Revolutionary Changes in Criminal Justice Administration of India Especially Regarding Severe Punishments in Criminal Cases

43 Voltaire (1694-1784), Commentary IX, pp. 231-233, FN 31 German translation 1788 (207-273), footnote 31; translation into English by the author. 44 Struensee‘s reforms were 1. Abolition of torture, 2. Abolition of unfree labour, 3. Abolition of the censorship of the press, 4. Abolition of the practice of preferring nobles for state offices, 5. Abolition of noble privileges, 6. Abolitions of ―undeserved‖ revenues for nobles, 7. Introduction of a tax on gambling and luxury horses to fund nursing of foundlings, 8. Ban of slave trade in the Danish colonies, 9. Rewarding only actual achievements with feudal titles and decorations, 10. Criminalization and punishment of bribery, 11. Re-organization of the judicial institutions to minimize corruption, abolition of torture, abolition of unfree labour. Other reforms included the abolition of death penalty for theft. Struensee was cruelly executed: His right hand was cut off. Next, after two failed attempts, his head was severed, stuck on a pole and presented to about 30,000 bystanders. After disembowelment, his remains were quartered. http://en.wikipedia.org/wiki/Johann_Friedrich_Struensee 45 When 2015 Professor Susumu Nagai from Takiwa University and I were invited to the Dignity, the famous Danish Institute Against Torture, we found in the Institute a lecture Hall named after Struensee.

torture and capital punishment in his realm. Another one was an invitation by the Russian Czaress Katharina of Russia to become her Minister of Justice with the special task of revamping the Russian Criminal Code, obviously an initiative of Denise Diderot who had best relationships to the Czaress and who was a fan of Beccaria. One lasting consequence of the work of Beccaria is the fight against the capital punishment (a project not yet finished). Jeremy Bentham (1748-1832), another influential classical criminologist, wrote: ―Oh my Master, first evangelist of Reason. You have made so many useful excursions into the path of utility – what is there left for us to do? – Never to turn aside from this past.!‖ (Jeremy Bentham, quoted in Heiner, 2015; for history of victimology, see Kirchhoff, 2010).

