Law Its Types And Differences
Law
Law can affect many aspects of our lives, yet most people living on this world have little understanding of the legal system that operates. For many their main awareness comes from newspaper articles with headlines such as “murderer jailed for life” and “burglar caught”.
Many people only think of the criminal law and the courts that deal with this type of case. In reality law covers an enormous range of situations and the lagal system in England and Wales has a variety of courts and methods for dealing with different types of cases.
Types Of Law
The first distinction is that between international and national law: National law can then be classified into public and private law; finally these classification can be sub divided into a number of different categories.
International and National Law:
International law is concerned with disputes between nations much of this law comes from treaties which have been agreed by the governments of the countries. National law is the law which applies within a country. Each country will have its own national law and there are often wide differences between law of individual countries. For example while serious criminal cases are tried by jury in both systems the scotish jury has 15 members and the decision can be made by a simple majority of eight to seven. In contrast the jury in England and Wales has 12 members at least 10 of whom must agree on the decision.
Public and Private Law:
Within national law there is usually a clear distinction between public and private law. Public Law involves the state or government in some way , while private law is concerned with disputes between private individuals or businesses, Both private and public law can be sub-divided into different categories.
Public Law:
There are three main types of law in this category. These are:
Constitutional Law: This controls the method of government and any disputes which arises over such a matters as who is entitled to vote in an election or who is allowed to become a member of parliament or whether the elections are carried out by the correct procedures.
Administrative Law: This controls how ministers of state or other public body such as local councils should operate.
Criminal Law: This sets out the types of behaviour which are forbidden at risk of punishment. A person who commits a crime is said to have offended against state and so the state has a right to prosecute them, for example a crime of burglary.
Private Law:
This is usually called civil law and has many different branches. The main ones are Law of Tort (even though there is no contract between them, one person owes legal responsibility of such kind to another person and there has been a breach of that responsibility ) . Family Law (whether marriage is valid, rules for divorce and who should have the day to day care of any children of the family. The law of succession (it is concerned with regulating who inherits a property when a person dies) Company law is very important in the business world. It regulates how a company should be formed , sets out formal rules for running companies and deals with rights and duties of shareholders and directors. Employment law ( covers all aspects of employment from the original formation of a contract to situations of redundancy or unfair dismissal. As well as these areas of private law, there are also laws relating to land, to copyright and patents, to marine law and many other topics so it can be seen that civil law covers an enormous range of situations.
Difference Between civil cases and criminal cases
Civil Cases
Criminal Cases
Purpose of the law
To uphold the rights of individuals
To maintain law and order or to protect society
Person starting the case
The individual whose rights have been affected
Usually the state through police and crown prosecution service
Legal name of that person
Claimant
Prosecutor
Courts hearing cases
County court or High court. Some cases dealt within the tribunals
Magistrates courts or crown court
Standard Of Proof
The balance of probability
Beyond reasonable doubt
Persons Making the decision
Judge (or panel of judges) very rarely a jury
Magistrate or jury
Decision
Liable or not liable
Guilty or not Guilty
Powers of the court
Usually an award of damages, also possible : injunction , specific performance , recession or rectification.
prison , fine , probation, discharge, community service order, curfew order etc
Sources Of Law
The law of England and Wales has been built up very gradually over the centuries. There is not just one way of creating and developing law, there have been and still are, a number of different ways, These methods of developing law are usually referred to as sources of law. Historically, the most important ways were custom and decisions of judges. Then as parliament became more powerful in the 18th and early 19th centures, Acts of parliament were the main sources of new laws , all the judicial decisions were still important as they interpreted the parliamentary law and filled in gaps where there was statute law. During the 20th century, statute law and judicial decisions continued to be the major sources of law but, in addition , two new sources of law became increasingly important these were delegated legislation and European law. All these sources of law have combined to make our present day law.
Customs
These are rules of behavior which develop in a community without being deliberately invented. There are two main types of custom : general custom and local custom.
General Customs: Historically these are believed to have been very important in that they were effectively the basis of our common law. It is thought that following the Norman conquest (as the country was gradually brought under centralized government) the judges appointed by the kings to travel around the land making decisions in the king’s name based at least some of their decisions were on the common custom.
Local Customs: This is the term used where a person claims that he is entitled to some local right, such as a right of way or a right to use land in a particular way, because this what has always happened locally. Such customs are an exceptions to the general common law of land and will only operate in that particular area. Since there were exceptions to the general common law, the judges from the earliest times, established a series of rigorous test or hurdles that had to be passed before they recognized any local custom. These tests still exist today and are used on rare occasions that a claim to a right come before the court because of local custom.
Equity
The word ” Equity ” has a meaning of “fairness” . Equity developed because of problems in Common law, Major problem was the fact that the only remedy the common law courts could give was ” damages ” which is an order that defendant pay a sum of money to the plaintiff by way of compensation. In some cases this would not be the best method of putting matters right between the parties. For example, in a case of trespass to land , where perhaps the defendant had built on his neighbour’s land, the building would still be there and the plaintiff would have lost the use of that part of his land. In such a situation the plaintiff would probably prefer to have the building removed , rather than be given money in compensation.
