Criminal Justice System and Human Right Protection

CENTRAL UNIVERSITY OF SOUTH BIHAR
PANCHANPUR CAMPUS, GAYA
Project work on: ROLE OF CRIMINAL JUSTICE SYSTEM AND

HUMAN RIGHTS PROTECTION
Subject- Criminal Justice and Human Rights
(MLLAW1003EO2)
Submitted By: Submitted to:

Shruti Mrs. Poonam Kumari Ma’am
LL.M. Assistant Professor
1st Semester School of Law & Governance
CUSB1913131032 CUSB, Gaya
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Acknowledgement
I hereby take the opportunity thank Miss Poonam Mam, for her consent and the inspiration that
she radiates. Her jovial behaviour and ease making attitude eased my tension and the initial
doubts that I had about my potentialities. I also want to thank my friends who helped me a lot
in preparing this project. I have also taken help from several books and websites for doing this.
Ultimately, I once again thank Poonam Mam, who made indelible impact on me which shall
go beyond the pages of this project and reflect in all my endeavours of life.
Hoping Acceptance and Appreciation from you, I hereby submit this project.
- Shruti
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Preface
I have prepared this project on the topic of role of criminal justice in the protection of human
rights. It deals with the entire aspect of human rights and its protection and the role of criminal
justice system in its administration. It deals with the entire level that is at international level,
regional level and national level along with case laws. Some limitations have also been cited
thereon.
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Title of the proposed study
ROLE OF CRIMINAL JUSTICE SYSTEM AND HUMAN RIGHTS PROTECTION
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S.No Contents Page No.
01 Introduction 8-9
02 Human Rights in the Constitution of India 15-20
2.1 Human Rights in Preamble
2.2 Human Rights in Part III and Part IV
2.3 UN and India
03 Criminal Justice Administration 21-38
3.1 Constitutional provision regarding criminal justice
3.2 Case Laws
3.3 Public Interest Litigation
3.4 Protection of Human Right Act, 1993 & National Human Rights
Commission
04 Global Standards on the Right to a Fair Trial 39-44
4.1 International Instruments

4.2 Regional Instruments
05 Principle Sector of Human Right Abuse in Criminal Justice System 45-48
5.1 Suggestion for improving the condition of criminal justice
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Abbreviations Explanations
A.I.R. All India Reporter
S.C.C. Supreme Court Cases
A.J.I.L. American Journal of International Law
S.C.J. Supreme Court Journal
J.I.L.I. Journal of the Indian Law Institute
I.L.M. International Legal Material
I.L.R. The International Law Reporter
U.N.C. United Nations Chronicle
American Rep. American Reporter
American Rev. American Review
Har. L. Rev. Harvard Law Review
C.L.P. Current Legal Problem
F.A.R. Foreign Affairs Reports
Har. Int. L. J. Harvard International Law Journal
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S.NO. Name of Cases Citations
1. State of West Bengal v. Subodh Gopal Bose AIR 1954 SC. 92.
2. A.D.M Jabalpur v. Shukla AIR 1976 SC 470
3. Maneka Gandhi v. Union of India AIR 1978 SC
4. Lachman Das v. State of Bombay 1952 SCR 710.
5. Kedar Nath v. State of West Bengal 1954 SCR 30.
6. Venkataraman v. Union of India AIR 1954 SC 1150
7. Veera v. State of Maharashtra AIR 1976 SC 1167.
8. Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1976 SC 1365
9. D.K Basu v. State of Bengal AIR 1997 SC 618
10. Tara Singh v. State of Punjab AIR 1951 SC 411
11. M.H. Hoskout v. State of Maharashtra AIR 1978 SC 1556
12. Charles Shobraj v. Superintendent Central Jail AIR 1978 SC 514
13. Khatri v. State of Bihar AIR 1981 SC 928
14. Nandani Satpathi v. P.L. Dani AIR 1978 SC 1025
15. Joginder Kumar v. State of U.P AIR 1994 SC 1349
16. Sunil Batra v. Delhi Administration AIR 1978 SC 1675
17. Rudul Shah v. State of Bihar AIR 1983 SC 1086.
18. Bachan Singh v. State of Punjab AIR 1980 SC 898
19. A. K. Gopalan v. State of Madras 1950 SCR 88.
20. Kharak Singh v. State of U.P 1963 SCR 1295
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Chapter 01: Introduction
What are human rights?

Human rights constitute a set of rights and duties necessary for the protection of human
dignity, inherent to all human beings, irrespective of nationality, place of residence, sex,
national or ethnic origin, colour, religion, language, or any other status. Everyone is equally
entitled to human rights without discrimination. As such, human rights are universal,
interrelated, interdependent and indivisible and constitute the basis of the concepts of peace,
security and development.1
The Indian tradition has no direct reference to the concept of rights and it is based on the
ideology of “Vasudev Kutumbkam” that is the “whole universe is my family”. Therefore, the
Indian tradition is not individualistic but it has social perspective, rights to it are not the result
of human life but it is the condition of social life of human being. Social life from individuals
point of view needs rights but from societal aspect needs duty. In this perspective the famous
principle of “Geeta” is that “Duty only is your Right”. This principle of “Anasakta Karma” has
no concept of rights as if every human being demands his rights and does not perform his duties
then the situation becomes unmanageable, therefore, Dharma or Duty of each individual is to
serve other human beings and create a society which can be termed as welfare or egalitarian
society based on the principle of “Happiness for all” (Sarve Bhavantu Sukhinam). Therefore,
the sanatan view is that the rights of individual are subservient to the common good and even
the state is directed to pursue this principle. The concept of absolutist, monarchies had always
been rejected and the supremacy of Dharma (law) and Spirit is accepted. This aspect is evident
from the verse in Udyogaparva of Virduraniti which reads:
“Sacrifices the interest of individual for the sake of the family, sacrifices the interest of the
family, for the sake of the village. Sacrifices the interest of the village, for the sake of the
country and lastly for the sake of securing Moksha (eternal bliss) of the Atma reject the world.”2
1
https://www.ohchr.org/Documents/HRBodies/SP/AMeetings/20thsession/UNODCGuidance_Item6.pdf last
accessed on 02/11/2019
2
Bharat Jhunjunwala, ed., Governance and Human Rights, Kalpaz Publications, Delhi, 2002,
pp.18-19. last accessed on 02/11/2019
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Though the sanatan tradition rejects the idea of individual rights but it has emphasised over the
Right to equality. In the Vedas, the equality of all was declared in following words: “No one is
superior or inferior. All should strive for the interest of all and should progress collectively.”3
The other Indian religions like Buddhism and Jainism also laid down the principles of non-
violence and ‘aperigraha’ to guide the individuals behaviour with his fellow human beings for
creating a better society. These religions also directly or indirectly stressed upon the duties
rather than the rights. Sikhism, also aimed at creating a better society on the principle of “Sarbat
da Bhala” or welfare of all.
Though some modern scholars attacks Hinduism for creating such a stratified society, based
on varna system, which promotes discrimination and violation of rights of women and other
marginalized sections but these three religions denounce any such stratification and
discrimination. Indian tradition also got enriched by the introduction of Islamic tradition.
During the British period, the English concept of justice was evolved which incorporated some
of the principles of both Hindu Law and Muslim Law under the Judicature Act of 1874.4
3
Ibid
4
https://shodhganga.inflibnet.ac.in/bitstream/10603/23693/7/07__chapter-%203,.pdf last accessed on
03/11/2019
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Hypothesis
The following hypotheses would be taken account of in this study and they have been examined
in the course of discussion. A conclusion has been drawn to assess whether the hypotheses
proposed were true to their extent of statement that criminal justice system to a very large extent
played a vital role in the protection of human rights.
Research Question
1. Does criminal justice play role in human rights protection?

2. Is criminal justice actually protected the human rights?
3. Is international and regional instruments on human rights complied with?
Research methodology
In accordance with the objectives of the present study, doctrinal research design has been
adopted. The doctrinal design has been used to study the role of criminal justice system and
human rights protection. Doctrinal Research is a research, as we all know, based on the
principles or the propositions made earlier. It is more based on the sources like books of the
library, and through resources collected through access to various websites. For the purpose of
the Research Project, the Researcher has collected relevant materials from books on criminal
justice and human rightsand also from various websites. The Research has been done primarily
with the help of case laws and leading judgements of various courts as well as legislative
provisions. Various articles from the internet sources have also been referred.
Research Objective
The objective behind this research is to study the role of criminal justice system in the
protection of human rights.
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Literature Survey/Review
The following Primary and Secondary sources have been referred to
Primary Sources
 Book referred
The following textbooks have been referred
1. Mani V.S Handbook of International Humanitarian Law in South Asia (Oxford

university press) 3rd Edition 2014
2. Naorem Sanajaoba A Manual of International Humanitarian Laws” (Oxford university
press) 3rd Edition 2004
3. Balachandran &.Rose Verghese, Introduction to International Humanitarian Law,
ICRC New Delh, Sanajaob;(2004)
4. V.N.Shukla, “Constitution of India”, Eastern Book Company, 2004.
5. Alam, Aftab, Human Rights in India: Issues and Challenges (Delhi: Raj Publication,
2000
6. Dunne T. and Wheeler, N.J. (eds.): Human rights in global politics, (Cambridge:
Cambridge University Press, 2014)
7. Rajendra kumar Sharma, ‘Criminology and penology’ Atlantic Publishers and
Distributers (p) Ltd, edn 2017.
 Statutes Referred
1. The 1954 Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;
2. The Biological Weapons Convention 1972
3. The Conventional Weapons Convention and its five protocols 1980
4. The Chemical Weapons Convention
5. The Ottawa Convention on anti-personnel mines 1997
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6. The Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict. 2000
7. The constitution of India (Bare Act)
8. The Geneva Convention 1949
9. The Geneva Convention Act 1960
10. Statute of International Criminal Court 1998
11. Indian Penal Code 1860
Secondary Sources
 Journal /Article referred

