SUMMARY

Human rights are the claims which every individual has, or should have,
upon the society in which she or he lives. To call them human rights suggests that
they are due of every human being in every society. They do not differ with
geography or history, culture or ideology, political or economic system or stage of
development. They do not depend on gender, or race, class or ‘status.’ To call
them ‘rights’ implies that they are claims as of right’ not merely appeals to grace
or charity or brotherhood or love, they need not be earned or deserved. They are
more than aspirations or assertions of ‘the good’ but claims of entitlement and
corresponding obligation in some political order under a moral law. When used
carefully ‘human rights’ are not some abstract inchoate ‘good’. The rights are
particular, defined, reflecting respect for individual autonomy as well as a
common sense of justice and injustice. Principles of human rights are based on
justice, peace and prosperity. Recognition of inherent dignity, equality and
inalienable rights of all members of human family is the foundation of freedom,
justice and peace in the society. Justice can lead to peace and peace turn into the
prosperity, if these principles are violated by anyone, it will result in injustice to
the humanity. The Universal Declaration of Human Rights, 1948, Article 5 states
that " No one shall be subjected to torture or to cruel or degrading treatment or
punishment. Article 7 of International Covenant on civil and Political Rights,
1967 lays down: " No one shall be subjected to torture or to cruel, in human or
degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation.”

Special emphasis was placed on the definition of torture as well as "cruel

or degrading treatment or punishment” in Article 1 and 16 of the Convention
Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment,
1984.1 Each state shall undertake to prevent in any territory under its jurisdiction.
The cruel, inhuman and degrading treatment. Despite the evolution of a plethora
of international covenants, conventions, guidelines, principles Torture is practiced
by law enforcement agencies in India as a crude shortcut for crime investigation.
Investigating agencies justify the use of torture arguing that they often lack

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advanced training and equipments for crime investigation. The concept of
modern policing is still a mirage in India, where the police is expected to function
as a tool for social control than to serve the citizens. It can be argued that a large
number of law enforcement officers in the country believe that the deterrence
quotient against a crime is the possibility of being tortured, rather than the crime
being detected, prosecuted and punished in the legal process. Extensive delays in
court proceedings and the repeatedly demonstrated professional and intellectual
paucity of the country's prosecutors appear to offer a layperson's excuse for the
widespread belief among law enforcement officers that the only punishment a
criminal might get in India is the torture at the hands of the investigator. This has
led into a situation where torture is widely practiced, particularly in the police
stations, throughout the country. Police officers and other law enforcement
officers generally consider torture as an essential investigative tool for
investigation. Policy makers and bureaucrats believe that there is nothing wrong
in punishing a criminal in custody, not realising the fact that a person under
investigation is only an accused, not a convict and further, that even a convict
must not be tortured. This is due to the lack of awareness about the crime, its
nature and seriousness. Even an accuses as well as convict person has some
valuable human rights which has sanctity in the every criminal justice system.
According to the National Human Rights Commission (NHRC) Annual Report
2009-2010, the Commission received a wide range of complaints relating to
human rights violations from various parts of the country. The complaints
included cases alleging custodial deaths, torture, police high-handedness,
violations committed by security forces, prison conditions, atrocities on women
and children and other vulnerable sections, bonded labour, negligence of public
authorities, etc. The NHRC received 1,473 cases of death in judicial custody, 124
cases of death in police custody and 2 cases of death in para-military/defence
forces custody during the period under review. It disposed off 1,984 cases of
custodial death comprising 1,835 cases of death in judicial custody, 145 cases of
death in police custody etc., and despite the Constitutional guarantee, it is the
experience that human rights violations continue to be abound. Unfortunately
India, the world's most popular democracy continues to have significant human
rights problem some of the most prevalent abuses. The country inspite of having