Harsh punishment, the death penalty and torture mean abuse of power and victimization. How can a system limit the destructive powers of the state? How can we protect the victim of such criminal justice perversions? The emerging classes of the rich bourgeoisie felt clear that such a system—if prevailed—would endanger them. The offender must get protection against a super-strong prosecuting state. Of course, the state did not easily give up its power that it demonstrated through criminal justice. However, the answer of the classical school of criminology is: ―Respect the Human Rights of the Suspects and Criminals.‖ Tame the power of the prosecuting state! How? By abolishing the legal use of torture, and of capital punishment—demand permanently and persistently that the state acknowledges the human rights of offenders and takes these rights seriously. The discussion centers on the offender and his rights about the punishing state. Criminology becomes an offender-oriented science. Here are the roots of this orientation. Underlying is a victim-related thought: If the system does no protect the offender, then he is too easily victimized and submerges in a system of offender oppression. Therefore, the discussion centers on the rights of the state to suppress offenders, and on the rights of the offender to defend himself against such oppression. The classical school developed the idea of free will, of the offender who decides to commit the crime. The ideological base is the ideology of free will. The result is the absolute school of criminal law: Punishment is justified alone by the guilt of the offender—retribution of guilt is the sole and absolute purpose of meting out punishment. Ass other purposes are not valid. To principle rules the European continental criminal law discussion in the nineteenth century. Lawyers till now justified the criminal justice system in the interest of the powerful. The offender orientation—developed with the aim to limit the power of the state—is, in reality, a sign that the powerful still dominate the system. However, the absolute school of criminal law—its dogmatic fixation on the ideology of free will and the retribution of guilt—becomes the favourite whipping boy of a new way of thinking soon. The old way of thinking was reinforced by the lawyers who defended the existing social on the side of the powerful who gave them their positions and influence. The absolute school of criminal justice was at the same time both: A logical unmovable principled system of exercising social control via criminal law—and an effective exclusion of all emerging ideas which demanded entrance into this system. This exclusion became discredited with the emergence of new powers. The old paradigm saw that victims played a role in the system. However, the systems completely co-opted the victims: The systems simply assumed the victims could not punish themselves, the state had taken over—from this standpoint, it is self-understood that state and victims have the same interest: punishing the offender. Criminal justice systems are vertical systems of social control via oppression of the offender. That victim as witnesses might not want to serve the punishing state did not appear as a problem. The ruling paradigm ―absolute theory‖ could not see different interests of the victim. New states emerge—in Europe it is Prussia (and later Germany), in Asia it is Japan. The European powers with their technological superiority (their better weapons) determine the age of imperialism and colonialism. The power relies on big national armies. An effective economic system is needed to finance these armies. Such a system demands an efficient educational system. The public health system is to produce healthy soldiers, healthy workers and healthy students. The health of the masses is a new problem to be solved. The lawyers—the class that justified the existing power structure as servants of the nobility—did not devote their attention to these new problems. It is no surprise that proponents of the natural sciences, especially the medical sciences, more and more influence the discussion of what is necessary for the state: The physicians provided future-oriented stable structures on which the new states could organize their power. The workforce needed a health system that was effective—and the armies needed the same. The schools fed both systems and needed the monitoring of the medical specialists. The growing masses of working people, necessary for the flourishing economy and the power of the state, depended more and more on natural science. The influence: The new ideology is positivism (Kirchhoff, 2015). Positivism46 becomes the most influential paradigm in the nineteenth century. It elevated the natural sciences to the model of serious science. Positivism declares natural (empirical) sciences to be the sole source of true knowledge. It rejects the cognitive value of the philosophical study. It rejects speculation as a means of obtaining knowledge. It declared false and meaningless all those problems that could not be verified by experience. Positivism claimed to be a fundamentally new non-metaphysical and therefore ―positive‖ philosophy, modeled on empirical sciences and providing them with a methodology that got more and more sound. In the light of new ideas, the revolutionary thoughts of yesterday, the classical school, looked conservative. Together with their ideology, the leading authorities in law, administration, state and philosophy lost the power to convince—let alone the priests and ministers and their organizations, the churches. They saw in positivism their natural enemy. Later on, the different ideologies like communism, nationalism, fascism and so on had their clear disagreements with positivism. It is fascinating to follow these developments from ―modernity‖ (the world after God was ―banned‖) to post-modernity (the world does not have a unifying particular ideology) and to follow the development of positivism as a school of thoughts into communication theory. However, this is not the topic of this chapter. We have to see how the victim faired in the ―Western‖ world in light of these new developments.

In the history of the ―victim,‖ the Italian School ―Escuela Positiva‖ became very famous. This school united all those who adhered to a new construction of the criminal and of criminal justice. Three Italian scientists are the brilliant beacons of this school: Cesare Lambroso (1835-1909), the socialist psychiatrist who introduced the positive method into criminology, and the somewhat younger legal scholars Enrico Ferri (1856-1929) and Raffaele Garofalo (1851-1939). In 1884, Enrico Ferri, Italian lawyer and a member of the Socialist fraction in the Italian parliament, a disciple of Cesare Lombroso, published his ―Sociologia Criminale.‖ He criticized the classical school and its absolute complete reliance on a belief in principles that are not positively proven: The reliance on free will and retribution of guilt.

46 This school was founded by the French philosopher and social reformer August Comte (1798-1857), who coined the term ―sociology‖ as well.

