CHAPTER – V

HUMAN RIGHTS AND CRIMINAL JUSTICE: ROLE

OF JUDICIARY
1. General

Any system that is not keeping pace with the changing society cannot
survive and has shed the grab of traditional method of administering justice. The
Supreme Court of India has undertaken many ventures such as problem of
undertrials1, Bhagalpur blinding2, etc. It has adopted a proactive approach since
last few years, particularly having regard to the peculiar socio-economic
conditions prevailing in the country. In fact, there are two different kinds of
approaches which characterize the functioning of the highest court in every
democracy; either the court adopts and activist approach or resigns itself to
improve the passive role. In a country like India, where people want to bring
about social and economic change and to improve the life conditions of the
people and make basic human rights available to them, it is necessary for a judge
to adopt an activist approach. Accordingly, in this chapter an attempt has been
made to study the judicial response to Human Rights Jurisprudence. Hence, this
chapter is devoted to study the significance of judicial creativity in constitutional
scheme for Human Rights and judicial activism, constitutional dimensions of
judicial activism in Indian perspective, pro-active judicial approach and human
rights jurisprudence and some latest landmark judicial decisions on human rights
issues.

2. Human Rights and Judicial Activism

The proposition which would be submitted here is that the judicial

activism and dynamic constitutional interpretation which sometimes includes
judicial law and policy making is justified in the protection of human right and
individual liberties. Here the role of the judiciary becomes crucial in ensuring
that the persons belonging to certain minorities are not denied, the opportunity to

1 Sunil Batra II v. Delhi Administration, 1980 (3) SCC 488.

2 Khatri v. State of Bihar, 1981 (1) SCC 635.
156
participate in the accommodation of the political processes and access to the
bounty of representative government.

The most unqualified justification for judicial activism and policy making
is the functional justification. The justification for non interpretivism is in the fact
that it serves a crucial governmental function, perhaps even an indispensable one,
that no other practice can realistically be expected to serve and serves in a
manner that accommodates the principle of electorally accountable policy
making. And that crucial function, is the ‘elaboration and enforcement by the
Courts of values, pertaining to human rights, even if not constitutionalised, it is
the function of deciding what rights, beyond those specified by the framers,
individuals should and shall be against government, various political-moral issues
which the Supreme Court has grappled for example, in the areas of freedom of
expression racial discrimination and due process the Court did not rely on
tradition or established conventions but engaged in a moral revaluation of
established conventions, redefinition of fundamental rights provisions to suit the
modern context thereby using such opportunities for moral development. It is not
as if in every case brought to the fundamental political moral problem. In many
such cases the court is simply “elaborating” a principle working out what it
understands to the details or implications of a principle that the court began to
establish , but only began, more or less inchoate in an earlier case or the court is
devising procedures to enable it and other courts to enforce compliance with the
principle.

When one considers comparative institutional competence to deal with

issues such as distributive justice and the role of government, freedom of
expression, sencism, rights of prisoners or bounded labourers, electorally
accountable institutions seem unsuited to deal with such issues in a faithful way
to the notion of moral re-evaluation and evolution as in opinion of many like
Perry executive especially legislative officials tend to deal with fundamental
political-moral problems, at last highly controversial ones, by reflexive references
to the established moral conventions to the greater part of their particular
constituencies. A concern for popularity and for remaining in office is not
particularly conducive to the notion of moral evaluation. Legislators see their
157
primary functions as registering the actual preferences of their constituents and
generally excel at awarding highly controversial political-moral issues on which
they do not like to gamble their political lives. This concern for remaining in
office is not a particularly a good way to keep faith with the notion of moral
evolution, which according to the Perry and many other requires ongoing,
vigorous reevaluation of established moral conventions. In this context, the courts
taking active and creative approach at least on issues of human rights and human
justice can remedy what would otherwise be a serious shortcoming in the
political system-the absence if any policy making institution that grapples with
fundamental political moral questions on regular basis other than by mechanical
reference to establish moral convention. Thus, a visionary and forward looking
judiciary is an essential part in the march towards realizing human rights and
human justice. It can be said that days for “Block Stonian” approach to judicial
process are gone.

In India Courts particularly the Apex Court in three decades has moved
forward with speed in protecting human rights especially of marginalized,
deprived and weak. It has revolutionalised the criminal justice systems, evolved a
new kind of prison jurisprudence and has come to protect interest of bonded,
underpaid and exploited labourers. It has invented green jurisprudence and has
created new rights such as right to education and also evolved a new kind of
compensatory jurisprudence. Thus, it has come to the aid of not only first
generation rights but also social and economic rights . In order to do this, judge
liberalized various doctrines and technicalities, invented new methods and
techniques; gave expansive interpretation to provisions in the Constitution such
as Article 21; invented new means to make executive accountable. Of course, this
needed combination of conviction, courage and judicial craftsman skill on part of
judges. The journey traveled is a unique blend of what Justice Bhagwati
describes as ‘technical’, ‘juristic’ and ‘social’ activism. Technical activism
consists of declaration by judges of freedom to have recourse to wide range of
techniques and choices. Such activism is concerned merely with keeping juristic
techniques open ended, it does not specify when and for what purpose a judge
can have recourse to this kind of activism. In contrast ‘juristic activism’ is not
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concerned merely with the appropriation of increased power-but is concerned as
well with the creation of new concepts irrespective of the purpose they serve. The
common law itself ,which over the centuries has been fashioned and refashioned
to deal with new claims and demands and thus develop new concepts and
principles, is an example of ‘juristic activism’. In this kind of activism judge is
not so much concerned with the quality of social consequences generated. The
new concepts may help to preserve the status quo. Thus, what is necessary for
human rights approach is blending of ‘technical’ and ‘juristic’ activism with the
third kind, namely, ‘social’ activism. Judicial activism in any of its forms be it
‘technical’ or ‘juristic’ is always exercised for a purpose, may be sometimes in a
thin disguise. Thus. what is important is not the form but the purpose for which
activism is exercised. Thus, it is the instrumental or social of the judicial activism
that needs to be the mantra for human rights approach. It is this kind of activism
that is ‘social’ activism that is the mode of human rights approach. However, at
the same time the note of caution administered by Lord Woolf Speaking for the
Privy Council while construing the Hong Kong Bill of Rights in Attorney
General v. Lee Kwong-kut3 and reiterated by Indian’s Chief Justice while
speaking on ‘Human Rights and the Role of the Courts, to Indo-British Legal
Forum (2000) should be borne in mind. Lord Woolf whilst Reaffirming the
principles of construction of Bill of Rights adopted few earlier cases said that
“while the Hong Kong judiciary should be zealous in upholding an individual’s
rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to
the effect of the Bill are not allowed to go out of the hand. The issues involving
the Hong Kong Bill should be approached with realism and good sense and kept
in proportion”. However, it is also necessary that care be taken that the
wholesome prescription of good sense and realism is not misconstrued as a
general prescription for undue judicial deference to the judgment of the
legislature or the executive.

In Maneka Gandhi V. Union of India4 the Supreme Court gave a new

dimension to Article 21 of the constitution. Though worded in negative terms, it

3 (1993) 3 HKPLR 72, p.100 (PC).

4 AIR 1978 SC 597.
159
has been held that Article 21 of the constitution has both negative and affirmative
contents. Positive rights have been held to be well conferred under Article 21 of
the constitution.

Liberal tendencies have influenced the Supreme Court in the matter of

interpreting Fundamental Rights, particularly, Article 21. In emergency (1975-
77) period, personal liberty had reached its nadir, as became clear from the
Supreme Court pronouncement in A.D.M. Jabalpur v. Shivkant Shukla5 case.
This case showed that Article 21 as interpreted in A.K. Gopalan v. State of
Madras6 could not play any role in providing any protection against any harsh
law seeking to deprive a person of his life or personal liberty. It is the dissent of
Fazal Ali J. which is vindicated in the law subsequently developed by the
Supreme Court culminating in Maneka Gandhi case.7 For example, in 2009 the
court has held that fairness, justice and reasonableness constitute the essence of
guarantee of life and liberty epitomized in Article 21 of the Constitution and also
pervades the sentencing policy in Section 235(2), 354(3) of the Criminal
Procedure Code which virtually assimilates the concept of “procedure established
by law” within the meaning of the Article.8

Since Maneka Gandhi case9 the Supreme Court has shown great
sensitivity to the protection of personal liberty. The Court has re-interpreted Art.
21 and practically overruled Gopalan case10 in Maneka Gandhi case11 which
can be regarded as a highly creative judicial pronouncement on the part of the
Supreme Court. Not only that, since Maneka case, the Supreme Court has given
to Article 21, broader and broader interpretation so as to imply many more
human Fundamental Rights. In course of time, Article 21 has proved to be a very
fruitful source of rights of the people.

The procedure contemplated by Article 21 must answer the test of

reasonableness in order to conform with Article 14 for, in the words of Bhagwati,

5 AIR 1976 SC 1207.

6 AIR 1950 SC 27.
7 Supra 4.
8 Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740.
9 Supra 4.
10 Supra 6.
11 Supra 4.
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J., “The principle of reasonableness which legally as well as philosophically is an
essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence.”12 Thus, the procedure in Article 21, “must be ‘right and
just and fair’ and not arbitrary, fanciful or oppressive, otherwise, it would be no
procedure at all and the requirement of Article 21 would not be satisfied”. The
expression ‘life’ in Article 21 has been interpreted by the Supreme Court rather
liberally and broadly. Over time, the Court has been giving an expansive
interpretation to ‘life’. The Court has often quoted the following observation of
Field, J. in Munn v. Illinois13, an American case : “By the term ‘life’ as here
used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by the
amputation of an arm or leg.”

The right to life guaranteed under Article 21 embraces within its sweep
not only physical existence but the quality of life. If any statutory provisions run
counter to such a right, it must be held unconstitutional.14 The Court referred to
the explanation of the concepts of ‘life’ and ‘liberty’ in the 5th and 14th
amendment to the US Constitution in these words:-

“By the term ‘life’ as here used, something more is meant than mere
animal existence. The inhibition against its deprivation extends to all those limbs
and faculties by which life is enjoyed”.

The expression “personal liberty” in Article 21 is of the widest amplitude

and it covers a variety of rights which go to constitute the personal liberty of man
and some of them have been raised to the status of distinct Fundamental Rights
and given additional protection under Article 19. Right to personal liberty also
means the life free from encroachments, from unsustainable law. Any law
interfering with personal liberty of a person must satisfy a triple test-

12 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

13 94 U.S. 113 (1877).
14 Confederation of Ex-servicemen Association v. Union of India, (2006) 8 SCC 399.
161
(i) it must prescribe a procedure;

(ii) the procedure must withstand the test of one or more of the Fundamental
Rights conferred under Article 19 which may be applicable in a given
situation; and

(iii) it must also be liable to be tested with reference to Article 14.15

In Francis Coralie v. Union of India,16 upholding the right of a detenue

to have interviews with her friends and family members. The Court held that
personal liberty includes rights to socialize with family members and friends as
well as to have interviews with her friends. It is now established after Maneka
Gandhi17 that ‘procedure’ for purposes of Article 21 has to be reasonable, fair
and just. The Supreme Court has asserted in Kartar Singh v. State of Punjab18
that the procedure contemplated by Article 21 is that it must be “right, just and
fair” and not arbitrary, fanciful or oppressive. In order that the procedure be
right, just and fair, it must conform to natural justice. The expression “procedure
established by law” extends both to substantive as well as procedural law. A
procedure not fulfilling these attributes is no procedure at all in the eyes of
Article 21. The procedure of putting a poor person in prison for failure to pay his
debts19 is violative of Article 21 “unless there is proof of the minimal fairness of
his willful failure to pay in spite of his sufficient means and absence of more
terribly pressing claims on his means”20 .