1. Dr. Rakesh Kr. Singh, International Humanitarian Law and Protection of Terrorism,
Journal of Constitutional and Parliamentary Studies, Jan-June 2008, Vol.42 p.79-
88
2. V.S. Mani, The Fifth Afghan war and International Law’, Economic and Political
Weekly, Vol. 37, no. 4, 2002, pp. 294-298
3. Yogesh Tayagi, ‘The Conflict of Law and policy on Reservation to human rights
Treaties’, British Yerarbook of International Law, Vol. LXXI, 2000, p. 205
4. Seema P.S., “Incorporation of International Human Rights Documents into Indian
Law- Response of the Supreme Court”, CULR, 2006
5. M.Ccheif Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent Protections in National
Constitutions” p.g. 265-270
6. Shruti Chaudhary, “ Indian Criminal Justice System and Human Rights” International
Journal of Advance Research and Development, Vol. 3 issue no. 1, pp. 273 & 274
7. Héctor Olásolo, “Criminal Justice & Human Rights” Utrecht Journal of International
and European Law, Volume 27, Issue 72 pp. 01-03, 2010.
8. Zakiyyu Muhammad and Pradeep Kulshrestha, “Human Rights in the
Administration of Criminal Justice in India and Nigeria: A Fair Trial” Researchgate.
9. David Weissbrodt, “The Administration of Justice and Human Rights” Scholarship
Repository University of Minnesota Law School, 2009
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 Reports Referred
1. Reports of the Economic and Social Council and of the Sixth Committee', UN Doc.
A/760/Corr.2, 3rd Session, 178th Plenary Meeting, pp. 826.
2. Gazette of India, Extraordinary, 160, Part 1, Section 2, at P. 1098
3. Reponses to proposal by Venezula and Pakistan. n., at pp. 815 The Hindu (New
Delhi), 31 May 2002, at p.10.
4. Balakrishnan Rajagopal, ‘Gujrat: A plea and A Proposal’,The Hindu, 27 March
2002.
 Website referred
1. http://avalon.law.yale.edu
2. http://en.wikipedia.org
3. http://indiankanoon.org
4. www.icj-cij.org
5. http://www.icc-cpi.int
6. https://www.ijarnd.com/manuscripts/v3i1/V3I1-1206.pdf
7. https://www.researchgate.net/publication/49615119_Criminal_Justice_and_Human_Ri
ghts
8. https://www.researchgate.net/publication/328161737_Human_Rights_in_the_Administ
ration_of_Criminal_Justice_in_India_and_Nigeria_A_Fair_Trial
9. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2953285
10. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1245&context=faculty_arti
cles
11. https://www.unodc.org/documents/justice-and-prison-
reform/LegalAid/Model_Law_on_Legal_Aid.pdf
12. https://www.ohchr.org/Documents/Publications/training9Titleen.pdf
13. https://eeas.europa.eu/sites/eeas/files/eu_mon_hr_conference_jan.eng_.pdf
14. https://www.abdn.ac.uk/study/postgraduate-taught/degree-programmes/43/criminal-
justice-and-human-rights/
15. https://academic.oup.com/bjc/article-abstract/55/5/1021/485737
16. https://www.bloomsburyprofessional.com/uk/victims-rights-human-rights-and-criminal-
justice-9781847314246/
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17. https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-
institutions/access-to-justice/
18. https://shodhganga.inflibnet.ac.in/handle/10603/89957
19. https://www.refworld.org/pdfid/5331852e4.pdf
20. https://cdn.penalreform.org/wp-content/uploads/2013/11/Childrens-rights-training-
manual-Final%C2%ADHR.pdf
21. https://www.unafei.or.jp/publications/pdf/RS_No98/No98_VE_Joutsen.pdf
22. https://www.coe.int/en/web/impact-convention-human-rights/right-to-a-fair-trial
23. https://www.jstor.org/stable/43950897?seq=1#page_scan_tab_contents
24. https://www.aclu.org/issues/human-rights/human-rights-and-criminal-justice
25. https://academic.oup.com/bjc/article/55/5/1021/485737
26. https://www.researchgate.net/publication/299465605_Human_rights_and_the_crimina
l_justice_system
27. http://www.lincoln.edu/criminaljustice/hr/Justice.htm
28. https://www.hrw.org/news/2012/03/21/human-rights-paradigm-foundation-criminal-
justice-system-we-can-be-proud
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Chapter 02: Human Rights in the Constitution of India
The preamble of the Constitution, fundamental rights and directive principles of the state policy
jointly constitute the broad spectrum of human rights. No one alone can claim to be complete
by itself. The Preamble, as amended by 42nd Constitutional Amendment 1976, of the
Constitution has set forth the basic objectives to be achieved by the Constitution.
Human Rights in the Constitution can be classified under various categories.

These rights, as mentioned above are included in both the Part III and Part IV. The general
classification can be made under following categories:
a) The justiciable rights called fundamental rights are included in Part III and nonjusticiable
rights known as Directive Principles of State Policy are in Part IV. Both when combined, lay
down the framework of the welfare state, in India. The judiciary plays a pivotal regulatory role
as far as fundamental rights are concerned. But the legislature and the government have a
significant role to play regarding the Directive Principles. Here, sometimes the judiciary and
the government, come face to face in a conflict situation as both claim to protect or regulate
the different spheres. But the welfare state needs both of these rights in order to create an
environment where every citizen can enjoy his rights without any discrimination as both these
Parts of the Constitution provide political, civil, cultural, social and economic rights.
b) While some of the provisions relating to fundamental rights are limited to citizens only, such
as Articles 15, 16, 19, 29, the remaining provisions of this part are applicable to citizens and
alien alike i.e. to all persons residing within the territory of India for the time being, and subject
to its jurisdiction, e.g. protection of life and personal liberty (Article 21); educational rights of
minorities (Article 30).5
c) Another classification of the fundamental rights of the Indian Constitution is that while some
of the rights impose limitations on state action [e.g. Articles. 14; 15(I); 16; 18(I); 19; 20-22;
31], there are other provisions which are limitations on the freedom of action of private
5
Durga Das Basu, Introduction to the Constitution of India, Prentice Hall of India Pvt. Ltd. New
Delhi, 1995, p. 84.
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individuals as well [e.g. Article . 15(2); 17; 18(2); 23(I) ; 24).] According to the philosophy of
fundamental rights, they are available only against state action. But since Part III of the Indian
Constitution was the resultant of various sentiments, this general principle was not borne in
mind by the makers of the Constitution, and resulted in the introduction of some anomalies into
Part III.6
d) From another standpoint, it may be pointed out that, while most of the fundamental rights
guaranteed by the Indian Constitution belong to a person Qua individual (e.g., Article 19), there
are some others which belong only to a section of the people and to an individual only as a
member of that section or community (e.g., Articles. 26; 29(I); 30). Such rights are intended
for the protection of minorities and other groups.7
e) From the formal standpoint, it may be stated that, while some of the fundamental rights in
the Constitution are couched in the negative form of a prohibition on the state, e.g., Article 14
“The state shall not deny… equality before the law or equal protection of the laws…;”8 Article
18 – “No title… shall be conferred by the state…;”9 there are others which are couched in a
positive form of rights of citizens which it would be the duty of the State to protect, e.g., Article
16(1) – “there shall be equality of opportunity for all citizens…;”10 Article 19(1) – “All
citizens shall have the right…;”11
f) For easy reference, the Indian Constitution groups the fundamental rights in following ways:
i. Right to equality (Article 14-18).
ii. Right to freedom (Article 19-22).
iii. Right against exploitation (Article 23-24).
iv. Right to freedom of religion (Article 25-26).
v. Cultural and educational rights (Article 29-30).
g) There is also an indirect reference to the Natural Rights in the Constitution to meet the
growing needs of civilization and the change in the social environment.
6
Ibid, p.84
7
Ibid
8
Ibid
9
Ibid
10
Ibid
11
Ibid
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The Supreme Court of India has recognized the Fundamental Rights as Natural Rights in Moti
Lal V. State of UP.12 Similarly Chief Justice Patanjali Shastri has referred to Fundamental
Rights as “those great and basic rights which are recognized and granted as Natural rights
inherent in the status of a citizen of a free country.”13 Although, Part III of the Indian
Constitution contains an exhaustive list of fundamental rights, still, a departure has been made
by the Supreme Court, while propounding the theory of emanation, by following the example
of the American Supreme Court. It means that even though a right is not specifically mentioned
in Part III, it may still be regarded as a fundamental right if it can be regarded as an integral
part of a named fundamental right that is, “it emanates from a named fundamental right or its
existence is necessary in order to make the exercise of a named fundamental right meaningful
and effective.”14 Applying this theory of emanation, the Supreme Court has evolved the
following rights as Fundamental Rights:
i. The right to privacy [as an emanation from Article s 19(I)(d) and 21].
ii. The right to human dignity [as an emanation from Article s 14, 19, 21].
iii. The right to travel abroad [as an emanation from Article s 21].
iv. The right against torture, cruel or inhumane or degrading treatment [as an emanation from
Article 21]; such as solitary confinement, unnecessary letters, 98 handcuffing.
v. The right to speedy trial [from Article 21].
vi. The right to free legal aid in criminal trial [from Article 21].
vii. The right against delayed execution.
viii. The right against custodial violence.
ix. The right to shelter, doctor’s assistance, the right to health.
x. The right to pollution free environment.
xi. The right to education of a child till the age of 14 years.
xii. The freedom of press.
h) Still, other classification may be made from the standpoint of the extent of limitation
imposed by the different fundamental rights upon Legislative and Executive power.
i) On the one hand, we have some fundamental rights, such as under Article 21 which are
addressed against the Executive but impose no limitation upon the legislature at all. Thus,
Article 21 simply says that – “No person shall be deprived of his life or personal liberty except
12
ILR 1951, Allahabad, p. 369.
13
State of West Bengal Vs Subodh Gopal Bose, AIR 1954 SC. 92.
14
Ibid.
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according to the procedure established by law”
It was clearly held by our Supreme Court that a competent Legislature is entitled to lay down
any procedure for the deprivation of personal liberty and that the courts cannot interfere with
such law on the ground that it is unjust, unfair, or unreasonable. In this view, the object of
Article 21 is not to impose any limitation upon the legislative power but only to ensure that the
Executive does not take away a man’s liberty except under the authority of a valid law and in
strict conformity with the procedure laid down by such law. In later cases, however, the
Supreme Court has found it difficult to grant immunity to laws made under Article 21 from
attack on the ground of unreasonableness under a relevant clause of Art 19(1) or Article 14 and
recent Supreme Court decisions shows an increased inclination in that direction.
ii) On the other hand, there are Fundamental Rights which are intended as absolute limitations
upon the legislature power so that it is not open to the Legislature to regulate the exercise of
such rights e.g. the rights guaranteed by Article 15, 17, 18, 20, 24.
iii) In between these two classes, some rights guaranteed by Article 19 itself, empower the
Legislature to impose reasonable restrictions upon the exercise of these rights, in the public
interest. Though the individual rights guaranteed by Art 19 are, in general, binding upon both
the Executive and the Legislature, these ‘authorities’ are permitted by the Constitution to make
valid exceptions to the rights within limits imposed by the Constitution. Such grounds, in brief,
are security of the state, public order, public morality and the like.15
i) Another category of Fundamental rights is related with the nature of their being Self-
executory and Non-self-executory. Self-Executory rights are those rights which can be directly
executed as they are provided in the Constitution. Non-self executory rights are those rights
which are not directly enforceable, but they would be indirectly enforceable only if some law
gives effect to them e.g. Article 15(2) ‘Equality in regard to access to and use of places of
public resort, Article 17, Prohibition of Untouchability, Article 23, Prohibition of Traffic in
Human Beings, Article 24, Prohibition of Employment of Children in hazardous employment
etc.16
15
Supra note 61, pp.85-86
16
Ibid.
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j) In the Constitution, some of the rights are also categorised as Specified and ‘other’ rights.
The Specified rights are those which are mentioned in the Constitution and are identical to the
rights included in the UN Covenants on Civil and Political Rights and Covenant on Economic,
Social and Cultural Rights. The‘other’ rights are those rights of the Covenant which are not
included in the Part III of Indian Constitution.
UN AND INDIA
As mentioned earlier India is a signatory to the universal Declaration of Human Rights of 1948.
In 1979, India ratified two covenants: International Covenant on Economic, Social and Cultural
Rights; and the International Covenant on Civil and Political Rights. The Constitution of India
guarantees human rights under Fundamental Rights. The Directive Principles of State Policy
supply necessary guidelines for their effective implementation. Fostering respect for
International law is an obligation of the State under Article 51 of the Constitution. From this,
it follows that human rights incorporated in the international instruments are bound to be
respected in the Indian jurisdiction.
The fundamental rights and the social and economic rights in form of Directive Principles of
State Policy, as enshrined in Indian Constitution have their parallels in the International
Covenant on Civil and Political Rights and International Covenant on Economic, Social and
Cultural Rights. It has included ‘specified’ rights as mentioned in these Covenants.
Some rights specified in these covenants are not directly included in the Constitution of India
but they have found their way through various judgements of the courts. Even then there are
some rights of these covenants which are, neither guaranteed as fundamental rights in part III
of the Constitution, nor they have been regarded by the judiciary as fundamental. For instance,
the right against torture or cruel, inhumane or degrading treatment or punishment, the right not
to be subjected to medical and scientific experimentation, prohibition of death sentence on
children and pregnant women, special treatment of juvenile offenders etc.
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under Articles 7, 6, 10 and 14 of Covenant on Civil and Political Rights. Apart from these
Covenants, India remained an active member of UN and has become party to various other
Declarations, Conventions and Agreements. It has also participated in various peace keeping
missions of UN.
As far as implementation of any International Covenants or agreements in our National Law is