goal must be the indemnification of the victim. The new perspective on victims determines different consequences: Ferri distinguishes two routes: One is the indemnification by the offender—this is what we victimologists nowadays call ―restitution‖ The other is the indemnification by the state. We call this nowadays ―compensation.‖ Deplorably, the English langue confuses both concepts—science has a more precise language than everyday life. Victimilogists who—often unconsciously—entangle themselves in the game of confusion should remember that science lives from the clear definition, not from confusion. Sooner or later, confusion ends in a deadlock. Ferri understands the reason for civil law reparation of damage. He understands why conservative lawyers maintained that criminal punishment must be an additional burden for the offender. Punishment must be ―addition‖ to the civil law obligation to repair the damage. However, in view of empirical reality, the classical way of thinking is a joke and is not even taken seriously by the judges themselves. It is a lip service without consequences. In an article of 1895, Ferri argued: ―The fundamental principle of the positive system of social defense against crime is that of indemnification for damage, on which the positive school always dwelt, in combination with radical, theoretical and practical reforms. Reparation of damages suffered by the victims of crime must be regarded from three different ponts of view: 1. As an obligation of the criminal to the injured party 2. As an alternative for imprisonment for slight offences committed by occasional criminals and 3. As a social function of the state on behalf of the injured person, but also in the indirect and not less important interest of social defense.‖ Moreover, later: ―The Positivists believe: If the individual ought to be always responsible for the crime which he commits, he ought also to be always indemnified for the crimes of which he is the victim. The State must indemnify individuals for the damage caused by crimes which it has not been able to prevent‖ (Ferri & Untermann, 1913). Italy at Ferri‘s time had already a public fund financed by fines. This fund was used to compensate wrongfully sentenced offenders who had become victims of the criminal justice system. Ferri proposes social function of the state; it is part of social law. Compensation means a recompense for the violation of the social contract. Ferri is not alone. The International Criminalistic Association is funded. The international conferences of this association are famous. In 1890, its General Assembly discussed in Christiania, Denmark, victim-related topics. They recommend: ―In cases of simple assault, the accused should not be sentenced if he restituted already the victim. First restitution to the victim—then the collection of fines. First the victim—then the fiscal interests of the state.‖ This idea is exactly in line with that of Ferri. The International Prison Conference in Paris 1885 demanded: Since it is the task of the state to protect the victim of crime effectively, the state has to compensate the victim. Compensation, a public function of the state, should be realized by establishing a fund financed by all fines.47 In 1924, Ewin Suthekabdm the Nestor of American criminology, quoted the works of Garofalo and Ferri in his chapter ―The Victims of Crime,‖ a chapter that deals especially with the losses caused by crime—but Sutherland does not mention restitution or compensation. He points out to the ―backward‖ methods of Lombroso.48 For the Spanish-speaking word, a book edited by Figueroa, Tejera and Pla (1930) became important in bringing the victim-related considerations to Latin America where they were picked up by Luis Rodriguez Manzanera. In the English-speaking world, Margery Fry (1951) influenced victim compensation legislation in New Zealand and Great Britain. That is much later—and much more successful—than Ferri‘s teachings. This chapter ends with a sentence printed in the Records of the Law Reform Committee 1922 of Italy: ―If the human rights of offenders are sacred, then the human rights of victims are no less sacred‖ (Kirchhoff, 2006). Victimological ideas in the second half of the twentieth century are ―in the air‖—yet a concept of ―victimology‖ is not yet created. Scientific contributions concentrate on ―general victims of

47 This idea is picked up by the VAWA legislation in the United States in the twentieth century. 48 Sutherland refers to Ferri‘s ―Criminal Sociology‖ generally and specifically to Garofalo‘s ―Criminology‖ 79, footnotes 5 and 9 of the first chapter). Sutherland mentions the ―Italian or Positive School‖ on page 75 and Lambasted its methodological flaws. Since then, it became a tradition in sociology to use Lambroso as a favourite whipping boy. It is not that Sutherland had no chance of studying thoroughly the work of the ―positive school.‖ Their works were translated in the United States like all the leading European contributions (Sutherland, 1924).

We find the word ―victimology‖ printed for the first time in Frederik Wertham‘s book The Show of Violence (Wertham, 1949). Wertham draws attention to mass victimizations, financial profits by producers of poison gas, to victims of colonialism and racial discrimination. In his time, a psychiatrist with exceptional writing skills became famous for his fight against ―comics.‖ He mentions ―victimology‖ in passing without any theoretical depth. Mendelsohn, in his seminal Bucharest presentation, designs a complete socio-biological science. The presentation is printed about 10 years after the event in Rumania (Hoffmann, 1944). Hans von Hentig (1887-1874) for a long time was regarded as the first criminologist who looked at the victim in a more comprehensive way.49 In his influential book The Criminal and His Victim (1948), in one chapter he characterized crime as an interaction between the offender and the victim, as a compound social process. Criminal law separates the two people in this social action. It needs an offender who can be punished. It, therefore, distinguishes this person from the victim. That was a new approach, and it is astonishing that this nowadays self-understood interactional model was overlooked for such a long time. This new definition of the victim became the cradle of a whole new direction. Today, victimologists usually separate ―General Victimology‖ from ―Special Victimology.‖ This distinction is a simplification of the ideas of von Hentig and Mendelsohn. Hans von Hentig (1948) looked at the victim of crime. Therefore, he is regarded as the pioneer of ―Special Victimology.‖ In contrast to him, Benjamin Mendelsohn (1890-1998) promoted victimology as a social science of all victims ―General Victimology,‖ regardless of the cause.50 He demanded the development of a science of all victims while most of the scientists interested in victims developed the field as a subfield of criminology. Mendelsohn designed an independent science of victimology and saw an ―International Society of Victimology‖ to promote worldwide the new focus on victims. He foresaw journals of victimology, regular conferences to facilitate the international exchange of knowledge and publications, and he envisioned a victimological clinic, adding to the scientific analysis the field of victim assistance. Mendelsohn was an excellent,