The Supreme Court has observed in Sunil Batra (II) v. Delhi

Administration21 held that thanks to Article 21 that human rights jurisprudence
in India has a constitutional status and sweep, so that this magna carta may well
toll the knell. Accordingly, since Maneka Gandhi22, the Supreme Court has in a
number of cases tested various aspects of criminal justice and prison
administration on this touchstone. The protection of Article 21 extends to all

15 District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496.

16 Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.
17 Supra 4.
18 (1994) 3 SCC 569.
19 Section 51 and Order 21, rule 27 of the Civil Procedure Code.
20 Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470.
21 AIR 1980 SC 1579.
22 Supra 4.
162
persons-persons accused of offences, undertrial prisoners, prisoners undergoing
jail sentences etc., and, thus, all aspects of criminal justice fall under the umbrella
of Article 14,19 and 21 of the Constitution.

The court has interpreted Article 21 of the Constitution so as to have

widest possible amplitude. Protection of Article 21 of the constitution is well
extended to under trial prisoners and even to the convicts. It has been ruled that a
prisoner, under trial or a detenue, does not cease to be human being. Even when
lodged in the jail, he continues to enjoy the fundamental rights including the right
to life. On being arrested or convicted of crime and deprived of their liberty in
accordance with the procedure established by law, prisoners still retain the
residue of constitutional rights. In this context, it may, therefore, be stated that
the Supreme Court while interpreting article 21 of the constitution, has laid down
a new constitutional and prison jurisprudence.

Article 21 which had remain dormant for nearly three decades, brought to
life by Maneka Gandhi case.23 Article 21 has now assumed a “highly activist
magnitude”. In Francis Coralie v. Union Territory of Delhi24, Bhagwati J.
remarked that Article 21 “embodies a constitutional value of supreme importance
in a democratic society”. In P.S.R. Sadhanantham v. Arunachalam25, Iyer J.,
has characterized Article 21 as“the procedural Magna Carta protective of life and
liberty.” Article 21 has been on its way to emerge as the Indian version of the
American concept of due process. Many a time, the Supreme Court has asserted
that “the attempt of the Court should be to expand the reach and ambit of
Fundamental Rights rather than attenuate their meaning and content by process of
judicial construction. The impact of the liberal judicial approach on Fundamental
Rights has been remarkable over a period of time. This is demonstrated in many
ways.

23 Supra 4.
24 AIR 1981 SC 746.
25 AIR 1980 SC 856.
163
(i) The Supreme Court has given an extended meaning to Article 142 giving
an extension to its own power to give relief.

(ii) The Supreme Court has been expanding the horizon of Article 12
primarily to inject respect for human rights and social conscience in
India’s corporate structure.

(iii) Many Fundamental Rights have been broadly interpreted thus

expanding the range and scope of these rights.

(iv) Maneka Gandhi case has infused new vigour in the moribund Article 21
by giving an expansive interpretation to the word ‘life’ therein as meaning
not only mere ‘animal existence’ but ‘life with human dignity’; ‘the right
to life includes the right to live with human dignity and all that goes along
with it. The Supreme Court has thus infused a qualitative concept in
Article 21. From this hypothesis, a number of rights have been implied
from Article 21 and a whole lot of human rights jurisprudence has sprung
up. Article 21 has become a reservoir of Fundamental Rights.

Right to life and personal liberty enshrined in Article 21 of Constitution is

of widest amplitude and several unremunerated rights fall within its meaning.
These rights includes Right to Speedy Trial;26

Right to legal assistance27, Right not to be subjected to torture or to cruel,

inhuman or degrading treatment or punishment28, Right against Solitary
Confinement;29, Right against Bar Fetters; 30, Right against Handcuffing;31 Right
against delayed execution;32 Right against Custodial Violence;33 Right against
Public Hanging;34 Right to compensation for unlawful arrest and detention35

26 Hussainara Khatoon (IV) v. Home Secretary v. State of Bihar, Patna, AIR 1979
SC 1360.
27 M. H. Hoskot v. State of Maharastra (1978) 3 SSC 554.
28 Dayal Singh v. Union of India, AIR, 1991 SC 1548.
29 Sunil Batra v. Delhi Administration (1978) 4 SSC 494.
30 Charles Gurmukh Sobhraj v. Delhi Administration (1978) 4 SSC 494.
31 Prem Shankar Shukla v. Delhi Administration (1980) 3 SSC 526.
32 Vatheeswaran v. State of Tamil Nadu, AIR, 1983 SC 361.
33 Sheela Barse v. State of Maharashtra (1983) 2 SCC 96, Sheela Barse v. State of
Maharashtra (1983) 4 SCC 373.
34 Attorney General of India v. Lachma Devi, AIR 1986, SC 467.
35 Rudul Sahu v. State of Bihar AIR 1983 SC 1107.
164
 After Maneka Gandhi case36, Judicial trend having impact on various
aspects of rights of an arrested person is reflected in various judgments of the
Hon’ble Supreme Court. The courts have strengthened various human rights
involved in the criminal justice system some of them are as followings:

(i) Court and Presumption of Innocence

In Kailash Gour and others, v. State of Assam37 the Supreme Court had
observed that: “The accused is presumed to be innocent. It is one of the
fundamental principles of criminal jurisprudence that an accused is presumed to
be innocent till he is proved to be guilty. It is equally well settled that suspicion
howsoever strong can never take the place of proof. There is indeed a long
distance between accused ? may have committed the offence ? and ? must have
committed the offence ? which must be traversed by the prosecution by adducing
reliable and cogent evidence. Presumption of innocence has been recognized as a
human right which cannot be washed away. Therefore the accused must be
treated as such. Even if the accused is under arrest or detention at the time of the
trial, the accused must appeal freely before the judge without handcuffs and
obstacles to his freedom of expression. The accused must also have the
opportunity to freely converse with his/her advocate. Nevertheless, the principle
of freedom has to be compatible with the requirements related to the protection
and safety of the arrested person as well as to the risks of his escape. In Joginder
Kumar v. State of U.P.38 the Supreme Court had reiterated as under: “No arrest
can be made because it is lawful for the police officer to do so. The existence of
the power to arrest is one thing. The justification for the exercise of it is quite
another. The police officer must be able to justify the arrest apart from his power
to do so. Arrest and detention in police lock-up of a person can cause incalculable
harm to the reputation and self-esteem of a person. Denying a person of his
liberty is a serious matter.”

36 Supra 4.
37 2012 (2) SCC 34.
38 AIR 1994 SC 1349.
165
 In D.K. Basu v. State of West Bengal39, the Supreme Court had laid
down guidelines while making arrest. The guidelines in the judgment of D.K.
Basu v. State of West Bengal40 introduced in Section 50-A. Section 50-A of the
Criminal procedure Code has been incorporated to provide that every police
person making arrest under this Code shall give information of such arrest to any
of the friends, relatives of the arrested persons and informed about the place
where arrested persons is being kept.

The Law Commission had undertaking a comprehensive review of the

Code of Criminal Procedure in its 177th report relating to arrest. As a result, vide
clause 5 of the Code of Criminal Procedure (Amendment) Act, 2008 Section 41
had been amended. Clause 5 amends section 41 relating to power of police to
arrest without warrant. It amends clauses (a) and (b) of sub-section (1) so as to
provide that the powers of arrest conferred upon the police office must be
exercised after reasonable care and justification and that such arrest is necessary
and required under the section. Amendment is also made in sub-section (2) of
section 41 so as to provide that subject to the provisions of Section 42 relating to
arrest on refusal to give name and residence, no person shall be arrested in a non-
cognizable offence except under a warrant or order of a Magistrate.

(ii) Police Torture

Life or personal liberty includes a right to live with human dignity. There
is an inbuilt guarantee against torture or assault by the State or its functionaries.
Torture, assault and death in custody raise serious questions about the credibility
of the rule of law and administration of the criminal justice system. There has
been increase in instances of custodial violence/torture attributed to misuse of
police machinery by those at the helm of affairs to settle personal scores.41 The
Supreme Court has in several cases condemned police brutality and torture on
prisoners, accused persons and undertrials. In this connection, the Supreme Court
has observed in Raghubir Singh v. State of Haryana”.42

39 (1997) 1 SCC 416..

40 Ibid.
41 Munshi Singh Gautam v. State of Madhya Pradesh, (2005) 9 SCC 631.
42 AIR 1980 SC 1087.
166
 We are deeply disturbed by the diabolical
recurrence of police torture resulting in a terrible
scare in the minds of common citizens that their
lives and liberty are under a new peril when the
guardians of the law gore human rights to death.
The Supreme Court has stressed that police torture is “disastrous to our
human rights awareness and humanist constitutional order.” The Court has
squarely placed the responsibility to remedy the situation on the State. The Court
observed:

The States, at the highest administrative and

political levels, we hope, will organize special
strategies to prevent and punish brutality by police
methodology. Otherwise, the credibility of the rule
of law in our Republic vis-à-vis the people of the
country will deteriorate.
A prisoner, be he a convict or under-trial or a
detenue, does not cease to be a human being. Even
when lodged in the jail, he continues to enjoy all his
Fundamental Rights including the right to life
guaranteed to him under the Constitution. On being
convicted of crime and deprived of their liberty in
accordance with the procedure established by law,
prisoners still retain the residue of constitutional
rights.43

The Court has also frowned upon the practice of keeping women in prison
without being accused of any crime. These women are kept in prison merely
because they happen to be victims of an offence, or they are required for the
purpose of giving evidence, or they are in protective custody. In State of
Andhra Pradesh v. Challa Ramkrishna Reddy,44 the Court has characterized
“protective custody” as “really and in truth nothing but imprisonment” which
violates Article 21. The Court has directed the government to set up welfare and
rescue homes to take care of destitute women and children.

43 State of Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083, p.2088.
44 Ibid.
167
(iii) Custodial Violence

The Apex Court in D.K. Basu v. State of West Bengal45 stated that
custodial violence, including torture and death in the lock-ups, strikes a blow at
the rule of law, which demands that the powers of the executive should not only
be derived from law but also that the same should be limited by law. The Court
has further observed:

However, in spite of the constitutional and statutory

provision aimed at safeguarding the personal liberty
and life of a citizen, growing incidence of torture
and deaths in police custody has been a disturbing
factor. Experience shows that worst violations of
human rights take place during the course of
investigation, custodial death is perhaps one of the
worst crimes in a civilized society governed by the
rule of law.

Asian Centre for Human Rights (ACHR) in its report “Torture in India
2009” released to the media stated that in the last eight years (from 1 April 2001
to 31 March 2009), an estimated 1,184 persons were killed in police custody in
India. Most of the victims were killed as a result of torture within the first 48
hours after being taken into custody. These deaths in custody do not however
represent the actual number of deaths in police custody in India. A number of
cases of custodial death taken up by ACHR with the National Human Rights
Commission (NHRC) show that the NHRC was not informed by the police about
these custodial deaths. The National Human Rights Commission is concerned
about the death during the course of a police action. The police does not have a
right to take away the life of a person. Death caused in an encounter if not
justified would amount to an offence of culpable homicide. The National Human
Rights Commission in 201046 had issued guidelines/procedures to be followed in
cases of deaths caused in police action

45 Supra 39.
46 Vide no. 4/7/2008-PRP&P dated 12th May 2010.
168
(i) When the police officer in charge of a Police Station receives information
about death in an encounter with the Police, he shall enter that
information in the appropriate register.

(ii) Where the police officers belonging to the same Police Station are
members of the encounter party, whose action resulted in death, it is
desirable that such cases are made over for investigation to some other
independent investigating agency, such as State Crime Branch Criminal
Investigation Department (CBCID).

(iii) Whenever a specific complaint is made against the police alleging

commission of a criminal act on their part, which makes out a cognizable
case of culpable homicide, an First Information Report (FIR) to this
effect must be registered under appropriate sections of the Indian Penal
Code. Such case shall be investigated by State State Crime Branch
Criminal Investigation Department (CBCID) or any other specialized
investigation agency.