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a thriving civil society, free media, and an independent judiciary, has
longstanding abusive practices, corruption , and lack of accountability for
perpetrators foster human rights violations. Some of the human rights are co-
related to the criminal justice process of countries. Various international
conventions have been enacted and adopted by various countries for securing and
protecting human rights involved in their criminal justice procedure including
India. Indian Criminal Justice System is in tatters, justice delayed is justice
denied, but that is just one of the ways in which system deny justice to concerned.
Faulty investigation leading to poor conviction rate, framing innocent people to
get the heat off high profile crimes, goofed up trials, witness turning hostile, it
happens in Indian criminal system. The Criminal Justice Administration in India
has deficiencies, both substantive and procedural. The National Human Right
Commission is deeply concerned over the phenomena of docket clogging,
inefficient unscientific police investigation, the inmate vulnerability of
prosecutorial functions performed by prosecutors not adequately trained and
certain other systemic and logistic inadequacies that characterize the present
scenario. Some amongst the more serious manifestations of these deficiencies are
reflected in unnecessary arrests, illegal detentions, misuse of powers by police,
custodial torture, custodial death, delayed justice, delayed executions, harassment
of victims especially women victims of sexual offences, a distorted proportion
between the numbers of convicted persons and under trial prisoners in the break-
up of the prisoner population etc. The Protection of human rights in criminal
justice system has been secured by way of judicial activism by the Supreme
Court and High Courts. Because of the limited capacity of Parliament to manage
the requirements of society for legislation for all human rights, a judge may feel
inclined to the view that the area is one where judicial law-making would be
appropriate.

An historical enquiry may help us to understand its growth and

development in different phases of human history. Hence, this chapter is devoted
to study the growth and development of human rights in different phases of
human history; Indian perspective on human rights; Evolution of fundamental
rights and the genesis of the Protection of Human Rights Act, 1993. These have
been discussed in this chapter to find the "merits" of human rights; their
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prevalence, relevance and recognition as well as their effectiveness. Speaking in
the immediate context of the history of human rights, we see that as a domain of
intellectual activity and developing consciousness human rights belong roughly
to the efforts of sixteenth and seventeenth century to deal with the challenges of
changing times. This focussed temperament of human rights is not to deny the
fact the some sort of human right perspectives had always existed in pre-
industrial societies. Therefore, we can observe that aspects of human values,
respect, right, duties etc existed in ancient codes such as the Code of Hammurabi,
the Cyrus Cylinder, and in the reforms of Asoka. We can also see the long debates
about natural rights by Hugo Grotius and John Locke, and then intellectual inputs
by Jean-Jacques Rousseau in the form of his famous terminology - 'rights of man'
in The Social Contract (1762), and then in the American Declaration of
Independence (1776) and the French Declaration of the Rights of Man and
Citizen (1789), and then finally the United Nations' Universal Declaration of
Human Rights (1948), proclaiming that all human beings are free and equal.

The idea for the protection for human rights and fundamental freedoms,
was conceived in the Atlantic Charter and the Declaration of the United Nations.
When the founders of the United Nations met at San Francisco Conference in
1945 to draft the Charter of the United Nations, Latin American States, in
particular, wanted the Conference to discuss an international bill of human rights.
Panama wanted it to be incorporated as part of the Charter. But a specific list of
rights could not be prepared due to lack of sufficient time and also because Super
Powers were not interested in precise legal obligations and international action on
human rights. However, it was realised by the members that it should be an
obligation of the international community to promote human rights. The result
was that the Charter contained a number of provisions which are of general
nature and vague for the promotion and protection of human rights and
fundamental freedoms. After the United Nations Charter came into force, the
most important task before the United Nations was the implementation of the
principles of the universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion as laid down under Article 55 of the U.N. Charter. In 1946, the Economic
and Social Council formally endorsed the view that the purpose of the United
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Nations with regard to the promotion and observation of human rights could be
fulfilled only if provision was made for an International Bill of Rights and for its
implementation. It was therefore decided to prepare an International Bill of
Rights to achieve the end. The Universal Declaration of Human Rights was
adopted in 1948 and two International Covenants were adopted in 1966 codifying
the two sets of rights outlined in the Universal Declaration. International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights entered into force in 1976. Later, the
General Assembly also adopted two Optional Protocols to the International
Covenant on Civil and Political Rights; one in 1966 which came into force on
March 23, 1976, and another, on the Abolition of Death Penalty in 1989 which
came into force on July 11, 1991. The two International Covenants, together with
the Universal Declaration and the Optional Protocols, comprise the International
Bill of Human Rights. Thus, International Bill of Human Rights is a collective
term applied to five major international instruments. These documents have laid
the foundations from which other treaties and declarations have been adopted.
Fundamental rights and freedoms contained in the International Bill of Human
Rights have been further elaborated in over sixty human rights treaties
concerning slavery, genocide, humanitarian law, the administration of justice,
social development, religious tolerance, cultural co-operation, discrimination,
violence against women, and the status of refugees and minorities.