concerned, there are different views. In A.D.M Jhabalpur V. Shukla,17 Justice H.R. Khanna in
his dissenting opinion held that if there is a conflict between a municipal law and an
International law, the court shall give effect to the municipal law. But there are other views
also, like in Maneka Gandhi V. Union of India18 Justice Bhagwati held that what is necessary
to be seen is, as to what test must be applied and whether the right claimed by petitioner, which
is also mentioned in International Covenant or agreement, is an integral part of a named
fundamental right or has the same basic nature and character as the named fundamental rights.
In other words, only that right of the covenant can be enforced which is mentioned or which is
by nature or character similar to the one mentioned in the fundamental rights, in the
Constitution. That means those rights which are not included in part III in the Constitution or
have no resemblance with the Constitutional rights, cannot be enforced. But it can be a good
excuse for the Government, not to implement these rights.
The result is that a number of violations of human rights still occur despite the ratification of
human rights convention by the Government. It is desirable to set up a body of experts to take
a fresh look on all the statutes with a view to bring them fully into the conformity with those
human rights conventions, which have been ratified by the Government. Some of the specified
rights mentioned in these Covenants got recognition through various court judgments and
enriched Indian criminal justice system, the prominent among them are, right to speedy trial,
right to provide legal assistance, right of prisoners to be treated with humanity, right of not to
be imprisoned for inability to fulfill a contractual obligation, right to compensation etc.19
17
AIR 1976 SC 470.
18
AIR 1978 SC
19
Supra note 11, pp.888-98.
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Chapter 03: Criminal Justice Administration
The extent to which the human rights are respected and protected within the context of its
criminal proceedings, is an important measure of society’s civilization.20 Social justice, the
signature of the Indian Constitution, has its overtones in the criminal justice system too.
Consequently, administration of criminal justice is to be geared towards the same goal of social
justice. Society changes and the perception which is social justice, also undergoes
corresponding changes.21 In India, the administration of Criminal Justice System follows the
Anglo Saxon adversarial pattern. The three segments of the Criminal Justice System viz, the
police, the judiciary and the correctional institutions must function in a harmonious and
cohesive manner in order to produce desired results. However, the three wings of the Criminal
Justice System, very often instead of interacting, tend to counteract one another. The police,
very often, instead of promoting and protecting human rights, violate them callously.
Allegations of the police violence and brutality are being constantly received from different
parts of the country.22
It is widely believed and perhaps justifiable too, that the present criminal justice system is
heavily loaded in favour of the accused because in the adversarial system, he is presumed to be
innocent till proved guilty. But as Bharat B. Das has said, “There is nothing wrong in giving a
‘victim-oriented’ approach to the criminal justice system by seeking Constitutional foundation
to it. Thus, for example, it can be agreed that it is the right of the individual to remain free from
being victim of crime.” 23
Before going into the detail of Criminal Justice System in
independent India, there is need to have a brief overview of the origin of this system in the
history. It has its roots in ancient Hindu Law. In ancient Hindu Law, the law givers were fully
aware of the necessity of directly compensating the victims of crime. Thus, Manu in Chapter
VIII,Verse 287 says:
20
P.N. Bhagwati, “Human Rights in Criminal Justice System” in Noorjahan Bava , ed, Human Rights and
Criminal Justice Administration in India, Uppal Publishing House New Delhi,2000, p-11. Last accessed on
04/11/2019
21
Bharat B. Das, Victims in the Criminal Justice System, APH Publishing Corporation, New Delhi, 1997, p.1.
last accessed on 04/11/2019
22
Shankar Sen, “Human Rights in Criminal Justice System”, in Vijay K. Gupta, ed,. Perspective on Human
Rights, Vikas Publishing House Pvt. Ltd., New Delhi, 1996, p.221. last accessed on 05/11/2019
23
Supra note 71, p.12
21 | P a g e
“If a limb is injured, a wound (is caused) or blood (flows, the assailant) shall be made to pay
(to the sufferer) the expenses of the cure.24 In Chapter VIII, Verse 288, Manu Says: “He who
damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to
the (owner) and pay to the king a fine equal to the damage.”25
Manu thus, provides direct reparation to the victim of crime apart from payment of fine to the
king (the State). In Chapter XXI, Verse 10, Brihaspati Says: “He who injures a limb, or divides
it, or cuts it off, shall be compelled to pay the expenses of curing it; and (who forcibly took an
article in a quarrel restore) his plunder”. In Chapter XXII, Verse 7, he says: “A merchant who
conceals the blemishes of an article which he is selling, or mixes bad and good articles together,
or sells (old articles) after repairing them shall be compelled to give a double quantity (to the
purchaser) and to pay fine equal (in amount) to the value of the article ”.26
The law of Vishnu and Yajnavalakys also advocates compensation to the victim of crime for
their injury. Yajnavalakys, Narada and Brihaspati fix a compensation twice to the purchase
(who paid the price) and a fine of an equal amount, in case of fraudulent sale of one article to
another, or knowingly, selling defective articles as free from defect. Again, traders or business
men who lost their property while travelling through the kingdom were also compensated. So
also during Islamic rule restitution and atonement was a recognized from a punishment. As far
as the evolution of criminal justice system in India during Mughal and British period is
concerned, it has been discussed in the introductory chapter.
Reparation or compensation, as a form of punishment is found to be recognized from the