49 Sutherland refers to Ferri‘s ―Criminal Sociology‖ generally and specifically to Garofalo‘s ―Criminology‖ 79, footnotes 5 and 9 of the first chapter). Sutherland mentions the ―Italian or Positive School‖ on page 75 and lambasted its methodological flaws. Since then, it became a tradition in sociology to use Lombroso as a favourite whipping boy. It is not that Sutherland had no chance of studying thoroughly the work of the ―positive school.‖ Their works were translated in the United States like all the leading European contributions (Sutherland, 1924). 50 All references to the work of Benjamin Mendelsohn are in Hanoch Hoffmann‘s study.

Mendelsohn‘s seminal work was speculative—he as a lawyer did not do any empirical research. In the middle of the twentieth century, it became apparent that social sciences would not progress without sound empirical research. In this context, we have to look at The Philadelphia School of Thorsten Sellin (1896-1994) and Marvin Wolfgang (1924—1998). This school emphasizes both sound theoretical reasoning and empirical research. In their book The Measurement of Delinquency, they develop a typology of victims (Sellin, & Wolfgang, 1964). Marvin Wolfgang analyzed data on criminal homicide (Wolfgang, 1958). In this study, he developed the concept of ―victim precipitation.‖ Like von Hentig, he saw in homicide an interaction. ―Precipitated‖ cases were those in which the (later) victim resorted as the first to physical violence, to end up being killed at the end of the interaction. This idea turned out to be quite fascinating for the criminologists of that time: They understood that the victim caused the crime. Even if the victim used violence first, this is not a cause—it is maximally a trigger for the lethal violence. The ―victim-offender relationship‖ or the ―role of the victim in the genesis of crime‖ became a central point of discussion in the field. The contributing role of the victim allowed a fascinating and useful perspective: Fascinating for it shifted the blame from the offender to victim, and in the same stance useful for it could be of benefit for defence lawyers, prosecutors and judges.51 Later, the ―position of the victim in criminal proceedings‖ became another focus. Victimological knowledge was used to shift the attention to the role of the victim in the genesis of sexual crimes like rape. Empirical research like M. Amir‘s ―Patterns in Forcible Rape‖ (1972) helped in this development. It is very consequential how we define the victim. At the beginning of the discussion, the lawyers determine the perspective. Victimology—the social science of victims, victimization and the reaction to both—originally is defined as a sub-discipline of criminology. Such a discipline would not contribute to answering new questions about victims, victimizations and the social reactions to both. The concept of ―General Victimoloyg‖ is logically quite convincing. It follows the broadest concept of the victim. Therefore, it is not so well suited to deliver practical results. Therefore, in narrowing the broad Mendelssohnian concept and widening the narrow notion of the Special Victimologists, a third definition of the victim was discussed by Zvonimir Paul Separovic, Elias Neuman and Robert Elias, leading to a social science of ―Victims of Human Rights Violations including Crime.‖ They look at the victims of human rights violations including crime.52

51 Mendelsohn, in his time as defence lawyer in Rumania, in the thirties of the last century published this field. 52 References in almost all victimological texts, see Kirchhoff (1994).

