Author : Abinaya Rangarajan, Student at TheTamilnadu Dr. Ambedkar Law University (School Of Excellence In Law)
Indian penal code came in year 1860 and Indian evidence act was enacted in the year 1872. These criminal major acts were amended numerous number of times to meet the changes bought by technology, intellect and changing circumstances.
India being a second largest country in population in the world, criminal activities are increasing day by day. Rape has become the fourth common crime committed in India. A report states that in most of the cases the offender is well-known to the victim. Offences against women are increasing day by day. Offences are done by the impact of excessive drug abuse and circulation of porn videos.
India is considered to be the world’s most dangerous country in the world for sexual violence against women.
Lack of decent standards and morality resulted in increased number of crimes. When popular movies portray smugglers, don, robber as heroes for the purpose of trend. These movies will somehow have some negative impact on people. With the help of intellect, some people find different ways to commit crime.
Cyber space, paves way for the offender to commit crime easily. All these crimes cannot be easily punished; in most of the case the court will try to strictly construct the statute to safeguard the accused. The punishments are remitted.
Mentality of offenders with committing serious crimes cannot be controlled by existing law. At the same time sudden change of criminal justice system like Arab is also not the solution for this increasing crime rate.
Many offenders commit crime due to drug abuse, lack of proper socio-cultural environment, morality and ethics.
These proper socio-cultural environments are provided by parents or the immediate guardian of the offender. They are the persons who nurture a child with morality and ethics.
To reduce the crime rate after the next 20 years, there should be enactment of parental liability legislation. When parents are punished for lack of proper care towards children, the crime rate in the upcoming years will fall down.
Parental control in digital platforms alone not enough, parental liability legislation should be enacted.
Some of the foreign countries do have parental liability legislation.
In earlier days, when one defeat the other in war, then the women in defeated place where harmed and the assets of the civilians were taken away. During some mughal invasions, many women burnt themselves in the fort in Delhi.
When Muhammad Ghori invaded Chahamana (Chauhan) dynasty (north western India), where the Prithviraj chauhan was defeated, his wife and women in the kingdom were burnt alive in order to protect themselves from enemies.
Women are harmed from those periods and even now. And the worst part is, in majority of the rape cases, the offender is well-known to the victim. Increased circulation of porn videos, changing ideologies depicted by the movies, drug abuse create a major impact on the society. Many rape cases were witnessed by the society, some cases are reported by the victim and some are not. Even though, when the victim appears before the court, it takes time to get justice. By way of strict construction of statutes, judiciary tries to favour the accused and remit the sentence.
NOTABLE RAPE CASES
1992, Ajmer Rape case – life imprisonment
2012, Delhi gang rape case, Nirbhaya case – death penalty
2013, Mumbai gang rape, Shakti mills case – death penalty
2015, Ranaghat case, Kandhamal gang rape case – 11 years imprisonment
2016, Delta Meghwal rape case – FIR filed by parents but the case were not officially established
2018, Kathua rape case – life sentence
2018, Unnao rape case – life imprisonment and 25 lakh compensation
Have the above judgments rendered justice?
Punishments are given in order to warn other citizens to not commit any crime. Do the above judgments do it?
Answer is ‘no’
Sometimes the offender takes loopholes in law as a defense.
Sometimes the execution of judgment delays, the judgments are challenged
Hang the rapists hash tag alone not enough to render justice. Even punishing the offender also, not enough to render justice. Justice is rendered only when there is no other victim.
All of a sudden we cannot change the society. To reduce the crime rate after 20 years, at least now there should be an implementation of Parental liability legislation. Many other foreign countries (like UK, US, Canada) had already implemented this kind of law, where some has civil based law and some includes criminal also.
OBSERVATION LAID DOWN MUNNAR HONEYMOON MURDER CASE
In this case newly married wife planned to kill her husband in honeymoon with the help of her lover. And she made others to believe that killer came and took money and jewels and for that sake he killed her husband. In this case the offenders including wife were sentenced to life imprisonment.
Provided that the court further made an observation that the parents of such women could have nurtured the girl properly. The honourable court doesn’t made any penalty to the parents, but observed it.
WHAT CONSTITUTES A PERSON TO BECOME A CRIMINAL ?
- Lack of proper socio-cultural environment
- Not nurtured with proper morality and ethics
- Drug abuse
Parents of a child play a major role for a child to become a criminal may be directly or indirectly. The above three elements were given by parents to their child
- A socio-cultural environment is usually provided by parents to their child
- Parents are the person who nurture the child with morality and ethics
- Parent should take care of the child for not getting into drug abuse
Only when the parents are challenged, the crime rate will lower down. Parental control in digital platform alone not enough for the society, the government should keep a check on parents.
Same like IPC, this legislation may also have some general exceptions. For example: financial conditions, medical conditions, divorced parents.
Foreign countries have this legislation specifically for the act committed by the child (age below 18). But here in India, it is better to include adults also. May be an adult is independent to make his own decision but still the person who nurtured him plays a vital role in the crime committed.
A research says that one person become mentally ill because of lack of peaceful childhood days. Like the same, when one become more aggressive as a result of their childhood days and the morality preached to them in childhood days.
In the absence of an immediate parent, immediate guardian of the offender can be held liable.
Nirbhaya case is Delhi gang rape case where 23 year old woman was brutally raped by a gang. The worst part is one of the offender is a minor. This is a big shame to the Indian society, where there is no safety to woman in the society. In this case rust iron rod was inserted in the victim’s private part to stop the bleeding. Where does this brutality come from? Who gave right to harm other human body?