(iv) A magisterial enquiry must be held in all cases of death which occurs in
the course of police action, as expeditiously as possible preferably, within
three months. The relatives of the deceased, eye witness, witnesses
having information of the circumstances leading to encounter, police
station records etc. must be examined while conducting such enquiry.

(v) Prompt prosecution and disciplinary action must be initiated against all
delinquent officers found guilty in the magisterial enquiry/police
investigation.

(vi) No out-of-turn promotion or instant gallantry rewards shall be bestowed

on the concerned officers soon after the occurrence. It must be ensured at
all costs that such rewards are given/recommended only when the
gallantry of the concerned officer is established beyond doubt.

(vii) (a) All cases of deaths in police action in the states shall be reported to
the Commission by the Senior Superintendent of Police/ Superintendent
of Police of the District within 48 hours of such death in the following
format:
169
1. Date and place of occurrence.

2. Police Station, district.

3. Circumstances leading to death:

(i) Self -defence in encounter.

(ii) In course of dispersal of unlawful assembly

(iii) In the course of effecting arrest.

(iv) Any other circumstances

4. Brief facts of the incident.

5. Criminal case No.

6. Investigating agency.

(b) A second report must be sent in all cases of death in police action in the
state by the Senior Superintendent of Police/ Superintendent of Police to
the Commission within three months providing following information:

(1) Post mortem report

(2) Inquest report

(3) Findings of the magisterial enquiry/enquiry by senior officers disclosing:-

(i) Names and designation of police official, if found responsible for the
death;

(ii) Whether use of force was justified and action taken was lawful;

(iii) Result of the forensic examination of ‘handwash’ of the deceased to

ascertain the presence of residue of gun powder to justify exercise of right
of self defence; and

(iv) Report of the Ballistic Expert on examination of the weapons

alleged to have been used by the deceased and his companions.

(iv) Hand-cuffing:

170
 The Supreme Court has declared in Prem Shankar v. Delhi
Administration,47 that hand-cuffing in prima facie “inhuman, and, therefore,
unreasonable, over-harsh and at the first flush, arbitrary”. Accordingly, the Court
has held that a rule requiring every undertrial person accused of a non-bailable
offence punishable with more than three years prison term if routinely
handcuffed during transit from prison to Court for trial violates Article 14, 19 and
21 of the Constitution. The Court has declared it to be a constitutional mandate
that no prisoner is to be handcuffed or fettered routinely or merely for the
convenience of the custodian or the Courts. The distinction between classes of
prisoners becomes constitutionally obsolete for this purpose as it cannot be
assumed that a rich criminal or under trial is different from a poor undertrial in
the matter of security risk. To be consistent with Article. 14 and 19, handcuffs
must be the last refuge, not the routine regimen. Binding of the accused by the
police while in police custody violates Article 21.48 The Court declared in Prem
Shankar case:49

….that the rule, regarding a prisoner in transit

between the prison house and Court house, is
freedom from handcuffs and the exception, under
conditions of judicial supervision we have indicated
earlier will be restraints with irons to be justified
before or after. We mandate the judicial officer
before whom the prisoner is produced to interrogate
the prisoner, as a rule, whether he has been
subjected to handcuffs or other ‘irons’ treatment
and, if he has been, the official concerned shall be
asked to explain the action forthwith in the light of
this judgment”.

(v) Prisoner’s Grievances

The Supreme Court has emphasized that a prisoner, whether a convict,

under-trial or detenue, does not cease to be a human being and, while lodged in
jail, he enjoys all his Fundamental Rights including the right to life guaranteed by
the Constitution. Even when a person is convicted and deprived of his liberty in

47 AIR 1980 SC 1535.

48 Khatri v. State of Bihar, AIR 1981 SC 1068.
49 Supra 47.
171
accordance with the procedure established by law, a prisoner still retains the
residue of constitutional rights.50 Articles 14, 19 and 21 are available to prisoners
as well as freemen. Prison walls do not keep out Fundamental Rights.51 The
Fundamental Right of an under trial prisoner under Article 21 of the Constitution
is not absolute. Such a Fundamental Right is circumscribed by the prison manual
and other relevant statutes imposing reasonable restrictions on such right.

The Supreme Court has assumed, under Article 32, jurisdiction to

consider prisoners’ grievances of ill-treatment. In Charles Sobraj v.
52
Superintendent Jail, Tihar, the Court has ruled that it can intervene with
prison administration when constitutional rights or statutory prescriptions are
transgressed to the injury of the prisoner. The highlight of Sunil Batra (II) Delhi
Administration53 is the acceptance by the Supreme Court of the thesis of
functional expansion of the writ of habeas corpus in the current milieu. The writ
is capable of multiple uses as developed in the American Jurisprudence. The
Courts in America have, through the decisional process, brought the rule of law
into the prison system. The Supreme Court issued a number of guidelines on the
administration of prisons and treatment of prisoners by prison authorities. As a
result of plea bargaining, the accused pleaded guilty and the trial Court awarded a
light sentence. But, on appeal, the sentence was enhanced. The Supreme Court
in Thippaswamy v. State of Karnataka54 objected to the enhancement of the
sentence by the appellate Court. The Court emphasized that it would be violative
of Article 21 to induce on lead an accused to plead guilty under an assurance that
he would be let off lightly and then in appeal or revision, to enhance the sentence.
If the appellate Court feels that the sentence is disproportionately low, it should
set aside the conviction and remand the case for trial so that the accused can
defend himself if he so wished. It would not be reasonable, fair, just to act on the
plea of guilty for the purpose of enhancing the sentence. The Court even went on
to assert that penal laws which define offences and prescribe punishments for the
commission of offences do not attract Article 19(1) as these are not laws having a

50 T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.

51 Ibid
52 AIR 1978 SC 1514 .
53 AIR 1980 SC 1579.
54 AIR 1983 SC 747.
172
direct impact on the rights conferred by Article 19(1). A law is hit by Article 19
if the “direct and inevitable consequence” of such law is to take away or abridge
any of the freedoms guaranteed by Article 19(1). If the impact of the law on any
of the rights under Article 19(1) is merely incidental, indirect, remote or
collateral and is dependent upon factors which may or may not come into play,
the anvil of Article 19 will not be available for judging its validity.

The provision of death penalty as an alternative punishment for murder is

also not violative of Article 21. This article clearly brings out the implication
that the founding fathers recognized the right of the State to deprive a person of
his life or personal liberty in accordance with fair, just and reasonable procedure
established by valid law. The procedure provided in the Criminal Procedure Code
for imposing capital punishment for murder cannot be said to be unfair,
unreasonable and unjust. The Court, however, emphasized that the death penalty
is an exception rather than the rule and it ought to be imposed only in the ‘gravest
of cases of extreme culpability’, or in the ‘rarest of rare’ cases when the
alternative option is unquestionably fore-closed. In Machhi Singh v. State of
Punjab,55 the Supreme Court has emphasized that death penalty need not be
inflicted except in the “gravest of cases of extreme culpability” and that “life
imprisonment is the rule and death sentence is an exception”. The Court has
emphasized that death sentence is to be imposed only when “life imprisonment
appears to be an altogether inadequate punishment having regard to relevant
circumstances of crime, and provided, and only provided, the option to impose
sentence of imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the relevant
circumstances.”

(vi) Guidelines relating to administration of polygraph test (lie detector

test) on an accused

The extent and nature of the ‘self-incrimination’ is wide enough to cover

the kinds of statements that were sought to be induced. The Supreme Court
included within the protection of the self-incrimination rule all positive volitional

55 AIR 1983 SC 947.

173
acts which furnish evidence. This by itself would have made all or any
interrogation impossible. The test - as stated in Kathi Kalu v. State of Bombay56
retains the requirement of personal volition and states that ‘self-incrimination’
must mean conveying information based upon the personal knowledge of the
person giving information’. By either test, the information sought to be elicited in
a Lie Detector Test is information in the personal knowledge of the accused. In
case titled as Smt. Selvi & Ors. v. State of Karnataka & Ors.57, wherein the
question was- Whether involuntary administration of scientific techniques
namely Narcoanalysis, Polygraph (lie Detector) test and Brain Electrical
Activation Profile (BEAP) test violates the ‘ right against self-incrimination’
enumerated in Article 20(3) of the Constitution. In answer, it was held that it is
also a reasonable restriction on ‘ personal liberty’ as understood in the context of
Article 21 of the Constitution. After bestowing its careful consideration on this
matter of great importance, following guidelines relating to the administration of
Lie Detector Tests has been laid down:

(i) No Lie Detector Tests should be administered except on the basis of

consent of the accused. An option should be given to the accused whether
he wishes to avail such test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given
access to a lawyer and the physical, emotional and legal implication of
such a test should be explained to him by the police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have
agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms
that the statement that is made shall not be a ‘confessional’ statement to
the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention
including the length of detention and the nature of the interrogation.

56 AIR 1961 SC 1808

57 2010 (2) R.C.R. (Criminal) 896.
174
(vii) The actual recording of the Lie Detector Test shall be done in an
independent agency (such as a hospital) and conducted in the
presence of a lawyer.

(viii) A full medical and factual narration of manner of the information

received must be taken on record.

(vii) Rules for Bail

‘Bail not Jail’ is the celebrated dictum of Justice Krishna Iyer. The law of
bails “has to dovetail two conflicting demands, namely, on one hand, the
requirements of the society for being shielded from the hazards of being exposed
to the misadventures of a person alleged to have committed a crime; and on the
other, the fundamental canon of criminal jurisprudence, viz., the presumption of
innocence of an accused till he is found guilty.” In Hussainara Khaton (No. II)
v. Home Secretary58, the Supreme Court came to know that there were many
prisoners who were in jail and had spent more time than punishment would entail
to them. On this our legislature took a serious view and added Section 436-A in
the Criminal Procedure Code by 2005 Amendment Act. Section 436- A of
Criminal Procedure Code provides that where a person has, during the period of
investigation, inquiry or trial under this Code of an offence under any law (not
being an offence for which the punishment of death has been specified as one of
the punishments under that law) undergone detention for a period extending up to
one-half of the maximum period of imprisonment specified for that offence under
that law, he shall be released by the Court on his personal bond with or without
sureties, provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such
person for a period longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties; provided further that no
such person shall in any case be detained during the period of investigation
inquiry or trial for more than the maximum period of imprisonment provided for
the said offence under that law. In computing the period of detention under this
section for granting bail the period of detention passed due to delay in proceeding

58 AIR 1997 SC 1369.

175
caused by the accused shall be excluded. There had been instances, where under-
trial prisoners were detained in jail for periods beyond the maximum period of
imprisonment provided for the alleged offence. The new Section 436- A has
been being inserted in the Code to provide that where an under-trial prisoner
other than the one accused of an offence for which death has been prescribed as
one of the punishments, has been under detention for a period extending to one
half of the maximum period of imprisonment provided for the alleged offence, he
should be released on his personal bond, with or without sureties. Therefore, in
no case, an undertrial prisoner will not be detained beyond the maximum period
of imprisonment for which he can be convicted for the alleged offence..

In cases titled Common Cause v. Union of India & others59, Common

Cause v. Union of India60, Raj Deo Sharma v. The State of Bihar61, Dharam
Pal v. State of Haryana62, the Supreme Court had issued guidelines for grant of
bail by the trial court when the trial is not concluded within a specified period.
The strict boundaries of ‘personal liberty’ cannot be identified but at the same
time mandates that such liberty must also accommodate public interest.63

(viii) Onus of Proof in Criminal Cases

From the point of view of the burden of proof, the Courts draw a
distinction between Article 14, on the one hand, and Article 19 and 21, on the
other. The point has been elaborately discussed by the Supreme Court in Deena
v. Union of India.64 Likewise, under Article 21, “the burden is never on the
petitioner to prove that the procedure prescribed by law which deprives him of
his life or personal liberty is unjust, unfair or unreasonable.”65 Bachan Singh
case66 is an authority for the proposition that in cases arising under Art. 21 of the
Constitution, if it appears that a person is being deprived of his life or has been
deprived of his personal liberty, the burden rests on the State to establish the
constitutional validity of the impugned law.