the motor of many legislations worldwide. One reason was that it only touched on the victims of human rights violations and devoted its main part to the victim of crime. That concentration was the key to the later success of the declaration—every member of the UN had a criminal justice system and, therefore, had to pay attention to the victims of crime. The UN later changed the policy: Its Vienna branch, the UNODC, promoted no longer general victim declarations but took care that in every following relevant international ―instrument,‖ victims of crime and abuse of power would be dealt with specifically. Indeed, that policy led to more concrete, tangible results. The first International Symposium on Victimology 1973 was convocated by Israel Drapkin in Jerusalem. This symposium put victimology firmly on the international scientific scene even if it was dominated clearly by criminal lawyers. The victim ―bloomed‖ in social sciences, especially in the field of sociology, psychology and social work. Victim assistance became the growth industry in the field. It seemed as if the lawyers internationally tried to monopolise the field in their discipline. A sustainable success of this was series of five volumes containing the papers of the symposium. The sequel of this symposium, the second International Symposium on Victimology, was organized by Stephen Schafer (Dussich, 2015) in Boston 1976. His sudden death (before the symposium could begin) conviced the intellectual leaders of the field to follow Mendelsohn‘s idea and to put the further development not only on a scientific substantial but an organizational base. The Third International Symposium 1979 in Muenster, Germany, led to the foundation of the World Society of Victimology (WSV) under the presidency of Hans Joachim Schneider. The 1982 symposium was held in Japan (Koichi Miyazawa) to honour developments in Japan. The 1985 symposium took place in Zagreb, Yogoslavia (today Croatia). Yugoslavia at that time was a socialist country, and the president of the WSV and this symposium, Z.P. Separovic, in a courageous way, made it possible that victimological ideas could be freely discussed despite ideological differences. In Zagreb, the field of victim assistance was recognized in bestowing the highest victimological honour to the leader of the US victim assistance movement, Marlene Young. The symposium certainly was instrumental in making the 1985 UN Declaration possible. In 1988, Sarah en David organized the symposium in Jerusalem, concentrating on psychology, victim In 1991 in Rio de Janeiro (President Ester Kosovski), the symposium was characterized by the voices of victims of the military dictatorships in South America. The 1994 symposium recognized the implementation of the 1985 UN Declaration by South Australia, which turned out to be seminal for further implementation worldwide. The 1997 symposium in Amsterdam, the Netherlands, celebrated the development of the International Victim Surveys by Jan van Disk at al.. van Dijk was the President of the symposium. In 2000, the symposium looked at the worldwide implementation (and the lack thereof) of the 1985 UN Victim Declaration (President Irvin Waller). In 2003, the symposium in Stellenbosch, South Africa (President G.F. Kirchhoff) recognized the role of restorative justice, especially the Truth and Reconciliation Committees that originated in South Africa, and it looked at the influential role of Victim Support UK. In 2006, the symposium in Orlando, USA, recognized the leading role of the National Organization for Victim Assistance and seminal federal and state legislations for th development of victim assistance. In 2009 (President Morosawa), the attention was on the efficient building of victim related reforms in the laws of Japan. In 2012 (president Groenhuijsen), the symposium in Den Haag—the World City of Justice—recognized the innovations bought upon by Victim Support Europe and the International Criminal Court. In 2015 (President Groenhuijzen), the WSV recognized further developments of victim services and improvements of the position of the victim in criminal justice in Australia. It discussed victims of colonialism (Harry Blagg, Professor of Criminology and Associate Dean (Research) at the Law School University of Western Australia). In 2018, tentatively, the symposium considers a plan to go to China, from where a concrete application does next exist.

―If victimology does not enter the classrooms, our knowledge will die with us‖. Victimology entered the classrooms. The postgraduate courses in victimology, victim assistance and criminal justice of the Tokiwa Graduate School of Victimology (now dormant), in Mito (Japan), Jakarta (Indonesia), and Delhi (India). Victimology became the subject of special postgraduate studies (in Tilburg, the Netherlands) while Jindal Global University (India) features a Ph.D. programme in victimology. Special research institutes are active in Tilburg (the Netherlands) and Delhi (Jindal global University, India). Countless universities offer lecture and seminars in victimology. Postgraduate courses are held in the Inter-University Center Dubrovnik since 1984 annually.54 Asian postgraduate courses have been organized by the Tokiwa International Victimology Institute, the last in tandem with the Perth WSV symposium 2015. These courses have contributed to the international exchange of knowledge. They give an opportunity to learn what victimologists in other countries do. They facilitate an opportunity to present postgraduate research to international forum. In the long run, the graduates influence the politics of their countries of their countries. Changes to improve the situation of victimsdo not come overnight. It takes a lot of patience and persistence to enable reforms. There is a rich scene of relevant journals. These journals do not identify themselves as victimological journals. However, they deal with special problems like torture, family violence and victimization of women. Victimologists often recognize that other fields deal with problems that are of relevance to their own field. However, the colleagues in fields outside victimology do not identify themselves as victimologists and often are astonished to hear is such a science as ―victimology.‖ This means the field has to be open for contributions and knowledge from many areas of social science. These contributions have to be incorporated into the field, a process that calls for scientific receptivity and integration.

