247

INDEX

CHAPTER- CONCLUSIONS AND SUGGESTIONS

A. Conclusions

B. Suggestions for Protection of Human Rights

(1) Minimization of Arrest

(2) Strict Compliance of Post Arrest Procedure

(3) Ban on Police/Custodial Torture

(4) Implementation of Police Reforms

(a) State Security Commission

(b) Selection and Minimum Tenure of D.G.P

(c) Minimum Tenure of I.G. Of Police and other Officers

(d) Separation of Investigation

(e) Police Establishment Board

(f) Police Complaints Authority

(g) National Security Commission

(5) Expansion of Right to Legal Aid

(6) Reforms in Prison Administration

(7) Ban on Media Trials

(8) Increase in the Strength of Judges

(9) Improvements in Court Management and Infrastructure

(10) Implementation of Video- Conferencing

(11) Ban on Strike by Lawers

(12) Introduction of Pre- trial Hearing

(13) Enforcement of Plea Bargaining

(14) Procedural Improvements in Trial of Criminal Cases

(i) Exemption from personal appearance of the accused

2
4
 248

(ii) Framing of charge in the absence of accused

(iii) Compounding of offences

(iv) Statement of Case

(15) Importance to the Rights of Victim

(16) Protection to the Rights of Witness

(17) Creation of Human Rights Courts

2
4
vii
 LIST OF CASES

A.D.M. Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

A.K. Gopalan v. State of Madras, AIR 1950 SC 27:1950 SCR 88.
A.S. Mohammed Rafi v. State of Tamil Nadu rep. by Home Dept. and others,
AIR 2011 SC 308.
Abdul Gafur v. Queen-Empress, ILR 23 Cal 896.
Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 SC 1730.
Abdul Rehman Antulay v. R.S. Nayak, AIR 1999 SC 1701:(1992) 1 SCC 225
Aeltemesh Rein v. Union of India, AIR 1988 SC 176.
Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau).
Allaudin Mian v. State of Bihar, AIR 1989 SC 1456.
Anita Bhandavi v. Union of India, 2004 (1) Guj. L.R. 12.
Anshad v. State of Karnataka, 1994 (4) SCC 381.
Attorney General of India v. Lachma Devi, AIR 1986 SC 467.
Attorney General v. Lee Kwong-kut, (1993) 3 HKPLR 72, (PC).
Avtar Singh v. Emperor, 17 CWN 1213.
Babu Ram vs. State of U.P., AIR 1978 SC 527.
Babu Singh v. State of Uttar Pradesh, AIR 1978 SC 527.
Babubhai v. State of Gujrat and Others, (2010) 12 SCC 254.
Bachan Singh v. State of Punjab, AIR 1980 SC 898
Bharathidarsan University v. All India Council For Technical Education, (2001)
8 SCC 676)
Brojendra Nath Kolay v. State OF West Bengal, 1994 Cri LJ 1194 (Cal).
Bhim Singh v. State of J.K., AIR 1986 SC 494: (1985) 4 SCC 677.
Bigan Singh v. King-Emperor, (1927) ILR 6 Pat 691: (1928) 29 Cri LJ 260.
Bishnu Dev Shaw v. State of West Bengal, AIR 1979 SC 702.
Charles Gurmukh Sobhraj v. Delhi Administration, (1978) 4 SSC 494.
Charles Sobraj v. Superintendent Jail, Tihar, AIR 1978 SC 1514 .
Cherukurimani w/o Narende Chowdari v. Chief Seceratary, Government of
Andhra Pradesh, 2014 STPL (Web) 370 SC.
Common Cause Registered Society v. Union of India, AIR 1997 SC 1539.