59 (1996) SC 1619.
60 AIR (1997) SC 1539.
61 (1998) 7 SCC 507.
62 1999 (4) RCR (Crl.) 600.
63 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
64 AIR 1983 SC 1155.
65 Ibid at 1167.
66 Bachan Singh v. State of Punjab, AIR 1980 SC 898.
176
(ix) Fair Trial

Conducting a fair trial for those who are accused of criminal offences is
the cornerstone of democracy. Conducting a fair trial is beneficial both to the
accused as well as to the society. A conviction resulting from an unfair trial is
contrary to our concept of justice. Fair trial obviously would mean a trial before
an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witnesses get
threatened or are forced to give false evidence that also would not result in a fair
trial. The failure to hear material witnesses is certainly denial of fair trial.67
Right to have a fair trial strictly in terms of the Juvenile Justice Act which would
include procedural safeguard is a Fundamental Right of the juvenile.68 Section
303 of Indian Penal Code prescribes that if a person under sentence of life
imprisonment commits murder he must be punished with death. The Supreme
Court has ruled in Mithu v. State of Punjab69 that Section 303 is wholly
unreasonable and arbitrary and that it violates Article 21 because the procedure
by which Section 303 authorises the deprivation of life is unfair and unjust. The
Court has emphasized that the last word on the question of justice and fairness
does not rest with the legislature; it is for the Courts to decide whether the
procedure prescribed by a law for depriving a person of his life or liberty is fair,
just and reasonable. In Babubhai v. State of Gujrat and Others70 it was
observed that not only the fair trial but fair investgation is also part of
constitutional rights guaranteed under Articles 20, 21, of the Constitution of
India. Therefore, investigation must also be fair, transparent and judicious as it is
the minimum requirement of rule of law. Investigating agency can not be
permitted to conduct an investigation in tainted and biased manner.

67 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114.

68 Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731.
69 AIR 1983 SC 473.
70 2010 (12) SCC 254.
177
(x) Speedy Trial

Speedy trial as such is not mentioned as a specific Fundamental Right in

the Constitution. The Criminal Procedure Code does not guarantee specifically
any right to speedy trial. Nor is there any provision prescribing the maximum
period for which a magistrate can keep an undertrial in jail without trial.
Nevertheless, the Supreme Court has recognized the same to be implicit in the
spectrum of Article 21 and has derived the right of an accused to a speedy trial
from Article 21. It is well settled that the right to speedy trial in all criminal
prosecutions is an inalienable right under Article 21 of the Constitution. This
right is applicable not only to the actual proceedings in court but also includes
within its sweep the preceding police investigations as well. The right to speedy
trial extends equally to all criminal prosecutions and is not confined to any
particular category of cases. Quick justice is now regarded as sine qua non of
Article 21. Inordinately long delay may be taken as presumptive proof of
prejudice. In this context, the fact of incarceration of the accused will also be a
relevant fact. The prosecution should not be allowed to become a persecution.
But when does the prosecution become persecution, again depends upon the facts
of a given case.71

Speedy trial is a Fundamental Right implicit in the broad sweep and

content of Article 21. The article confers a Fundamental Right on every person
not to be deprived of his life or liberty except in accordance with the procedure
prescribed by law. The procedure so prescribed must ensure a speedy trial for
determination of the guilt of such person. It is conceded that some amount of
deprivation of personal liberty cannot be avoided, but if the period of deprivation
pending trial becomes unduly long, fairness assured by Article 21 would receive
a jolt.72 Where the Court comes to the conclusion that the right to speedy trial of
an accused has been infringed, the charge or the conviction may be quashed.
Again, circumstances may be such that quashing of proceedings will not subserve
the interest of justice and in such a situation, it will be open to the court to make

71 Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355.

72 Surinder Singh v. State of Punjab, AIR 2005 SC 3669.
178
an appropriate order as it may deem just and equitable, including fixation of time-
frame for conclusion of the trial.73

The Supreme Court has reiterated in Abdul Rehman Antulay v. R.S.

Nayak74, that there is a right to speedy trial of the case pending against him. But
there can be no time limit within which a trial must be completed. “It is, thus, the
obligation of the state or the complainant, as the case may be, to proceed with the
case reasonable promptitude.” Regarding the right to speedy trial, the Court has
laid down the following propositions as guidelines, without seeking to be
exhaustive, as “it is difficult to foresee all situations.”75

1. Fair, just and reasonable procedure implicit in Article 21 of the

Constitution creates a right in the accused to be tried speedily. Right to
speedy trial is the right of the accused. The fact that a speedy trial is also
in public interest or that it serves the societal interest also does not make it
any-the-less the right of the accused. It is in the interest of all concerned
that the guilt or innocence of the accused is determined as quickly as
possible in the circumstances.

2. Right to speedy trial flowing from Article 21 encompass all the stages,
namely, the stage of investigation, inquiry, trail, appeal, revision and re-
trial.

3. The concerns underlying the right to speedy trial from the point of view of
the accused are:

(a) the period of remand and pre-conviction detention should be as short as

possible. In other words, the accused should not be subjected to
unnecessary or unduly long incarceration prior to his conviction.

(b) the worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, enquiry or trial should
be minimal; and

73 Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355.

74 AIR 1992 SC 1730.
75 Id, at 1731-32.

179
(c) undue delay may well result in impairment of the ability of the accused to
defend himself, whether on account of death, disappearance or non-
availability of witnesses or otherwise. It is neither advisable nor
practicable to fix any time-limit for trial of offences.

In Santosh De v. Archana Guha76, the Supreme Court quashed the

prosecution on the ground of inordinate delay as the trial for corruption of a
government servant was kept pending for 14 years. The case was filed in 1978
against the Director of Mines, Government of Bihar, under the Prevention of
Corruption Act. As the Bihar Government refused to give permission to
prosecute him, no charge sheet could be filed for several years but the
prosecution was kept pending. The Supreme Court quashed the prosecution
saying that the long delay was caused entirely and exclusively because of the
default of the prosecution and it has not been able to explain the reasons for
delay. The unexplained long delay in commencing trial by itself infringed the
right of the accused to speedy trial. The Supreme Court has criticized long
incarceration of under-trials, and has sought to rectify the deplorable situation.
Commenting on the deplorable situation, the Court has observed:

It is a crying shame on the judicial system which

permits incarceration of men and women for such
long periods of time without trial…..”

The Court has declared that after the ‘dynamic’ interpretation of Article
21 in Maneka Gandhi, there is little doubt that any procedure which keeps such
large numbers of people behind bars without trial so long cannot possibly be
regarded as “reasonable, just and fair” so as to be in conformity with Article 21.
It is necessary that the law enacted by the legislature and as administered by the
Courts must radically change its approach to pre-trial detention and ensure
‘reasonable, just and fair’ procedure which has creative connotations after
Maneka Gandhi’s cases.77

76 AIR 1994 SC 1229.

77 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
180
 The Court has ordered release of many such undertrials as have remained
in prison longer than even the maximum punishment which could have been
imposed on them for their offences under the law. The Court has laid down that
even under the law as it exists, if the trial Court feels satisfied that an accused has
his roots in the community and he is not likely to abscond, it can safely release
him on his personal bond without sureties. The Supreme Court has laid down
guidelines to enable the lower courts to determine whether the accused has his
roots in the community which would deter him from fleeing from justice. The
Court has emphasized:

…the issue is one of liberty, justice, public safety

and burden on the public treasury, all of which
insist that a developed jurisprudence of bail is
integral to a socially sensitive judicial process.78

Imposing unjust or harsh conditions, while granting bail, is violative of

Article 21.79 Ordinarily, in cases under the Terrorist and Disruptive Activities
Act, 1987 (TADA), release of under-trials on bail is extremely restricted. But the
Supreme Court has ruled that even in TADA cases, where there is no prospect of
a trial being concluded within a reasonable time, release on bail may be necessary
as this can be taken to be embedded in the right to speedy trial under Article 21.
This Act was criticised for violation of human rights of accused and repealed on
24-5-1995. Moreover, the Supreme Court has suggested that liberal use of parole
be made.80 Parole is conditional release of a prisoner after he has served a part of
the sentence imposed on him. The Supreme Court has again reminded the Central
/ State Government recently, “of their constitutional obligation to strengthen the
judiciary - quantitatively and qualitatively—by providing requisite funds,
manpower and infrastructure.81

(xi) Right to Appeal

As a part of the concept of ‘fair procedure’ in Article 21, the Supreme

Court has emphasized that one right of appeal from the Sessions Court to the

78 Babu Singh v. State of Uttar Pradesh, AIR 1978 SC 527, at 529.

79 Ibid,
80 Suresh Chandra v. State of Gujarat, AIR 1976 SC 2462.
81 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, at 603-604.
181
High Court is essential where criminal conviction is brought about with long loss
of liberty. Convict has right of appeal under various provisions of the Criminal
Procedure Code i.e. 373-74, 377-80, 386, 237(3), 250(6), 341, 351(1), 449.
Maneka Gandhi case82 has laid down that personal liberty cannot be cut out or cut
down without fair legal procedure. Enough has been set out to establish that a
prisoner, deprived of his freedom by court sentence but entitled to appeal against
such verdict, can claim, as part of his protection under Article 21 and as implied
in his statutory right to appeal, the necessary concomitant of right to counsel to
prepare and argue his appeal. If a prisoner sentenced to imprisonment, is virtually
unable to exercise his constitutional and statutory right of appeal, inclusive of
special leave to appeal, for want of legal assistance, there is implicit in the court
under Article 142 read with Articles 21 and 39-A of the Constitution, power to
assign counsel for such imprisoned individual ‘for doing complete justice’. This
is a necessary incident of the right of appeal conferred by the Code and allowed
by Article 136 of the Constitution. The inference is inevitable that this is a
State’s duty and not government’s charity.”83 The Supreme Court have had an
opportunity to express its difficulty in processing an appeal when the petitioner in
person appeared and argued his case.84 The Court suggested that such persons
should be provided legal aid and it indicated various agencies offering legal aid to
poor. At present the implementation of the Legal Services Authorities Act, 1986
may help the indigent appellant in getting legal aid.

(xii) Curative Petitions

The Court has recently ruled in Rupa Ashok Hurra v. Ashok Hurra85
that while certainly of law is important in India, it cannot be at the cost of justice.
The court has observed in this connection :

…this Court, to prevent abuse of its process and to

cure a gross miscarriage of justice, may reconsider
its judgments in exercise of its inherent power.”
Such a curative petition under the Court’s inherent
power can be filed, seeking review of a decision

82 (1978) 1 SCC 248.

83 1978 SCC (Cri) 464.
84 Bhuwneshwar Singh v. Union of India, (1993) 4 SCC 327.
85 (2002) 4 SCC 388.
182
 which has become final after dismissal of a review
petition under Art. 137, on very strong grounds,
such as,

(1) variation of the principle of natural justice - the right to be heard, as for
example, when the affected person was not served notice or not heard
during the proceedings;

(2) a Judge who participated in the decision - making process did not
disclose his links with a party to the case, i.e. the question of bias;

(3) abuse of the process of the court.

The Supreme Court has the power to review its own order if there is a
realised a need to do so. In Navneet Kaur Vs. State of NCT of Delhi & Anr.86
the present case Navneet Kaur w/o Devender Pal Singh Bhullar, filed the present
Curative Petition against the dismissal of Review Petition (Criminal) No.435 of
2013 in Writ Petition (Criminal) No. 14 of 2011 on 13.08.2013, wherein she
prayed for setting aside the death sentence imposed upon Devender Pal Singh
Bhullar by commuting the same to imprisonment for life on the ground of
supervening circumstance of delay of 8 years in disposal of mercy petition. By
judgment dated 25.08.2001, Devender Pal Singh Bhullar was sentenced to death
by trial court for offences under the Terrorist and Disruptive Activities
(Prevention) Act, 1985 (TADA). Thereafter, he preferred an appeal before
Supreme Court and by judgment dated 22.03.2002, the Supreme Court confirmed
the death sentence and dismissed his appeal. Against the dismissal of the appeal
by Supreme Court, the accused preferred Review Petition in 2002, which was
also dismissed by Supreme Court on 17.12.2002. Soon after the dismissal of the
review petition, the accused submitted a mercy petition dated 14.01.2003 to the
President of India under Article 72 of the Constitution and prayed for
commutation of his sentence. During the pendency of the petition filed under
Article 72, he also filed Curative Petition(Criminal) No. 5 of 2003 which was
also dismissed by Supreme Court on 12.03.2003. On 30.05.2011, a
communication was sent from the Joint Secretary (Judicial) to the Principal

86 2014 STPL(Web) 226 SC.