People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the king’s Chancellor , who was both a lawyer and a priest , and who became known as the keeper of the King’s conscience. This was because the Chancellor based his decisions on principles of natural justice and fairness, making a decision on what seemed ‘right’ in the particular case rather than on the strict following of previous precedent . To ensure the decisions were fair , the chancellor used new procedures such as subpoenas, which ordered a witness to attend the court or risk imprisonment for refusing to obey the chancellor order. He also developed the new remedies which were able to compensate plaintiffs more fully than the common law remedy of damages. The main equitable remedies were:
Injunction
Specific Performance
Rescission
Rectification
These are still used today. Equity was not a complete system of law ; it merely filled the gaps in the common law and softened the strict rules of the common law.
Common Law
Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo Saxon times there were local courts which decided disputes, but it was not until after the Norman conquest in 1066 that a more organised system of courts emerged. This was because the Norman king realised that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king William set up the King’s court and appointed his own judges . The nobles who had dispute were encouraged to apply to have the King or his judges decides the matter. The judges were sent to major towns to decide any important cases. This meant that judges travelled from London all round the country that was under the control of the King. In the time of Henry these tours became more regular and Henry divided up the country into “circuit ” or the areas for the judges to visit. Initially the judges would use the local customs or the old Anglo saxon laws to decide cases but over a period of time it is believed that the judges on their return to Westminister in London would discuss the laws or customs they had used, and the decisions they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or common .
Common Law is the basis of our law today it is unwritten law that developed from customs and judicial decision. This phrase ‘common law’ is still used to distinguished law that developed from customs and judicial decisions from law that have been created by Statute or other legislation. For Example murder is a common law crime while Theft is a statutory crime. This means that murder has never been defined in any Act of Parliament but theft is now defined by the Theft Act 1968. Common law also has another meaning ,in that it is used to distinguish between rules that were developed by the common law court the King court and the rules of Equity which were developed by the Lord Chancellor the Chancery Court.
Case Law
In the English Common Law system , Case law develops as courts hear disagreement between parties, making a decision as to what the law should be in a particular case. These decisions creates precedents. The doctrine of judicial precedents operates by ensuring that a previous courts decision is followed by another court when deciding a subsequent legal case, provided certain rules for extracting the legal principle from the earlier case and applying it to the current one are followed.
Statute Law
Statute Law comprises legislation that made by the House of Parliament. Legislation may be a primary legislation which starts as a Bill and become an Act of Parliament or it may be secondary or delegated legislation, drafted by the Government department and enacted under powers given by primary piece of legislation. UK Statutes are not only form of binding legislation in England; EU regulations are also immediately binding. In addition, UK is committed by EU membership to enact the provision of EU directives into the national law. Statutes are not always new laws, they may amend previous statutes or they may codify the common law, so making a body of previous binding case law redundant.
Top Criminal law Attorneys UK
Legal world is surely more serious and complicated than any other fields. The criminal cases are difficult, complicated and dangerous sometimes. The accused person must be treated properly according to the law. Everyone wants justice to be served and that is why it is important to find out the criminal law attorney who can turn the case in your favor. This is not really tough to find out the top criminal law attorneys in UK. You can search on internet to find out the lawyers. There are various well known and reputed law firms available. In the following article we are going to take a quick look at this issue.
You must find out a criminal attorney who is well aware of the details of the case. He must be informed about even the smallest thing so that he can use that in your favor. He is the one who will fight for you and that is why hiding anything from him can be really stupid and suicidal. You definitely do not want that to happen. It is the criminal lawyer who has to prove the prosecution wrong and baseless. He is doing it for your benefit. However you need to be careful while searching for the best attorney. You must find out a lawyer who has specialized in criminology. He must be reputed and have handled plenty of cases before this. If the accused person has not done anything wrong then it is the lawyer’s responsibility to give him justice.
You can check online records. There you can see the ratings of the lawyers. From there you can understand who can be the better lawyer for your case. There are many reputed criminal defense attorney available in UK. You can surely find the best one among them.
Redefining The Rape Laws in India: A Constructive And Comparative Approach
Unlawful carnal knowledge required sexual penetration, however slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require force or threat of force against the will and without the consent of the victim. Numerous law review articles have been written on the requirements of force and against the will of the victim. The articles focus on the force requirement and not the penetration requirement, which is the male understanding of what is necessary when a woman is threatened with the crime of rape.
Penetration is required in addition to the force and against the will requirements. Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most legislation. Some legislation legislated penetration of the vulva, but required a showing of penetration of the vagina.