ancient times in India. In ancient Hindu Law, during Sutra period, awarding of compensation
was treated as a royal right. The Law of Manu requires the offender to pay compensation
equivalent to the expenses of cure, in the case of injuries to the sufferer, and to the satisfaction
of the owner, where the goods were damaged. In all cases of cutting of a limb, wounding or
fetching blood, the assailant shall pay the expenses of a perfect cure, or in his failure, both full
damages and a fine of some amount.27
24
Max Muller, ed, The Laws of Manu, Sacred Books of the East, Oxford University Press, 1886.
Chapter-VIII, 287. Last accessed on 05/11/2019
25
Ibid, 288.
26
Max Muller, ed, Code of Conduct by Brihaspati, Sacred Books of the East, Oxford University
Press, 1886. Chapter XXI, Verse 10. Last accessed on 06/11/2019
27
22 | P a g e
The criminal justice system in India has various components like the Constitution, different
enactments, judgments of judiciary and activities of various structural setups like police,
prisons etc. The whole setup includes,
a) The rights of accused
b) The rights of victim and
c) The rights of other citizens under criminal justice administration.
a) Constitutional Provisions Regarding Criminal Justice
The Part III of Indian Constitution, includes certain fundamental rights which have direct or
indirect provisions regarding Criminal Justice Administration especially the Articles14, 20, 21,
22 and Art. 32. Under Art 12 all these fundamental rights are available against the state which
includes not only executive and legislative organs of the union or the state but also the local
bodies as well as other authorities. This is the basis of Indian criminal justice administration
where the state and its organs are made responsible to provide and protect these rights of the
citizens. Art. 13 restrict the State to make any law which takes away or abridges the rights
conferred by the part III i.e. Fundamental rights. Article-14: Article 14 of the Constitution
provides: -
“The state shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”
Prima facie, the expression, “equality before law” and “equal opportunity of the laws” may
seem to be identical but in fact they mean different things. While equality before law is a
somewhat negative concept implying the absence of any special privilege in favour of any
individual and the equal subjection of all classes to the ordinary law. Equal protection of the
laws is a more positive concept implying equality of treatment in equal circumstances.
It means that no man is above the law of the land and every person whatever be his rank or
status, is subject to the ordinary law. But the exceptions are allowed by the Indian Constitution
in this regard. e.g. The President and the Governor of the State shall not be answerable to any
court in regard to their performance of their official duty, and no criminal proceeding shall be
instituted or continued against them in any court during their term of office and that no civil
proceedings in which relief is claimed against them, shall be instituted in any court during their
term of office. Some immunities are also given to the foreign sovereigns and ambassadors.
23 | P a g e
“Equal protection of the laws”, on the other hand, would mean “that among equals, the law
should be equal and equality administered and the like should be treated alike”. In other words,
it means the right to equal treatment in similar circumstances both in the privileges conferred
and in the liabilities imposed by the law.28The guarantee of equal protection applies against
substantive as well as procedural laws.29 It means that all litigants, who are similarly situated,
are able to avail themselves of the same procedural rights for relief and for defence, without
any discrimination.
Though in some special situations, a procedure different from the one laid down by the
ordinary law can be prescribed for a particular class of persons, if the discrimination is based
upon a reasonable classification having regard to the object which the legislation has in view
and the policy underlying it. One of the examples is the Special Courts bill, 1978. The Supreme
Court in reference to it has held that the setting up of a Special Court for the expeditious trial
of offences, committed during Emergency period by the high officials, is in the interest of the
functioning of the democracy under the Constitution of India.30
The guarantee of “equal protection” also includes absence of any arbitrary discrimination by
the laws themselves or in the matter of their administration. Even where a statute is not
discriminatory, but a public official responsible for its operation, applied it against an
individual, not for the purpose of the Act but intentionally for the purpose of injuring him, the
latter may have that executive act annulled by the Court on the ground of contravention on the
guarantee of equal protection.
In short Article 14 hits at the “arbitrariness” of the State action in any form.31 Article -20: This
Article provides protection in respect of conviction for offences. It prohibits ex post facto
operation of criminal law and confers immunity against double jeopardy and protection against
self-incrimination. The provision against ex post facto legislation is contained in clause 1 of
Article20 of our Constitution which run as follow:
28
29
Lachman Das Vs. State of Bombay, 1952 SCR 710.
30
Supra note 61, p.89
31
Ibid.
24 | P a g e
“No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the act charged as an offence, nor be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of the commission of the
offence”
It is a basic principle of criminal law in every civilized society that no person can be convicted
of an offence for an act which was not an offence under the law in force at the date when it was
committed. No act can be made an offence by enacting legislation with retrospective effect. So
also no one can be subjected to a greater penalty for an offence than what was provided under
the law in force when the offence was committed. This protection against ex post facto
operation of criminal law is enacted as a Constitutional right under clause 1 of Article 20 of the
Constitution.32 Though ordinarily legislation can enact prospective as well as retrospective
laws, according to the present clause a Legislature shall not be competent to make a criminal
law with retrospective effect.
The prohibition against double jeopardy is contained in Clause 2 of Article 20 which runs thus,
“No person shall be prosecuted and punished for the same offence more than once.”
Though the expression ‘double jeopardy’ is used in the American law and not in our
Constitution but clause (2) of Article 20 lays down a similar principle. Even before the
Constitution was framed, this principle was enacted in the Code of Criminal Procedure. But
the Constitution makers considered it fit to include it as a Constitutional protection so that it
could not be lightly interfered with by any legislature by just amending the Code of Criminal
Procedure.33
Article 20(2) refers to judicial punishment and gives immunity to a person from being
prosecuted and punished for the same offence more than once. In other words, if a person has
been prosecuted and punished in a previous proceedings for an offence, he cannot be
32
Kedar Nath Vs. State of West Bengal, 1954 SCR 30.
33
Supra note76, p.13.
25 | P a g e
prosecuted and punished for the same offence again in the subsequent proceedings. The Article,
however, does not give immunity from proceedings, other than proceedings before a court of
law or a judicial tribunal. Hence, a Government servant who has been punished for an offence
in a court of law may yet be subjected to the departmental proceedings for the same offence or
conversely.34 The immunity from self-incrimination is conferred by clause (3) of Article 20
which says,“No person accused of an offence shall be compelled to be a witness against
himself.”
The scope of this immunity has prima facie been widened by our Supreme Court by interpreting
the word ‘witness’ to comprise both oral and documentary evidence, so that no person can be
compelled to furnish any kind of evidence which is reasonably likely to support a prosecution
against him. Such evidence must, however, be in the nature of a communication. The
prohibition is not attracted where any object or document is searched and seized from the
possession of the accused. For the same reason, the clause does not bar the medical examination
of the accused or the obtaining of thumb impression or specimen signature from him. This
protection does not apply to the Administrative investigations and enquiries. It applies only to
the police investigations only. It has been explained by the Supreme Court that in order to claim
the immunity from being compelled to make a self incriminating statement, it must appear that
a formal accusation has been made against the person at the time when he is asked to make the
incriminating statement. He cannot claim the immunity at some general enquiry or
investigation on the ground that his statement may, at some later stage, lead to an
accusation.35This protection is also not applicable to the searches and seizures under a search
warrant. This clause of Article 20 is not free from controversy. Serious doubts have been
expressed in various quarters that this principle has tended to defeat justice. In support of this
principle, it is claimed that the protection of the accused against self incrimination promote
active investigation from external source to find out the truth and proof of alleged or suspected
crime instead of extortion of confessions on unverified suspicion.
On the other hand, the opinion has been strongly held by some that this rule has an undesirable
effect on social interest and that in the detection of crime, the state is confronted with
overwhelming difficulties as a result of the privilege. It is also said that this has become a
34
Venkataraman Vs. Union of India, AIR 1954 SC 1150
35
Veera Vs. State of Maharashtra, AIR 1976 SC 1167.
26 | P a g e
hiding place for criminals, who have cultivated its usefulness whereas, the rights of the accused
persons are amply protected without this privilege and that no innocent person is really in need
of it. This controversy is really a part of larger controversy, that which of the two interests
should prevail.36 This controversy apart, this provision is an important part of criminal
jurisprudence in our country. It enacts a measure of protection against a testimony compelled
through police torture, violence and intimidatory methods, which are unfortunately still
present. The apex court in Sarwan Singh v. State of Punjab37 has laid down certain guidelines
regarding the recording of the confessional statement of an accused. The court emphasized that
before recording a confession, the magistrate should ensure that the mind of the accused is
completely free of any possible influence of the police. The court observed that the effective
way of securing such freedom from fear to the accused person is to send him to jail custody
and to give him adequate time to consider, whether he should make a confession at all. Court
considered that the reasonable time to be given to an accused person should be atleast 24 hours
so that he can decide whether or not he should make a confession.
Article -21: This Article provides that “No person shall be deprived of his life or personal
liberty except according to the procedure established by law.”
It means that no member of the Executive shall be entitled to interfere with the liberty of a
citizen unless he can support his action by some provision of law. In short, no man can be
subjected to any physical coercion that does not admit of legal justification. When, therefore,
the state or any of its agent deprives an individual of his personal liberty, such action can be
justified only if there is a law to support such action and the procedures prescribed by such aw
have been “strictly and scrupulously” observed.38 The phrase “the procedure established by
law” is often compared with the principle of “Due process” of American Constitution. When
the Constitution of India was being formed, B. N. Rau, a Constitutional adviser, visited United
States to study the working of the principle of ‘Due process’. Justice Frankfurter of Supreme
Court of US advised him not to include this clause in the Indian Constitution, as this gives
immense powers to judiciary and some scholars believe in judicial restraint as against judicial
36
Supra note 76, p.14.
37
AIR 1957 SC 637
38
Supra note 61, p.105
27 | P a g e
activism. The constituent assembly decided not to include it and instead used phrase “except
according to the procedure established by law”.39 The principle of ‘Due process’ is based on
the concept of natural justice and hence provides the basis of “reasonableness and fairness” to
the judiciary to review the legislature and through this it can question the law itself whether it
is reasonable or not. But our Constitution adopted the notion of procedure which is established
by the law, hence law here is beyond the review power of judiciary. The 1978 decision in
Maneka Gandhi v. Union of India40 case become a landmark or watershed in the history of
Constitutional law of the country. The judgment in this case linked Art 21 with Art 19 and
applied the notion of “reasonable restrictions” under Art 19 on Art 21.
Thus it imported the principle of natural justice in the principle of procedure established by
law. The Supreme court for the first time took the view that Art 21 affords protection not only
against the executive action but also against the legislation and no law can deprive a person of
his life and personal liberty unless it prescribes a procedure which is reasonable, fair and just
and it would be for the court to determine whether the procedure is reasonable, fair and just
and if it is not, the court will strike down the law as invalid. Thus Article 21 assumed a new
dimension and the Supreme Court introduced “procedural due process” in the Constitutional
law of India through creative interpretation inspired by judicial activism. This new
interpretation of Art 21 brought about a significant reform in the administration of criminal
justice as far as undertrial prisoners are concerned. One pathetic aspect of criminal justice
administration in India has been an unduly large number of undertrial prisoners languishing in
jails.
The statistics show that at any given point of time, the percentage of undertrial prisoners have
always exceeded that of convicts. The undertrial prisoners represent about 61.5 per cent of
total jail population.41Under Art 21, the judiciary laid down many provisions to protect the
rights of the undertrial and in this regard the famous Hussainara Khatoon v. Home Secretary,
State of Bihar and other cases proved to be a landmark. These judgements explained various
aspects of the rights of undertrials which include, Right to speedy trial, Rights of prisoners to
be treated with humanity, Right for legal assistance, Right to compensation etc. The Supreme
39
Supra note 71, p.19
40
AIR 1978 SC 597
41
Maneka V. Union of India, AIR 1978 SC 597
28 | P a g e
Court stated, in D.K Basu vs State of Bengal42 that “The precious right guaranteed by Art 21
of the Constitution of India cannot be denied to the convicts, undertrials, detenues and other
prisoners in custody, except according to the procedure established by law and by placing only
such reasonable restrictions as are permitted by law”.
i)Right to speedy trial: In Hussainara Khatoon v. Home Secretary, State of Bihar,43 it was held
by the Supreme Court that although the speedy trial is not specially enumerated as a
fundamental right, yet it is implicit in the broad sweep and content of Article 21 which deals
with the right to life and liberty. Bhagwati J, held in this case –
“No procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable,
fair or just’. There can, therefore, be no doubt that speedy trial and by speedy trial we mean
reasonably expeditious trial, is an integral and essential part of the fundamental right to life and
liberty enshrined in Article 21.” It was also held by the Supreme Court that detention in jail for
a period longer than what they would have been sentenced if convicted, is illegal, as being in
violation of their fundamental rights under Art 21 of the Constitution.44 In this case, the court
also directed the release of such undertrials. However, delayed trial is not an unfair trial in all
the cases. In those cases where delay is caused by the tactics or conduct of the accused himself,
Art. 21 of the Constitution cannot be invoked. The conviction and sentence in a case may be
restored where the delay was caused by the conduct of the accused and no prejudice has resulted
to him on its account. It was desirable to lay down the ruling so that the principle laid
down in Hussainara Khatoon’s case might not be misused.45
ii) Right to provide legal assistance: In the beginning the right to legal aid for an accused person
was not considered as the right, as it was just a directive principle of state policy under Art 39-
46
A. The Supreme Court in Janardhan Reddy v. State of Hyderabad stated that fundamental
rights in the Constitution do not carry with them the right to provide services of legal
practitioner at the state cost. Though it is an obligation of the state but it is not an obligation
enforceable in the court of law. But later on the Supreme Court in M.H. Hoskout v. State of
42
AIR 1997 SC 618
43
AIR 1976 SC 1365
44
Hussainara Khatoon Vs. Home Secretary, State of Bihar, AIR 1979 SC 1373
45
https://shodhganga.inflibnet.ac.in/bitstream/10603/23693/7/07__chapter-%203,.pdf last accessed on
07/11/2019
46
AIR 1951 SC 217; See also, Tara Singh Vs. State of Punjab, AIR 1951 SC 411
29 | P a g e
Maharashtra47 held that the right to free legal service is an essential ingredient of a reasonable,
fair and just procedure for a person accused of an offence and is implicit in Art 21 of the
Constitution. In the case, Krishna Iyer, J., who delivered the majority judgment observed:
“If a prisoner sentenced to imprisonment is virtually unable to exercise his Constitutional and
statutory right of appeal … for want of legal assistance, there is implicit, in the court under Art
142 read with Art 21 and 39-A of the Constitution, power to assign counsel for such imprisoned
individual ‘for doing complete justice’.
In Hussainara Khatoon48 also the court held that ‘if the three legal services are not provided to
the accused, the trial itself may run the risk of being vitiated as countervening of Art 21.’ Justice
Bhagwati has also held that “the law does not permit any government to deprive its citizens of
Constitutional rights on the plea of poverty.”49
iii) Right of undertrials and prisoners to be treated with humanity: From time to time the
judiciary has also stressed upon the needs of humane treatment to the undertrials and the
prisoners. In famous Hussainara case, the Supreme Court held that the women and the children
who were in the jails and who were also the victims of offence should be released and the
undertrials should be taken to welfare homes or rescue homes.50In this case, the court rejected
the counter affidavit of State of Bihar that these women and children were victim of an offence
and were required for the purpose of giving evidence and that they are being held under
“protective custody”.
The Court pointed out that the expression “protective custody” is an euphemism calculated to
disguise what is really and in truth nothing but imprisonment and it is nothing short of blatant
violation of personal liberty guaranteed under Art 21.51 The Supreme Court in, Charles Shobraj
v. Superintendent Central Jail, Tihar, New Delhi,52 recognized that the right to life is more
than mere animal existence or vegetable substance. Even in prison, a person is required to be
treated with dignity and one enjoys all the rights specified in Art 19 and 31. The court restricted
the punishment of solitary confinement and recognized the need to put the prisoners in bar
fetters for an unusually long periods only in those cases where ‘absolute necessity demanded
47
AIR 1978 SC 1556
48
AIR 1979 SC 1381
49
Khatri V. State of Bihar, AIR 1981 SC 928
50
AIR 1979 SC 1369
51
52
AIR 1978 SC 514
30 | P a g e
it. In Nandani Satpathi v. P.L. Dani,53 the Supreme Court stated that the right of accused to
consult his lawyer at the stage of custodial interrogation is covered under Art 21. The court
also held that as part of the right to live with human dignity has a necessary component of right
to life, and the detenue would be entitled to have interviews with the members of his family
and friends.54 In Joginder Kumar v. State of U.P55 and others the court issued an order that –
1. An arrested person has the right to inform about his arrest to one of his friends, relation or
other person who is known to him.
2. The police officer shall inform the arrested person, when he is brought to police station, of
his right.
3. An entry shall be required to made in the diary as to who was informed of the arrest.
56
The Sunil Batra v. Delhi Administration is also important in this regard. In this case, the
court held that the practice of keeping undertrials with convicts is inhumane as it is against the
test of reasonableness in Art 19 and fairness in Art 21. In order to secure the humane treatment
to the prisoners, the judges in Sunil Batra v. Delhi Administration57 set out guidelines to be
prescribed and followed which were as follows: -
1. The state shall take early steps to prepare in Hindi, a prisoner’s handbook and circulate
copies to bring legal awareness amongst the inmates. Periodical jail bulletins stating
how improvements and habilitative programmers are brought into the prison may create
a fellowship which will ease tension. A prisoner’s wall paper, which will freely
ventilate grievances will also reduce stress. All these are implementary of section 61 of
Prisons act.
2. The state shall also take steps to ensure the standard minimum rules for treatment of
prisoners as recommended by the United Nations, especially those relating to work and
wages, treatment with dignity community, contacts and correctional strategies. In this
latter aspect, the observations we have made of holistic development of personality
shall be kept in view.
3. The Prisons Act needs rehabilitation and the prison manual total overhaul, even the
Model Manual being out of focus with healing goals. A correctional cum orientation
53
AIR 1978 SC 1025
54
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746
55
AIR 1994 SC 1349
56
AIR 1978 SC 1675
57
AIR 1980 SC 1579
31 | P a g e
course is necessary for the prison staff to inculcate the Constitutional values, therapeutic
approaches and a tension free management.
4. The prisoner’s right shall be protected by the court by its writ jurisdiction plus contempt
power. To make this jurisdiction viable, free legal service to the prisoner programme
shall be promoted by professional organizations recognized by the court such as e.g.
Free Legal Aid (Supreme Court) Society. The district bar shall keep a cell for the
prisoner’s relief.
iv) Right of not to be imprisoned for Inability to Fulfill a Contractual Obligations: This right
has been provided under Art 11 of the Covenant on Civil and Political Rights but it has no
mention in Indian Constitution. But the Supreme Court has held that to keep a person in prison
because of his poverty and consequent inability to meet his contractual liability is a violation
of Art 21 of the Constitution.
v) Right to Compensation: In Rudul Shah v. State of Bihar,58 the Supreme Court held that, “Art
21 which guarantees the right to life and liberty will be denuded of its significant content if the
power of this court were limited to passing orders of release from illegal detention. One of the
telling ways in which the violation of that right can reasonably be prevented and due
compliance with the mandate of Art 21 secured is to make its violaters to pay monetary
compensation. Administrative rigidness leading to flagrant infringements of fundamental rights
cannot be corrected by any other method open to the judiciary to adopt. The right to
compensation is some relief for the unlawful acts of instrumentalities which act in the name of
public interests and which present for their protection the powers of the state as a shield.”
vi) Death penalty and Art 21: Though there is a debate regarding the death penalty in India and
there are conflicting views that the penalty of death sentence has no rational nexus and it is
arbitrary and irrational and is therefore, violative of Art 14 and Art 21 of the Constitution.59But
the judiciary, in general holds that the penalty of death sentence is Constitutionally permitted
in India if it is done according to the procedure established by the law.60
Article 22: This Article provides the rights to the detenues as well as rights against the arbitrary
arrest and detention. The CLs. (1) and (2) of Article 22 are
a. No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the ground for such arrest.
58
AIR 1983 SC 1086.
59
Dissenting Judgment of Justice P.N. Bhagwati, AIR SC 1325.
60
Bachan Singh v. State of Punjab, , AIR 1980 SC 898
32 | P a g e
b. No such person shall be denied the right to consult and to be defended by a legal practitioner
of his choice.
c. Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest, excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.
However Para 3(a) of this Article has not provided these safeguards to – (a) an enemy alien,
(b) a person arrested or detained under a law providing for preventive detention. Though this
Article provides the right against arbitrary detention but ironicall it contains the provisions for
preventive detention. The scholars like D.D. Basu has mentioned it as a ‘necessary evil’.61The
Constitution authorizes the legislature to make law providing for ‘preventive detention’ for the
reason connected with the security of a state, the maintenance of public order, or the
maintenance of supplies and services essential to the community, or for the reason connected
with defence, foreign affairs or the security of India.62 The subject of defence, foreign affairs
and security of India falls under the union government while other subjects are included in state
list, hence even the states can enact their own preventive detention acts.
The preventive detention means detention of person without trial. It is distinguished from
punitive detention. The object of punitive detention is to punish a person for what he has done
and after he is tried in the courts for the illegal act, committed by him. The object of preventive
detention, on the other hand, is to prevent him from doing something and the detention in this
case takes place on the apprehension that he is going to do something wrong. Under these
provisions, the legislature is competent to enact that a person should be detained or imprisoned
without trial for any of the above reasons and against such laws, the individual shall have no
right of personal liberty. The Constitution however, imposes certain safeguards against the
abuse of this power.63 It is these safeguard which constitutes fundamental rights against
arbitrary detention and it is because of these safeguards that the preventive detention has found
a place in the part on fundamental rights in our Constitution. The relevant provisions read as
follows- When a person has been arrested under a law of preventive detention:
1) The government is entitled to detain such person in custody only for three months. If it seeks
to detain the arrested person for more than 3 months, it must obtain a report from an Advisory
61
Supra note 61, p. 110.
62
7th Schedule, List I, Entry 9, List III, Entry 3 of Constitution of India.
63
Article 22, Clauses 4 to 7 of the Constitution of India.
33 | P a g e
board – who will examine the papers submitted by the government and by the accused – as to
whether the detention is justified.
2) The person so detained shall, as soon as may be, be informed of the grounds of his detention
excepting facts which the detaining authority considers to be against the public interest to
disclose.
3) The person detained must have the earliest opportunity of making a representation against
the order of detention.
A law which violates any of the conditions imposed by Article 22 as stated above, is liable to
be declared invalid and an order of detention which violates any of those conditions will,
similarly, be invalidated by the court and the detenu shall forthwith be set free.64The history of
preventive detention in India has its roots in the British period. In the early days of British
India, Preventive detention was introduced under Bengal Regulation III of 1818.65 During the
period of World War under the Defence of India Act 1939, it was again introduced keeping in
mind the defence of the state. But even after the end of the war, the preventive detention clause
was continued in India as an instrument to suppress the apprehended for the breach of public
order, public safety etc. by the Provincial Maintenance of Public Order Acts. The
circumstances during the time of independence and partition had necessitated the provisions
for such legislations to be included in the Constitution by the framers of the Constitution to
save the infant Republic from the inroads of any subversive elements. But the framers of the
Constitution improved upon the existing law by subjecting the power of preventive detention
to certain Constitutional safeguards, upon the violation of which, the individual could have a
right to approach the Supreme Court or the High Court to safeguard his fundamental rights.
The provisions of the Constitution regarding preventive detention are not self executory but it
requires a law to be made by legislature, conforming to the conditions laid down in Art 22, and
the preventive detention can subsist only as long as the Legislature permits. After
independence, a number of such acts have been enacted and many of them have been nullified
by the court, from time to time. The main such acts are, The Preventive Detention Act 1950
which expired at the end of 1969, The Maintenance of Internal Security Act (MISA) 1971,
which was repealed in 1978, The Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (COFEPOSA) 1974, The National Security Act (NSA) 1980, The
Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act
64
Gopalan v. State of Madras, 1950 SCR 88.
65
The Bengal State Prisoners Regulation III of 1818 .
34 | P a g e
1980, The Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) and The
Prevention of Terrorists Activities (POTA). The COFEPOSA is still in use. There is
controversy regarding the utility of such Acts, as sometimes these have been used to suppress
the political opposition or the democratic forces e.g. during emergency in one year of 1975-76
about 1,75,000 persons were detained under the Preventive Detention.66 Similarly, it has been
alleged that these acts were liberally used to suppress the workers who were demanding their
democratic rights. No doubt there are many examples of political misuse of such Acts, but then
Art 22 provides for them as a necessary evil. Article 32: This Article provides Constitutional
remedies for the enforcement of fundamental rights. A mere declaration of fundamental rights
in Constitution is of no use unless there are the means to make them effective. The CLs (1) and
(2) of Art 32 held that-
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever
may be appropriate for the enforcement of any of the rights conferred by this part. Apart from
this, the Indian Constitution lays down following provisions, for the enforcement of
fundamental rights –
a. Under Art 13, the fundamental rights are guaranteed by the Constitution not only against the
action of executive but also against the legislature. Any act of these two which takes away or
abridges any of these rights, shall be void and the Courts are empowered to declare it as void.
b. The Judiciary has also been armed with power to issue above mentioned writs by the
Supreme Court and High Court under Article 32 and Article 226
c. Under Article 359, it is held that these rights shall not be suspended except during a
proclamation of emergency and that also in the manner laid down by the Constitution.
In this Article the Supreme Court is constituted as the protector and guarantor of fundamental
rights. Under Article 32, the Supreme Court has the power to issue the aforesaid writs only for
the purpose of the enforcement of fundamental rights. But under Article 136, the Parliament by
law may confer the Supreme Court powers to issue these directions, orders or writs for the
purposes, other than the enforcement of fundamental rights. Under Article 226, a High Court
has wider powers regarding the writs. It can issue these writs not only for the purpose of
enforcement of fundamental rights but also for the redress of any other injury or illegality, point
66
Supra note 61, p.109
35 | P a g e
to the contravention of ordinary law, under certain conditions. Where the infringement of a
fundamental right has been established, The Supreme court cannot refuse relief under Art 32
on the ground –
a) That the aggrieved person may have his remedy from some other court or under the ordinary
law,67 or
b) That disputed facts have to be investigated or evidence has to be taken before relief may be
given to the petitioner,68 or
c) That the petitioner has not asked for the proper writ applicable to his case. In such a case,
the Supreme Court must grant him the proper writ and if necessary modify it to suit the
exigencies of the case.69
d) Generally only the person effected may move to the court but the Supreme Court has held
that in social or public interest actions, any person may move the court. This is called expansion
of the ‘right to be heard’. It favour public interest litigation.70 This Article is immune from
being overridden by the legislation and any law which overrides Supreme Court’s power to
grant this remedy shall be void.71 The Constitution also provides for empowering courts other
than Supreme Court and High Courts to issue the writs, by making a law of parliament, but no
such law has been passed.72
Public Interest Litigation