viii
Common Cause Registered Society v. Union of India & Others, AIR 1996 SC
1619.
D.G. & I.G. of Police v. Prem Sagar, (1999) 5 SCC 700, 1999 SCC (Cri) 1036.
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
Daiya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1730.
Dalbir Singh v. State of Punjab, AIR 1979 SC 1384.
Dayal Singh v. Union of India, AIR, 1991 SC 1548.
Deena v. Union of India, AIR 1983 SC 1155: (1983) 4 SCC 540.
Delhi Judicial Services Assn. v. State of Gujrat, (1991) 4 SCC 406 : 1991 Cri LJ
3086.
Dharam Pal v. State of Haryana, 1999 (4 ) RCR (Cri) 600 .
Dhoundial v. Union of India ,(2004) 1 SCC (Crl.) 587.
Dr. Rajesh Talwar and another v. C.B.I. and another, 2013 (4) R.C.R.(Criminal)
687.
Dr. Vimla Devi v. Delhi Administration, AIR 1963 SC 1572.
Durgabhai Daliyabhai Parmar v. Ashok Kotsyan, 2004 (100) FLR 313.(Guj.))
Dwarkadas Haridas v. Ambalal Ganpatram, 28 CWN 850.,
E.V. Chinnaiah M/s Malamahanadu Registered Society v. State of Andhra
Pardesh and others, 2004 SCCL COM 1014.
Earl Pratt v. Att. Gen. of Jamaica, (1994) 2 AC 1.
Eston Baker v. Queen, 1975 PC 774.
Francis Coralie v. Union of India, AIR 1981 SC 746.
George Varghese v. Philipose, 1987 Cri LJ 1605 (Ker).
Golak Nath v. State of Punjab AIR 1967 SC 1643.
Guin v. Grindlays Bank Ltd., 1986 SCC(Cri) 64: (1986) 1 SCC 654: 1986 Cri LJ
255;
Gurbachan Singh v. State of Punjab, AIR 1957 SC 623: 1957 Cri LJ 1009.
Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734.
Habeeb Mohd v. State of Hyderabad, AIR 1954 SC 51.
Harihar Singh v. State of U.P., AIR 1975 SC 1501.
Hari Om Prasad v. State of Bihar, 1999 Cri LJ 4400 (Pat).
Harish Uppal v. Union of India (2003) 2 SCC 45.
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.

ix
Huassainara Khatoon (II) v. Home Secretary, State of Bihar, (1980) 1 SCC 98:
1980 SCC (Cri) 40, 47: 1979 Cri LJ 1045.
Hussainara Khatoon (III) V. State of Biha,r AIR 1995 SC 366
Hussainara Khaton (No. IV) v. Home Secretary, AIR 1997 SC 1369.
Jagmohan Singh v. State of U.P., AIR 1973 SC 947.
Jagmohan vs. State of U.P AIR 1973 SC 947.
Janardhanan Pillai v. State, 1992 Cri LJ 436 (Ker ) ;
Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231.
Javed Ahmed Abdul Hamid Passawa v. State of Maharashtra AIR 1985 SC
231.
Joginder Kumar v. State of U.P, AIR 1994 SC 1349.
Jumman Khan v. State of Uttar Pradesh, 1991 (1) SCC 752.
Justice Debi Sarkar (Retd.) v. State of West Bengal, 2004 (100) F.L.R. 206
(Cal))
Kailash Gour And Others v. State of Assam, (2012) 2 SCC 34.
Kamlakar Narayan v. State of Maharashtra AIR 2004 SC 503.
Kartar Singh v State of Punjab. (1994) 3 SCC 569.
Kathi Kalu v. State of Bombay, AIR 1961 SC 1808.
Kedar Nath v. State of West Bengal, AIR 1953 SC 404.
Khatri v. State of Rajasthan, AIR 1981 SC 625.
Khatri (II) v. State of Bihar AIR 1981 SC 928.
Kishore Singh v. State of Rajasthan AIR 1981 SC 625.
Krishna Mochi v. State of Bihar, AIR 2003 SC 886.
Lalit Kumar Yadav @ Kuri v. State of Uttar Pradesh, 2014 STPL(Web) 318 SC.
Llewelyn, Evans Re, ILR 50 Bom 741: 27 Cri LJ 1169.
M. H. Hoskot v. State of Maharastra, (1978) 3 SSC 554.
M.P. Human Rights Commission v. The State of M.P. And Others,AIR 2002 MP
239.
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
Machhi Singh v. State of Punjab, AIR 1983 SC 947: (1983)3 SCC 470.
Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (Pat),
Mahesh etc. v. State of M.P AIR 1937 SC 1346.
Man Singh & Anr v. State of M.P, 2008 (4) RCR (Criminal) 55.