Fletcher also observed that “[s]ometime in the last two or three centuries, our scientific thinking about crime began to shift from the harm done to the act that brings about the harm”. Furthermore, [i]nstead of seeing harm first and the action as the means for bringing about the harm, we are now inclined to see the action first and the harm as a contingent consequence of the action. “Most criminal statutes focus on the act, rather than social harm”.
Rape is an invasion of a woman’s body in which her private, personal inner space is violated. The act of rape denies woman autonomy by abridging her right to determine when, with whom, and how she will allow an individual to enter her zone of body privacy. In addition to the physical harm, the crime of rape grants man domination over the woman’s zone of body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when the following happens:
“A male … has sexual intercourse with a female not his wife … and compels her to submit by force or by threat of [force] … [or] has substantially impaired her power to appraise or control her conduct by administering … without her knowledge drugs [and] the female is unconscious … [or she] is less than 10 years old.” reference to rape as sexual intercourse suggests that rape is not a crime if it is sex. But rape is not sex.
Some suggest that sexual intercourse has to include penetration of the vagina, however slight, and anything less is not rape because it is not intercourse. Thus, the touching of the female’s sex organ, without the penetration of the vagina, cannot constitute rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime of violence. The crime is complete when the act is done, or the social harm has occurred. The act is done when the female’s private, personal inner space is violated, and that space is violated when an uninvited individual enters the zone of protected pleasures.
Definitions Of Rape: Penetration.
The variations in definitions as to what constitutes sexual intercourse is part of the problem in defining what has to be penetrated. With respect to the raping of a woman by a man, most states require penetration of the vagina. Defining what has to be penetrated is significant because if rape is viewed as a crime against the woman, then any conduct that is perceived as violative to the woman should be classified as rape. Many statutes, with respect to the penetration element, provide that an offender has to engage in sexual intercourse. It is assumed that penetration has to be effectuated in order for there to be sexual intercourse. The statutes, however, fail to state what has to be penetrated–the vagina, the vulva, the labia, or the clitoris? Some states refer to penetration of the female organ without further defining penetration.
To penetrate is ‘to enter or force a way into; [to] pierce.’ Penetration is the ‘act or process of piercing or penetrating something.’ How do we determine what constitutes a sex organ? And what needs to be penetrated? And can it be penetrated? Even though there are numerous articles stating the force and against the will requirements are male responses to being attacked, the male question has not been addressed with respect to penetration. Penetration is required in addition to the force and against the will requirements. Penetration, too, is a male understood type conduct. The penetration of requirement does not necessarily require that the vagina is completely entered or that the hymen is ruptured. Is entering the vulva or labia sufficient?
Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most jurisdictions. Some jurisdictions legislating penetration of the vulva, but required a showing of penetration of the vagina.
At early common law when rape statutes were initially written, women were deemed property of men. Virgin daughters were a valuable commodity belonging to their fathers; wives were the chattel of their husbands. The father or husband ownership right of women made rape a crime against property. Because rape was a property offense, the father or husband was the victim rather than the woman. Because fathers or husbands were the victims of rape, men wrote rape laws for their own benefit and therefore, included a penetration requirement. Penetration requires male type conduct and therefore, evolved as the measuring rod for determining when conduct had gone far enough to constitute a crime. One commentator has stated the following:
“Criminal law that reflects male views and male standards imposes its judgment on men who have injured other men. It is “boys’ rules” applied to a boys’ fight. In rape, the male standard defines a crime committed against women, and male standards are used not only to judge men, but also to judge the conduct of women victims.
Delaware’s unlawful sexual intercourse statute is common to most jurisdictions. Delaware’s statute provides that one is guilty of a class A felony when the person intentionally engages in sexual intercourse “without the victim’s consent.” Sexual intercourse is defined as “[a]ny act of physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight.” Sexual intercourse is also defined as “[a]ny act of cunnilingus or fellatio, regardless of whether penetration occurs.” Cunnilingus is “any oral contact with the female genitalia.” Sexual contact is “any intentional touching of the anus, breast, buttocks or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing.” For the woman, the physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be considered to be as violative as the penetration of her vagina.
A Practical Approach towards Redefining.
The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized by Indian and international women’s and children’s organizations, who insist that broader interpretations are needed to protect victims, and also to serve justice. Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The narrow definition of rape has been criticized by Indian and international women’s and children’s organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court in Sakshi v. Union of India :
… the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is … contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.
But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis – a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In the present case, the respondent authorities has been trying to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses.
A plain reading of Section 375 of the IPC would make it apparent that the term “sexual intercourse’ has not been defined and is, therefore, subject to and is capable of judicial interpretation. And the Section also does not in any way limit the term penetration to mean penile/vaginal penetration. Limiting the understanding of “rape” to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 21 of the Constitution. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
A purposive approach is being adopted in some of other countries so that the criminals do not go untouched on mere technicality of law. A strong reliance was also placed on some decisions of House of Lords to substantiate the contentions and the most notable being R v. R where it was held as under:
‘The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having ‘unlawful’ intercourse with a woman without her consent, the word ‘unlawful’ is to be treated as mere surplus age and not as meaning ‘outside marriage’, since it is clearly unlawful to have sexual intercourse with any woman without her consent.’