The Supreme Court of India in a number of important decisions has significantly expanded the
scope and frontier of human rights. In this, the public interest litigation has played a major role.
Earlier, a person who sought to enforce his fundamental rights through a court, must first
establish that he had been personally aggrieved by the state act, he had complained against.
This is known as the rule of ‘locus standi’ or standing of the petitioner in the court who
complains of a violation of his human rights. The restrictive role of locus standi often operated
to close the doors of justice to large masses of people in the country. In such cases an
organization (or an individual) which has been allowed to fight for the public cause or challenge
the Constitutionality of law through the petitioner may not be able to show that is (or he) has
67
Himmat Lal v. State of M.P, 1954 SCR 1122
68
Constituent Assembly Debate Volume VII, 1948 p. 953
69
Ibid.
70
Kharak Singh v. State of U.P, 1963 SCR 1295
71
Gopallan v. State of Madras, 1950 S.C.R 88
72
36 | P a g e
been directly affected by it. In this new era of public interest litigation, the court not only
dispensed with the law of locus standi but also the law of procedure, holding that the court can
be moved even by a letter addressed to a judge of the Supreme Court or High Court, in place
of ordinary process of petition supported by affidavit.73 Thus came into being a new jurisdiction
of the court named as ‘epistolary jurisdiction’.74 Significant strides in human rights jurisdiction,
particularly in favour of the weaker sections have taken place as a result of the public interest
litigation and display of judicial activism by the courts. Nandita Haksar, a prominent social
activist has expressed that these PILs have helped the disadvantaged sections in seeking the
redressal against injustice. To her, “A human being (like bonded labourer) without hope cannot
dream of going to Supreme Court. It is only a socially committed individual or a politically
aware organization that can speak on his behalf.”75
c) Protection of Human Right Act, 1993 and National Human Rights

