J 1988 Supp 2 LW JS 60 Chiragagrawal Dsnluacin 20201209 003107 1 6

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1988 Supp (2) LW (JS) 60
Criminal Law — New Dimensions and Fresh Challenges
by
Sri N.T. Vanamamalai*
On the 15th of August 1947 at the stroke of the midnight hour India awoke to
freedom. It was a moment of triumph, ecstasy and glory. It was also a moment of
pain, agony and sorrow. The Father of the Nation did not join in the celebrations when
the Flag of Freedom was unfurled on the ramparts of the Red Fort; he was in a far
away place fighting the flames of fratricidal warfare. Communal carnage stared the
nation in the face.
It is fortunate that at the time of the dawn of the Independence and thereafter at
the helm of affairs was a man of far-seeing vision, Under the inspiring leadership of
the first Prime Minister, Pandit Jawaharlal Nehru, men of wisdom and knowledge and
patriots who had fought for the country's freedom, as members of the Constituent
Assembly, produced a Republican Constitution which in Part IV erected signposts
marking the path to the future and in Part III guaranteed fundamental rights to the
citizens and people of India. These account for the later binding decisions of the
Supreme Court which have largely imparted a human touch to the law. However, in
Part HI itself is to be found Article 22, which enabled the State to impose preventive
detention. The Preventive Detention Act was one of the earliest enactments to mar the
statute book and since then there has been a proliferation of such enactments
culminating in the 59th Amendment to the Constitution, which leaves the door open
for ushering in Emergency.
It is not surprising that with the attainment of independence, India retained
enactments which had been passed during the colonial days. But among them were
laws which the British overlords had imposed to keep the people of India under leash
The Criminal Tribes Act (Act VI of 1924) was one of the most detestable of them all.
Many will remember the great contribution of Sri Muthuramalinga Thevar who fought
against this obnoxious enactment and rallied thousands in the struggle for freedom.
Under S. 3 of that Act, the Provincial Government may by notification declare that any
tribe, community, group or class, or any part thereof, can be subjected to all or any of
the stultifying provisions of the Act, on its own subjective satisfaction that
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a substantial number of persons belonging thereto are addicted to the commission of

non-bailable offences. S. 17 of the Act enabled Provincial Governments to order the
children of notified tribes or communities to be separated and removed from their
parents or guardians, and to be placed in a certified school or industrial, agricultural or
reformatory schools or other so-called education institutions for children, established
by the Government, S. 21 prescribed arrest without warrant and punishment of
imprisonment for those belonging to such tribes, communities, etc. who did not
appear before the District Magistrate, at any time or place, specified by him, or failed
to give any required information, or to allow their finger impressions to be recorded.
Under S. 25, if the persons belonging to the notified Tribes or communities etc.,
transgressed limits of the area within which they were to reside or their movements
were confined, or if they escaped from a reformatory or such other institutions, they
may be arrested and on the direction of the Magistrate be removed to such area or
place as specified by him. S. 24 provided for certain other punishments under certain
conditions. The arbitrariness of the enactment will be clear from the provisions of S. 29
which laid down that no Court could question the validity of any notification issued
under S. 3(11) and S. 3(12).
It is gratifying to note that in so far as the Province of Madras is concerned, this Act
was repealed by Criminal Tribes (Madras Repeal Act 10 of 1947) and ceased to be in
force in the Province of Madras since the said Repeal Act came into force, on
notification by the provincial Government. The Act was repealed throughout the
country by the Criminal Tribes Laws Act 24 of 1952. But even after this, individuals
could be required to notify their movement to Police authorities in certain
circumstances in certain States under certain Police Regulations. Kharak Singh in U.P.
was one of those unfortunate persons. (Kharak Singh v. State of U.P.1 He was accused
of participating in a dacoity, but since there was no evidence against him, he was
released under S. 169 Criminal Procedure Code. Nevertheless, he was history-sheeted
under a Police Regulation and was placed under surveillance which entailed domiciliary
visits by the Police and knocking at his door, at night times. He had been compelled
on a number of occasions to go along with the Police to the station and report his
presence there. He could not leave the village without reporting to the Chaukidar and
on reaching his destination was to inform the Police Station there about his having
come there, whereupon personnel belonging to that Police Station would put him
under surveillance. Kharak Singh's petition to the Supreme Court under Article 32 on
the ground that all these were violative of his fundamental rights under Article 19(1)
(d) and Article 21 was heard by a Bench of six Judges. It was held that “personal
liberty” under Article 21 is a compendious term which includes within itself all the
varieties of rights which go to make up the personal liberties of man other than those
dealt with in the several clauses of Article 19(1) of the Constitution. In other words,
while Article 19(1) deals with particular species or attributes of freedom, “personal
liberty” in Article 21 takes in and comprises the
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residue. Life under Art. 21 meant not merely the right to continuance of a person's
animal existence. Therefore, the majority of the judges held that the petitioner was
entitled to the issue of a Writ of Mandamus directing the State not to continue
domiciliary visits, but Subba Rao, J. speaking for himself and Shah, J. went further
and observed that “the right to personal liberty takes in not only a right to be free
from restrictions placed on his movements, but also free from encroachment on Ms
private life”. He was of the view that all acts of surveillance would infringe the
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fundamental rights of the petitioner under Article 21 of the Constitution. He declared,