Even international law now says that rape may be accepted as “the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person.” Similarly, Article 2 of the Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass but not limited to … Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
Judgments by the Australian courts reveal that insertion of objects into the victim’s vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word “slightest” reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.
Redefining Rape
After a careful review of the rape law in vogue and an intensive deliberation with Sakshi v. Union of India , the National Commission for Women and the other organizations, the Law Commission in its 172nd report submitted to the Government of India recommended, inter alia that the law relating to ‘rape’ be made gender neutral, wider and more comprehensive to bring it in tune with the current thinking.
So the proposed re-cast Section 375 would read as :
Section 375. Sexual Assault: Sexual assault means-
(a) penetrating the vagina (this term shall include the labia majora ), the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which shall include the labia majora ), the anus or urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:
First – Against the other person’s will.
Secondly – Without the other person’s consent.
Thirdly – With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
Fourthly – Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
Fifthly – With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
Sixthly – With or without the other person’s consent, when such other person is under sixteen years of age.
Explanation: Penetration to any extent is penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
Conclusion.
Rape obviously is a very serious crime with severe trauma to the victim. The victims of rape are generally women. The crime of rape punishes victimizers for entering into an individual’s most private sphere. Laws punish individuals for that invasion. Entering a woman’s most private sphere does not have to include male type conduct in order for the invasion to be severely punished by law. Unlike men, women have at least two most private spheres-the clitoris and the vagina. The clitoris and the vagina are both female sex organs. The punishment for the invasion of either of those most private spheres should be identical.
The private sphere for women should be defined in women’s terms and from a woman’s perspective; otherwise, rape will continue to be a crime of violence on women by men, as defined by men. This practice permits men to continue, as they have from the beginning of history, to treat women as property. This affords men the right to touch a woman’s body, even her treasures, until she resists to the point that he understands that she is resisting. As we approach the millennium, it is time for women to say “no.” A woman’s body is not the property of a man, and he is not entitled to touch, unless he gets permission. There is no right for anyone to invade a woman’s most private sphere. The severity of the punishment is generally related to the invasion. The severity of the invasion of a woman’s body ought to be defined from a woman’s perspective of intrusiveness. Rape is the invasion of the female sex organs by a male. Including the clitoris as a female sex organ in the definition of rape reflects the woman’s perspective of intrusiveness. Consequently, because the clitoris, like the vagina, is a sex organ in which the nonconsensual invasion is so intrusive, the invasion of it, like that of the vagina, is rape.
Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a progressive gender-neutral rape law in India. The proposed section 375, replacing the present one, if enacted, will, therefore, be a mere symbolic legislative exercise. A symbolic law, embodying certain values and expressing the consensus of the society to adhere to theses values, nevertheless, undeniably generates a process of creating social consensus and consequential conditions that are conductive to mobilize such a change. The proposed reforms in the substantive rape law, therefore, would undeniably give a further momentum to the untiring efforts of women’s organizations to do away with the ‘pro-male’, ‘male-oriented’ and ‘gender’ biased’ sexual morals reflected in the Indian Law relating to rape. It, if favorably responded to, by the legislature, would not only make the substantive rape law free from the century, but would also take the rape law in a new progressive direction in the new millennium.
Posted in Criminal Law | 
Approach, Comparative, Constructive, India, Laws, Rape, Redefining | 
Leave a commentLaws Governing Extradition: A Special Reference to Abu Salem’s Extradition
More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the
latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State[1].
The purpose of extradition is to bring the individual within the requesting country’s boundaries in order to make a determination of guilt or innocence, or to impose punishment[2]. Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.
Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedures[3].
The extradition law that developed from these beginnings assigns a major role to government officers, leaving a very restricted one for courts. The law prevents judges from inquiring into judicial and penal conditions in the requesting country and creates a pattern of judicial deference to government decisions at all levels of the process. It was after early nineteenth centuries that sovereigns began to concentrate on extradition treaties for common crimes because of the development of new, better, and quicker forms of transportation, which allowed criminals greater ability to commit crimes over a larger region[4].
2. Position in India:
In India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities[5].
The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
# Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
#Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.
As far as India is concern this issue is always in light because of number of cases, such as Nadeem’s extradition for involvement in Gulsan Kumar Murder case & demand of Dawood for involvement in Bombay Bomb Blast of 1992, in which we are still waiting for positive response. When one talks of extradition, quite a few names come to mind. The most tragic case was that of Rajan Pillai, who was sentenced to jail in Singapore for economic offences. He, however, took refuge in India. The Singaporean government requested his extradition. He would possibly have been sent back to Singapore, but he died under mysterious circumstances while in judicial custody in the Delhi jail. Underworld don and prime accused in the Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife Monica Bedi is also a land mark in this regard.
