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07 - Chapter 1
07 - Chapter 1
INTRODUCTION
1. General
Human Right are those rights which are inherent in every human
being simply by virtue of being a “member of human family”. Human
Rights are fundamental to our existence as human beings. They are universal
and cut across all national boundaries and political frontiers. By the
experience of two World Wars, mankind aspired for a decent civilized life in
which the inherent dignity of each human being is well respected and
protected. The Universal Declaration of Human Rights, 1948 (UDHR) has
been hailed as “common standard of achievement for all people and
nations”. The preamble of Universal Declaration of Human Rights
proclaims:
Whereas it is essential, if man is not to be
compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that
human rights should be protected by the rule of
law.”
1 Smt. Selvi and Ors. v. State of Karnataka, 2010 (2) R.C.R. (Criminal) 896.
2 Human Right Watch is one of the world's leading independent organizations dedicated to
defending and protecting human rights since 1978. Its 2013 report reflects extensive
investigative work on human rights in 2012 in various countries.
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foster human rights violations. Government initiatives, including police
reforms and improved access to health care and education, languish due to
poor implementation. Many women, children, Dalit (so-called
untouchables), tribal communities, religious minorities, people with
disabilities, sexual and gender minorities remain marginalized and continue
to suffer discrimination because of government failure train public officials
in stopping discriminatory behaviour. Members of security forces implicated
in serious rights abuses continued to enjoy impunity, in large measure due to
India's Law and polices3. Torture is practiced by law enforcement agencies
in India as a crude shortcut for crime investigation. Investigating agencies
justify the use of torture arguing that they often lack advanced training and
equipments for crime investigation. The concept of modern policing is still a
mirage in India, where the police is expected to function as a tool for social
control than to serve the citizens. It can be argued that a large number of law
enforcement officers in the country believe that the deterrence quotient
against a crime is the possibility of being tortured, rather than the crime
being detected, prosecuted and punished in the legal process. Extensive
delays in court proceedings and the repeatedly demonstrated professional
and intellectual paucity of the country's prosecutors appear to offer a
layperson's excuse for the widespread belief among law enforcement officers
that the only punishment a criminal might get in India is the torture at the
hands of the investigator. This has led into a situation where torture is widely
practiced, particularly in the police stations, throughout the country. Police
officers and other law enforcement officers generally consider torture as an
essential investigative tool for investigation. Policy makers and bureaucrats
believe that there is nothing wrong in punishing a criminal in custody, not
realising the fact that a person under investigation is only an accused, not a
convict and further, that even a convict must not be tortured. This is due to
the lack of awareness about the crime, its nature and seriousness. Even an
accuses as well as convict person has some valuable human rights which has
15 It was a committee on reforms of criminal justice system headed by Mr. Justice V. S. Malimath,
it presented its report in march 2003.
16 In December, 2012, a committee headed by Justice J. S. Verma including members Justice Leila
Seth, former judge of high court and Gopal Subramanium, former Solicitor General of India
was appointed to recommend the amendment to the criminal laws especially sexual offences
against women due to the grave public outrage occurred after the incident of 16 December gang
rape in Delhi. The Committee submitted its detailed report on January 23, 2013.
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and various reports of various commissions including Law Commission are
the examples of that. The criminal law and procedure offer very fertile soils
for the examination of question of human rights. There is hardly any stage of
the criminal process from the stage of arrest to the stage of conviction, that
does not offer a challenge to thinkers on human rights. Leaving aside the
other constitutional imperatives, personal liberty itself, as a major human
right, necessitated detailed examination and elaborate recommendations as
to the facilities to be given to the accused at each stage of the criminal
process. There are some of the basic human rights in the fields of criminal
jurisprudence. Most of these human rights have been evolved by the
judiciary through a process of creative interpretation. Present research aims
to sensitize the concerned authorities regarding the protection of human
rights involved in the criminal justice system.
Whatever views one holds about the penal laws, no one will question
its importance to society. This is the law on which men place their ultimate
reliance for protection against all the deepest injuries that human conduct
can inflict on individuals and Institutions. By the same token, penal law
governs the strongest force that one permit official agencies to bring to bear
an individuals. Its promise as an instrument of safety is matched only by its
power to destroy. No where in the entire legal field is more at stake for the
community or for the individuals. Human rights is a vast area covering
various dimensions and, it was not possible for the researcher to suggest the
protection of human rights at the cost of sacrificing the interest of
individuals and victims and against the provisions of laws. The study might
have not covered all the issues relating to the human rights of individuals.
Hence, the present study is a modest attempt to protect the human rights of
persons involved in the criminal justice system of the country.
4. Research Methodology
For a systematic study application of appropriate research methods,
tools and adoption of scientific bent of mind are sine-qua-non. This has an
important bearing on the collection of reliable and accurate information as
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well as results of the study.
The present study comprises doctrinal methods together with an
adoption of comparative approaches. However, data will be supplied to
make the study real and effective. Case study methods are more applied to
achieve the objective. It is value based study. So for this purpose, Doctrinal
method of study is more beneficial than empirical method as it does not need
collection of statistical data from field. Empirical research is based on
experimentation and observation, which is not appropriate in case of study
of human rights. So for this work, doctrinal method is more suitable than
empirical method, although at some place it also has played its role, but
most of the part of study is done according to Doctrinal research. At last
some conclusions and concrete suggestions will be forwarded to improve the
concern for protection of human rights in criminal justice delivery system of
country. The study entitled good deal of planning and preparation in order to
obtain reliable material and data.