183
Secretary, Home Department, Government of NCT of Delhi, stating that the
President of India has rejected the mercy petition submitted on behalf of
Devender Pal Singh Bhullar. The same was also communicated to the
Superintendent, Central Jail No. 3, Tihar Jail, New Delhi on 13.06.2011. . On
24.06.2011, the wife of the accused (petitioner herein) preferred a Writ Petition
(Criminal) No. 146 of 2011 before this Court praying for quashing the
communication dated 13.06.2011. By order dated 12.04.2013, this Court, after
examining and analyzing the materials brought on record by the respondents
arrived at the conclusion that there was an unreasonable delay of 8 years in
disposal of mercy petition which is one of the grounds for commutation of death
sentence to life imprisonment as per the established judicial precedents.
However, this Court dismissed the writ petition on the ground that when the
accused is convicted under TADA, there is no question of showing any sympathy
or considering supervening circumstances for commutation of death sentence.
Aggrieved by the said dismissal, the wife of the accused preferred Review
Petition being (Criminal) No. 435 of 2013 which was also dismissed by this
Court on 13.08.2013. Subsequently, the wife of the accused filed the above
Curative Petition for consideration by Supreme Court wherein she again prayed
for setting aside the death sentence imposed upon Devender Pal Singh Bhullar by
commuting the same to imprisonment for life on the ground of supervening
circumstance of delay of 8 years in disposal of mercy petition. While deciding the
Second Curative petition the Supreme Court held that unexplained long delay
may be one of the grounds for commutation of sentence of death into life
imprisonment and the said supervening circumstance is applicable to all types of
cases including the offences under TADA. The only aspect the Courts have to
satisfy is that the delay must be unreasonable and unexplained or inordinate at the
hands of the executive.. There is no good reason to disqualify all TADA cases as
a class from relief on account of delay in execution of death sentence. Each case
requires consideration on its own facts. The Supreme Court converted the death
sentence into life imprisonment.

184
(xiii) Legal Aid

The Supreme Court has taken a big innovative step forward in

humanizing the administration of criminal justice by suggesting that free legal aid
be provided by the State to poor prisoners facing a prison sentence. When an
accused has been sentenced by a Court, but he is entitled to appeal against the
verdict, he can claim legal aid; if he is indigent and is not able to afford the
counsel, the State must provide a counsel to him. The Court in Hussainara
Khatoon v. Home Secretary, Bihar87 has emphasized that the lawyer’s services
constitute an ingredient of fair procedure to a prisoner. Now, a procedure which
does not make available legal services to an accused person who is too poor to
afford a lawyer and who would, therefore, have to go through the trial without
legal assistance, cannot possibly be regarded as ‘reasonable, fair and just. Thus,
the state should provide free legal aid to a prisoner who is indigent or otherwise
disabled from securing legal assistance where the ends of justice call for such
service.88

The Supreme Court has reiterated this theme of providing legal aid to
poor prisoners facing prison sentences again and again. For example, in
89
Hussainara case the Court has observed:

It is an essential ingredient of reasonable, fair and just procedure to a

prisoner who is to seek his liberation through the Court’s process that he should
have legal services available to him.

In Khatri (II) v. State of Bihar90, the Supreme Court again emphasized

that the State Government cannot avoid their constitutional obligation to provide
free legal service to the poor accused by pleading financial or administrative
inability. The Court has reiterated the ruling of Khatri case91 ruling in which it
was held that in a case where on conviction a sentence of imprisonment would be
imposed and social justice requires that the accused be given legal aid, the
magistrate is under a legal obligation to inform the accused that if he is unable to

87 AIR 1979 SC 1377.

88 M.H.Hoskot v. State of Maharashtra, AIR 1978 SC 1548.
89 Supra 87.
90 AIR 1981 SC 928 : (1981) SCC 623.
91 Ibid.
185
engage the services of a lawyer due to poverty or indigence, he is entitled to
obtain free legal service at the cost of the State. The Supreme Court has now
clarified that free legal assistance at the cost of the State is a Fundamental Right
of a person accused of an offence involving jeopardy to his life or personal
liberty. This requirement is implicit in the requirement of a reasonable, fair and
just procedure prescribed by Article 21. The Court has sought to exclude from
this requirement cases involving economic offences against law prohibiting
prostitution or child abuse or the like.

(xiv) Delayed Execution of Death Sentence

Another principle evolved by the Supreme Court in relation to death

sentences is that ,if there is prolonged delay in execution of a death sentence then
it would be an “unjust, unfair and unreasonable” procedure to execute the
sentence. Prolonged delay in the execution of death sentence is dehumanizing
and deprives a person of his life is an unjust, unfair and unreasonable way so as
to offend Article 21.92

After the final judicial verdict is pronounced inordinate delay in executing

the death sentence coupled with subsequent circumstances could be held to be
sufficient to come to a conclusion that execution of death sentence will not be
just and proper. On the question of delay, the Court in Jumman Khan v. State
of Uttar Pradesh93 has given the following ruling:

Undue long delay in execution of the sentence of

death will entitle the condemned person to approach
this Court under Art. 32 but this Court will only
examine the nature of delay caused and
circumstances ensued after sentence was finally
confirmed by the judicial process and will have no
jurisdiction to reopen the conclusion reached by the
Court while finally maintaining the sentence of
death. This Court, however, may consider the
question of inordinate delay in the light of all the
circumstances of the case to decide whether the
execution of sentence should be carried out or
should be altered into imprisonment for life. No
fixed period of delay could be held to make the

92 Also see, Earl Pratt v. Att. Gen. of Jamaica, (1994) 2 AC 1.

93 1991 (1) SCC 752.
186
 sentence of death inexecutable and to this extent
Vatheeswaran’s case cannot be said to lay down the
correct law and to that extent stands overruled.”

The Court has thus ruled that if undue long delay occurs in execution of
the death sentence, the condemned person can approach it under Article 32. The
Court will examine the nature of the delay caused and the circumstances which
ensued after the sentence was finally confirmed. The Court may consider the
question of inordinate delay in the light of all the circumstances of the case to
decide whether the execution of the sentence should be carried out, or should be
altered into imprisonment for life. No fixed period of delay could be held to
make the sentence of death non-executable and, to this extent.94 Recently in
March 2014 in Navneet Kaur v. State of NCT Delhi and Anr.95 The Hon'ble
Supreme Court in curative Petition filed on behalf of terrorist convict Devinder
Pal Singh Bhuller by his wife wherein she prayed for setting aside the death
sentence imposed upon Devender Pal Singh Bhullar by commuting the same to
imprisonment for life on the ground of supervening circumstance of delay of 8
years in disposal of mercy petition, commuted his death penalty to life
imprisonment on the ground of an unreasonable delay of eight years in disposal
of his mercy petition as well as on the ground of his weak mental state. In
Shatrughan Chauhan and Anr. v. Union of India96 the Supreme Court held
that insanity,mental illness, schizophernia is also one of the supervening
circumstances for commutation of death penalty to life imprisonment.

(xv) Damages for violation of rights-

In the area of personal liberty for sometime now, this is the manifestation
of the “dynamic constitutional jurisprudence” which the Supreme Court is
evolving in this area. The Court can quash an order of detention or arrest if not
according to law. The question, however, is whether the Court can award
compensation to one who may have unduly suffered detention or bodily harm at
the hands of the employees of the State, and whether the victim can move a writ

94 Jumman Khan v. State of Uttar Pradesh, AIR 1991 SC 345.

95 2014 STPL (Web) 226 SC.
96 2014 (1) SCALE 437.
187
petition for this purpose rather than take re-course to an ordinary civil suit. In a
precedent-setting judgment in Rudul Shah v. State of Bihar97, the Supreme
Court in a writ petition under Art. 32 awarded Rs. 35,000 as compensation
against the State of Bihar to the petitioner because he was kept in jail for 14 years
after he was acquitted by a criminal Court. In Khatri v. State of Bihar98
(Bhagalpur Blinding case), the question was whether the State would be liable to
pay compensation for acts of its servants outside the scope of their powers and
authority affecting the life or personal liberty of a person and thus infringing
Article 21 ? The Court while not giving a definite answer to the basic question,
as an interim measure, ordered the State to meet the expenses of housing these
men in a blind home in Delhi.

In a number of cases, the Supreme Court has awarded damages to the

persons who have been detained illegally by the government, or for death in
police custody. In Bhim Singh v. State of Jammu and Kashmir99, the Supreme
Court awarded compensation to the petitioner for his illegal detention in police
custody which was held to constitute violation of his rights under Article 21 and
Article 22(2) of the Constitution. In Saheli v. Commissioner of Police100, the
State was held liable to pay compensation to the mother of the deceased who had
died because of police beating and assault. In State of Maharashtra v.
Ravikant S. Patil101, damages were awarded by High Court under Article 226
for violation of the Fundamental Right under Article 21 of an under-trial prisoner,
who was handcuffed and taken through the streets in a procession by the police
during investigation. The Supreme Court upheld the High Court decision.

In Nilabati Behera v. State of Orissa102, awarding damages in a case of

police custodial death, the Supreme Court has said of Article 32 that this
provision imposes an obligation on the Court “to forge such new tools which may
be necessary for doing complete justice and enforcing the Fundamental Rights
guaranteed in the Constitution. What happened in Nilabati was that the

97 AIR 1983 SC 1086 : (1983) 4 SCC 141.

98 AIR 1981 SC 928.
99 AIR 1986 SC 494.
100 AIR 1990 SC 513.
101 (1991) 2 SCC 373.
102 AIR 1993 SC 1960 : (1993) 2 SCC 746.
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petitioner’s son was taken into police custody in connection with the
investigation of an offence of theft, next day his dead body was found on the
railway track. The Court treated this as a case of custodial death as the body bore
many injury marks. The Court awarded compensation of Rs. 1,50,000/- to the
petitioner. The Court has explained the nature of the remedy that award of
compensation in a proceeding under Article 32 by the Supreme Court, or by the
High Court under Article 226 is a remedy available in public law, based on strict
liability sovereign immunity does not apply, even though it may be available as a
defence in private law in an action based on tort.103

The Supreme Court has taken a very positive stand against police
atrocities, intimidation, harassment and use of third degree methods to extort
confession. The Court has characterized all this as being against human dignity.
The expression ‘life’ in Article 21 means right to live with human dignity and
this includes a guarantee against torture and assault by the State. The Supreme
Court has ruled that it is a well recognized right under Article 21 that a person
detained lawfully by the police is entitled to be treated with dignity befitting a
human being and that illegal detention does not mean that he could be tortured or
beaten up. The State is under constitutional obligation protect the right to life of
the arrestees during police as well as judicial custody. Even if the State is acting
in exercise of sovereign power, it would be liable if Article 21 is violated as
Article 300(1) does not constitute an exception to Article 21.104

(xvi) Justice to Victim

With the concern for human rights of accused, the humanistic approach to
the rights of victims as well as proper sentencing is also essential for fair
Criminal Justice System. In Rattiram v. State of M.P.105 though in a different
context, Supreme Court has stated that: -

the criminal jurisprudence, with the passage of

time, has laid emphasis on victimology which
fundamentally is a perception of a trial from the
viewpoint of the criminal as well as the victim. Both

103 Id at 966.
104 Ramkonda Reddy v. State of Andhra Pradesh A.I.R. 1989 A.P. 235.
105 (2012) 4 SC 516.
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 are viewed in the social context. The view of the
victim is given due regard and respect in certain
countries.... it is the duty of the court to see that the
victim’s right is protected.