The Covenant on Civil and Political Rights consists of 53 Articles and is

divided into six parts. While in Parts I, II and III various rights and freedoms are
enumerated, the other three parts are devoted with implementation procedures for
effective realisation of these rights along with the final clauses. Article 1 which
refers to the right of peoples to self-determination states that all peoples have the
right freely to determine their political status and freely pursue their economic,
social and cultural development and may, for their own ends, freely dispose of
their natural wealth and resource without prejudice to any obligations arising out
of international economic co-operation, based upon the principles of mutual
benefit and international law. Part III of this covenant deals with the specific
rights of the individuals and the obligations of the States Parties. Following
substantive rights have been provided under this part:
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1. The right to life (Article 6).
2. Freedom from inhuman or degrading treatment (Article 7).
3. Freedom from slavery, servitude and forced labour (Article 8).
4. Right to liberty and security (Article 9).
5. Right of detenu to be treated with humanity (Article 10).
6. Freedom from imprisonment for inability to fulfill a contractual
obligation (Article 11).
7. Freedom of movement and to choose his residence (Article 12)
8. Freedom of aliens from arbitrary expulsion (Article 13)
9. Right to a fair trial (Article 14)
10. Non-retroactive application of criminal law (Article 15)
11. Right to recognition as a person before the law (Article 16)
12. Right to privacy family home or correspondence (Article 17)
13. Freedom of thought, conscience and religion (Article 18)
14. Freedom of opinion and expression (Article 19)
15. Prohibition of propaganda of war (Article 20)
16. Right of peaceful assembly (Article 21)
17. Freedom of association (Article 22)
18. Right to marry and found a family (Article 23)
19. Rights of the child (Article 24)
20. Right to take part in the conduct of public affairs, to vote and to be elected
(Article 25)
21. Equality before the law (Article 26)
22. Rights of minorities (Article 27).

The International Covenant on Economic, Social and Cultural Rights is

consisted of 31 Articles which are divided in five parts. Part I deals with the
rights of peoples to self-determination as provided in Article I of the Covenant on
Civil and Political Rights. Other rights of the individuals are enumerated in Part I
of the Covenant which included the following rights.

1. Right to work (Article 6)

2. Right to just and favourable conditions of work (Article 7)
3. Right to form and join trade unions (Article 8)
4. Right to social security (Article 9)
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5. Right relating to motherhood and childhood, marriage and the family
(Article 10)
6. Right to adequate food, clothing, housing and standard of living and
freedom from hunger (Article 11)
7. Right to physical and mental health (Article 12)
8. Right to education including a plan for implementing compulsory primary
education (Article 13)
9. Right relating to science and culture.

Torture And Other Cruel, Inhuman or Degrading Treatment Or

Punishment- Torture is widely spread across all continents but the methods
adopted by the States are quite different. Some common forms of physical and
psychological torture are : isolation, falanga (blows to the soles of the feet),
electric shocks, suffocation (for instance, victim's head forced into water filled
with excrements), pulling out teeth, burning by cigarettes or red-hot iron bars,
mutilation (nails pulled of or parts of body amputated), sexual torture, mock
execution, letting detained torture each other, pharmacological torture. Torture is
done to criminals, innocent persons trapped by law enforcement agencies, spies,
prisoners of war, refugees, opposition leaders, journalists, ethnic minority leaders
and others, including their family members, both adult and children. Torture of
children is performed for putting pressure on their parents, or force them to beg.
Torture is also used often as a political weapon. The Universal Declaration of
Human Rights under Article 5 and the International Covenant on Civil and
Political Rights under Article 7 had provided that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment, but neither the
term torture was defined therein nor it was elaborated that how the torture and
other inhuman or degrading treatment or punishment shall be prevented. The
General Assembly on December 9, 1975 adopted a Declaration on the Protection
of All Persons from Being Subjected to Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment. In order to make more effective the struggle
against torture a Convention was adopted by the General Assembly on December
10, 1984 which is known as the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment. The Convention came into
force on June 26, 1987 when it was ratified by 20 States. As in September 2013,

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the Convention had 154 States Parties.

A person in custody of the police, an under-trial or a convicted individual

does not lose his human and fundamental rights by virtue of incarceration. The
two cardinal principles of criminal jurisprudence are that the prosecution must
prove its charge against the accused beyond shadow of reasonable doubt and the
onus to prove the guilt of the accused to the hilt is stationary on the prosecution
and it never shifts. The prosecution has to stand on its own legs so as to bring
home the guilt of the accused conclusively and affirmatively and it cannot take
advantage of any weakness in the defence version. The intention of the legislature
in laying down these principles has been that hundreds of guilty persons may got
scot free but even one innocent should not be punished. Indian Constitution itself
provides some basic rights/safeguards to the accused persons which are to
followed by the authorities during the process of criminal administration of
justice. The Criminal Procedure Code deals with the procedural aspects of arrest
of an accused person and provides various rights to accused/arrested persons.