Most of us know about the concept of extradition rightly or wrongly with respect to the cases named above but this tem paper examines one of the important aspect of extradition which is in relation with extradition of political offenders which though is not in much lime light as far as Indian Public is concern but much debated among the others as well as among intellectuals in India.
Intervening in the discussion on the draft resolution on international terrorism in the ongoing 70th Interpol Annual General Assembly at Budapest(2001)[6], the CBI-Interpol India chief, Mr. P.C. Sharma, urged member-countries to give serious
thought to putting in place certain legislation relating to extradition of wanted terrorists.
“It is not sufficient to merely locate and identify suspected terrorists. At this stage, it is imperative on all nations to demonstrate the will to help in the fight against terrorism. This can be done only by handing over the wanted persons who could be made to face fair trial and answer for the consequences of their action,”
As India has not been successful in getting criminals who have taken refuge in Western countries returned to the subcontinent, there is a growing feeling in government circles that those countries are siding with the accused.
3. Abu Salem’s extradition:
Ø 3.1 The Story:
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in the city’s blackest blasts[7].
The extradition of underworld don Abu Salem was a tribute to the co-ordination among the Central Bureau of Investigation, the ministry of home affairs, the ministry of external affairs and the Indian embassy in Lisbon, Portugal, and was made possible by the excellent co-operation received from the Portuguese authorities. The extradition was a landmark event for many reasons[8].
Ø 3.2 The Difficulty& The International Obligations:
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty.
Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by its terms.
The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition[9].
International law recognizes four points as a basis of exercise of criminal jurisdiction by a sovereign state, namely, territoriality (the state where the offence has been committed), nationality (the national state of the offender or the accused), the protective principle (the state whose essential economic or other interests have been directly and adversely affected by the offence), and
universality (the offence being an international crime)[10].
While these are situations largely governed by the political relations between the two countries involved, yet even a political/administrative decision to extradite or deport is likely to go before the law dispensing authorities including the judiciary in the extradition-requested state[11].
Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism of 2000 under which all member nations have to help each other in the war against terrorism. Portugal and India are both signatories to the
Convention. In the meantime, the Portuguese court sentenced Salem and his girlfriend Monica Bedi to four years imprisonment for illegally entering and staying in Portugal on forged passports. The court also ordered that their extradition could be made only after they have completed their prison term. When the CBI got to know of Salem’s plea the Portuguese lawyer representing the Indian government rushed to the court to remind the judge about his previous order about extraditing the duo on completing their 4-year sentence[12].
Ø 3.3 Judicial Approach: Obligating the Extradition Agreement
The Portuguese court ordered their extradition after the Indian government, through its lawyer, gave a solemn assurance that if convicted they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.
It is essential here to give a glance at the earlier decided case of Gill & Sandhu[13]. In early 1987, the government of India requested the United States to extradite Ranjit Singh Gill and Sukhminder Singh Sandhu, claiming that the two were responsible for robberies and murders committed in the Punjab, in India. Magistrate Ronald J. Hedges, however, found that he could not consider evidence of the mistreatment to which Gill and Sandhu could be subjected if returned to India.
The court stayed their release pending an appeal by the Indian government. In reaching his decision, Judge Robert J. Sweet considered four primary issues: (1) the scope of the district courts’ review of extradition proceedings; (2) the fairness of the hearing procedures; (3) the probable cause determination; and (4) the possible antipathetic treatment awaiting Gill and Sandhu in India.
Also in the case of Daya Singh Lahoria v. Union of India[14] The grievance of the petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts in the country have no jurisdiction to try in respect of offences which do not form a part of extradition judgment by virtue of which the petitioner has been brought to this country and he can be tried only for the offences mentioned in the Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences other than the offences mentioned in the extradition order as that would be a contravention of Section 21 of the Extradition Act as well as the contravention of the provisions of the International Law and the very Charter of Extradition treaty.
Therefore in view of these it is clear that both on international law as well as the relevant statute in this country entail that a fugitive brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.
4. Conclusion:
As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by death penalty under the law of the state requesting extradition[15].
Hence, Section 34 C of the Indian Extradition Act, 1962, will be applicable which states that “notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central government.”
And therefore the laws of that foreign state do not provide for the death penalty for such an offence, such fugitive criminal shall be liable for punishment for life only for that offence.
Extradition has been defined by Oppenheim[16] as “the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime by the State on whose territory the alleged criminal happens for the time to be.” The right to demand extradition and the duty to surrender an alleged criminal to the demanding State is created by a treaty.
As the question of surrendering an alleged criminal to the demanding State always involves the question of human rights, therefore the essence of maintaining the sanctity of the agreement (that Salem shall not be awarded death penalty) shall be
attributed to the concept of human rights involved in extradition laws, which lays emphasis on the law of the country in which the offender seems to be at the time of extradition.
