society and to protect the institution of marriage by not letting another man enter into its sanctity. But this law falls short in protecting the same when a woman decides to walk out of her marital boundaries.
Why is it that the act performed is same, objective is same, and immorality involved is same on both the parts but just the man is held liable? Such legislation is a step forward to keep woman as a weak category. Moreover, when looked at it from the constitutional window, such a distinction violates the concept of Equality under art 14 and 15. The same has even been challenged in court of law but our judiciary shares a different and obsolete viewpoint. The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up.”[1] What is to be understood here is: it is the act of adultery that affects the sanctity of marriage and hence the parties that participate in that act willingly or knowingly should be penalized whether it is a man or a woman.
Secondly, the law doesn’t empower the wife of the man who enters into adultery with other married woman rather in case of the other woman being unmarried it does not even qualify to be an adultery. Won’t the marital sanctity be affected then? Isn’t the law falling short in its purpose? Not only this, by the implication of the words “without the consent of the husband” being used in the law it tries to establish that woman is the property of her husband and the husband “owns” her. The other side of this would be if the husband consents then can the other man enter into physical relationship with his wife without attracting any penal liability? The flaws identified in the law leads us to a question: is the law effective and required? The law of adultery is claimed to serve as a deterrent to men to not to intrude into other’s marital ties. If we analyze the various possibilities arising we notice that if a man gets into a physical relationship with someone else’s wife by force then it should clear cut amount to rape. On the other hand if the woman doesn’t consent but the alleged relationship is with the consent and permission of the woman’s husband; then it would amount to prostitution and if the woman consents then it would be an extra marital affair which is a valid ground for the husband to seek divorce. But the function of the law is to deter and regulate human behavior to safeguard the societal values and the sanctity of marriage as an institution and that is why such laws are framed; but to bring it into its full effect and to serve the purpose it is utmost required to amend the law and include “unmarried woman” as well in the domain of adultery as in such a case the wife of the man entering into adultery is being cheated and has no legal remedy except it being a ground for divorce thus such a combination of affair also requires deterrence. Secondly, the phrase “consent of the husband” needs to be deleted so as to remove the possible implications as pointed above. And most importantly, it needs to be understood that the purpose of law here is to preserve the sanctity of marriage and not to protect the woman. For protecting the woman against sexual assault or forceful intercourse Criminal Law provides for offence of Rape hence Adultery laws should cater to the situations where the wife/husband willingly and with consent enters into the relationship with another man/woman and walks out of his/her marital boundaries and abets, then law should penalize irrespective whether it’s a man or a woman as an abettor.
[1] A Gender Biased Law: Bharat; Faculty of Law, Jamia Millia Islamia.
The Author, Divya Vikram is a 5th year student at National University of Juridical Sciences (NUJS). She is also the Student Director of The Society for Advancement of Criminal Justice (SACJ), NUJS.
FEMALE CRIMINALITY IN INDIA
Recently, the Bangalore police nabbed a 40-year old serial killer. A chain snatching gang was caught by Delhi Police. And there is one startling theory coming forward-both had women as criminal and that they were performing acts that were hitherto relatively unheard as done by women in India before – serial-killing and robbery. Crime, in India, is not a male bastion anymore.
However, when it comes to crime, until the last twenty years, the lack of literature on female criminality is often astounding. One reason given for lack of interest is that females have traditionally been seen as law-abiding. It is certainly true in the context of what the statistics speak but sex crime ration differ depending on what act is being considered as crime. The different involvement in crime of men and women is one of the most striking and criminological truth, and it is therefore surprising that it has to be more widely studied in order to ascertain are its causes.
The history of mankind reveals that the woman has been the foundation stone of a family in particular and society in general. Since the dawn of civilization, women have been seen as preservers of social norms, traditions, customs, morality and family cohesiveness. Woman has been given a position of pride in every religion. My immediate concern is why the woman, who is considered to be foundation stone of family and every spiritual faith, without whose blessings the work of infusing new life into humanity cannot be accomplished, has gone astray making her mark on the crime scene and this is what has encouraged me to write this paper of women's involvement in criminality in the social, cultural, economic and political milieu of India.
