CHAPTER – I

INTRODUCTION
1. General

Human Right are those rights which are inherent in every human
being simply by virtue of being a “member of human family”. Human
Rights are fundamental to our existence as human beings. They are universal
and cut across all national boundaries and political frontiers. By the
experience of two World Wars, mankind aspired for a decent civilized life in
which the inherent dignity of each human being is well respected and
protected. The Universal Declaration of Human Rights, 1948 (UDHR) has
been hailed as “common standard of achievement for all people and
nations”. The preamble of Universal Declaration of Human Rights
proclaims:
Whereas it is essential, if man is not to be
compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that
human rights should be protected by the rule of
law.”

According to Prof. Louis Henkin human rights means:

……. 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
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 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 etc., and despite the Constitutional
guarantee, it is the experience that human rights violations continue to be
abound.
According to Human Rights Watch Report 20132, 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 a thriving
civil society, free media, and an independent judiciary, has longstanding
abusive practices, corruption , and lack of accountability for perpetrators

1 Smt. Selvi and Ors. v. State of Karnataka, 2010 (2) R.C.R. (Criminal) 896.
2 Human Right Watch is one of the world's leading independent organizations dedicated to
defending and protecting human rights since 1978. Its 2013 report reflects extensive
investigative work on human rights in 2012 in various countries.

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foster human rights violations. Government initiatives, including police
reforms and improved access to health care and education, languish due to
poor implementation. Many women, children, Dalit (so-called
untouchables), tribal communities, religious minorities, people with
disabilities, sexual and gender minorities remain marginalized and continue
to suffer discrimination because of government failure train public officials
in stopping discriminatory behaviour. Members of security forces implicated
in serious rights abuses continued to enjoy impunity, in large measure due to
India's Law and polices3. Torture is practiced by law enforcement agencies
in India as a crude shortcut for crime investigation. Investigating agencies
justify the use of torture arguing that they often lack advanced training and
equipments for crime investigation. The concept of modern policing is still a
mirage in India, where the police is expected to function as a tool for social
control than to serve the citizens. It can be argued that a large number of law
enforcement officers in the country believe that the deterrence quotient
against a crime is the possibility of being tortured, rather than the crime
being detected, prosecuted and punished in the legal process. Extensive
delays in court proceedings and the repeatedly demonstrated professional
and intellectual paucity of the country's prosecutors appear to offer a
layperson's excuse for the widespread belief among law enforcement officers
that the only punishment a criminal might get in India is the torture at the
hands of the investigator. This has led into a situation where torture is widely
practiced, particularly in the police stations, throughout the country. Police
officers and other law enforcement officers generally consider torture as an
essential investigative tool for investigation. Policy makers and bureaucrats
believe that there is nothing wrong in punishing a criminal in custody, not
realising the fact that a person under investigation is only an accused, not a
convict and further, that even a convict must not be tortured. This is due to
the lack of awareness about the crime, its nature and seriousness. Even an
accuses as well as convict person has some valuable human rights which has

3 Human Rights Watch World Report 2013, 314.

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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.
In this study the researcher will explore exactly how the basic human
rights of individual are cared and protected in Indian criminal justice system
and what are the main reasons of violation of human rights in the process of
criminal investigations and trials, and what efforts have been made by
various mechanism adopted in criminal system? This study intends to
analyze the basic human rights of an accused, the hurdles for safeguarding
these rights of every accused and others connected individuals especially
victims in the criminal system and the remedies which can be suggested to
remove these hurdles during the administration of criminal justice system in
country.
2. Importance of the Study
Human Rights today are what individuals have struggled for centuries
against the overwhelming power of the State. And no one can deny that
these rights which belong to human beings, are a mankind’s increasing
demand for a decent civilized life in which the inherent dignity of each
human being will receive respect and protection. When one talk of human
rights, he does not merely speak of biological needs but also those
conditions of life which allow all to fully develop and use their human
qualities of intelligence and conscience and to satisfy their spiritual needs.