x
Maneka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597.
Manoj v. State of M.P., (1999) 3 SCC 715: 1999 SCC (Cri) 478: 1999 Cri LJ
2095.
Marinda v. Arisona, 384 US 436 (1996).
Mayadhar Bhoi v. Moti Dibya (AIR 1984 Ori 162)
Mc. Carty v. Arndstain (266 U.S. 34)
Michael de Fraeities v. George Ramoutar Benny, 1976 PC 239.
Mihir Kumar Ghosh v. State of West Bengal, 1990 Cri LJ 26 (Cal).
Mithu v. State of Punjab, 1983 Cr. L.J. 811 (SC)
Mohammed Gias-ud-din v. State of Andhra Pradesh , 1977 (3) SCC 287.
Mohd. Chaman v. State (N.C.T.) of Delhi, 2001(2) SCC 28.
Mohd. Hussain @ Julfikare Ali v. The State (Govt. of NCT) Delhi, AIR 2012 SC
750.
Mohd. Sukur Ali v. State of Assam, AIR 2011 SC 1222.
Mohd. Suleman v. King-Emperor, 30 CWN 985, 987 (FB).
Mohini Giri v. Union of India, 2002 AIR SC 5306.
Moily and another v. State of Kerala, 2004 (2) Criminal Court Cases 514.
Moti Bai v. State, AIR 1954 Raj 241.
Moti Lal v. State of J&K (2007)1 SCC (Cri)180.
Moti Ram v. State of M.P. AIR 1978 SC 1594.
Motilal Saraf v. State of J&K, (2007) 1 SCC (Cri) 180
Munn v. Illinois, 94 US 113(1877).
N.C. Dhoundial v. Union of India, 2004 (1) S.C.C. (Cr.) 587.
Nandini Satpathi v. P.L. Dhani, AIR 1978 SC 1025 :2 SCC 424.
Natasha Singh v. C.B.I., 2013 (3) R.C.R.(Criminal) 368.
Natrajan v. State, 1991 Cri LJ 2329 (Mad).
Navneet Kaur v. State of NCT Delhi and Anr., 2014 STPL (Web) 226 SC.
Nilabati Bahera v. State of Orissa, AIR 1993 SC 1960.
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
P.S.R. Sadhanantham v. Arunachalam AIR 1980 SC 856.
P.S.R. Sadhanantham v. Arunachalam, AIR 1980 SC 856: (1980) 3 SCC 141.
Parichhat v. State of M.P. (1972) 4 SCC 694: 1972 Cri LJ 322.