Amir, M. (1972). Patterns in forcible rape. California Law Review, 60(1), pp. 259-263. Beccaria, C. (1788). Von Verbrechen und Strafen (Vol. 1). Korn. Dussich, J.P. (2015). J. Stephen Schafer: His life and his typology. In H. Marchiori et al. Colewccion Criminologos (pp.187-191). Cordoba: John P.J. Dussich.

53 Inter-University Center Dubrovnik, Frane Bulica 5, 2000 Dubrovnik, Croatia, annually in May in Dubrovnik, 14 day. This course alone produced about 1000 graduates and is highly esteemed internationally. The asian Postgraduate Courses will be continued by Jindal Global University and its Ph.D. programme. 54 This course has been offered annually and has reached about 1,000- students in its 34 years of existence.

and 24, 1901. Chicago: C.H. Kerr. Figueroa, J.R. H., Tejera, D.V., & Pla, F.F. (Eds.). (1930). La Proteccion de la Victima de Delito (Urbano Gody) Habana esp. pp. 75 and 76. Fry, M. (1951). Arms of the law. London: Published for the Howard League for Penal Reform by Gollancz. Heiner, R. (2015). Criminologhical theory: Just the basics. College Publications p. 11. Hentig, H.V. (1948). The criminal and his victim: Studies in the sociobiology of crime. Buckingham: Open University Press. Kirchhoff, G.F. (1994). Victimology: History and basic concepts. In G.F. Kirchhoff, E. Kosovski, & H.J. Schnieider (Eds.), International debates of victimology (pp. 1-81). Moenchengladbach: WSV. Kirchhoff, G.F. (2006). Perspectives on victimology: The science, the historical context, the present. Tokiwa Journal of International College, 10(3), pp. 37-62. Kirchhoff, G.F. (2010). History and a theory of victimology. In G. Shoham, P. Knepper, & M. Kett (Eds.), International handbook of victiology. London: CRC Taylor and Francis. Kirchhoff, G.F. (2015). A victimological analysis of the leprosy control measures in Japan in the 20th century. In T. Tollefson (Ed.), Victimological advances in theory, policy, and services. A festschrift in honor of John Peter Joseph Dussich Ph.D. Professor Emeritus California State University, Fresno. Fresno, CA: Dumont. Kuhn, Thomas S. (1962, 1970). Die Struktur wissenchaftlicher revolutionen. 2nd revised and enhanced edition with the posscriptum of 1969. German translation by Simon, K., & Vetter, H. 9th ed. Frankfurt: Suhrkamp. Manzanera, L.R. (2002). Victimologia – el studio de la Victima (8th ed.). Mexico. Mauss, A.L. (1975). Social problems as social movements. Philadelphia, PA: Lippincott. Nagel, W.H. (1949). De criminaliteit van Oss (Doctoral dissertation, University of Groningen).

Sellin, T., & Wolfgang, M.E. (1964). The measurement of delinquency. New York: John Wiley & Sons. Sutherland, E. (1924). Criminology (pp. 62-71). Philadelphia and London: Lippincott. Walklate, S. (1998). Understanding criminology: Current theoretical debates. Buckingham: Open University Press. Wertham, F. (1949). The show of violence. Garden City, NY: Doubleday. Wolfgang, M. E. (1958). Patterns in criminal homicide. Philadelphia, PA: University of Pennsylvania Press.

Research Scholar, Jaipur School of Law, Maharaj Vinayak Global University, Jaipur-302028