Even a goat is gang raped in our society. Many times this society and law failed to protect a woman. It is a big shame for India being an unsafe society for women. Now the worse thing is even for goats this society is unsafe.
One person does not commit crime as a result of possessing basic morals and ethics. Hence morals and ethics play a vital role in society determining the fate of criminal justice system
SEXUAL CRIMES AGAINST WOMEN
India is considered to be the world’s most dangerous country in the world for sexual violence against women.
Women are facing sexual offence day to day in workplaces, public places and some even at home. Only the serious crimes, where the victim is dead, coming into light. In many cases either the victim or their relatives were hesitant to disclose the matter to the court of law.
In nirbhaya case, the rapists were hanged several years later. Can “justice for victim” and “hang the rapists” quotes alone render justice in the criminal justice system for women.
APPLICABILITY OF THE PARENTAL LIABILITY LAW:
Common law being inherited by India, foreign law is often used to interpret law in India. Basic doctrines and scope of certain case laws are interpreted with the help of foreign law. The Chief Justice K.G. Balakrishnan stated that “domestic courts are called upon to engage foreign precedents in the field of conflict of laws”
In Naz foundation vs. NCT of Delhi, Section 377 dealing with offense of homosexuality was declared as violation fundamental rights guaranteed under the constitution. The court laid the above section are section unconstitutional relying upon a number of US decisions including Griswold vs. State of Connecticut, in which the US Supreme court held a state law invalid. State law prohibited the use of drugs or devices of contraception, the US Supreme Court held that state law as invalid in order to protect the right of privacy.
Elements of crime and parental liability:
Elements of crime:
- Accused person
- Mens rea
- Actus reus
In the above elements Actus Reus and injury is caused by the accused and the accused is liable for the offence committed.
This legislation makes Parents of the accused liable for the offense committed by their children.
Actus Reus and injury is caused by the accused and that constituting the elements of crime. There might be a question of mens rea.
Implied presence of mens rea:
Lack of control and omission of duty (towards the child) leads to criminal negligence. All parents will have the knowledge to recognize the misconduct of their child before the commission of serious crimes. In such cases if they lack control towards their children, then it amounts to criminal negligence. Criminal negligence committed by the parents here amounts to mens rea.
Things to be prohibited by the parents towards their child:
- Failure of control towards the child
- Omission of duty to look after the child
Foreign case law:
In Thrifty-Tel vs. Bezenek, the California court of appeals passed a verdict against the parents of juvenile computer hackers.
If parents take due care towards their children and have proper control, child might not have committed the crime. It’s all about the social cultural environment and control that parent give to their child. If so parents provide them, the child might not become a criminal.
Many foreign countries do have parental liability. Countries like US and Canada do have parental criminal liability.
Since no country impose criminal liability upon the parents of an adult. Of course an adult has a full freedom to take decision on his own. Reactions of the childhood are always an impact of the childhood days. One’s disturbed mental health is always a reaction of disturbed childhood days.
51A. Fundamental duties.-
It shall be the duty of every citizen of India-
(a) To abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) To uphold and protect the sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) To value and preserve the rich heritage of our composite culture;
(g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.
The above are the fundamental duties given by our Indian constitution to their citizens. It is the duty for the citizen to serve for the society when it is needed. When proper parental control, due care is given by a parent to a child, no child will become a criminal. Responsibility of parents here is there duty towards their country. Of course such parental liability law also do have some exceptions.
Parental liability legislation may be incorporated in Indian criminal justice system by bringing Parental liability Act and also amending the Indian penal code with regard to the provisions of the Act.
The parental liability Act may have definitions, duties of parent, penalty and exceptions.
Note: Accused may have punished separately, parent also have punishment based on this act and IPC.
Many may have certain views
“Punishing a parent is uncertain and they are differ from their children”
“Parent or child, they have independent right, and they are not related to each other”
“Practically punishing a parent is impossible”
Like this many may have many views against introducing parental liability legislation in India.
As per National Crime Records Bureau 33,356 rape cases were reported in India, among which in 93.9 % rape cases, the accused is well known to the victim. This is due to lack of basic principles, morality, etc of the accused. This brutality and aggressiveness can’t be changed by existing Indian Penal code.
Basic morality is inculcated by parents.
The gang rape being brutal in nirbhaya case, the iron rod being inserted in the private part of the girl by a minor is a big shame for the society. Here adult and minor lack humanity, morality, ethics. We can’t explain ethics, humanity, etc to a rapist. Only the parents can inculcate basic humanity, ethics, and morality to their children. One’s character and mental health is based on their childhood days. The Accused may be minor or major, the parents of the accused is implied a reason for the crime.
If this legislation is enacted now, then the crime rate will be reducing after 20 years.
AUTHOR’S COMMENT :
The impact of the research to write this article started from the observation laid down in Munnar honeymoon murder case, where it was observed that the wife might have properly nurtured by her parents. If they properly nurtured the wife might not have ended up in committing planned serious crime.
Parents always have direct part or implied part in acts of their children. Their nurturance, parental control, negligence play an important part in the child’s present and both future.
Implementing this sought of legislation will keep a check on parents (when some parents are punished). This legislation takes time to have impact in the existing crime rate, but will definitely reduce crime rate for the next generation.
Apart from crime rate ethically parents should be punished for their negligence.
Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System, Lecture at North-western University (Oct. 28, 2008) (transcript available on the Supreme Court of India’s website, at http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University_lecture.pdf).
 Refer foot note no.1