Commission
In 1993, the protection of Human Rights Act was enacted which provided for the Constitution
of National Human Rights Commission, State Human Rights Commissions and Human Rights
Courts for better protection of Human Rights in the country. Under this act, the provision was
made that central government shall constitute a body known as National Human Rights
Commission.Under the chapter 3 of this Act, the commission performs following functions:-
a) inquiry, suo motu or on a petition presented to it by a victim or any person on his
behalf, into complaint of –
i) violation of human rights or abetment thereof.
ii) negligence in the prevention of such violation by a public servant.
b) intervene in any proceedings involving any allegation of violation of human rights pending
before a court with the approval of such court.
c) visit, under intimation to the State government, any jail or any other institution under the
control of state government, where persons are detained or lodged for purposes of treatment,
reformation or protection to study the living conditions of the inmates and make
recommendations thereon.
73
Bandhua Mukti Morcha v Union of India , 1984 (3) SCC 161
74
Supra note 76, p. 21.
75
Harsh Mander, “Dalit Status and an Agenda for State Intervention”, in Vijay K. Gupta, ed., Perspective on
Human Rights, Vikas Publishing House Pvt. Ltd., New Delhi, 1996, pp. 96-97. Last accessed on
08/11/2019
37 | P a g e
d) review the safeguards provided by or under the Constitution or any law for the time being
in force for the protection of human rights and recommend measures for their effective
implementation.
e) review the factors including acts of terrorism that inhibit the enjoyment of human rights and
recommended appropriate remedial measures.
f) study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
g) undertake and promote researches in the field of human rights.
h) spread human rights literacy among various sections of society and promote awareness of
the safeguards available for the protection of these rights through publications, the media
seminars and other available means.
i) encourage the efforts of non-governmental organizations and institutions working in the field
of human rights
j) such other functions as it may consider necessary for the promotion of human rights.76
76
The Protection of Human Rights Act, 1993.
38 | P a g e
Chapter 04: Global Standards on the Right to a Fair Trial
1. Universal Declaration of Human Rights

In 1948 the UN General Assembly adopted the UDHR which provides a worldwide definition
of the human rights obligations undertaken by all UN member states pursuant to Articles 55
and 56 of the UN Charter, including several provisions relating to the administration of justice.
For example, Article 10 of the UDHR states that 'Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.' Article 11, further, provides for the
presumption of innocence, public trial, and 'all guarantees necessary for [one's] defence.' It also
assures that 'conviction can only be based on the law applicable at the time of the offence,' and
forbids retroactive punishment or penalties. Other provisions of the UDHR - for example, those
regarding arbitrary arrest, the right to an effective remedy, the right to be free from torture, the
right to security of person, and privacy - are relevant to the criminal justice system and the
fairness of the trial process.
2. International Covenant on Civil and Political Rights

Following the adoption of the UDHR, the UN Commission on Human Rights drafted the
remainder of the International Bill of Human Rights which includes the ICCPR. The ICCPR
establishes an international minimum standard of conduct for all participating governments,
and further elaborates - primarily in Articles 14 and 15 but also in Articles 2, 6, 7, 9, and 10 -
upon the criminal justice standards identified in the UDHR. Article 14 of the ICCPR is the
most extensive treaty provision on the right to a fair trial. It recognises the right in all
proceedings to 'a fair and public hearing by a competent, independent and impartial tribunal
established by law.' Every person is 'equal before the courts and tribunals' under Article 14(1).
Article 14 also extends the right to a fair hearing to both civil cases and criminal cases, and
emphasises that parties to such proceedings are entitled to equality before courts and tribunals.
As construed by the Human Rights Committee (HRC) in General Comment No. 13, Article
14(3) deals with the minimum guarantees required in the determination of any criminal charge,
the observance of which are not always sufficient to ensure the fairness of a hearing. Among
the minimum guarantees in criminal proceedings prescribed by Article 14(3) are the right for
the accused to be informed in a language which the accused understands of the charge against
39 | P a g e
him or her; to have adequate time and facilities for the preparation of a defence, and to
communicate with counsel of one's own choosing; to be tried without undue delay; to examine
or have examined the witnesses against the accused, and to obtain the attendance and
examination of witnesses on one's behalf under the same conditions as witnesses against the
accused; to the assistance of an interpreter free of any charge, if the accused cannot understand
or speak the language used in court; and not to be compelled to testify against oneself or to
confess guilt.77
3. International Convention on the Elimination of All Forms of Racial Discrimination

The preamble of the ICERD proclaims that 'all human beings are equal before the law and are
entitled to equal protection of the law against any discrimination.' This principle of equality
before the law is applied to the context of the administration of justice in Article 5(a), which
imposes upon states parties the obligation to guarantee 'the right to equal treatment before the
tribunals and all other organs administering justice' without distinction as to race, colour, or
national or ethnic origin. Article 2(1)(a) of the ICERD affirms that each state party undertakes
to ensure that public authorities and public institutions, national and local, shall not engage in
acts or practices of racial discrimination against persons, groups of persons, or institutions.
Article 6 further requires states parties to assure to everyone within their jurisdiction effective
protection and remedies, as well as the right to seek 'just and adequate reparation or satisfaction'
for any damage suffered as a result of any unlawful racial discrimination. Hence, unlike the
ICCPR whose fair trial rights in Article 14 gives prominence to procedural safeguards, the
ICERD emphasises the institutional aspects of the administration of justice, particularly in
regard to its impact on vulnerable groups within the country.78
In interpreting their respective conventions, however, both the HRC and the Committee on the
Elimination of Racial Discrimination (CERD) have provided some specific guidelines for
carrying out institutional and legislative reforms within the justice sector. The CERD has
applied the ICERD to the question of administration of justice in a few instances. For example,
LK v The Netherlands involved defacto housing discrimination by members of the
neighbourhood where a foreign man wished to reside. In its opinion, the CERD found that the
mere existence of a law making discrimination a criminal act was insufficient and decided that
the state's obligation to treat instances of racial discrimination with particular attention was
77
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1245&context=faculty_articles last accessed on
09/11/2019
78
Ibid
40 | P a g e
missing. The police and judicial proceedings in the case did not afford the applicant effective
protection and remedies within the meaning of Article 6 of the ICERD. The CERD declared
that the Netherlands should compensate the applicant and report back to the CERD on measures
taken to remedy the situation.79
4. Convention on the Rights of the Child

The Convention on the Rights of the Child (CRC) has been ratified by 193 countries as of 24
January 2009, that is, nearly every country in the world except for Somalia and the US. The
CRC elaborates on the rights of juvenile offenders in the ICCPR and other treaties. Articles
12,37, and 40 are the primary provisions in the CRC relevant to the administration of justice.
Article 12 safeguards each child's right to be heard in legal proceedings. Article 37(b) provides
that '[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.' Article 37(c)
also provides that '[e]very child deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so.' Furthermore, Article 37(d) provides that
'[e]very child deprived of his or her liberty shall have the right to prompt access to legal and
other appropriate assistance, as well as the right to challenge the legality of the deprivation of
his or her liberty before a court or other competent, independent and impartial authority, and
to a prompt decision on any such action.' Article 40 of the CRC addresses similar fair trial
issues as Article 14 of the ICCPR. This provision significantly expands fair trial protection to
children under the age of 18 by using the term 'child' instead of 'juvenile' as used by the ICCPR.
This expansive approach is also evident from the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (The Beijing Rules, 1985), which defines a juvenile as
'a child or young person who, under the respective legal systems, may be dealt with for an
offence in a manner which is different from an adult.80
5. Other Global Standards