Protection against ex post facto law- Clause (1) of Article 20 of the Indian
Constitution says that “no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence.

Doctrine of “autrefois acquit” and “autrefois convict”- According to this

doctrine, if a person is tried and acquitted or convicted of an offence, he cannot
be tried again for the same offence or on the same facts for any other offence.
This doctrine has been substantially incorporated in the Article 20(2) of the
Constitution and is also embodied in Section 300 of the Criminal Procedure
Code, 1973. When once a person has been convicted or acquitted of any offence
by a competent court, any subsequent trial for the same offence would certainly
put him in jeopardy and in any case would cause him unjust harassment. Such a
trial can be considered anything but fair, and therefore has been prohibited by the
Code of Criminal Procedural as well as by the Constitution.

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Prohibition against self-incrimination- Clause (3) of Article 20 provides that
no person accused of any offence shall be compelled to be a witness against
himself. Thus Article 20(3) embodies the general principles of English and
American jurisprudence that no one shall be compelled to give testimony which
may expose him to prosecution for crime. The cardinal principle of criminal law
which is really the bed rock of English jurisprudence is that an accused must be
presumed to be innocent till the contrary is proved. Right to silence is also
available to accused of a criminal offence. The prohibition of medical or
scientific experimentation without free consent is one of the human rights of the
accused. In case of (Smt. Selvi & Ors. v. State of Karnataka & Ors., 2010 (2)
R.C.R. (Criminal) 896.) it was held that narco-analysis test etc. can not be
conducted on an accused without his consent.

Person arrested to be informed of grounds of Arrest- Article 22 (1) of the

Constitution provides that a person arrested for an offence under ordinary law be
informed as soon as may be the grounds of arrest.

Right to be defended by a Lawyer- It is one of the fundamental rights enshrined

in our Constitution. Article 22 (1) of the Constitution provides, inter alia, that no
person who is arrested shall be denied the right to consult and to be defended by a
legal practitioner of his choice.

Person arrested to be taken before the Magistrate- Article 22 (2) of the

Constitution provides that an arrested person must be taken to the Magistrate
within 24 hours of arrest. Similar provision has been incorporated under Section
56 of Criminal Procedure Code.

Moreover, the Criminal Procedure Code also provides various provisions to

safeguard the rights of accused and courts have also expanded the rights of
accused in the criminal justice administration:

(a) Person Arrested is not to be detained more than twenty-four hours.(

Section 57 of Criminal Procedure Code)
(b) There is no Right to Police officer to cause death of the accused. (Section
46 (3) Criminal Procedure Code)
(c) The police officer has the duty to give Information of arrest to a
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 nominated person. (Section 50-A of Criminal Procedure Code).
(d) Accused has Right to be released on bail in bailable offences. (Section
50(2) of Criminal Procedure Code)
(e) accused has Right to receive the copy of the receipt after search. (Section
51 of Criminal Procedure Code)
(f) Accused has right of medical examination after his arrest. (Section 54
Criminal Procedure Code)
(g) Accused has Right to free legal aid. (Article 39-A of the Constitution,
Section 304 of Criminal Procedure Code )
(h) Accused has Right of accused to know of the accusation against himself.
(Sections 218, 228, 240, 246, 251 of Criminal Procedure Code)
(i) Accused has right against inhuman treatment.
(j) Accused has right to fair trial.
(k) Accused has right to speedy trial.
(k) Accused, undertrial and convicts have right against solitary confinement.

Human Rights and Preventive Detention Laws- Preventive Detention laws

have been enacted primarily to curb terrorism and other anti- national activities.
Terrorism problem is not new and it is not only the national problem but it is old
and international problem. Terrorism can be controlled by deterrent method of
criminal administration of justice. India is facing terrorist problem since last 20
years. To solve this problem Indian Parliament enacted national Security Guard
Act, 1986. The Terrorist and Disruptive Activities Act, 1985, known as TADA
was one of the controversial law in contradiction of human rights protection.
Thus, it was repealed in 1996. Another Act known as the Prevention of Terrorist
Act 2002 was enacted by the Parliament in the regime of the National
Democratic Alliance (NDA) Government. The Prevention of Terrorist Act 2002
was controversial on the ground of gross violation of fundamental freedom of
human beings. Henceforth, this law was repealed by the parliament in 2004 and
amendment was made in Unlawful Activities (Prevention) Act 1967 in the same
year.