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Human rights, in fact are fundamental to nature and affect human's daily life
in various ways.
And, therefore, the denial of human rights would inevitably set the
stage for political and social unrest, wars and hostility between nations and
between groups within a nation. Denial also leads to more and more urgent
demands for a better life for greater access to, and wider sharing of the basic
individual and community values. It is because of these factors that human
rights have assumed increased attention and importance both at national and
international level. A new dimension has been added to the importance as a
result of scientific and technological developments and more especially
because of the availability of new weapons of unimaginative destructiveness
and of the emergence of global interdependence of countries in securing
better standards of lives to their citizens because human rights are linked
with the question of peace both at national and international level, it is a
matter of common knowledge that these days denial of human rights at
domestic level has the tendency to lead to strife and civil war and eventually
to become a threat to international peace. The subject of human rights
encompasses both the protection of individual from the excesses of various
organs of the State and creation of conditions for the fulfillment of his
material needs and the realization of his personality as well. But how to
accomplish these ideals? The obvious answer is the jural transformation of
human rights because of a direct relationship between the law maker State
and law subjected individual. It is only when law exists the people can
claim protection from the excesses of the State as alone put forward demand
for the mobilization of states resources for the fulfillment of their demands.
With the emergence of the United Nations at the international scene,
promotion and protection of human rights has become one of its major
objectives and this objective got its legal formulation through the
international Bill of Rights and host of other international instruments
concerning human rights adopted under the auspices of the United Nations
and its specialized agencies. The result is that huge volume of international

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standards in the field of human rights exists today in the shape of
declaration, conventions, covenants, recommendations and resolutions etc.
Since human rights norms were not prescribed adequately in the United
Nations Charter, international community laid more emphasis on norms
settings in the field of human rights. In other words more emphasis were laid
on principles. Having done so, attention was shifted to the implementation
of both category of human rights (civil and political as well as economic,
social and cultural) and the current phase is devoted to the enforcement of
economic and social rights. The shifting of emphasis to enforcement is
justified because what matters more is not only the presence of norms but its
effective implementation. Thus, it is observed that international concern with
human rights comprises the three factors, namely the principle, procedure
and the form for their enforcement.
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

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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. Over 70 percent of the prison inmates are under-
trials. Their waiting period in some cases lingers around 8 to 10 years. The
rate of acquittals, particular in heinous offences, is quite disturbing. The
Supreme Court in the case of Krishna Mochi v. State of Bihar 4 observed
that society suffers by wrong convictions and it equally suffers by wrong
acquittals. The delays in trials have serious implications for the rule of Law
and the protection of human rights. The right against arbitrary arrest and
detention5, right against torture6 right against ex-post facto laws7 have been
specially enumerated in the Universal Declaration of Human Rights, 1948.
The right to fair trial8 which includes the right to a speedy trial 9 is a part of
our international obligations under the International Covenant on Civil and
Political Rights (ICCPR), 1966 . There are certain cases which require
greater urgency in their settlement. A more rigorous time frame is needed
where the accused person is in detention pending the outcome of the case.
Indeed, this right to speedy trial is a part of our fundamental right under
Article 21 of the Constitution and it is so recognised by the Supreme Court
of India.10 fair trial includes right to silence 11, legal aid to accused12. Even,
prisoners have also some rights which are inherent in them being human
beings only. It is the human rights of all the persons deprived of their liberty
to be treated with humanity and with respect for the inherent dignity of the
human person13. The protection of Article 21 is available even to convicts in
jails. The convicts are not by reason of their conviction deprived of all the
fundamental rights, which they otherwise possess. Following the conviction

4 AIR 2003 SC 886.

5 Article 9, Universal Declaration of Human Rights, 1948.
6 Article 5, Universal Declaration of Human Rights, 1948.
7 Article 11(2), Universal Declaration of Human Rights, 1948.
8 Dr. Rajesh Talwar and another v. C.B.I. and another, 2013 (4) R.C.R. (Criminal) 687.
9 Hussainara Khatoon (v) v. Home Secretary, State of Bihar, (1980),SCC 81.
10 A.R. Antulay v. S.R. Nayak, 1992(1) SCC 225.
11 Supra note 2.
12 Mohd. Hussain @Julfikar Ali v. The State (Govt. of N.C.T.) Delhi, AIR 2012 SC 750.
13 Article 10 of the International Covenant on Civil and Political Rights, 1966.