In State of Madhya Pradesh v. Najab Khan and others,106 the State

had preferred an appeal as the High Court, while maintaining the conviction
under Section 326 of Indian Penal Code read with Section 34 of Indian Penal
Code, had reduced the sentence to the period already undergone, i.e., 14 days. In
that context, the Court after referring to number of authorities and reiterating the
principles, stated that in operating the sentencing system, law should adopt the
corrective machinery or deterrence based on factual matrix. The facts and given
circumstances in each case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the crime, the conduct of
the accused, the nature of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration. It was further
observed that undue sympathy in imposing inadequate sentence would do more
harm to the justice dispensation system and undermine the public confidence in
the efficacy of law. It is the duty of every court to award proper sentence having
regard to the nature of the offence and the manner in which it was executed or
committed. The courts must not only keep in view the rights of the victim of the
crime but also the society at large while considering the imposition of appropriate
punishment. After so stating the sentence imposed by the High Court was set
aside and that of the trial Judge, whereby he had convicted the accused to suffer
rigorous imprisonment for three years, was restored.

In Guru Basavaraj v. State of Karnataka107, the Court, discussing

about the sentencing policy, had to say this: -

There can hardly be any cavil that there has to be a

proportion between the crime and the punishment. It
is the duty of the court to see that appropriate
sentence is imposed regard being had to the
commission of the crime and its impact on the

106 (2013) 9 SCC 509.

107 (2012) 8 SCC 734.
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 social order. The cry of the collective for justice
which includes adequate punishment cannot be
lightly ignored.

It is seemly to state here that though the question of sentence is a matter

of discretion, yet the said discretion cannot be used by a court of law in a fanciful
and whimsical manner. Very strong reasons on consideration of the relevant
factors have to form the fulcrum for lenient use of the said discretion. According
to Benjamin N. Cardozo:

The Judge even when he is free, is still not wholly

free. He is not to innovate at pleasure. He is not a
knight errant roaming at will in pursuit of his own
ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to
‘the primordial necessity of order in social life.

In Sumer Singh v. Surajbhan Singh and others,108the Supreme Court

has observed that it has come to the notice of this Court that in certain heinous
crimes or crimes committed in a brutal manner the High Courts in exercise of the
appellate jurisdiction have imposed extremely lenient sentences which shock the
conscience. It should not be so.

Moreover, the Supreme Court has issued guidelines for the conduct of
police officials in case of rape victims. In State of Karnataka by Nonavinakere
Police v. Shivanna @Tarkari Shivanna109, the Supreme Court while exercising
powers under Article 142 of the Constitution was pleased to issue interim
directions in the form of mandamus to all the police station in charge in the entire
country to follow the directions which are as follows:

108 2014 STPL (Web) 348 SC.

109 2014 STPL (Web) 334 SC
.
191
(i) Upon receipt of information relating to the commission of offence of rape,
the Investigating Officer shall make immediate steps to take the victim to
any Metropolitan/preferably Judicial Magistrate for the purpose of
recording her statement under Section 164 of Criminal Procedure Code. A
copy of the statement under Section 164 of Criminal Procedure Code
should be handed over to the Investigating Officer immediately with a
specific direction that the contents of such statement under Section 164 of
Criminal Procedure Code should not be disclosed to any person till charge
sheet/report under Section 173 of Criminal Procedure Code is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the
nearest Lady Metropolitan/preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at
which he learnt about the commission of the offence of rape and the date
and time at which he took the victim to the Metropolitan/preferably Lady
Judicial Magistrate as aforesaid.

(iv) If there is any delay exceeding 24 hours in taking the victim to the
Magistrate, the Investigating Officer should record the reasons for the
same in the case diary and hand over a copy of the same to the Magistrate.

(v) Medical Examination of the victim: Section 164 A of Criminal Procedure

Code inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the
part of Investigating Officer to get the victim of the rape immediately
medically examined. A copy of the report of such medical examination
should be immediately handed over to the Magistrate who records the
statement of the victim under Section 164 of Criminal Procedure Code.

A copy of this order was circulated to all the Director Generals of Police
of all the States/Commissioner of Police in Metropolitan cities / Commissioner of
Police of Union Territories who were then directed to send a copy of this order to
all the police stations in charge in their States/Union Territories for its
compliance in cases which are registered on or after the receipt of a copy of these
directions. Necessary instructions by the DGPs/ Commissioners of Police were

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issued to all the police station incharge by the DGPs/Commissioner of Police
incorporating the directions.

3. Relaxation of Procedural Requirements in Public Interest Litigation

for protection of rights of under trials/arrested persons.

The flexibility of PIL procedure can best be illustrated by what is termed

as ‘epistolary jurisdiction’. Taking a cue from the American Supreme Court, a
postcard from a prisoner was treated as a petition, the Supreme Court said that a
public-spirited person could move the Court even by writing a letter. The Court
has accepted letters and telegrams as petitions under the jurisdiction under Article
32 of the Constitution.

In India people are on the verge of an era of constitutional justice. India is

a poor country and poverty jurisprudence and social justice must receive high
priority. The most significant point to note in regard to Public Interest Litigation
is that it discards the traditional concept of locus standi which means that only the
person whose legal rights are being violated can approach the Court for redress.
A new dimension has been given to the doctrine of locus standi which has
revolutionized the whole concept of access to justice. The Court has enunciated
the need to relax the locus standi rule and Court has taken the view that, having
regard to the peculiar socio-economic conditions prevailing in the country where
there is considerable poverty, illiteracy and ignorance obstructing and impeding
accessibility to the judicial process, it would result in closing the doors of justice
to the poor and deprived sections of the community if the traditional rule of
standind that only a person wronged can sue for judicial redress were to be
blindly adhered to and followed and it is therefore necessary to evolve a new
strategy by relaxing the traditional rule of standing in order that justice may
become easily available to the lowly and the lost.

However, the credibility of the Public Interest Litigation (PIL) process is

now adversely affected by the criticism that the judiciary is overstepping the
boundaries of its jurisdiction and that it is unable to supervise the effective
implementation of its orders. It has also been increasingly felt that PIL is being
misused by people agitating for private grievances in the garb of public interest

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and seeking publicity rather than espousing public causes. Judges have
recognized that they have to act with circumspection. Unfortunately, of late, it
was increasingly felt that the method was being abused blatantly to file petitions
with oblique motives. The time has come when genuine and bona fide public
interest litigation must be encouraged, whereas frivolous public interest litigation
should be discouraged, the Supreme Court has laid down guidelines for High
Courts on PILs. The Supreme Court directed all High Courts to frame and notify
their rules in this regard and directed that huge cost will be imposed for filing
frivolous PILs.

4. Instances of Judicial Activism on Human Rights Issues

In the Zahira Habibulla Sheikh and Anr. v. State of Gujrat and

110
Others ,(well-known as the "Best Bakery case") between 8-30 p.m. of 1-3-
2002 and 11.00 am of 2-3-2002, the Best Bakery at Baroda was burnt down by an
unruly mob of a large number of people. Persons died in the incident. After
investigation, a charge sheet was filed in June 2002. During the trial, the
purported eyewitness resiled from the Statements made during the investigations.
The trial court acquitted all the accused persons by its judgement dt. 27-6-2003.
The petitioner Zahira appeared before the National Human Rights Commission
staling that she was threatened by powerful politicians not to depose against the
accused persons. The State of Gujarat filed an appeal against the judgment of
acquittal on dated 7-8-2003. The Gujarat High Court upheld the judgment of
acquittal of the concerned respondents accused. Thereafter, the National Human
Rights Commission moved the Supreme Court and its special leave petition was
treated as a writ petition under Article 32. Zahira and another organization,
Citizen for justice and Peace, filed an SLP challenging the judgment of the
Gujarat High Court. In this case, it was held that if the acquittal is unmerited and
based on tainted evidence, tailored investigation, unprincipled prosecution are
perfunctory trial and evidence of threatened / terrorised witnesses, it is not
acquittal in the eyes of law. The acquittal is nothing but a travesty of truth and a
fraud on the legal process. Keeping in view the peculiar circumstances of the

110 2004 (3) R.C.R. (Criminal) 347.

194
case, and the ample evidence on record, glaringly demonstrating a subversion of
the justice-delivery system with an unconventional and not conducive atmosphere
still prevailing in the State of Gujarat, retrial was directed by a court under the
jurisdiction of the Bombay High Court. The Court observed : "The Principles of
the rule of law and due process are closely linked with human rights protection.
Such rights can be protected effectively when a citizen has recourse to the courts
of law. Failure to accord a fair hearing either to the accused or the prosecution
violates even the minimum standards of due process of law. Since a fair hearing
requires an opportunity to preserve the process, it may be vitiated and violated
by an overhasty, State-managed, tailored and partisan trial."

In Anita Bhandavi v. Union of India,111 in the present case the facts are
that there was hot exchange of words took between accused and deceased and
when deceased was going inside the bank through gate at that time accused
followed him with the gun. He heard a loud sound. Therefore, he went inside and
saw deceased lying on the floor profusely bleeding from his right shoulder and
accused was standing with his gun. He lodged his First Information Report (FIR)
before the police about the incident which took place due to parking of scooter.
The trial before the competent criminal Court had not at all started. In a criminal
trial accused has right not to speak and defend his case and plead that he was
absolutely innocent and not guilty. It is well settled principle of law that one
cannot be condemned unheard. Therefore, without impleading accused-watchman
as one of the party respondent, no relief could have been granted in favour of the
petitioner by the learned single Judge of the High Court. Having carefully gone
through the judgment and order passed by the learned single Judge, it appears
that the learned single Judge has proceeded with the matter as it he was trying the
case. He has appreciated the evidence in form of F.I.R. lodged by auto-
rickshawwala before the police, which is highly improper. It is unfortunate that
the learned single Judge proceeded on the basis as if the wrong committed by
accused Nagjibhai is proved and that too without hearing accused which is in
clear violation of principle of natural justice. It was held that it was too early for

111 2004 (1) Guj. L.R. 12.

195
any one to jump to such conclusion. The learned single Judge has also observed
in Para. 9 of his judgment that It is thus clear that even when the wrong of the
employee is doing the act in question under circumstances in which it ought not
to have been done is also a wrong for which the master is responsible. The Bank
has to be held answerable for the wrong of the security guard in doing the
unlawful act under circumstances in which it ought not to have been done. It is
too early to come to such conclusion. The appeal filed by the bank was required
to be allowed and appeal filed by the original petitioners was required to be
dismissed. Looking to the pathetic condition of poor widow and her minor
children learned counsel Mr. Desai for the appellant-bank has also not seriously
challenged the interim compensation awarded by the learned single Judge. The
amount, which is awarded by the learned single Judge to original petitioners,
shall not be recoverable from them irrespective of the result of the suit filed by
them before the Civil Court.

In N.C. Dhoundial v. Union of India,112, Illegal detention by police is

violation of human rights. The Human Rights Commission as a 'unique expert
body' is, no doubt, entrusted with a very important function of protecting the
human rights, but, it is needless to point out that the Commission has no
unlimited jurisdiction nor does it exercise plenary powers in derogation of the
statutory limitations. The Commission, which is the creature of statute, is bound
by its provisions. Its duties and functions are defined and circumscribed by the
Act. Of course, as any other statutory functionary, it undoubtedly has incidental
or ancillary powers to effectively exercise its jurisdiction in respect of the powers
confided to it but the Commission should necessarily act within the parameters
prescribed by the Act creating it and the confines of jurisdiction vested in it by
the Act. The Commission is one of the fora which can redress the grievances
arising out of the violations of human rights. Even if it is not in position to take
up the enquiry and to afford redressal on account of certain statutory fetters or
handicaps, the aggrieved persons are not without other remedies. In fact, Section
36(2) of the Protection of Human Rights Act, 1993 does not mince the words
and the language used in clear and categorical. The marginal note to the section is

112 2004 (1) S.C.C. (Cr.) 587.