The very idea of human being in custody or during trial saves for
protection and nurturing is an anathema to human existence. The word custody

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implies guardianship and protective care. Even when applied to indicate arrest or
incarceration, it does not carry any sinister symptoms of violence during custody.
No civilized law postulates custodial cruelty- an inhuman trial that springs out of
a perverse desire to cause suffering when there is no possibility of any retaliation;
a senseless exhibition of superiority and physical power over the one who is
empowered or collective wrath of hypocritical thinking. The attack on human
dignity can assume any form and manifest itself at any level. It is not merely the
negative privilege of a crude merciless display of physical power by those who
are cast in a role play of police functioning, but also a more mentally lethal abuse
of position when springing from high pedestals of power in the form of uncalled
for insinuation, unjustified accusations, unjust remarks, menacingly displayed
potential harm, that can strike terror, humiliation and a sense of helplessness that
may last much longer than a mere physical harm and which brook no opposition.
The idea of human dignity is in one's sacred self and that field is quite a part and
distinct from the field of considerations of rights and duties, power and
privileges, liberties and freedoms or rewards and punishments wherein the law
operate.

Death Penalty and Human Rights- Capital punishment is the

punishment of death which is generally awarded to those guilty of heinous
crimes, particularly murder. Capital punishment is nothing but judicial murder, it
is said specially when an innocent life is destroyed. Besides this, capital
punishment, as is generally supposed is not deterrent. Though the awarding of
capital punishment specially for murder is according to age old tradition, in
recent times there has been much hue and cry against it. It has been said that
capital punishment is brutal, that it is according to the law of jungle that is an eye
for an eye and tooth for a tooth. It is pointed out that there can be no place for it
in a civilized country. The question of capital punishment – its abolition or
retention has been agitating the civilized world for a long time. Capital
punishment means the death sentence. It is awarded to such persons who are
charged and convicted of serious crimes. The human rights supporters who are
against the death penalty, have the view that death penalty has failed as a
measure of social protection, so also as an instrument of retributive justice. Citing
illustrations from United States to support this contention, he argued that the
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number of executions are far less than the number of murders committed
annually which clearly indicates that death sentence is no longer looked with
favour and is falling into disuse rapidly. Another argument which needs attention
regarding declining effect of death penalty is that even after the award of this
sentence, in most cases, it is either commuted or pardoned in the last resort and
its final execution is seldom carried out.

Capital Punishment is laid down as a penalty in several Legislative Acts,

such as the Indian Penal Code, 1860, (IPC) and the penalty provisions of national
security and anti-narcotics legislation. Under the I.P.C. approximately eleven
offences are punishable by death. A death sentence may also be imposed for a
number of offences committed by members of the armed forces under the Army
Act, 1950, the Air Force Act, 1950 and the Navy Act 1956. The execution of
death sentence in India is carried out by two modes namely hanging by neck till
death and being shot to death. The jail manuals of various States provide for the
method of execution of death sentence in India. Once death sentence is awarded
and is confirmed after exhausting all the possible available remedies the
execution is carried out in accordance with section 354(5) of the Code of
Criminal Procedure 1973 i.e. hanging by neck till death. It is also provided under
The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957 that the
execution has to be carried out either by hanging by neck till death or by being
shot to death. Capital Punishment is prescribed in India for various offences
under the Indian Penal Code. The offences for which capital punishment is
prescribed under Indian Penal Code are as follows:

1. Waging war against the Government of India (Section 121)

2. Mutiny and its abetment (Section 132)
3. Giving or fabricating false evidence upon which an innocent person
suffers death (Section 194)
4. Murder (Section 302)
5. Punishment for murder by life-convict (Section 303, it has been held
unconstitutional)
6. Abetment of suicide of child, insane person (Section 305)
7. Dacoity accompanied with murder (S. 396)

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8. Attempt to murder under sentence of imprisonment. If hurt is caused in
such attempt (Section 307)
9. Kidnapping for ransom (Section 364-A)

Causing death or resulting in persistent vegetative state of victim (Section 376-A)

In India death penalty is given in rarest of the rare case. Whether a case
falls under the category of rarest of rare case or not, for that matter the Apex
Court laid down a few principles for deciding the question of sentence. One of
the very important principles is regarding aggravating and mitigating
circumstances. Court opined that while deciding the question of sentence, a
balance sheet of aggravating and mitigating circumstances in that particular case
has to be drawn. ( Machhi Singh v. State of Punjab, AIR 1983 SC 947)