Posted in Criminal Law | Extradition, Governing, Laws, Reference, Salem's, Special | Leave a commentObjectives of Criminal Justice System
The criminal justice system is essentially an instrument of social control: society considers some behaviours so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehaviour. Only the criminal justice system has the power to control crime and punish criminals.
So, the main objectives of the criminal justice system can be categorized as follows:
# To prevent the occurrence of crime.
# To punish the transgressors and the criminals.
# To rehabilitate the transgressors and the criminals.
# To compensate the victims as far as possible.
# To maintain law and order in the society.
# To deter the offenders from committing any criminal act in the future.
Of late, the relevance of our criminal justice system- both substantive and procedural- a replica of the British colonial jurisprudence, is being seriously questioned. Perhaps the criminal judicial system is based on the laws that are arbitrary and operate to the disadvantages of the poor. They have always come across as law for the poor rather than law of the poor. It operates on the weaker sections of the community, notwithstanding constitutional guarantee to the contrary.
There are hardly any people to advocate for the new laws to help the poor, there are practically none to pressurize the government and the legislature to amend the laws to protect the week and the poor. Even after five decades of independence, no serious efforts have been made to redraft penal norms, radicalize punitive processes, humanize prison houses and make anti-social and anti-national criminals etc. incapable of escaping the legal coils.
The criminal justice system is cumbersome, expensive and cumulatively disastrous. The poor can never reach the temple of justice because of heavy costs involved in gaining access and the mystique of legal ethos. The hierarchy of courts, with appeals after appeals, puts legal justice beyond the reach of the poor. Making the legal process costlier is an indirect denial of justice to the people and this hits hard on the lowest of the low in society. In fact, the legal system has lost its credibility for the weaker section of the community.
Of course, the judiciary in recent years has taken a lead and has come forward with a helping hand to give some relief to the victims of criminal justice in a limited way.
Some of the recent developments that have taken place during the last few years in our judicial delivery system to seek redress and accord justice to the poor are worth mentioning. The importance of these developments to the delivery system of justice can’t be ignored. They have revolutionized our judicial jurisprudence and will go a long way in giving relief to the large masses and the common man.
In view of the importance of the subject matter, it is proposed to explain in brief some of the important areas of the criminal justice system that have attracted the attention of the courts in recent years. These are:
1. Public interest litigation.
2. Bail justice jurisprudence.
3. Prison justice.
4. Compensation to the victims.
5. Legal aid and legal services.
Public Interest Litigation
Public interest has its origin in the United States. It was during the 1960s that public interest litigation emerges as a part of the legal aid movement primarily aimed at protecting the rights of the weaker sections of the community, such as the women, children, physically and mentally handicapped and the like.
In India during the last few years, a new wave of public interest litigation has struck the courts. It is being argued I some quarters that public interest litigation has opened a floodgate of litigation and by such action, the Indian judiciary seems to be projecting itself as the upholder of the freedom of people.
This over act of the judiciary is regarded as nothing but interference in the action of the executive, which is making a good and effective government impossible. It is pointed out that the judiciary might collide head on with the other organs of the State-the executive and the legislature- in which event, being the weakest, it would collapse.
Bail Justice System
Bail is a generic term used to mean judicial release from custodia legis. The right to bail- the right to be released from jail in a criminal case, after furnishing sufficient security and bond- has been recognized in every civilized society as a fundamental aspect of human rights. This is based on the principle that the object of a criminal proceeding is to secure the presence of the accused charged of a crime at the time of the inquiry, trial and investigation before the court, and to ensure the availability of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive a person of his freedom and liberty and keep him in confinement, if his presence in the court, whenever required for trial, is assured.
Prison Justice
Justice delayed is justice denied. This is more so in criminal cases where the liberty of an individual is at stake and in jeopardy. The irony of fate is that in all such cases, it is the poor and the week who are the victims of the criminal justice system, and not the rich who are able to get away.
The plight of undertrial prisoners for the first time came to the notice of the Supreme Court of India in the landmark case of Hussainara Khatoon v. State of Bihar in 1979, wherein it was disclosed that thousands of undertrial prisoners were languishing in various jails in the State of Bihar for periods longer than the maximum term for which they could have been sentenced, if convicted. While granting a character of freedom for undertrials who had virtually spent their period of sentences, the court said their detention was clearly illegal and was in violation of their fundamental rights guaranteed under Art.21 of the Constitution of India. The court further said that speedy trial is a constitutional mandate and the State can’t avoid its constitutional mandate and its constitutional obligation by pleading financial or administrative inability.
In Sanjay Suri , a trainee newspaper reporter initiated a public interest litigation by moving a writ petition in the Supreme Court of India to gather information about seven juvenile prisoners locked up in Tihar Jail, Delhi, whose conditions were reported miserable. The Court, after getting a thorough investigation conducted of the matter, came to know that the prisoners were living in pathetic conditions in prison and there was overcrowding in jail. The court accordingly issued a number of directions to the jail administration under the provisions of the Indian Prison Act, 1884 to undertake corrective measures, so that the prisoner could be provided with facilities available under the law and were not put to harassment and inhuman torture.