xi
Prakash Singh & others v. Union of India & others. 2006 (4) RCR (Criminal)
439.
People's Union of Civil Liberties v. Union of India, 2004 (1) C.T.C. 241 (S.C.)
Potluri Purna Chandra Prabhakara v. State of A.P., 2002 (1) Criminal Court
Cases 150.
Powell v. Alabama 287 US 45 (1932).
Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731.
Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535: (1980) 3 SCC
526.
Purshotam Jethanand v. State of Kutch, AIR 1954 SC 700: 1954 Cri LJ 1751.
Queen v. Osram Sungra (1886) 6 WR (Cr) 82.
R& M Trust v. Koramangala Residents Vigilance Group and Other, 2005
SCCL.COM 41.
Raghubir Singh v. State of Haryana, AIR 1980 SC 1087.
Raj Deo Sharma v. State of Bihar (1998) 7 SCC 507; 1998 SCC(Cri) 1692.
Rajender Prasad v. State of U.P., AIR 1979 SC 916.
Ramkonda Reddy v. State of Andhra Pradesh, AIR 1989 AP 235.
Ram Shankar v. State of Bihar, 1975 Cri LJ 1402, 1403 (Pat).
Ram Singh v. Crown, (1951) 52 Cri. LJ 99.: AIR 1951 Punj 178.
Rameshbhai Chandubhai Rathod v. State of Gujara (2009) 5 SCC 740: (2009) 6
JT 132
Ranjit Singh v. Union Territory of Chandigarh, AIR 1984 SC 45.
Rattan Lal v. State of Punjab, AIR 1965 SC 444 : 1964 7 SCR 676.
Rattiram v. State of M.P, (2012) 4 SC 516.
Ring v. Arizona, 536 US 584(2002)
Rudul Sahu v. State of Bihar, AIR 1983 SC 1107.
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388..
Saheli v. Commissioner of Police, AIR 1990 SC 513.
Santosh Chandra Chowdhary v. State of Tripura, AIR 2004 Gau. 1.
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Sarveshwar Prasad Sharma v. State of M.P., AIR 1977 SC 2423.
Satish Chandra Rai v. Jodu Nandan Singh, ILR 26 Cal 748.

xii
SC 1360.
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
Sharda v. Dharampal, AIR 2003 SC I950.
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Smt. Selvi & Ors. v. State of Karnataka & Ors. 2010 (2) R.C.R. (Criminal) 896.
Soni Devrabhai Babubhai v. State of Gujrat, AIR 1991 SC 2173: (1991) 4 SCC
298.
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2014 STPL(Web) 334 SC.
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State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373.
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xiii
Sunil Batra (II) v. Delhi Administration AIR 1980 SC 1579.
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T. V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.
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xiv
 ACKNOWLEDGEMENTS

Gratitude is never a matter of right. It is not claimed. It becomes due.

What is due must be acknowledged. The completion of a research work
demands constant supervision and guidance in manifold ways. In this
respect, I am fortunate to get the supervision of Prof. Subhash C. Gupta.
He took keen interest, gave constant encouragement, gracious assistance,
wise and sound consultations from the stage of planning and arrangement of
the scheme of the present work till the stage of its submission.
He has been most generous with his time in spite of his busy schedule
particularly in view of administrative obligations. His comments on each
chapter have been in the form of fresh vistas of thought, giving clue to
approach the same aspect from a different perspective. I have been a
fortunate recipient of his guidance at all stages of this work. I owe him a
sincerest debt of gratitude not repayable in any form. Without his scholarly
and able guidance, the work would not have been in this shape. I must say
that to work under his guidance has been a great educative experience, that
any student can desire for.
I also express my regards to Prof. Suman Gupta (Retd.), Department
of Law. Kurukshetra University, Kurukshetra, who has been my teacher
since the beginning of my LL.B. and guided me since the initial stage of my
research work till its final completion. I am highly obliged for the guidance,
valuable suggestions and the precious time she has given to me. Without her
support, this research work could not have not been completed.
I am highly thankful to Prof. Raj Pal Sharma, Chairman,
Department of Law for his support and kind attitude, which supported me a
lot throughout the period of this research work. I am highly indebted to
Prof. V.K. Razdan, Dean, Faculty of Law, who remained a rich source of
encouragement for me in completion of this research work.

ii
 I would like to put on record the support of the entire faculty and staff
of the Library, Department of Law, Kurukshetra University, Indian Law
Institute, New Delhi, Maharishi Dayanand University, Rohtak for enabling,
me to complete this work by facilitating the collection of the material for the
research work.
My deepest appreciation is attached to my husband, Sh. Surender
Kumar, whose sacrifices and immense love became my inspiration to go
boldly and successfully in every sphere of life. He has remained a tower of
strength to me always. I place my acknowledgements to my parents and
parents-in-law for their valuable support and guidance and special thanks to
my little son Sarthak Rajdev who sacrifices a lot by not getting my time
during the thesis work. Their contribution is very valuable for me
I place my acknowledgements to various authors and publishers,
whose writings and publications I have consulted and quoted herein.
I owe my thanks to Sh. Navneet Sharma "University Computers"
who has typed this thesis with full devotion.