The gravity of the challenge increases manifold when we go through the latest available data on crime from the National Crime Records Bureau (NCRB). While women criminals are still a minority- they comprise only 5% of the criminals convicted for heinous crimes. The Crime in India Reports reveal that the number of females arrested for criminals activities in 2003 were 1,51,675, and this shot upto 1,54,635 in 2007. Also, interestingly, the nature of crimes committed by them too, is gradually witnessing a sea change- from softer crimes like drug trafficking and prostitution to heinous crimes like murder. 3439 women were arrested for murder in 2005 and 3812 in 2007 that is an increase from 5.4% in 2005 to 6% in 2007 (NCRB figures). Also most of the crimes committed by females are ones in the age group 30-45 years.FEMALE CRIMINALITY: THEORETICAL PERSPECTIVE
The early researchers attributed female criminality to biological or sociological antecedents. Although crime, as a behavioural or social problem, is complicated and not easily understood, the criminality of women is seen more complicated, less understood and subject to easy control. Women are considered as turning crime as a perversion of feminine role whether their causes are biological, psychological, social or environmental.
Innate Criminals/ Biological Viewpoint
Ceasar Lombroso's contribution is considered as the beginning of scientific study on female crime. He viewed, "female deviance as rooted in the biological make up or as inherent feature of the female species". He observed female criminals to be more terrible than the male criminals because her cruelty was much more ‘refined' and diabolic. Lombroso thought women shared many traits with children and they were morally deficient and their lack of intelligence was the reason of their relatively small participation in crime.
In nineteenth century, Lombroso and Ferrero (1895) wrote a book called, "The Female Offender". Their theories were based on atavism; a belief that all individuals displaying anti-social behavior were biological throwbacks. The born female criminal was considered to have the criminal qualities of men and the worst qualities of women.
Otta Pollak explained the influence of hormonal changes over menstruation, pregnancy and menopausal stage. He said that in the pregnancy and menopausal phase, the psychological characteristics such as emotional changes of moods, abnormal craving and impulses and temporary impairment of consciousness point in the direction of criminal causation.
But, in the present age of information technology and impersonal relations at the threshold of the 21st century, such theories seem to be unreasonable and unscientific. All these theories depict crime as an inherent human trait which does not amply describe the phenomenal variations in the nature of crime being committed these days, when crime has risen upto the status of career for many, involving highly advanced professional skills and typical scientific techniques.
Psychological Viewpoint
Freudian hypotheses hold that women who are not passive and content with their traditional roles as mothers and wives are maladjusted. Women who accept traditional roles as mothers and wives are "adjusted ones" and are different from the maladjusted women, who refuse or fail to internalize the values associated with the role in the society. He also said that women who do not internalize the traditional roles and values of the society, attend institutions for higher learning, take up professions outside the four walls of their homes, join feminist movements or commit crimes. He maintained that all females experience some degree of jealousy of males but ‘normal' women manage to accept and internalize societal definitions of femininity, centred around single minded interest in motherhood.
The limitations of an attempt to explain crime strictly in psychological terms are partly conceptual which fail to appreciate the significance of social factors in generating the deviant behaviour.
Sociological Viewpoint
A plethora of writings on sociological viewpoint emerged during the last few decades including the following:
1. Equality theory
2. Economic theory
3. Opportunity theory
4. Social disorganisation theory
5. Role theory
Predominant theories such as Thomas (1907) and later, Pollack (1961), believed that criminality was socially induced rather than biologically inherited. Pollack (1961) believed, it is the learned behaviour from a very young age that leads girls into a masked character of female criminality, that is, how it was and still is concealed through under-reporting and low detection rates of female offenders. He further states, in our male-dominated culture, women have always been considered strange, secretive and sometimes dangerous. A greater leniency towards women by police and the justice system needs to be addressed especially if a true equality of genders is to be achieved in such a complicated world.
These contemporary theorists reject earlier theories based on psychological and physiological viewpoints. Criminal behaviour, as Sutherland and Cressy insisted, is learned through interaction with other persons. The learning includes both techniques for committing the crime and a more subjective element- the specific direction of motives, derives, rationalisations and attitudes. Role theorists likeHeidensohn and Hoffman offer explanation of female criminality in terms of social differentiation of gender roles. Hoffman emphasised that different socialisation given to girls expect them to be non- violent and do not allow them to learn how to fight and use weapons. It prevents the women to acquire necessary technical ability or strength for crime.
‘Double burden' of work and household responsibilities, official indifference to the needs of women, the increasing rate of family breakdown, the alcoholisms of husbands, the psychological trauma of divorce and financial difficulties in rearing up ‘left with children'- all contribute to incidents of female criminality.