There is however, hardly any change in the condition of the jails and the attitude of the jail administration, and in spite of constitutional mandate for speedy trial, there are over two lakh prisoners, convicts and undertrials who are endlessly awaiting an early hearing of their cases.
It may be noted that the liberal remissions and grant of frequent paroles to the prisoners to spend time with their families would help to inculcate self confidence in prisoners and reduce the intensity of some of the prison vices.
As Kuldeep Singh and B.L. Hansaria, JJ said:
Unless there is introspection the part of all concerned with the criminal justice system, issues relating to jail reforms, improvement in the prisoner’s condition, and better administration of justice will continue to remain on paper. It is possible to reduce the backlog of criminal cases if the judiciary and lawyers together resolve to refrain from unnecessary and repeated adjournment.
Compensation to Victims of Crime
Criminal law, which reflects the social ambitions and norms of the society, is designed to punish as well as to reform the criminals, but it hardly takes any notice of by product of crime- i.e. its victim.
The poor victims of crime are entirely overlooked in misplaced sympathy for the criminal. The guilty man is lodged, fed, clothed, warmed, lighted, and entertained in a model cell at the expense of the state, from the taxes that the victim pays to the treasury. And, the victim, instead of being looked after, is contributing towards the care of prisoners during his stay in the prison. In fact, it is a weakness of our criminal jurisprudence that the victims of crime don’t attract due attention.
The code of criminal procedure, 1973, sec.357 and Probation of Offenders Act, 1958, sec.5; empowers the court to provide compensation to the victims of crime. However it is noted with regret that the courts seldom resort to exercising their powers liberally. Perhaps taking note of the indifferent attitude of the subordinate courts, the apex court in Hari Krishan , directed the attention of all courts to exercise the provisions under sec.357 of the Cr.P.C. liberally and award adequate compensation to the victim, particularly when an accused is released on admonition, probation or when the parties enter into a compromise.
No doubt in recent years, the Supreme Court and High Courts by invoking Art.21 of the Constitution have tried to give some compensatory relief to the poor victims of illegal detention at the hands of the executive. Such cases are, however, numbered and are not going to solve the malady.
Suggestions
Criminal Justice System in India requires a strong second look.
The criminal investigation system needs higher standards of professionalism and it should be provided adequate logistic and technological support. Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and should be entrusted exclusively with investigation of serious offences.
The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commission of India in its Report) should be introduced as part of the process of decriminalization.
The greatest asset of the police in investigation of crimes and maintenance of law and order is the confidence of the people. Today, such public confidence is at the lowest ebb. The police are increasingly losing the benefit of this asset of public confidence. Hard intelligence in investigations comes from public cooperation. If police are seen as violators of law themselves or if they abuse their powers for intimidation and extortion, public develop an attitude of revulsion and the onerous duties and responsibilities that the police shoulder become more onerous and difficult.
In order that citizen’s confidence in the police administration is enhanced, the police administration in the districts should periodically review the statistics of all the arrests made by the police in the district and see as to in how many of the cases in which arrests were made culminated in the filing of charge-sheets in the court and how many of the arrests were ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests. Some statistics indicate that in some districts in the country, nearly 80% of the arrests were made in respect of bailable offences.
The legal services authorities in the States should set up committees with the participation of civil society for bringing the accused and the victims together to work out compounding of offences.
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Criminal Law – An Overview
Criminal law mainly deals with crimes against society, it is also known as penal law. The main aim of criminal law is to achieve criminal justice. Criminal law has a set of regulations and statutes which govern the process of investigating, charging and trying suspects of crimes. The criminal justice system used to describe the legal process involved in criminal law.
Criminal law is different from civil law as it as it covers crimes that are against the public as a whole. For example, while murder is against a specific individual, it is also against the general public interests, unlike the failure to pay a debt, which would be between two individuals and thus a civil law problem. Criminal law punishes not only the act of breaking the law, but also conspiracies and intentions to do so. There are various different classifications within criminal law, there are crimes against a person which includes violence or rape, crime against property, which covers theft and arson and crimes against public rights which covers offences against the public order. There are also fatal offences which cover any offences that result in an unlawful death, this includes manslaughter and murder.
The main objective of criminal law is to deter people from committing crimes and to punish them when they do, this is known as retribution. Incapacitation is another objective of criminal law, which involves keeping a criminal sperate from law abiding members of the public who may be at risk from being in contact with them. This is achieved through prison sentences. Once in prison, the goal in criminal law is to rehabilitate the criminals into being law abiding citizens. Those who commit a crime have the right to have a legal professional defend them. Their lawyer may work to get a lesser sentence for the crimes that have been committed or to try to acquit the person charged altogether.