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of a convict is put into the jail he may be deprived of fundamental freedoms
like the right to move freely throughout the territory of India or the right to
practise a profession. But the Constitution guarantees to them other
freedoms like the right to acquire, hold and dispose of property for the
existence of which detention can be no impediment. In Babu Ram vs. State
of U.P.14 , it was held that the refusal to grant bail in a murder case without
reasonable ground would amount to deprivation of personal liberty under
Article 21 of the Constitution. Keeping this view in mind the present study
has been undertaken to identify the areas of violation of human rights by
various authorities of criminal justice system and to remind the
constitutional protection of human rights envisaged under various provisions
of Indian Constitution itself and various International Covenants and
Conventions. It has also been area of study that whether the death penalty in
India is the violation of human right or it is the protection of rights of
victims of crime. Keeping this view in mind the present study has been
undertaken to identify the areas of violation of human rights by various
authorities of criminal justice system and to remind the constitutional
protection of human rights envisaged under various provisions of Indian
Constitution itself and various International Covenants and Conventions. It
has also been area of study that whether the death penalty in India is the
violation of human right or it is the protection of rights of victims of crime.
3. Objectives and Scope of the Study
The human Rights are very important for the proper growth of human
being. In all countries these rights are protected by the State. The extent to
which human rights are respected and protected within the context of its
criminal proceedings is an important measure of society’s civilization. Two
questions have been raised in the matter, what are the human rights of
which, it is important to protect within our criminal procedure? And more
important again, perhaps, to what extent should the human rights of the
suspects and the accused be protected when other important interests of

14 AIR 1978 SC 527.

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society are under attack and in possible conflict with the interest of the
accused? These are the difficult questions to answer, because there is a
perpetual conflict between the interests of the accused and the fundamental
interests of the society. The Courts in our country have through progressive
and humanistic interpretation, enlarged the rights of the suspects and
accused with a view to protect the interest of the innocent and preventing
abuse or misuse of the police powers. The 21st Century is bound to bring
before the criminal courts many other novel issues involving human rights.
These might be raised by prisoners, handicapped persons, woman and many
other classes of society. Sometimes, it happens that well-intentioned
provisions meant to protect the weaker sections might raise controversies.
For example, a statutory provision prohibiting the publication of the names
of victims of sexual offenses may be objected to by the press and sometimes
even by the woman organizations. Apart from this, progress of science and
technology is bound to raise questions of law involving human rights.
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.
But, it is to be noted that the role of courts in reforming the law has its
limitation and in the modern era much work that will be called law reform is
done through law reform agencies. Of course, even in the absence of specific
mention of the human right aspect, a law reform commission would be
expected to have regard to human rights, in making its recommendations.
The Malimath Committee Report15 recent J.S. Verma Committee Report16

15 It was a committee on reforms of criminal justice system headed by Mr. Justice V. S.

Malimath, it presented its report in march 2003.
16 In December, 2012, a committee headed by Justice J. S. Verma including members Justice
Leila Seth, former judge of high court and Gopal Subramanium, former Solicitor General of
India was appointed to recommend the amendment to the criminal laws especially sexual
offences against women due to the grave public outrage occurred after the incident of 16
December gang rape in Delhi. The Committee submitted its detailed report on January 23,
2013.