Unfortunately, these role theorists have desperately failed to propound any concrete idea about the etiology of crime.
Psychological Viewpoint
Freudian hypotheses hold that women who are not passive and content with their traditional roles as mothers and wives are maladjusted. Women who accept traditional roles as mothers and wives are "adjusted ones" and are different from the maladjusted women, who refuse or fail to internalize the values associated with the role in the society. He also said that women who do not internalize the traditional roles and values of the society, attend institutions for higher learning, take up professions outside the four walls of their homes, join feminist movements or commit crimes. He maintained that all females experience some degree of jealousy of males but ‘normal' women manage to accept and internalize societal definitions of femininity, centred around single minded interest in motherhood. The limitations of an attempt to explain crime strictly in psychological terms are partly conceptual which fail to appreciate the significance of social factors in generating the deviant behaviour.
Sanyal also observed that women convict\s displayed emotional stability, insecurity, rejection or frustration in childhood. They encountered harsh living conditions, disappointments in love and a large number of unfortunate experiences which generally made it difficult for them to face realities of life.
Feminist theory
In light of this demographic shift in incarcerated populations, and the failure of traditional criminology to account for women's crime, some criminologists have begun taking steps to fill the void in the criminological literature that addresses female criminality. The feminist pathways research is explicit in its pursuit of life events that lead/force/nudge women into crime. Again, even this approach has its own drawbacks. This approach is often ethnographic and uses retrospective data (i.e., interviews with incarcerated women asking them how they ended up in jail) to develop an understanding of the key transitions in women's lives that place them in jeopardy of entering the criminal justice system.
Although it may be true that society has changed since the days of Lombroso and Ferrero, past theories appear to remain within much of today's criminal justice system. Women have so many choices of which they didn't before. It may appear naive to assume that women and crime may be explained by any one theory. Any crime for that matter, whether male or female, may not be explained by any one theory. It is an established and non-arguable fact that males and females differ biologically and sociological influences, such as gender-specific role-playing appears to continue within most families. Its a matter of proportion not difference. According to Edwards (1984), the enemy is within every woman, but is not her reproductive biology; rather it is the habit regarding it into which she has been led by centuries of male domination.
This unequal position of women in society due to social oppression and economic dependency on men and the state needs to be addressed. Offences by women remain sexualised and pathologised. In most ways, crimes women commit are considered to be final outward manifestations of an inner medical imbalance or social instability. Their punishment appears to be aimed principally at treatment and reconciliation.
Many argue, the main culprit for aggression as seen in many men is testosterone. This hormone appears responsible for much of the male crime, even in todays society of increased knowledge on the subject. In contrast, extensive research over the past twenty-five years done on the testosterone/aggression link focusing on prenatal testosterone predisposing boys to be rougher than girls, concluded it was very difficult to show any connection between testosterone and aggressive behaviour. Cross-cultural studies of ninety-five societies revealed 47% of them were free of rape while at least thirty-three societies were free of war and interpersonal violence was extremely rare. Based on these studies, it may be evident to suggest that sociological factors and environmental influences appear to have greater credibility in explaining criminal behaviour, whether male or female.
In is evident from the numerous specific studies already published that no single theory or type of explanation is adequate for the wide variety of behaviour variously called ‘crime'. Despite many theories have been offered but no view point can sufficiently satisfy the quest for the area. The involvement of women in terrorist activities, smuggling, violence, communal riots etc. witnessed the adoption of untraditional trends of crime by them, defying all available theories and trends of crime, because most of these crimes are problems of structural immorality and ethnic affinity. It therefore, becomes the need of the day to study the problem from fresh angle in order to understand the phenomenon in its totality- recent trends, etiology, personality traits and its impact on society.
CASE LAWS
State CBI/ SIT v. Nalini & Others
On the night of 21 May 1991 a diabolic crime was committed. It stunned the whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human bomb in Tamilnadu. Assasin Dhanu, an LTTE (Liberation Tigers of Tamil Elam) activist, who detonated the belt bomb concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to take photographs of the horrific sight, also died in the blast. A camera was found intact on his body at the scene of crime. The film in the camera when developed led to unfolding of the dastardly attacks committed by the accused and others. A charge of conspiracy for offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987; Indian Penal Code,1860; Explosive substances Act 1908; Arms Act 1959; Passport Act 1967; Foreigners Act 1946; Indian wireless Telegraphy Act 1933; was laid against 41 persons, 12 of whom were already dead and 3 absconded. All were awarded death sentence on the charge of conspiracy to murder under S120B read with S302 IPC and various other minor offences.