Different courts deal with different crimes. This will usually be judged by the severity of the crime. Magistrate’s courts are usually the courts in which criminal offenders will first get tried. The magistrates will try the offender for less serious crimes. For more serious offences, the offender will be referred to a crown court. Crown courts deal with the most serious crimes and they are presided over by high court judges. For people under the age of 18, there are youth courts which have strict regulations on media coverage. If a person is convicted of a crime, they will have the right to appeal against their conviction.
www.wekeepyououtofjail.com — Beverly Hills ADY Criminal Law Criminal Defense Attorneys Law Firm — ADY Law in Los Angeles specializes in criminal law and criminal defense attorneys.
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Basics of Criminal Law
Criminal law, which can also be described as “penal law” is an umbrella term relative to various sets of rules and regulations bound with the impositions or penalties that can be potentially put into play for failure to comply with the aforementioned rules and regulations. The often severe penalties connected to failing to comply with the law are why criminal law is often known by the term ‘penal law’. The various theories of criminal justice include aspects like incapacitation, deterrence, punishment as well as rehabilitation. In fact, the theoretical justification of criminal law is that its enforcement helps the society to impose a peaceful order as well as contain and prevent criminal activities.
In case you want to specialize in the field of criminal law, the CEO of , Mr. A. Harrison Barnes would suggest that you study the details as well as particulars of this particular aspect of law. For a lot of us, familiarity with the concept of criminal law comes from the media, like television, news papers as well as books. From time immemorial, the human race has been advertised to be based on qualities such as kindness, love, truth, freedom, and justice. However the establishment of the legal system with its divisions of various rules and legislations combined with its penal system has been based on the fact that basically, humans are animals, social animal’s maybe, but animals all the same.
Details from ancient recorded history and everyday news reports proves time and again that given a change in situation, humans are capable of unspeakable malice towards one another. The criminal or penal law system aims to contain the animal and uphold the virtues of mankind. For those who seek to familiarize themselves with the very ethics and essentials of this particular kind of law, the understanding requires research on a wide array of subjects. For example, there are aspects where we may experience personal involvement like the case of a person recounting his or her experiences, with which we may identify. These are incidents that make us rethink entire concepts as well as ideologies. With the real life issues coming to the fore, we may experience the requirement for assistance and further information or detailed study.
is a term, an idea that encompasses criminal statutes, the key player in the relevant field and the procedures or consequences of a criminal trial. Now, what is the basis of criminal law? For criminal law procedure to come into play, there are two main elements that need to present itself logical proof. There needs to be some kind of a proof of an undesirable act to prove a crime. Early scholars have termed this as actus reus. Once this has been established, the second element needs to be unveiled. This would be the motive or the intent for the “actus reus.” This has been termed as “mens rea.”
According toA. Harrison Barnes a social body or government may determine a particular conduct as criminal by making punishable sanctions on that person in the form of fines or imprisonment verdicts. Generally, the crimes are identified in legal statutes enacted by federal bodies and legislatures in response to issues that relate to your jurisdiction. A city or body may determine the act of drinking in public a crime, whereas the federal body may generalize that a bank robbery is a crime as usually, banks and financial institutions are insured by the federal state. According to the norms of a criminal statute, a behavioral pattern or conduct may be deemed as a crime if it adheres to particular norms that have been laid down by the government.
According to the norms of Section 459, everyone who enters A. House or tenement intending to commit larceny or burglary should be deemed guilty of burglary. There are various stipulations that have been affixed by diverse law statutes and legislations codifying a particular behavior as criminal.A. Harrison Barnes, who has been a lawyer himself, mentions in this context that first degree mode of theft is punishable in the state prison for a period of 2 to 6 years, while theft of the second degree is punishable by the federal state in the county or state jail for a year’s time. There may be severe impositions that are liable to be placed on the criminal in case they fail to comply. The common modes of punishment take into account loss of liberty, parole, probation or government supervision, payment of fines and execution. People, confessing being guilty of a particular crime on account of a guilty plea in a jury trial, are often punished by imprisonment, probation, community service and other penalties. There are 5 broad objectives of criminal law:
: In the case of individual deterrence, the offender is targeted : Here, criminals are socially ostracized : The offender undergoes a course in behavioral transformation : State regulated repairing of hurts inflicted on the guilty
If you are in a legal employment, you will be aware of the fact that criminal law has potentially serious as well as life threatening consequences if the guilty or accused fails to abide by the legally permitted stipulations. In the course of his attorney career, , the founder of the comprehensive legal head hunting site, Law Crossing has noted that every criminal process can be exercised in one jurisdiction or the other. In the case of physical punishments, it may be said that a lot of countries of the world forbid physical torture and that the criminals may be handed in different physical conditions in different jurisdictions. Some of the punishments include house arrest, solitary confinement or a parole regimen. The execution of criminal law, though varied in its approach and logical conclusion in different parts of the globe, stands united in its aim – to preserve the humanity of the human race.
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