“Mere movement obstructed by physical restrictions cannot in itself be the object of a
person's travel. A person travels ordinarily in quest of some objective. He goes to a
place to enjoy, to do business, to meet friends, to have secret and intimate
consultations with others and to do many such other things. If a man is shadowed, his
movements are obviously constricted. He can move physically, but it can only be a
movement of an automaton. How could a movement under the scrutinising gaze of the
policeman be described as a free movement? The whole country in his jail. The
freedom of movement in Cl. (d) (of Art. 19) therefore must be a movement in a free
country i.e., in a country where he can do whatever he likes, speak to whomsoever he
wants, meet people of his own choice, without any apprehension, subject of course to
the law of social control. The petitioner under the shadow of surveillance is certainly
deprived of this freedom. He can move physically, but he cannot do so freely, for, all
his activities are watched and noted. But the shroud of surveillance cast upon him
perforce engender inhibition in him, he cannot act freely as he would like to do. We
would therefore hold that the entire Regulation 230 offends also Article 19(1)(d) of the
Constitution.”
If free citizens had been sought to be kept under surveillance, position of the
prisoners was obviously much worse. During the days of British rule, they were
regarded as non-persons and enjoyed hardly any rights. This sorry state of affairs
continued till 1965 (See State of Maharashtra v. Prabhakar Pandurang Sanzgiri A.I.R.
1966 S.C. 424). Prabhakar who was a detenu in jail in Maharashtra sought permission
to publish a book entitled “Inside Atom”. It was a book on quantum theory. The State
refused permission on the ground that only rights allowed under the Jail Rules could
be enjoyed by prisoners. But on the High Court of Bombay, being moved, they held
that the detenu had a right to have the book published. Speaking through Subba Rao,
J. a Bench of five judges of the Supreme Court upheld the petitioner's right. They held
that restrictions on personal liberties could only be in terms of the relevant provisions
of the Defence of India Act and Rules and if there is no such restriction, the
petitioner's right cannot be taken away. This decision was given on the 6th September
1965.
In Maneka Gandhi v. Union of India2 , Bhagawati, J. in his judgement held that the
principle of reasonableness is legally and philosophically an essential element of
equality or nonarbitrariness, and pervades Article 14 like a
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brooding omnipresence and the procedure contemplated by Article 21 must answer