Arguments for Retention of Death Penalty- The retentionist's view of death

penalty considers death penalty necessary on the following grounds:

1. Elimination of murderers by execution is fair retribution and serves the

ends of justice.
2. Punishment must match the gravity of offence and worst crimes should be
severely dealt with for the sake of deterrence and security of the society.
3. Death penalty shows society's reaction to heinous crimes.
4. One who ends somebody's life, forfeits his right to life.
5. Death sentence should be looked as a form of retributive justice insofar as
it provides satisfaction and peace of mind for many victims of crime and
their families or relatives.
6. It is the most effective way to protect society against condemned
offenders. This is the reason why death penalty has been held to be
constitutionally valid.
7. Some authorities believe that death penalty is less cruel than a prolonged
life imprisonment.
8. Considered from the economic point of view also it is for less
expensive to execute a convict than to house him/her in a prison
institution for life.
9. It prevents over-crowding in prisons and helps in elimination of

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 offenders who are potential danger to the institution thereby making
maintenance of discipline in prisons easy.
10. It upholds rule of law because it discourages vigilantism or self-help on
the part of victim's family.

Arguments for Abolition of Death Penalty

The abolitionist's view of death penalty supports the abolition of death

penalty on the following grounds:

1. Death penalty is killing and all killings are wrong and therefore, death
sentence is also wrong.
2. An execution arising out of miscarriage of justice is irreversible and
therefore, it may result in great injustice to the person wrongly sentenced
to death.
3. It is a lethal vengeance which brutalises the society.
4. Death penalty is unjust and often discriminatory against poor who
cannot afford to defend themselves properly against a homicide charge.
5. It is a misconception to think that death penalty has a deterrent effect
because hired murderers do take chance with the criminal justice system
whatever be the consequences.
6. Death penalty is violative of human rights, particularly Articles 3 and
Article 5 of the United Nations Declaration of Human Rights, 1948.
7. Quite a large number of murders are crimes of emotion or impulsiveness.
Therefore, death penalty in such cases does not serve the ends of justice.
8. It denies the possibility of reformation and rehabilitation of the offender.

A perusal of arguments for and against the retention of capital punishment

in a penal system makes it abundantly clear that at least its retention in the statute
book would better serve the ends of justice, though in practice it may be used
sparingly.

Judicial Discretion and Death Penalty- For all the offences, in which
death sentence is the punishment, it may be noted that it is not the only
punishment, it is the extreme penalty. Thus, these sections, by virtue of their very
wordings itself, provide for a discretion which is to be vested in courts right from

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the inception of Penal Code in 1860. However, the manner of exercising this
discretion has undergone various changes with the changing time and evolution
of new principles. The Supreme Court noticed that aggravating circumstances
(crime test) – mitigating circumstances- (criminal test) and rarest of rare case –
(R-R test) and aggravating circumstances as pointed above, of course, are not
exhaustive so also the mitigating circumstances. In the considered view, the tests
which have to be applied are that while awarding death sentence are “crime test”,
“criminal test” and the “R-R test” and not the “balancing test”. To award death
sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal
test” 0%, that is, no mitigating circumstance favouring the accused. If there is any
circumstance favouring the accused, like lack of intention to commit the crime,
possibility of reformation, young age of the accused, not a menace to the society,
no previous track record, etc. the “criminal test” may favour the accused to avoid
the capital punishment. Even if both the tests are satisfied, that is, the aggravating
circumstances to the fullest extent and no mitigating circumstances favouring the
accused, still we have to apply finally the rarest of the rare case test (R-R test). R-
R test depends upon the perception of the society that is “society- centric” and
not “Judge-centric”, that is, whether the society will approve the awarding of
death sentence to certain types of crimes or not. While applying that test, the
court has to look into variety of factors like society’s abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual assault and
murder of intellectually challenged minor girls, suffering from physical disability,
old and infirm women with those disabilities, etc. Examples are only illustrative
and not exhaustive. The courts award death sentence since situation demands so,
due to constitutional compulsion, reflected by the will of the people and not the
will of the Judges. ( Shankar Kisanrao Khade v. State of Maharashtra, (2013)
5 SCC 546)