For the purpose of this study, the researcher has consulted vast
literature, some of memorial lectures delivered by eminent public men and
jurists, various judgments delivered by courts, reports of Law Commission,
Police Commission, Committees on reforms of Criminal Justice System,
Journals, commentaries of eminent juries, daily newspapers, collected
relevant data from published and unpublished sources, discussed the topic
with various academicians and legal luminaries. The researcher also relied
on the international documents, U.N. Reports and recommendations,
Amnesty International Reports, AIR, SCR, SCC, Cr. L.J., RCR, journals of
Indian Law Institute (ILI) etc. The established principles of law and
historical facts have also been discussed. The researcher visited various law
libraries including ILI, New Delhi and library of Delhi University. The
researcher took the help of INTERNET also. The names of such books,
reports, journals etc. are mentioned in the bibliography.
5. Hypothesis
The following Hypothesis would be examined in this study:
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(i) The fundamental examination of the study is that in the prevailing
Criminal Justice System, the human rights of various individuals are
at the stake and these are violated by process mechanism provided in
the Criminal Justice System and there is a need to visualize the
provisions of law for better enforcement of the human rights of
individuals.
(ii) The powers given to the various authorities primarily police agency is
the main cause for violation of the human rights of the accused and
others in our Criminal Justice System. Various lacunas in our
Criminal Justice System are strengthening the misuse of powers
which has played role in the violation of human rights.
(iii) The comprehensive study may remind the concerned authorities and
agencies etc. to make effort for protection of human rights of
individuals involved in the Criminal Justice System.
(iv) Primarily Judiciary has enforced the basic human rights of the
individuals involved in the Criminal Justice System and strong
judicial protection favouring human rights have been involved in
India which is binding to be followed in Criminal Justice System of
country.
6. Issues
The present study intends to focus upon the issues and problem
associated with the violation and protection of human rights in the
administration of justice delivery system in the country. With the help of
doctrinal and case-study method, the proposed research attempted to know
what are the circumstances in which the human rights of accused and other
persons especially victims involved therein are to be secured in criminal
justice system. What are the judicial decisions favoring the human rights of
the accused in various procedural mechanism throughout the criminal justice
system. What are the constitutional provisions/safeguards for protection of
human rights of accused. Whether death penalty is essential in the criminal
justice system or it should be removed from our criminal Penal System. For
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the formulation of this research, a critical study has been made in this
research. Following issues are to be examined into this study:
(i) What are the International and National concern for human rights?
(ii) Whether basic rights of accused are part of international human
rights?
(iii) Whether there exists sufficient effective legal protection of human
rights of accused and victim in the criminal justice system of country?
(iv) Whether retention of death penalty constitutes violation of human
right to live. How it has been curtailed in the country?
(v) In what circumstance/instances, judiciary has come forward to secure
the human rights of accused and convicts and victims in the criminal
justice systems.
(vi) Whether police/investigating agencies have used their powers
inconsonance with the human rights of accused?
All the above-said issues are to be discussed in detail in the present
study.
7. Scheme of the Study
The present study has been divided into following six chapters.
Chapter I is introductory in nature, in the study of this chapter the role and
importance of human rights in the life of various individuals have been
discussed. The issues which have been discussed in study have been
highlighted in this introductory chapter. This chapter primarily describes the
importance of the study, objectives and scope of the study, research
methodology adopted in the study, hypothesis laid down in the study, issues
and scheme of the study.
Chapter II - HUMAN RIGHTS AND CRIMINAL JUSTICE: A
HISTORICAL PERSPECTIVE deals with the human rights in historical
perspective. The concept of human rights have been dealt with in view of the
International Law supporting and protecting human rights in the World. The
United Nations Charter in reference of human rights and other international
treaties have been discussed in this chapter. The Universal Declaration of
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Human Rights and its role in the development and protection of human
rights have also been discussed with special references to the main human
rights of the various individuals. In this chapter, an attempt has been made to
discuss the importance of human rights on national and international level.
Chapter III- HUMAN RIGHTS OF ACCUSED IN INDIA deals with the
rights of arrested persons or human rights during the investigation process in
the Criminal Justice System. The Constitutional provision protecting the
basic and fundamental rights of accused and arrested persons have been
discussed with special references to the provisions of Constitution and other
Criminal Laws. Various cases Laws of the Courts favouring and discussing
the protection of rights of the accused as well as victims involved in
Criminal Justice System have been discussed in this chapter. The rights of
the accused have been dealt with in reference to the basic human rights of
the accused persons available through International and national concern in
Criminal Justice System.
Chapter IV - DEATH PENALTY VIS-A-VIS HUMAN RIGHTS deals
with the death penalty in context in human rights. The Punishment of death
penalty/capital punishment has been discussed in references to the point
whether it is required to be retained in Indian Criminal Justice System or it
be abolished in view of following various international treaties against death
penalty. It has been discussed what are the advantages and disadvantages of
retaining death penalty as mode of punishment in Indian Criminal Justice
System. The Judicial trend to enforce death penalty in the rarest of the rare
cases has also been discussed in this chapter along-with Law Commission
Report on the capital punishment.
Chapter V- HUMAN RIGHTS AND CRIMINAL JUSTICE: ROLE OF
JUDICIARY deals with role of judiciary primarily for the protection of the
human rights of the accused and others by way of judicial activism. Various
Judicial decision for conducting, supporting and developing human rights
have been discussed to show the importance of the human rights in the
Justice Delivery System. The evaluation of Article 21 of the Constitution by
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way judicial activism for protecting the human rights of various individuals
has been discussed at length.
Chapter VI - CONCLUSION AND SUGGESTIONS state and
conceptualize the conclusions, suggestion and recommendation stated at
different places in the study.
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