Nalini along with the deceased accused Sivarasan, Dhanu and Shubha met Haribabu, met at a bus stand and proceeded to the venue of the public meeting on 21st May 1991. Nalini provided cover to Dhanu and Shubha and when Rajiv Gandhi arrived , Dhanu gained access near him and while in close proximity to him, she detonated the explosive device kept concealed in her waist belt, resulting in the blast. The apex court by an unanimous verdict confirmed death sentence against Santhan, Murugan and Arivu. As regards the extreme penalty of death to Nalini was concerned it was confirmed by majority of 2:1 (JJ Wadhwa and Quadri concurred). J Thomas commuted sentence of death to life imprisonment.
State (Delhi Administration) v. Laxman Kumar
The appeals were filed by Delhi administration and other by Indian Federation of Women Lawyers came up before the SC of India against the judgement of Delhi HC acquitting the respondents.Laxman was married to Sudha and were living with Laxman's brother and their family. Shakuntala, the mother-in law of the deceased used to visit frequently.One day, cries for help were heard from their house. On hearing the cries, neighbours rushed to the flat and found Sudha aflame. The neighbours extinguished the fire and she was taken to the hospital where she died the next day. Sudha made a categorical statement soon after the neighbours gathered near the flat, and while on her way to the hospital, pointed to her mother-in-law, as the killer, stating that she had set her on fire after pouring kerosene on her body. Sudha also indicated Laxman as having actually set her on fire after pouring kerosene.
SC awarded life imprisonment to Shakuntala and Laxman, holding them responsible for killing Sudha by setting her on fire.
Renuka Bai v. State of Maharashtra
The SC on 1 September 2006, in one of its historic judgements, upheld death penalty to two sisters, Renuka and Seema, who had horrified Maharashtra by describing them as a menace to society.
The facts of the case were horrifying. Nine of 13 children in the age group between nine months and two and a half years in Sholapur and Nasik districts of Maharashtra, had been kidnapped from time to time either from school or market during 1990-96 and killed by the accused. The accused, with a perfect accomplice in their mother Anajanabai, and husband Kiran Shinde had made chain and purse snatching as their profession. Anjanabai died before trial and Shinde got pardon on turning approver.
The trial court of Kolhapur found the sisters, guilty of murdering six children and awarded death sentence to them and Bombay HC confirmed their sentence. The appellants were not committing these crimes under any compulsion but they took it very casually and killed all the children, least bothering about their lives or agony of their parents.
Regina v. Kiranjit Ahluwalia
Back in September, 1992 Kiranjit Ahluwalia made news after she was released after serving three and a half years of a mandatory life sentence for murdering her husband, Deepak, whom she had drenched in petrol while he was sleeping and set alight. Her retaliation followed 10 years of systematic abuse, but what caused her to flip on that fateful evening was that he had pressed a hot iron against her, the scars of which she still bears. Kiranjit was released by Appeal Court judges on ground of "diminished responsibility".
Ice- cream parlour case
The scandal had rocked the State in 1996 with prosecution alleging that one Sreedevi was running a brothel from an ice-cream parlour. It was alleged that the lady used to supply girls to various influential people, including politicians. The complainant K. Ajitha had submitted in her petition that though there were 51 prosecution witnesses in the case, all others except her had turned hostile as the accused were influential and used money and muscle power to coerce them.The trial court had acquitted all the accused without appreciating the facts; and the High Court also upheld the acquittal without bothering to examine as to why such a large number of witnesses turned hostile. The Supreme Court too however, dismissed the case when it came on appeal. The accused in the case included former Mayors of the Kozhikode Corporation T.P. Dasan and O. Rajagopal. Aravindakshan.
Priya Payel v. State of M.P
The present case holds its importance for being the only celebrated case in which the question whether a lady may be prosecuted for gang rape has been taken up. The facts of the present matter were that the prosecutrix was returning by train after attending a sports meet. When she reached her destination, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. The prosecutrix accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was charged for rape under IPC, the appellant was charged for commission of offences punishable under Sections 323 (punishment for causing hurt) and 376(2)(g) (punishment for committing gang rape) of IPC. The revision filed before the High Court questioned legality of the charge framed so far as the appellant is concerned, relatable to Section 376(2) (g) IPC. It was contended that a woman may not be charged for commission of offence of rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape.