Now the question that comes to mind is that has the doctrine of "rarest of
rare cases" worked in India. To some it appears to be the most practical solution
to an almost intractable problem. This gives the judiciary flexibility to vary the
punishment from case to case. The Law Commission strongly felt that capital
punishment acts as an effective, deterrent “which is the most important object and
even if all objects were to be kept aside, this object would by itself furnish
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rational basis for its retention”. In its concluding remarks, the Commission
observed that having regard to the peculiar conditions prevalent in India and the
paramount need for maintaining law and order in this country, India cannot risk
the experiment of abolition. This is perhaps the most appropriate approach to the
problem of capital punishment so far Indian criminal justice system is concerned.
While considering the human rights of accused in references of death penalty, the
human approach to the rights of victim can not be forgotten. Role Of Judiciary
for Human Rights And Criminal Justice

In India Courts particularly the Apex Court in four 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
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
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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. 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. (A.D.M. Jabalpur v. Shivkant
Shukla, AIR 1976 SC 1207)

Court and Presumption of Innocence- In 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. (Kailash Gour and others, v. State
of Assam 2012 (2) SCC 34)

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.
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. Judiciary has played an important role against custodial torture.

The Supreme Court has held that hand-cuffing in prima facie inhuman,
and, therefore, unreasonable, over-harsh and at the first flush, arbitrary. (Prem

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Shankar v. Delhi Administration, AIR 1980 SC 1535)

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. ‘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.”

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. In it was observed that
not only the fair trial but fair investigation 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. Babubhai v. State of Gujrat and
Others 2010 (12) SCC 254)

Right to speedy trial- 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

18
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. (Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355)

Curative Petitions- The Supreme 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 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.

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 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. Hussainara Khatoon v. Home
Secretary, Bihar AIR 1979 SC 1377)
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. The Supreme 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.

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(State of Madhya Pradesh v. Najab Khan and others, (2O13) 9 SCC509)
The concept of Public Interest Litigation (PIL) has been developed by judiciary
to provide legal help to the needy 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. 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
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.

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 compromising on the quality of justice in any manner
or the elements of fairness, equality and impartiality. The success of the Indian
Judiciary on the Constitutional front is unparallel. Its contribution in enlarging
and enforcing human rights is widely appreciated. 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. This has also been prominently
included in the Convention on Civil and Political Rights to which India is now a

20
party. Our Constitution recognizes it as a fundamental right. There is no doubt
that even an accused/arrested person has valuable human rights. The National
Police Commission in its Third Report referring to the quality of arrests by the
police in India mentioned power of arrest as one of the chief sources of
corruption in the police. The report suggested that, by and large, nearly 60% of
the arrests were either unnecessary or unjustified and that such unjustified police
action accounted for huge expenditure of the jails. 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 rrest apart from his power to do so.

The Supreme Court is of the view that he role of jail authorities should be
that of doctors treating criminals as patients. The Court’s observations are very
pertinent in this context, when it said that Progressive criminologists across the
world will agree that the Gandhian diagnosis of offenders as patients and his
conception of prisons as hospitals is the key to the pathology of delinquency and
the therapeutic role of punishment. The whole man is a healthy man, and every
man is born good. Criminality is a curable deviance. Our prisons should be
correctional houses, not cruel iron aching the soul. (Mohammed Gias-ud-din v.
State of Andhra Pradesh, 1977 (3) SCC 287)

There is need for some reforms in the Criminal Justice System of India for
protecting the human rights of persons. 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. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be
prudent for a police officer in the interest of protection of the constitutional rights
of a citizen and perhaps in his own interest that no arrest should be made without
a reasonable satisfaction reached after some investigation as to the genuineness
and bonafides of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. The person under arrest

21
must be produced before the appropriate court within 24 hours of the arrest
(Section 56 and 57 Criminal Procedure Code). but it is the common practice
among police officials that they do not make entries in their registers at the time
the person is arrested, that practice can only be removed by strict compliance of
the laws by concerned authorities. The person arrested should be permitted to
meet his lawyer at any time during the interrogation. The interrogation should be
conducted in a clearly identifiable place, which has been notified for this purpose
by the Government. The place must be accessible and the relatives or friend of
the person arrested must be informed of the place of interrogation taking place.
The methods of interrogation must be consistent with the recognized rights to
life, dignity and liberty and right against torture and degrading treatment.