In addition to the major treaties discussed in previous sections of this article, a number of other
binding human rights instruments contain provisions touching on the administration of justice.
79
10/11/2019
80
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)
(adopted 29 November 1985) GA Res 40/33, annex, 40 UN GAOR Supp no 53 at 207, UN Doc A/RES/40/53
last accessed on 10/11/2019
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For instance, the Convention for the Elimination of All Forms of Discrimination Against
Women (CEDAW)81 had been ratified by 185 states as of 24 January 2009. By incorporating
gender-based violence into the definition of discrimination in Article 1, the CEDAW provides
a remedy to a complex set of crimes affecting women within both public and private spheres.
The Second Optional Protocol to the ICCPR, aimed at the abolition of the death penalty, has
been ratified by 70 nations as of 24 January 2009. Furthermore, the Convention Relating to the
Status of Refugees82 (as more broadly implemented by the Protocol)83 contains a few
provisions in Article 16 as to the rights of refugees in the context of the administration of
justice, such as access to the courts (including legal assistance). The International Convention
for the Protection of All Persons from Enforced Disappearance was adopted by the United
Nations General Assembly on 20 December 2006, but is yet to enter into force. When it comes
into effect, this Convention will criminalise enforced disappearances and provide remedies for
its victims, including restitution, satisfaction, and rehabilitation, while setting out a broad range
of guarantees for persons deprived of liberty by the state.
B. Regional Standards
1. European Convention on Human Rights
The ECHR has enjoyed a very high degree of compliance with its provisions, both because
many countries have incorporated its provisions into domestic law and because the ECtHR and
European Commission's judgments have almost always been obeyed.84
Fundamental fair trial guarantees are established in Article 6 of the ECHR. Article 6(1)
provides that a person is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. This provision applies to both 'civil
rights and obligations' as well as 'any criminal charge.' Some of the more difficult problems in
the interpretation of the ECHR concern the application of Article 6 to non-criminal cases.
Article 6(2) stipulates that a person charged with a criminal offence shall be presumed innocent
81
convention for the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13.
82
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137 (Refugee Convention).
83
Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606
UNTS 267 (Protocol). The protocol has 144 states parties as of 24 January, 2009.
84
D J Harris et al, Law of the European Convention on Human Rights (Butterworths, London 1995) 702;
Laurence R Helfer, 'Nonconsensual International Lawmaking' (2008) U Ill LR 71, 87; Francis G Jacobs &
Robin C A White, The European Convention on Human Rights (2nd edn Clarendon Press, Oxford 1996) 407;
Frank Vibert, 'Framework for Non-Governmental Organisations in International Diplomacy' (2001) 2 Chi J Int'l
L 397, 400. Last accessed on 11/11/2019
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until proved guilty. Article 6(3)(a-e) addresses many of the same fair trial rights guaranteed in
Article 14 of the ICCPR. In particular, the accused must be promptly informed of the charges
against him or her in a language that he or she understands; to have adequate time and facilities
to prepare his or her defence; to be allowed to defend him or herself or receive legal assistance,
including free legal assistance if the accused lacks sufficient means and if the interests of justice
requires; to examine or have examined witnesses against him or her; and to have free assistance
of an interpreter if he or she cannot speak the language of the court.
2. African Charter on Human and Peoples'Rights

Since entering into force on 21 October 1986, the African Charter has been ratified by all 53
African countries.85 Article 7 of the African Charter guarantees several fair trial rights,
including notification of charges, appearance before a judicial officer, right to release pending
trial, presumption of innocence, adequate preparation of the defence, speedy trial, examination
of witnesses, and the right to an interpreter. Article 7 also provides an innovative guarantee by
requiring that punishment must be personal. This principle is crucial for a continent in which
the reality of communal punishment exists. Under Article 26, African states are bound to
guarantee the independence of the judiciary, which is a basic requirement for a fair trial. In
addition to the above, Articles 3 to 6 of the African Charter also provide for the rights to
equality before the law, the equal protection of the law, the inviolability of human beings, and
guarantees against all forms of degradation of man or any arbitrary arrest or detention. The
African Commission on Human and Peoples' Rights (African Commission)81 has sought to
strengthen the African Charter's fair trial provisions by formulating a number of important
standards.
3. American Convention on Human Rights

The American Convention on Human Rights (American Convention)86 as of 24 January 2009
has been ratified by 24 states parties, which is almost all states in the Western Hemisphere
except Cuba, Trinidad and Tobago, and the US. Article 7 of the American Convention provides
several criminal justice guarantees, including for example the right to notice and to habeas
corpus. Article 8 deals with the right to a fair trial in a detailed manner, encompassing for
example the right to a hearing, the presumption of innocence, the rights to a free translator and
85
As of 24 January 2009
86
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS
Treaty Series No 36, 1144 UNTS 123.
43 | P a g e
to counsel, the right of the accused not to be compelled to be a witness against himself or
herself, the principle of ne bis in idem, and that criminal proceedings shall be public. Article 9
guarantees freedom from retroactive application of laws. The Inter-American Commission on
Human Rights (IACHR) also considers the right to compensation for miscarriage of justice as
forming part of the right to fair trial under Article 10. Article 25 of the American Convention
further guarantees the right to 'simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his fundamental rights
recognised by the constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the course of their official
duties.87
The right to the inadmissibility of certain evidence.

In some states, evidence obtained as a result of a violation of a person's protected rights will
be admissible against him or her in a criminal trial.88 Indeed, in many jurisdictions the remedy
for such illegitimate actions lies in a right to civil damages or in the prosecution of the officials
who violated the person's rights, while the evidence continues to be admitted in the criminal
proceeding against the person.89 In other jurisdictions, the exclusion of evidence obtained in
violation of a person's protected rights is considered necessary to deter the illegal conduct of
officials and to protect the integrity of the judicial system.90
87
11/11/2019
88
Miranda v. Arizona, 384 U.S. 436 (1966);
89
Monroe v. Pape, 365 U.S. 167, 171 (1961)
90
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1328&context=djcil last accessed on 11/11/2019
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Chapter 05: The Principal Sectors of Human Rights Abuses in the Criminal Justice
System
 Crime
 Police
 Courts
 Prisons
 State
 Others
Crimes have increased day-by-day because of the combined contribution of socio-politico-
economic factors. Some reasons, which can be said, increase in population, increase in the
unemployment and denial of opportunities to a certain section of people. Organized crimes
have increased. Organized gangs have such control on finances, weapons, and communication;
such crimes have emerged as a serious challenge not only to the police but also to the existence
of civilized society itself. In general, organized crime corrodes the social, economic and
political fabric of the society. The extent of terror, which the organized gangs inflict on the
society, is alarming. These gangs are also responsible for large-scale corruption in social and
economic institutions. Policing in a democratic society is seen as upholding the dignity of the
individual by safeguarding the constitutional and legal rights. Democracy gets threatened when
the police cease to respect the legal and constitutional rights of the citizens and persistently
disregard the due process of law. Allegations of the police violence and brutality are being
constantly received from different parts of the country.91 It is a known fact that a common
complainant of crime is rudely received in the police stations and is treated with discourtesy,
indifference, and indignity. The victims of police perversions are almost always the
disadvantaged sections of society who are incapable of legitimate self-defence. In the garb of
combating criminality, the police take the law into their hands and trample upon the basic
human rights of the crime-suspects. The abominable records of police deviance are reflected
in the encounter deaths and the rapes and deaths in the police custody. These no doubt, are the
cruellest forms of human rights violations. The Criminal Judicial System in the common law
tradition is based on the twin principals of penal policy, the presumption of innocence and the
requirement that the criminal charge needs to be proved beyond reasonable doubt. There is
91
Shankar Sen, “Human Rights in Criminal Justice System”, in Vijay K. Gupta, ed,. Perspective on Human
Rights, Vikas Publishing House Pvt. Ltd., New Delhi, 1996, p.221. last accessed on 11/11/2019
45 | P a g e
need to improve the quality of forensic expertise and make it truly a system for promotion of
justice. Another weakness is the prosecution. The Prosecutor should be appointed on merit;
which often does not happen. Competent prosecutors who are again politically neutral should
be appointed. The prosecution has the obligation of fair disclosure which means the prosecution
should place before the court all factors even including that which is in favour of the accused.
As Justice Arthus .V and erbilt would say92 , “If they (the common citizens) have respect for
the work of the courts, their respect for law will survive the shortcomings of every other branch
of Government; but if they lose their respect for the work of the courts, their respect for law
and order will vanish with it to the great detriment of society.” Prisons, like police, are no less
any less guilty of human rights violations. The reality can be gauged only by visiting prisons.
Instances of prison injustice abound and the penal regime has not changed much despite two-
dozen reports on prison reform, such as the Mulla Committee report. Also, in the Hussainara
Khotoon's case93, the Supreme Court observed: "It is a crying shame on the judicial system
which permits incarceration of men and women for long period of time. We are shouting from
housetops about the protection and enforcement of human rights. We are talking passionately
and eloquently about the maintenance and preservation of basic freedoms. But are we not
denying the right to these nameless persons who are languishing is jails for years for offences
which perhaps they might ultimately be found not to have committed? Are we not withholding
basic freedom from these neglected and helpless human for years? Are expeditions trail and
freedom from detention not part of the human right and basic freedoms". State, the so-called
protector of human rights in the country appears to be the biggest violator. The coercive
processes of the State machinery corrode the foundations of human rights. Increasing
concentration of power in the hands of the executive has become alarming. We are witnessing
the might and the dominance of the State in its myriad forms. Many human rights activists and
civil liberty organizations have condemned the Central and State Government for their
deplorable disregard of fundamental freedoms and human dignity. The despotic proclivity of
the authorities has rendered the State as an oppressor of the poor. The worst part is that State
terrorism is taken as an answer for private terrorism.
92
In: THE CHALLENGE OF LAW REFORMS [Princeton University Press, 1955], pp.4-5. Last accessed on
11/11/2019
93
AIR 1979 SC 1360.
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SUGGESTIONS FOR IMPROVING THE SYSTEM OF CRIMINAL JUSTICE
a) Scientific Investigation Crimes are often committed secretly in a well-planned manner so