The Supreme Court, apparently, had a different view. The apex court held that, after a reading of Section 375 of the IPC, rape may be committed only by man. A contention was raised by the counsel of the state that the woman may be held liable for Abetment as under section 108 of the IPC. The court on this said that such contention should have been raised in the trial court or in High Court, but it may not be done in the SC.
So we see that apart from minor offences such as theft, prostitution, drug trafficking etc., the participation of women in the scene of crime for major offences cannot be done away with. The involvement of women in crimes are also evident by the recent reported cases in the newspaper, one of them being that of Fehmida Syed, who along with her husband Hanif Syed got capital punishment for carrying out the twin blasts in 2003 at Zaveri Bazar and Gateway of India. The Syed's are the second couple after Nalini and Murugan to get Death Sentence.
The notorious Jammu & Kashmir sex scandal, which surfaced after police discovered which showed a minor girl being sexually abused. The police arrested a local resident Sabina, who confessed sending girls to politicians, senior bureaucrats and policemen. Dubbed as the scandals kingpin, Sabina ran a brothel in Srinagar and lured young girls promising them jobs and monetary benefits.
Another shocking case was the murder of Sister Abhaya. Sister Abhaya had come to know about the illicit relations of two priests with Sister Stephy. The two priests and nun arrested for her murder, allegedly confessed to the crime after being administered truth serum by CBI Investigators. Narco analysis however, is not relied upon by courts as primary evidence. Both the priests and nun said that the narco analysis CD was edited by the CBI. There was a public outcry and the CBI officer who began the investigation put in his papers alleging pressure to close it down.
CONCLUSION
All the above cases show no particular trend, reason nor do any of the above theories sufficiently prove the causes for these crimes. The social environment contributes a lot to the making of women criminals. "If people have been abused, the chances of their taking to crime are high. But in most cases, it is more to do with the patriarchal society. Men get women into crime" says psychologist Anchal Bhagat.It appears that female offenders have lost faith in social system. Despite constitutional guarantees of equal rights and privileges, women's fate could not be changed. Discrimination prevails from birth till last breath. Even her education, her involvement in every work equally is not enough to give any credit to her. The problem becomes manifold when despite her awareness and ability she is to obey orders of man (in form of father, brother, husband etc.) of lesser ability. Her own opinion is brutally crushed overheard and she is subjected to victimisation because she is a woman.
The best example I can think of would be of Phoolan Devi- the bandit queen turned politician who life tells us the story that when Society and law fail the people, often the victim can turn into a victimiser. Her parents called her a flower. Thats what her name Phoolan meant. How did she then turn out to be a thorn in the flesh of so many? The question takes us to the sociology of crime, especially in the Indian context. The story of Phoolan is a parable on our pathology; a case study on how our society spews up the poison that endangers its own life.Her abusive childhood turned her that way and we all know that. Therefore we can say, the blame for crimes committed by women to some extent, if not fully, can be accounted to our system of biases which always weigh the woman as subordinate. It may also be a possibility that her sudden awareness to her rights and her craze to prove herself equal to man or it is a revolution against cultural ethos or its a mere identity crisis resulting out of social crises are one of the few reasons which account to a woman's hand in crime. These compelling factors such as want of economic independence, recognition in society and to earn her respectable position is what probably forces these women to resort to these extreme steps of taking law in their hands according to my view.
I conclude that the courts while deciding cases, should look at the reasons and compelling factors which led a women to commit that particular crime. As observed in most of the above cases that our unbiased social system is one of the main reasons why women resort to crime as a retaliation to her suppression the Court should therefore import the concepts such as "diminishing responsibility" (as was allowed to Kiranjit Ahaluwalia), battered women's syndrome etc. Attention should be paid on providing her with proper medical aid and even on rehabilitation. In case a female offender suffers from a mental condition and she comes out of prison after serving her term, she would probably continue to commit crimes because the problem still subsists in her, and who knows it would have probably even become from bad to worse.
As I have told before, there can be no straight jacket formula or a particular theory to explain female criminality. A detailed study by criminologists could probably provide an answer to our unanswered questions.