National Human Rights Commission (NHRC) has always laid emphasis

on total prohibition of torture or any kind of cruel, inhuman and degrading
treatment. It also underlines that though the prisoner’s right to family contact
may be restricted by the procedure established by law, it cannot be completely
taken away. At the same time, it has stressed that special consideration must be
given to women prisoners. Accordingly, over the years, the NHRC has issued
several guidelines, made observations after conducting spot investigations and
taken several other steps to improve the conditions in prisons so that prisoners
can lead their lives with dignity and enjoy their rights even as they await
judgment or complete their sentence. There is problem of overcrowding in jail
which has to be removed by using provisions of bail more liberally and adopting
speedy trial. In jails there is the problem of lack of proper classification of
Prisoners. This is probably the most important reason why prisons become
breeding grounds of iniquity. No proper classification of different categories of
prisoners depending on the nature and type of criminals is made, such as for
undertrials, females. Habitual offenders, casual offenders, juveniles, first
offenders and political prisoners. This is in fact a clear violation of Article 14,
which protects equality before the law. So there should be reasonable rules for
classification of prisoners and these be strictly followed. At present most of the
jail staff, such as Assistant Superintendents, Wardens, and guards are appointed
without any training in Jail administration. There must be training schedule for
the new appointed staffs of jail administration. Finally, sanitary conditions in jails
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are far from being satisfactory as reported by a number of committees on Jail
reforms. To curb this special efforts should be made by jail authorities. The
problem of jails are to be removed on priority basis. If something is not done
quickly, then the situation will degenerate into being one where we will be
sending more criminals out of jail than come out in the first place. Moreover, The
Police Act was enacted in 1861 and thereafter, there have been radical changes in
the political social and economic situation in the country and national police
commission was set up on 1977 which was submitted reports in 1981 making
various recommendations to draft new police Act but no such reforms has been
made. The police organization should be reformed immediately. Legal aid, as a
pipeline to carry to the court the breaches of prisoners’ basic rights, is a radical
humanist concomitant of the rule of prison law. Article 39-A is an interpretative
tool for Article 21 of the Constitution. Partial statutory implementation of the
mandate is found in Section 304 of the Criminal Procedure Code, which provides
for legal aid to the accused in other situations. Legal aid be provided to every
needy person whether ha is accused or victim or witness.

The intense media spotlight also led to an accelerated trial, unprecedented

in the tangled Indian court system. There have been numerous instances in which
media has been accused of conducting the trial of the accused and passing the
‘verdict’ even before the court passes its judgment. Trial is essentially a process
to be carried out by the courts. The trial by media is definitely an undue
interference in the process of justice delivery. Therefore, some restraints be
adopted my media when dealing with any occurrence involving criminal trials
and media should not take final decision about the role of any person in any case.

‘Delay’ in the context of justice denotes the time consumed in the disposal of
case, in excess of the time within which a case can be reasonably expected to be
decided by the Court. The present sanctioned strength of High Court Judges is
726 and the actual strength 588 leaving 138 vacancies. The sanctioned strength of
subordinate judges was 14582 and the working strength 11723 on 30th April,
2006, leaving vacancy of 2860 Judicial Officers. India has just 13 judges for
every ten lakh people as against 35-40 in other developing nations and 50 in a
developed country, a Parliamentary panel has said and urged the government to

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"make all out efforts" to fill up the existing vacant posts of judges. Even after
increasing the strength of judges, the judge-population ratio in the country would
be far less than the ratio in other developed/developing countries. The
Governments should not allow their financial constraints to come in the way of
increase in the strength of judges.

The victim whose rights are invaded by the accused is not accorded any
right to participate except as a witness. The system does not afford him any
opportunity to assist the court such as adducing evidence or putting questions to
the witnesses. The system is thus utterly insensitive to the rights of the victim.
The focus is all on the accused and none on the victim. The system has denied
itself the benefit of this important source. Justice be done to the rights of victims
and witnesses. Witnesses turning hostile is a common feature. Delay in disposal
of cases affords greater opportunity for the accused to win over the witnesses to
his side by threats, or inducements. There is no law to protect the witnesses. The
state should adopt the adequate legislation and make available adequate resources
to protect witnesses not only at the trial but also outside the courtroom.

To conclude, there is an urgent need to develop human rights

jurisprudence. The problem of law, when it is called upon to defend persons
hidden by the law, is to evolve a positive culture and higher consciousness and
preventive mechanism, sensitized strategies and humanist agencies which will
bring healing balm to bleeding hearts. Where the rights of a prisoner either under
the Constitution or under other law, are violated the writ power of the court can
and should run to his rescue. There is a warrant for his vigil. The court process
casts the arrestee into the prison system and the deprivation of his freedom is not
a blind penitentiary affliction but a belighted institutionalization geared to a
social good. The court has a continuing responsibility to ensure that the
constitutional purpose of the deprivation is not defeated by the police/prison
administration.

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