the test of reasonableness in order to be in conformity with Article 14 of the
Constitution. It must be “right and just and fair”, and not arbitrary, fanciful, or
oppressive, otherwise it should be no procedure at all and the requirement of Article
21 would not be satisfied.”
From this it was not a major hop in Sunil Batra v. Delhi Administration3 , S.C. 1675)
for Krishna Iyer, J. speaking on behalf of five judges, to hold that convicts are not
denuded wholly of their fundamental rights and consequently the interest of the
convict in the limited liberty left to him is all the more substantial. Jail is but a
correctional institution and therefore solitary confinement can be imposed only under
Court's order and strictly prescribed. It cannot be left to the whim and caprice of the
prison authorities. This decision as well as Sunil Batra3 , constitute a fundamental
charter of the rights of prisoners.
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A number of decisions of the Supreme Court have held that Article 21 read with
Article 39-A guarantees legal aid to indigent persons:
Madhav Hayawadanrao, Hoskot v. State of Maharashtra A.I.R. 1978 S.C. 1548.
Hussainara Khatoon v. Home Secretary, State of Bihar A.I.R. 1979 S.C. 1360. 1369,
1377, 1819.
Sheila Barse v. State of Maharashtra A.I.R. 1983 S.C. 378.
It is interesting to note that till these decisions were rendered, the position was
that only in cases involving capital sentence it was obligatory to provide legal aid by
the State for the indigents. This was laid down in the Criminal Rules of Practice.
The Criminal Procedure Code in its latest incarnation in 1974 in S. 304 provides for
legal aid to accused at State's expense in trials before the Court of Sessions, but the
decisions of the Supreme Court have gone far beyond that. Tamil Nadu has a network
of legal aid centres catering to the needs of every single Court, with the Duty Counsel
visiting all prisons, contacting prisoners and extending help to them. Provision of legal
aid ensures as best as possible access to justice by the underprivileged and the
indigent. The enunciation of law by the Supreme Court has made the extension of
legal aid obligatory. A sense of commitment by lawyers engaged in the legal aid
programme is the sine qua non for its success.
During the British days, death sentence was the rule and life sentence was
exceptional. This was provided for in the Criminal Procedure Code. But the Code in
Republican India, has undergone modifications and from the Supreme Court in
Page: 64
Bachan Singh v. State of Punjab4 , has held that it is only in the rarest of rare cases
that death sentence should be awarded. A striking illustration of the development of
law by the Supreme Court is that even after the sentence of death has reached
finality, by its being upheld by the highest court of the country, if the execution does
not take place for a long time, or other supervening circumstances, such as the convict
changing his attitude to life and getting reformed arise, the High Court and the
Supreme Court can in exercise of their jurisdiction under Article 226 and 32 of the
Constitution, intervene and commute the sentence to one of life imprisonment. Thus,
David Annoussamy, J. sitting along with V. Ramasamy, J. (as he then was) has held in
Guruswamy Naicker v. Tamil Nadu State 1984 Law Weekly (Crl.) 214 that taking into
account the gravity of the offence, the educational background of the prisoner, his
conduct prior to and after the offence, the long delay in execution, not attributable to
the petitioner and extra punishment of cellular confinement to which he was subjected
for a long period, it was a fit case in which the death sentence should be commuted.
We have travelled a long distance from the days of colonial yoke, and Courts are
now conscious that having regard to the emerging conditions of life, justice must be
tempered with mercy, and the callousness which characterised colonial rule could no
more be the order of the day.
The evolving trend is best illustrated by two Bench decisions of Madras High Court.
In Elumalai v. State of Tamil Nadu5 , which expounds the care and caution with which
law must be administered in cases of remand prisoners and R. Raghupathi v. State of
Tamil Nadu6 , which laid down the law in regard to the remission of sentences. The
judgments were in these cases delivered by S. Natarajan, J. and Ratnavel Pandian, J.
The judgment in the former case was delivered by Ratnavel Pandian, J., and in the
latter by S. Natarajan, J., when he was judge of the High Court at Madras. These
landmark cases were rendered as public interest litigations and were moved by the
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Legal Aid Society and covered the prisoners in the entire State of Tamil Nadu.
The above are but a few instances wheres criminal law is assuming new dimensions
on account of judical interpretation and intervention. There is, however, the disturbing
trend of detention without trial being increasingly sanctioned by law. Of a piece with it
is the Emergency Provision in the Constitution which in a situation such as that
covered by A.D.M., Jabalpur v. Shivakant7 may on account of suspension of Article 21,
result in a black-out and extinction of all human rights.
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It is, submitted that the only way in, which such dire possibilities can be countered
and eliminated is by educating the people at large on a mass scale about their hard-
won rights and their responsibilities as citizens of a multi-ethnic and developing
country like burs, for, informed people, conscious of their rights and duties, are the
best guarantee against lawless laws. It is to be stated that the legal fraternity has
obviously to shoulder and discharge in a large measure the lofty duty of creating
among the people's awareness of their rights under the Constitution and other
multifarious legislations. This will heighten the patriotic consciousness of the people
and will bring about a healthy climate in which all kinds of antisocial activities,
whether it be smuggling, drug trafficking, terrorism, etc., can hardly flourish. It will
also put the people on the road to social and economic progress and create conditions
on which political parties will play a responsible role. This will enable lawyers to play
an important role in meeting the challenges of the times and paving the road to
progress.
Forty years after freedom the ideals for which we fought seem to be fading away;
the goals which we aspire to reach seem to be far distant; Cynicism is creeping in.
This is a false feeling. Those who wrung independence from out of the clutches of the
mightiest empire of the day have blazed a new trail. We are the proud inheritors of
this tradition. Much has been achieved since Independence by the toils and the
struggles of our people. The fruits of their strivings are found dispersed in the diverse
legislations of the land but the way to realise them has been barred because of the
ignorance of those for whom they are intended. Scheming politicians and wooden
bureaucrats capitalise on this and do not allow the benefits to trickle down to the
people. But if people are armed with knowledge of what are their due and how to
attain them, nothing can stand in the way. It is the duty of the legal fraternity — both
of the Bench and the Bar — to carry the torch of enlightenment to the nooks and
corners of the country. The Apex Court has opened its gates and those of High Courts
to the needy and the poor. Educating the people about their rights and mobilising
them to attain them by making use of public interest litigation is the solemn obligation
of lawyers. People who know their rights will know how to assert them and this will
inspire them to build a new India. If Part IV of the Constitution is expounded to them
in the context of their achievements, it will fill them with bright hope and they can
march ahead to great goals. Let us become the instruments of history to help and
enable them to meet the challenges of the times.
———
* Senior Advocate, Madras
1. A.I.R. 1963 S.C. 1295.
2. A.I.R. 1978 S.C. 597.
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3. A.I.R. 1978 S.C. 1675.
4. A.I.R. 1982 S.C. 1325.
5. 1983 L.W. (Crl.) 121.
6. 1983 L.W. (Crl.) 321.
7. A.I.R. 1976 S.C. 1207.
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authenticity of this text must be verified from the original source.

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J 1988 Supp 2 LW JS 60 Chiragagrawal Dsnluacin 20201209 003107 1 6

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SCC Online Web Edition, Copyright © 2020

Page 1 Wednesday, December 09, 2020

1988 Supp (2) LW (JS) 60

Criminal Law — New Dimensions and Fresh Challenges

a substantial number of persons belonging thereto are addicted to the commission of

fundamental rights of the petitioner under Article 21 of the Constitution. He declared,

brooding omnipresence and the procedure contemplated by Article 21 must answer

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