196
bring referred to only to consider whether the bar created by Section 36(2) has a
bearing on the power or jurisdiction of the Commission. The bar under Section
36(2) is sought to be got over by the Commission by invoking the theory of
continuing wrong and the recurring cause of action. According to the
Commission, every violation of human right is a continuing wrong until and
unless due reparation is made. It is difficult to accept this proposition propounded
by the Commission. The short answer to this view point is that such a view, if
accepted, makes Section 36(2), practically a dead letter. Moreover, going by the
language employed in Section 36(2), it cannot be said that the concept of
continuing wrong could at all be pressed into service in the instant case. The time
limit prescribed is referable to the alleged 'act' constituting the violation of human
rights. In a case like illegal detention, the offensive act must be deemed to have
been committed when a person is placed under detention and it continues so long
as the affected person remains under illegal detention. The commission of
offensive act is complete at a particular point of time and it does not continue to
be so even after the unauthorized detention ends. It is not in dispute that the
complainant was produced before the Special Judge on 3rd April, 1994 and
remand was obtained in accordance with the procedure prescribed in law. The
alleged act of unauthorised detention which gives rise to violation of human
rights ceased on 3rd April, 1994 and it does not perpetuate thereafter. It is not the
effect of illegal detention which is contemplated by Section 36(2) but it is the
illegal act itself. It would be a contradiction in terms to say that the arrest or
detention beyond 3rd April, 1994 was in accordance with law and at the same
time the arrest / detention continued to be wrongful. It cannot, therefore, be
brought under the category of continuing wrong which is analogous to the
expression 'continuing offence' in the field of criminal law. It cannot be said that
the alleged wrongful act of detention repeats itself everyday even after the
complainant was produced before the Magistrate and remand was obtained in
accordance with law. Beyond 3rd April, 1994, there was no breach of obligation
imposed by law either by means of positive or passive conduct of the alleged
wrongdoers. To characterize it as a continuing wrong is, therefore, inappropriate.
One year period for taking up the enquiry into the complaint, therefore, comes to

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an end by 3rd April 1995. Just as in the case of Section 473 of the Code of
Criminal Procedure there is no provision in the Act to extend the period of
limitation of one year. However, in the procedural regulations framed by the
Commission certain amount of discretion is reserved to the Commission.
Regulation 8(l)(a) inter alia lays down that 'ordinarily' a complaint in regard to
events which happened more than one year before the making of the complaint is
not entertainable. Irrespective of the validity of the prefacing expression
'ordinarily' one must examine the issue from the point of view of the regulation
itself. The regulation Implies that if extraordinary circumstances exist, the
complaint can be enquired into even after the expiry of one year. Are there any
extraordinary circumstances made out in this case? There is none in the
impugned order of the Commission. The petition filed by the complainant was
received by the Commission a day after the charge sheet was filed though it bears
as earlier date. For nearly 4-1/2 years the complainant kept quiet. The explanation
given in the complaint for this long silence was that he was under the impression
that by reporting the matter to National Human Rights Commission he might be
antagonizing the Central Bureau of investigation official, but after realizing that
they were not acting fairly and objectively and they continued to harass him. He
thought of filing the petition before National Human Rights Commission. The
Commission, on its part, did not advert to this explanation which is radically no
explanation at all, nor did it advert to any extraordinary circumstances justifying
interference after a long lapse of time prescribed by Section 36(2). The
Commission thus tried to clutch at the jurisdiction by invoking the theory of
continuing wrong which cannot be invoked at all. In this view of the matters the
direction given by the Commission to the Director of Central Bureau of
Investigation, which has an undoubted effect on the service career of the writ
petitioner, is violative of Article 14 of the Constitution.

In People's Union of Civil Liberties v. Union of India,113 petitioners

assailed Sections 20, 21 and 22 of the Prevention of Terrorism Act (POTA)
mainly on the ground that no requirement of mens rea for offences is provided in
these sections and the same is liable to misuse, therefore, it has to be declared

113 2004 (1) C.T.C. 241 (S.C.)

198
unconstitutional. The learned Attorney General argued that Section 21 and its
various sub-sections are penal provisions and should be strictly construed both in
their interpretation and application; that on a true interpretation of the Act having
regard to the well settled principles of interpretation Section 21 would not cover
any expression or activity which does not have the element or consequence of
furthering or encouraging terrorist activity or facilitating its commission; that
support per se or mere expression of sympathy or arrangement of a meeting
which is not intended or designed and which does not have the effect to further
the activities of any terrorist organisation or the commission of terrorist acts are
not within the mischief of Section 21 and hence, is valid. Here the only point to
be considered is whether these sections exclude mens rea element for constituting
offences or not. At the outset, it has to be noted that Sections. 20, 21 and 22 of
the Prevention of Terrorism Act (POTA) is similar to that of Sections 11, 12 and
15 of the Terrorism Act, 2000 of United Kingdom. Such provisions are found to
be quite necessary all over the world in anti-terrorism efforts. Sections 20, 21 and
22 are penal in nature that demand strict construction. These provisions are a
departure from the ordinary law since the said law was found to be inadequate
and not sufficiently effective to deal with the threat of terrorism. Moreover, the
crime referred to under POTA is aggravated in nature. Hence, special provisions,
are contemplated to combat the new threat of terrorism. Support, either verbal or
monetary, with a view to nurture terrorism and terrorist activities is causing new
challenges. Therefore, Parliament finds that such support to terrorist organization
or terrorist activities need to be made punishable. Viewing the legislation in its
totality it cannot be said that these provisions are obnoxious. But the petitioners
apprehension regarding the absence of mens rea in these sections and the
possibility of consequent misuse needs elucidation. It is the cardinal principle of
criminal jurisprudence that mens rea element is necessary to constitute a crime. It
is the general rule that a penal statute presupposes mens rea element. It will be
excluded only if the legislature expressly postulate otherwise. Mens rea by
necessary implication could be excluded from a statute only where it is absolutely
clear that the implementation of the object of the statute would otherwise be
defeated. The prominent method of understanding the legislative intention, in a

199
matter of this nature, is to see whether the substantive provisions of the Act
requires mens rea element as a constituent ingredient for an offence. Offence
under Section 3(1) of the Prevention of Terrorism Act (POTA) will be
constituted only if it is done with an 'intent'. If Parliament stipulates that the
'terrorist act itself has to be committed with the criminal intention, can it be said
that a person who profess' (as under Section 20) or 'invites support' or arranges,
manages, or assist in arranging or managing a meeting or addresses a meeting (as
under Section 21) has committed the offence if he does not have any intention or
design to further the activities of any terrorist organization or the commission of
terrorist acts? It is clear that it is not. Therefore, it is obvious that the offence
under Sections. 20 or 21 or 22 needs positive inference that a person has acted
with intent of furthering or encouraging terrorist activity or facilitating its
commission. In other words, these sections are limited only to those activities that
have the intern of encouraging or furthering or promoting or facilitating the
commission of terrorist activities. If these sections are understood in this way,
there cannot be any misuse. With this clarification the constitutional validity of
Sections 20, 21 and 22 was upheld. However, the Prevention of Terrorism Act
(POTA) was repealed by the Prevention of terrorism Act (Repeal) Act, 2004.

In Kamlakar Narayan v. State of Maharashtra,114 Power of Special

Court to extend period of detention. Considering the provisions of law contained
in Section 49 of the Prevention of Terrorism Act, 2002 and various decisions
cited it is apparent that the investigation has to be primarily completed within the
first 90 days period from the date of arrest of the accused under the Prevention of
Terrorism Act (POTA) in case the investigating agency is not able to complete
such investigation within the period of 90 days and if it needs for continuation of
the detention of the accused in custody beyond the said period of ninety days, it is
necessary for the investigating agency to submit a report in that regard through
the Public Prosecutor to the Special Court. Such a report necessarily should
disclose the progress of the investigation and the specific reasons for detention of
the accused beyond the period of ninety days. Apparently it should indicate the
satisfaction of the Public Prosecutor in that regard and thereupon the Special

114 AIR 2004 SC 503.

200
Court can extend the period of ninety days to further ninety days i.e. in total for a
period of one hundred and eighty days. The provisions of Section 49 which deals
with the power of the Special Court to extend the period from ninety days to one
hundred and eighty days does not on the face of it discloses any provision for
opportunity of being heard to be given to the accused before any such order of
extension of period is passed by the Court. However, time and again the Apex
Court as well as the Bombay Court has held that while exercising the powers
relating to curtailment of the personal liberty, the provisions contained in Article
20 of the Constitution are never to be forgotten and any deprivation of personal
liberty has to be in accordance with the provisions of law and in conformity with
the mandate of Article 21 of the Constitution and without ignoring the basic
principles of natural justice. Therefore, the provision for opportunity of being
heard has to be read in the proviso to Section 49 when the Special Court chooses
to curtail the liberty of the accused for further period of ninety days on expiry of
the initial period of ninety days. In fact, the Apex Court while dealing with the
provisions of the Terrorist and Disruptive Activities Act (TADA) in relation to
extension of the period has clearly observed that though specific provision for
opportunity of being heard is not incorporated in the relevant section,
nevertheless it was necessary for the Court to issue notice to the accused before
extension of period. The law settled by the Apex Court in the matter of similar
provisions under TADA, will apply to the provisions in the Prevention of
Terrorism Act (POTA) in spite of the fact that there is no specific provision for
hearing to be given to the accused before extending the period. Hence, it is to be
held that while exercising the power to extend the period pursuant to the report of
the public prosecutor, the Special Court will have to issue notice to the accused
before passing any such order of extension of period. The maximum period
prescribed under the Prevention of Terrorism Act (POTA) for detention of the
accused for the purposes of investigations is ninety days. That is clear from
Section 49(2)(a) of the Prevention of Terrorism Act (POTA). Undoubtedly, the
said period can be extended for further period of ninety days. However, the
extension does not depend upon happening of any event as such nor it is a
deeming provision. The extension of the period has to be by a judicial order in

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that regard in view of the proviso added to Section 167 of the Code of Criminal
Procedure. In that of Section 49(2)(b) of the Prevention of Terrorism Act (POTA)
clearly requires satisfaction of the Special Court pursuant to the report by the
public prosecutor in terms of said provisions of law in order to enable the Special
Court to extend the period. In that regard the order of extension of period beyond
the period of initial ninety days, is different from the order of remand of the
accused to custody beyond such initial period of ninety days. Undoubtedly, the
grounds for extension of period, as well as for remand of the accused may be the
same, and both the orders can even be simultaneously passed. They can be even
passed together. However, the order of remand beyond the period of ninety days
cannot precede the decision of the Special Court to extend the period beyond
ninety days. The reason for the same is that the Court can remand the accused to
custody beyond such period of ninety days only after expiry of the said period as
provided under proviso to Section 167(2) of the Code of Criminal Procedure. In
view of the provisions of law contained in Section 49 of POTA, unless the period
of ninety days is extended for further period of ninety days, the Special Court is
not empowered to remand the accused to custody even though the investigation is
incomplete. Considering the facts and circumstances of the case, therefore, the
appellants are justified in contending that they had acquired indefeasible right for
being released on bail on expiry of the period of ninety days and that has been
illegally refused to them by rejecting their bail applications, by the Court below.
It was held that if the accused applies for bail after the expiry of period, he has to
be released on bail forthwith and the accused so released on bail may be arrested
and committed to the custody according to the provisions of the Code of Criminal
Procedure. However, before such orders is being passed, if the charge-sheet is
submitted by the Investigating Agency, such a right can be interfered with by
following the procedure applicable in cases of cancellation of bail and not in any
other manner, in other words, once the investigating agency commits default of
not completing the investigation and filing the charge-sheet within the period of
ninety days, and also fails to obtain appropriate order for extension of such
period, the accused gets indefeasible right to be released on bail and such a right
cannot be denied to the accused under any circumstances. However, in a case

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where before such right is exercised by the accused or even the proceedings to
exercise such right are initiated but an order of the Court is not passed, and
meanwhile the charge-sheet is filed, the accused in such case is required to be
produced before the concerned Court and the concerned Court can deal with the
matter by following the procedure applicable in cases of cancellation of bail and
under no circumstances merely because the charge-sheet is filed, the bail can be
refused. The Apex Court in that regard has clearly ruled that "the order can be
cancelled, when a case for cancellation is made out under Sections 437 (5) and
439 (2) of the Code. But for that, the sole ground should not be that after the-
release of such accused the charge-sheet has been submitted". In other words, at
this stage it is necessary for the respondent to produce the appellants before the
Special Court forthwith and to furnish the copies of the charge-sheet and in case
their detention is necessary, to make out a case for cancellation of the bail which
is deemed to have been granted to the appellants on account of default on the part
of the Investigating Agency to complete the investigation and to file the charge-
sheet within the period of ninety days as well as failure on their part to obtain the
extension of the said period.