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and various reports of various commissions including Law Commission are
the examples of that. The criminal law and procedure offer very fertile soils
for the examination of question of human rights. There is hardly any stage of
the criminal process from the stage of arrest to the stage of conviction, that
does not offer a challenge to thinkers on human rights. Leaving aside the
other constitutional imperatives, personal liberty itself, as a major human
right, necessitated detailed examination and elaborate recommendations as
to the facilities to be given to the accused at each stage of the criminal
process. There are some of the basic human rights in the fields of criminal
jurisprudence. Most of these human rights have been evolved by the
judiciary through a process of creative interpretation. Present research aims
to sensitize the concerned authorities regarding the protection of human
rights involved in the criminal justice system.
Whatever views one holds about the penal laws, no one will question
its importance to society. This is the law on which men place their ultimate
reliance for protection against all the deepest injuries that human conduct
can inflict on individuals and Institutions. By the same token, penal law
governs the strongest force that one permit official agencies to bring to bear
an individuals. Its promise as an instrument of safety is matched only by its
power to destroy. No where in the entire legal field is more at stake for the
community or for the individuals. Human rights is a vast area covering
various dimensions and, it was not possible for the researcher to suggest the
protection of human rights at the cost of sacrificing the interest of
individuals and victims and against the provisions of laws. The study might
have not covered all the issues relating to the human rights of individuals.
Hence, the present study is a modest attempt to protect the human rights of
persons involved in the criminal justice system of the country.
4. Research Methodology
For a systematic study application of appropriate research methods,
tools and adoption of scientific bent of mind are sine-qua-non. This has an
important bearing on the collection of reliable and accurate information as

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well as results of the study.
The present study comprises doctrinal methods together with an
adoption of comparative approaches. However, data will be supplied to
make the study real and effective. Case study methods are more applied to
achieve the objective. It is value based study. So for this purpose, Doctrinal
method of study is more beneficial than empirical method as it does not need
collection of statistical data from field. Empirical research is based on
experimentation and observation, which is not appropriate in case of study
of human rights. So for this work, doctrinal method is more suitable than
empirical method, although at some place it also has played its role, but
most of the part of study is done according to Doctrinal research. At last
some conclusions and concrete suggestions will be forwarded to improve the
concern for protection of human rights in criminal justice delivery system of
country. The study entitled good deal of planning and preparation in order to
obtain reliable material and data.
For the purpose of this study, the researcher has consulted vast
literature, some of memorial lectures delivered by eminent public men and
jurists, various judgments delivered by courts, reports of Law Commission,
Police Commission, Committees on reforms of Criminal Justice System,
Journals, commentaries of eminent juries, daily newspapers, collected
relevant data from published and unpublished sources, discussed the topic
with various academicians and legal luminaries. The researcher also relied
on the international documents, U.N. Reports and recommendations,
Amnesty International Reports, AIR, SCR, SCC, Cr. L.J., RCR, journals of
Indian Law Institute (ILI) etc. The established principles of law and
historical facts have also been discussed. The researcher visited various law
libraries including ILI, New Delhi and library of Delhi University. The
researcher took the help of INTERNET also. The names of such books,
reports, journals etc. are mentioned in the bibliography.
5. Hypothesis
The following Hypothesis would be examined in this study:

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(i) The fundamental examination of the study is that in the prevailing
Criminal Justice System, the human rights of various individuals are
at the stake and these are violated by process mechanism provided in
the Criminal Justice System and there is a need to visualize the
provisions of law for better enforcement of the human rights of
individuals.
(ii) The powers given to the various authorities primarily police agency is
the main cause for violation of the human rights of the accused and
others in our Criminal Justice System. Various lacunas in our
Criminal Justice System are strengthening the misuse of powers
which has played role in the violation of human rights.
(iii) The comprehensive study may remind the concerned authorities and
agencies etc. to make effort for protection of human rights of
individuals involved in the Criminal Justice System.
(iv) Primarily Judiciary has enforced the basic human rights of the
individuals involved in the Criminal Justice System and strong
judicial protection favouring human rights have been involved in
India which is binding to be followed in Criminal Justice System of
country.
6. Issues
The present study intends to focus upon the issues and problem
associated with the violation and protection of human rights in the
administration of justice delivery system in the country. With the help of
doctrinal and case-study method, the proposed research attempted to know
what are the circumstances in which the human rights of accused and other
persons especially victims involved therein are to be secured in criminal
justice system. What are the judicial decisions favoring the human rights of
the accused in various procedural mechanism throughout the criminal justice
system. What are the constitutional provisions/safeguards for protection of
human rights of accused. Whether death penalty is essential in the criminal
justice system or it should be removed from our criminal Penal System. For