that there may not be any direct evidence against the offender. Under these circumstances,
it is imperative to have strong and intelligent investigating agency capable of using modern
tools. Various techniques, such as physical examination of the accused, medical
examination of the victim, and comparison of finger prints, foot prints, photographs and
writing, use of tape records, forensic ballistics, wiretapping and other means of electronic
surveillance, lie detectors, and truth serums are used. The investigator must be equipped
with the necessary apparatus and technical knowledge to use these means.
b) Responsible Police The police, the Government and the society each have a role to play
in improving the law enforcement situation and in developing pro-citizens police in the
country. Organizational behaviour is largely the outcome of training and continuing
education. Police training is archaic in content and methods. All sections of society, and
more particularly the media, can help improve the status and efficiency of the police force.
At least, they can afford not to disparage the police without rhyme or reason. If they can
extend cooperation in law enforcement, there is bound to be a welcome response from the
other side, which eventually will result in greater social defence and better law and order
situation.
c) Speedy Process Though speedy trial has been recognized as a fundamental right because
it is a requirement of a fair procedure under Article 21, yet the delay in administration of
criminal justice is a common affair. Delay is both at the stage of investigation and
prosecution as well as in the trial. There is the necessity of prescribing some time limit for
each process as Supreme Court has done in Sheela Barse V. Union of India94, Of course,
the time limit should not be unreasonable or rigid because justice delayed is justice denied
so also justice buried is justice hurried. A balance between the two extremes is advisable.
94
AIR 1983 SC 1773.
47 | P a g e
d) Uniform Policy by the Government To prevent human rights violations, it is suggested
that an official declaration of uniform policy by the governments that violations of Human
Rights of accused by law enforcement be formulated. Governments should also enact a
strict law to punish the perpetrators of human rights violations. Governments should also
take prompt corrective action in case of human rights violations.
e) Protection Mechanism The mechanism for protecting human right of accused at the
International, national and regional levels must be strengthened, States should not shield
themselves from International Scrutiny on the issue of human rights. The State should
provide an effective framework of remedies for the redressal of human rights violations.
Investigating agencies, prosecuting agencies, judiciary and legal profession should make
efforts to prevent the human rights violations of accused by giving him proper and
appropriate legal aid. The challenge before India is to develop human rights in its domestic
criminal administration by upgrading its law-enforcement machinery, and on the other
hand not to be swayed away at the cost of social development and nation's unity. A
reconciliation lies in improving the domestic culture of human rights which in turn will
replenish our image in the international platform also.95
95
https://www.ijarnd.com/manuscripts/v3i1/V3I1-1206.pdf last accessed on 11/11/2019
48 | P a g e
Limitations permitted by human rights law
Not all human rights principles enjoy the same level of protection. Instead, they can have
different legal characteristics, being absolute or non-absolute in nature or having inherent
limitations.
Some of the most fundamental human rights are "absolute". Such rights include the
prohibitions on torture, on slavery and on retroactive criminal laws. The absolute character of
these rights means that it is not permitted to restrict these rights by balancing their enjoyment
against the pursuit of a legitimate aim. For example, article 2 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that "[n]o
exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification of torture".
Similarly, in response to the practice of some States, the Human Rights Committee has stated
that "[t]he prohibitions against the taking of hostages, abductions or unacknowledged detention
are not subject to derogation. The absolute nature of these prohibitions, even in times of
emergency, is justified by their status as norms of general international law"
Most rights, however, are not absolute in character. States can limit the exercise of these rights
for valid reasons, including the needs of countering terrorism, as long as they respect a number
of conditions.
In the case of some rights, the conditions for legitimate limitations are spelled out in the treaty
provisions enshrining the right. Examples are the rights to freedom of expression, freedom of
association, freedom of assembly and freedom of movement, and the requirement of publicity
of court hearings. These rights are accompanied by various grounds, such as national security
or public order, as well as conditions to be met in order for them to be legitimately limited.
Notably, the restrictions provided for in the text, such as in articles 18(3) and 19(3) of
the International Covenant on Civil and Political Rights (ICCPR), exist and may be relied upon
independently of any declaration of a state of emergency. Indeed, even in times of public
emergencies as understood in article 4 ICCPR explained below, States may elect to rely upon
these restrictions instead of seeking derogations.
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In the case of some other rights, the human rights treaty provision limits itself to stating that
the right may not be interfered with "arbitrarily". This is, for instance, the case of article 9,
which requires that deprivation of liberty must not be arbitrary (discussed at length in Module
10). The notion of "arbitrariness" is not to be equated with "against the law", but must be
interpreted more broadly to include elements of inappropriateness, injustice, lack of
predictability and due process of law.
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Conclusion
Hence, in the Criminal Justice System of India a detailed arrangement has been made regarding
the human rights of the citizens. This system, having a Constitutional keel has its roots deep
into the history. The present system is a beautiful combination of both indigenous system,
which have been evolved and seasoned throughout the history and the western model,
introduced by the Britishers and later on got influenced by the conventions and declarations
promulgated at International level. The present system not only addresses the rights of the
citizens, but it also laid down provisions for its functioning, but still, an analysis of the practical
success or failure of this system in protecting the human rights is required.
We can now say that the criminal justice system plays a vital role in the protection of human
rights. This has been illustrated by the above case laws. There are provisions under the
Constitution of India for the protection of human rights. The Protection of Human Rights Act,
1993 itself is successful in protecting human rights of the people at the national level. The
provision under the constitution such as Article 14, 20, 21 have played a major role in criminal
justice system for the protection of human rights.
The international and regional instruments also complied with the norms of human right
protection. By virtue of Article 51 of the Constitution it is obligation on the part of the state to
comply with the international norms, laws etc. and maintain peace.
The criminal justice system played a vital role in the protection of human rights and this is true
to my hypothesis.
51 | P a g e
Bibliography
Primary Sources
 Book referred
The following textbooks have been referred
1. Mani V.S Handbook of International Humanitarian Law in South Asia (Oxford

university press) 3rd Edition 2014
2. Naorem Sanajaoba A Manual of International Humanitarian Laws” (Oxford university
press) 3rd Edition 2004
3. Balachandran &.Rose Verghese, Introduction to International Humanitarian Law,
ICRC New Delh, Sanajaob;(2004)
4. V.N.Shukla, “Constitution of India”, Eastern Book Company, 2004.
5. Alam, Aftab, Human Rights in India: Issues and Challenges (Delhi: Raj Publication,
2000
6. Dunne T. and Wheeler, N.J. (eds.): Human rights in global politics, (Cambridge:
Cambridge University Press, 2014)
7. Rajendra kumar Sharma, ‘Criminology and penology’ Atlantic Publishers and
Distributers (p) Ltd, edn 2017.
Secondary Sources
 Journal /Article referred

1. Dr. Rakesh Kr. Singh, International Humanitarian Law and Protection of
Terrorism, Journal of Constitutional and Parliamentary Studies, Jan-June 2008,
Vol.42 p.79-88
52 | P a g e
2. V.S. Mani, The Fifth Afghan war and International Law’, Economic and
Political Weekly, Vol. 37, no. 4, 2002, pp. 294-298
3. Yogesh Tayagi, ‘The Conflict of Law and policy on Reservation to human rights
Treaties’, British Yerarbook of International Law, Vol. LXXI, 2000, p. 205
4. Seema P.S., “Incorporation of International Human Rights Documents into
Indian Law- Response of the Supreme Court”, CULR, 2006
5. M.Ccheif Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent Protections in National
Constitutions” p.g. 265-270
6. Shruti Chaudhary, “ Indian Criminal Justice System and Human Rights”
International Journal of Advance Research and Development, Vol. 3 issue no.
1, pp. 273 & 274
7. Héctor Olásolo, “Criminal Justice & Human Rights” Utrecht Journal of
International and European Law, Volume 27, Issue 72 pp. 01-03, 2010.
8. Zakiyyu Muhammad and Pradeep Kulshrestha, “Human Rights in the
Administration of Criminal Justice in India and Nigeria: A Fair Trial”
Researchgate.
9. David Weissbrodt, “The Administration of Justice and Human Rights” Scholarship
Repository University of Minnesota Law School, 2009
 Reports Referred
1. Reports of the Economic and Social Council and of the Sixth Committee', UN
Doc. A/760/Corr.2, 3rd Session, 178th Plenary Meeting, pp. 826.
2. Gazette of India, Extraordinary, 160, Part 1, Section 2, at P. 1098
3. Reponses to proposal by Venezula and Pakistan. n., at pp. 815 The Hindu (New
Delhi), 31 May 2002, at p.10.
4. Balakrishnan Rajagopal, ‘Gujrat: A plea and A Proposal’,The Hindu, 27 March
2002.
 Website referred
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2. http://en.wikipedia.org
53 | P a g e
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criminal-justice-system-we-can-be-proud
55 | P a g e

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CENTRAL UNIVERSITY OF SOUTH BIHAR

PANCHANPUR CAMPUS, GAYA

Project work on: ROLE OF CRIMINAL JUSTICE SYSTEM AND

Subject- Criminal Justice and Human Rights

Submitted By: Submitted to:

ROLE OF CRIMINAL JUSTICE SYSTEM AND HUMAN RIGHTS PROTECTION

04 Global Standards on the Right to a Fair Trial 39-44

4.1 International Instruments

A.I.R. All India Reporter

S.C.C. Supreme Court Cases

A.J.I.L. American Journal of International Law

S.C.J. Supreme Court Journal

J.I.L.I. Journal of the Indian Law Institute

I.L.M. International Legal Material

I.L.R. The International Law Reporter

U.N.C. United Nations Chronicle

American Rep. American Reporter

American Rev. American Review

Har. L. Rev. Harvard Law Review

C.L.P. Current Legal Problem

F.A.R. Foreign Affairs Reports

Har. Int. L. J. Harvard International Law Journal

2. A.D.M Jabalpur v. Shukla AIR 1976 SC 470

3. Maneka Gandhi v. Union of India AIR 1978 SC

4. Lachman Das v. State of Bombay 1952 SCR 710.

5. Kedar Nath v. State of West Bengal 1954 SCR 30.

6. Venkataraman v. Union of India AIR 1954 SC 1150

7. Veera v. State of Maharashtra AIR 1976 SC 1167.

8. Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1976 SC 1365

9. D.K Basu v. State of Bengal AIR 1997 SC 618

10. Tara Singh v. State of Punjab AIR 1951 SC 411

11. M.H. Hoskout v. State of Maharashtra AIR 1978 SC 1556

12. Charles Shobraj v. Superintendent Central Jail AIR 1978 SC 514

13. Khatri v. State of Bihar AIR 1981 SC 928

14. Nandani Satpathi v. P.L. Dani AIR 1978 SC 1025

15. Joginder Kumar v. State of U.P AIR 1994 SC 1349

16. Sunil Batra v. Delhi Administration AIR 1978 SC 1675

17. Rudul Shah v. State of Bihar AIR 1983 SC 1086.

18. Bachan Singh v. State of Punjab AIR 1980 SC 898

19. A. K. Gopalan v. State of Madras 1950 SCR 88.

20. Kharak Singh v. State of U.P 1963 SCR 1295

What are human rights?

1. Does criminal justice play role in human rights protection?

The following Primary and Secondary sources have been referred to

The following textbooks have been referred

1. Mani V.S Handbook of International Humanitarian Law in South Asia (Oxford

2. The Biological Weapons Convention 1972

3. The Conventional Weapons Convention and its five protocols 1980

4. The Chemical Weapons Convention

5. The Ottawa Convention on anti-personnel mines 1997

7. The constitution of India (Bare Act)

8. The Geneva Convention 1949

9. The Geneva Convention Act 1960

10. Statute of International Criminal Court 1998

11. Indian Penal Code 1860

 Journal /Article referred

Human Rights in the Constitution can be classified under various categories.

As far as implementation of any International Covenants or agreements in our National Law is

Reparation or compensation, as a form of punishment is found to be recognized from the

a) Constitutional Provisions Regarding Criminal Justice

Public Interest Litigation

c) Protection of Human Right Act, 1993 and National Human Rights

1. Universal Declaration of Human Rights