In State of Gujarat v. Salimbhai Abdul Gaffar Shaikh,115 Refusal of

bail by Special Court Accused can obtain bail from the High Court Sub-section
(4) of Section 34 of the Prevention of Terrorism Act provides for an appeal to the
High Court, against an order of the Special Court granting or refusing bail.
Though the word "appeal" is used both in Code of Criminal Procedure and Code
of Civil Procedure and in many other Statutes but it has not been defined
anywhere. Over a period of time, it has acquired a definite connotation and
meaning which is as under:

A proceeding undertaken to have a decision

reconsidered by bringing it to a higher authority,
specially the submission of a lower Court's decision
to higher Court for review and possible reversal. An
appeal strictly so called is one in which the question
is, whether the order of the Court from which the
appeal is brought was right on the material which
the Court had before it. An appeal is removal of

115 2004 (1) U.J. S.C. 159 at pp. 163-65.

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 cause from an inferior to one of superior jurisdiction
for the purposes of obtaining a review or retrial. An
appeal generally speaking is a rehearing by a
superior Court on both law and fact.

Broadly speaking, therefore, an appeal is a proceeding taken to receive an

enormous decision of a Court by submitting the question to a higher Court, and in
view of express language used in sub-section (1) of Section 34 of POTA the
appeal would lie both on facts and on law. Therefore/even an order granting bail
can be examined on merits by the High Court without any kind of fetters on its
powers and it can come to an independent conclusion whether the accused
deserves to be released on bail on the merits of the case. The considerations
which are generally relevant in the matter of cancellation of bail under sub-
section (2) of Section 439 of the Code of Criminal Procedure will not come in the
way of the High Court in setting aside an order of the Special Court granting bail.
It is, therefore, evident that the provisions of the Prevention of Terrorism Act
(POTA) are in clear contradiction with that of Code of Criminal Procedure where
no appeal is provided against an order granting bail. The appeal can lie only
against an order of the Special Court and unless there is an order of the Special
Court refusing bail, the accused will have no right to file an appeal before the
High Court providing for grant of bail to them. Existence of an order of the
Special Court is, therefore, sine qua-non for approaching the High Court. Section
49 cannot be read in isolation, but must be read keeping in mind the scope of
Section 34 where under an accused can obtain bail from the High Court by
preferring an appeal against the order of Special Court refusing bail. In view of
this specific provision, it will not be proper to interpret Section 49 in the manner
suggested by learned counsel for the respondents. In the present case, the
respondents did not chose to apply for bail before the Special Court for offences
under the Prevention of Terrorism Act (POTA) and consequently there was no
order of refusal of bail for offences under the said Act. The learned single Judge
exercising powers under Section 439 read with Section 482 of the Code of
Criminal Procedure granted them bail. The order of the High Court is clearly
without Jurisdiction as under the scheme of the Act the accused can only file an
appeal against an order of bail passed by the Special Court before a division
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Bench of the High Court and, therefore, the order under challenge cannot be
sustained and has to be set aside. The High Court has also invoked powers under
Sec. 482 of the Code of Criminal Procedure while granting bail to the
respondents. Section 482 of the Code of Criminal Procedure saves the inherent
power of the High Court. The High Court possesses the inherent powers to be
exercised ex debito justitiae to do the real and substantial justice for the
administration of which alone Court exist. The power has to be exercised to
prevent abuse of the process of the Court or to otherwise secure the ends of
justice. But this power cannot be resorted to if there is a specific provision in the
Code for the redress of the grievance of the aggrieved party. In Cherukurimani
w/o Narende Chowdari v. Chief Seceratary, Government of Andhra
Pradesh,116
The appellant, who is the wife of one Cherukuri Narendra Chowdari -
detenu, filed a writ petition under Article 226 of the Constitution before the High
Court of Andhra Pradesh alleging that her husband has been unauthorisedly
detained and the detention order passed was illegal and sought his release. The
writ petition was dismissed by the High Court by the impugned order dated 28th
October, 2013 stating that until and unless the competent Court of law decides
the order of detention as illegal and invalid, it cannot be said that it is
unauthorized detention. Aggrieved by the said order, the appellant has filed this,
appeal by special leave. When the appellant challenged the detention of her
husband before the High Court in a habeas corpus Writ Petition, the High Court
dismissed the same with a cryptic order. In our considered view, when habeas
corpus writ petition is filed, even though the petitioner has not properly framed
the petition and not sought appropriate relief, it is expected from the Court to at
least go into the issue and decide on merits. Normally, in such matters where
liberty of a person is at stake, the Courts would take a liberal approach in the
procedural aspects. But unfortunately in the instant case, the High Court has
dismissed the writ petition at the threshold itself. Normally, a person who is
detained under the provisions of the Act is without facing trial which in other
words amounts to curtailment of his liberties and denial of civil rights. In such

116 2014 STPL (Web) 370 SC.

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cases, whether continuous detention of such person is necessary or not, is to be
assessed and reviewed from time to time. Taking into consideration these factors,
the Legislature has specifically provided the mechanism “Advisory Board” to
review the detention of a person. Passing a detention order for a period of twelve
months at a stretch, without proper review, is deterrent to the rights of the detenu.
Hence, the impugned Government Order directing detention for the maximum
period of twelve months straightaway cannot be sustained in law. The Supreme
Court quashed the order of detention allowing the appeal.

Thus, it can be said that the judiciary acts as a bastion of the freedom and
of the rights of the people. The Judges are participants in the living stream of
national life, steering the law between the dangers of rigidity and formlessness in
the seemless web of life. Judge must be a jurist endowing with the legislator's
wisdom, historian's search for truth, prophet's vision, capacity to respond to the
needs of the present, resilience to cope with the demands of the future to decide
objectively, disengaging himself/herself from every personal influence or
predilections. The Judges should adopt purposive interpretation of the dynamic
concepts under the Constitution and the statutes with its interpretive armoury to
articulate the felt necessities of the time. Social legislation is not a document for
fastidious dialects but means of ordering of the life of the people. To construe law
one must enter into its spirit, its setting and history. Law should be capable to
expand freedom of the people and the legal order can weigh with utmost equal
care to provide the underpinning of the highly inequitable social order. Judicial
review must be exercised with insight into social values to supplement the
changing social needs. The existing social inequalities or imbalances are required
to be removed readjusting the social order through rule of law.117

Judicial activism is not an increased judicial activity, enthusiasm or a

keen sense of the value and importance of justice in action, but judicial self-
awareness, responsibility and concern in the light of socio-economic existence
and distribution of power in society. The Indian Constitution has permanently
recognised two interests in Indian Socio-political life, one is that of individual

117 K. Ramaswamy J., In Valsamma Paul v. Cochin University, A.I.R. 1996 SC. 1011 at
p. 1018 para 16.
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and another is that of society. The framers of the Constitution have envisaged the
course of journey by first articulating fundamental rights of the individual but all
the same have made provisions for progressive realisation of the economic and
social values of life through insertion of Directive Principles of State Policy.118

The judicial activism is nothing but participation in this constitutional

progress which is in a different way a fulfillment of the functions of welfare State
and enforcement of the resolve of our Government to make people happy and
prosperous. Judicial activism then is Judge's self-identification and publicizing
the popular social zeal for the cause of down-trodden or the 'Daridra Narayan' of
our Nation.119

In consonance with the spirit of this new judicial perception, the apex
court is no longer content with its role of a mere sentinel on the qui vive of the
fundamental rights. By the same token, the Court is no longer satisfied with its
traditional adjudicatory role with all its constraints. It claims to assume and play a
more activist and creative role in order to ensure efficacy and effectiveness of
some of the most basic fundamental rights most of which are meaningless paper
tigers to the vast majority of the Indian people. It is heartening to note that the
Supreme Court has not only widened the meaning and content of the fundamental
rights by its liberal and activist judicial interpretation but also expanded their
reach and ambit by innovating new judicial strategies for their effective
enforcement.120

5. Conclusion

Constitution of India reflects the quest and aspiration of the mankind for
justice when its preamble speaks of justice in all its forms: social, economic and
political. Those who have suffered physically, mentally or economically,
approach the courts, with great hope, for redressal of their grievances. Justice
delivery system is under an obligation to deliver prompt and inexpensive justice
to its consumers, without in any manner compromising on the quality of justice
or the elements of fairness, equality and impartiality. The success of the Indian

118 Arun Shourie, Religion in Politics, (1996).

119 Vaizu Naravane, Towards Judicial Bonanza, (1996) 125.
120 Anirudh Desphande, Liberal Values and Humanism, (1995)
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Judiciary on the Constitutional front is unparalleled. Its contribution in enlarging
and enforcing human rights is widely appreciated. The contribution of the
Supreme Court, thus, in projecting, proliferating and popularizing the human
rights jurisprudence, is outstanding and yeomen. The human rights jurisprudence
covers enforcement of fundamental rights and fundamental freedoms guaranteed
by Articles 19 to 30 of the Constitution and which has, as such, provided
substantial and useful material for a better vision for the 21st Century in relation
to human rights, and particularly, human rights of workers, prisoners and weaker
segment. It is broadly appreciated that the enormous work done by Supreme
Court of India in developing the concept of rule of law and due process of law
enshrined in Article 21 of our Constitution and enlarging its scope to the extent of
encompassing the right to live in a healthy environment. Human rights are
sometimes called fundamental rights or basic rights or natural rights. As
fundamental or basic rights they are the rights which cannot, rather must not, be
taken away by any legislative or any act of the government and which are often
set out in a Constitution. As natural rights they are seen as belonging to men and
women by their vary nature. They may also be described as “common rights” for
they are rights which all men and women in the world would share, just as the
common law in England, for example, was the body of rules land customs which,
unlike local customs, governed the whole country.” Since human rights are not
created by any legislation, they resemble very much with natural rights. The legal
duty to protect human rights includes the legal duty to respect them. In a free
society like ours, law is quite jealous of the personal liberty of every individual
and does not tolerate the detention of any person without legal sanction. The right
of personal liberty is a basic human right recognized by the General Assembly of
the United Nations in its Universal Declaration of Human Rights. The delivery of
justice is an imperative component of governance, as it not only has legal
implications, but also affects the quality of life of the affected. So it is in the
interest of the citizens, as well as the State that the disputes which go to the law
courts for adjudication should be decided within a reasonable period of time, so
as to give certainty and definiteness to rights and obligations. If the course of the
trial is inordinately long, the chances of miscarriage of justice and the expenses

208
of litigation increase alike. Relief granted to an aggrieved party after a lapse of
years loses much of its value and sometimes becomes totally infructuous. Such is
the basis of the ubiquity of the comment, “Justice delayed is justice denied” and
thus is significant component of life with dignity. An independent, impartial,
speedy and efficient judiciary is the very essence of civilization.

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