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the formulation of this research, a critical study has been made in this
research. Following issues are to be examined into this study:
(i) What are the International and National concern for human rights?
(ii) Whether basic rights of accused are part of international human
rights?
(iii) Whether there exists sufficient effective legal protection of human
rights of accused and victim in the criminal justice system of country?
(iv) Whether retention of death penalty constitutes violation of human
right to live. How it has been curtailed in the country?
(v) In what circumstance/instances, judiciary has come forward to secure
the human rights of accused and convicts and victims in the criminal
justice systems.
(vi) Whether police/investigating agencies have used their powers
inconsonance with the human rights of accused?
All the above-said issues are to be discussed in detail in the present
study.
7. Scheme of the Study
The present study has been divided into following six chapters.
Chapter I is introductory in nature, in the study of this chapter the role and
importance of human rights in the life of various individuals have been
discussed. The issues which have been discussed in study have been
highlighted in this introductory chapter. This chapter primarily describes the
importance of the study, objectives and scope of the study, research
methodology adopted in the study, hypothesis laid down in the study, issues
and scheme of the study.
Chapter II - HUMAN RIGHTS AND CRIMINAL JUSTICE: A
HISTORICAL PERSPECTIVE deals with the human rights in historical
perspective. The concept of human rights have been dealt with in view of the
International Law supporting and protecting human rights in the World. The
United Nations Charter in reference of human rights and other international
treaties have been discussed in this chapter. The Universal Declaration of

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Human Rights and its role in the development and protection of human
rights have also been discussed with special references to the main human
rights of the various individuals. In this chapter, an attempt has been made to
discuss the importance of human rights on national and international level.
Chapter III- HUMAN RIGHTS OF ACCUSED IN INDIA deals with the
rights of arrested persons or human rights during the investigation process in
the Criminal Justice System. The Constitutional provision protecting the
basic and fundamental rights of accused and arrested persons have been
discussed with special references to the provisions of Constitution and other
Criminal Laws. Various cases Laws of the Courts favouring and discussing
the protection of rights of the accused as well as victims involved in
Criminal Justice System have been discussed in this chapter. The rights of
the accused have been dealt with in reference to the basic human rights of
the accused persons available through International and national concern in
Criminal Justice System.
Chapter IV - DEATH PENALTY VIS-A-VIS HUMAN RIGHTS deals
with the death penalty in context in human rights. The Punishment of death
penalty/capital punishment has been discussed in references to the point
whether it is required to be retained in Indian Criminal Justice System or it
be abolished in view of following various international treaties against death
penalty. It has been discussed what are the advantages and disadvantages of
retaining death penalty as mode of punishment in Indian Criminal Justice
System. The Judicial trend to enforce death penalty in the rarest of the rare
cases has also been discussed in this chapter along-with Law Commission
Report on the capital punishment.
Chapter V- HUMAN RIGHTS AND CRIMINAL JUSTICE: ROLE OF
JUDICIARY deals with role of judiciary primarily for the protection of the
human rights of the accused and others by way of judicial activism. Various
Judicial decision for conducting, supporting and developing human rights
have been discussed to show the importance of the human rights in the
Justice Delivery System. The evaluation of Article 21 of the Constitution by

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way judicial activism for protecting the human rights of various individuals
has been discussed at length.
Chapter VI - CONCLUSION AND SUGGESTIONS state and
conceptualize the conclusions, suggestion and recommendation stated at
different places in the study.

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