Savita Kumari
LL.M., UGC (NET)

iii
 CONTENTS

Page Nos.
Certificate i
Acknowledgements ii-iii
List of Abbreviations iv-vi
List of Cases vii-xiii
CHAPTER I – INTRODUCTION 1-15
1. General
2. Importance of the Study
3. Objectives and Scope of the Study
4. Research Methodology
5. Hypothesis
6. Issues
7. Scheme of the Study
CHAPTER – II HUMAN RIGHTS AND CRIMINAL 16-63
JUSTICE: A HISTORICAL PERSPECTIVE
1. General
2. Historical Background
3. Concept of Human Rights
4. Sources of Human Rights Law
(i) International Treaties
(ii) International Customs
(iii) Other International Instruments
(iv) Judicial Decisions
5. International Human Rights Law
(i) Human Rights under the United Nations Charter
(ii) Universal Declaration of Human Rights
(iii) International Covenants on Human Rights
(iv) Preparations of the drafts of the two covenants
(v) Adoption of the two covenants
(vi) Covenants on Civil and Political Rights
(vii) Civil and Political Rights in Emergency
 (vii) Implementation Procedure
(ix) Covenants on Economic, Social and Cultural Rights
(x) Universal declaration and the two covenants
(xi) Relationship between the two covenants
(xii) Criticism of the covenants
6. International Conventions on Inhuman Acts
(i) Genocide
(a) Meaning of Genocide
(b) Punishment for the crime Genocide
(ii) Apartheid
(iii) Apartheid in sports
(iv) Torture and other Cruel Inhuman or degrading Treatment
or punishment
(v) Slavery and slave trade
(vi) Forced or compulsory labour
(vii) Traffic in persons and prostitution
(viii) Elimination of Racial Discrimination
7. The Indian Perspective on Human Rights
8. Conclusion
CHAPTER III HUMAN RIGHTS OF ACCUSED IN INDIA 64-111
1. General
2. Provision of Indian Constitution and Criminal Procedure Code
(i) Protection against ex-post facto law
(ii) Doctrine of “ autrefois acquit ”and” autrefois convict”
(iii) Prohibition against self-incrimination
(iv) Person arrested to be informed of grounds of arrest
(v) Right to be defended by a lawyer
(vi) Person arrested to be taken before Magistrate
(vii) Person arrested not to be detained more than twenty
four hours
(viii) No right to police officer to cause death of accused
(ix) Information of arrest to a nominated person
(x) Right to be released on bail in bailable offences
 (xi) Right to receive the copy of the receipt after search
(xii) Right of medical examination of arrested person
(xiii) Right to free legal aid
(xiv) Right of accused to know the accusation
(xv) Right to be tried in presence of accused
(xvi) Interpretation of evidence to accused or his pleader
(xvii) Rights of accused where accused does not
understand proceedings
(xviii) Right to get copies of police report and other documents
(xix) Right to cross-examine prosecution witnesses and to
produce defence witnesses
(xx) Court’s power and duty to examine accused person
(xxi) Accused person as a competent witness
(xxii) Right to speedy trial
(xxiii) Compensation for wrongful arrest
3. Human Rights and Preventive Detention Laws
(i) Human Rights and Concept of Terrorists under
Preventive Detention Laws.
(ii) Preventive Detention Statutes and Quest for Human Rights
(iii) State Legal Instruments and Human Rights.
4. Some other Provisions for Human Rights of Accused
(i) Rules for Bail.
(a) Maximum detention of undertrial person.
(b) Media Trial and its effection bail of accused.
(ii) Venue of trial.
(iii) Right against solitary confinement.
(iv) Right against inhuman Treatment.
(v) Fair Trial.
(vi) Curative Petitions.
(vii) Right to information under Right to Information Act, 2005
5. Conclusion
CHAPTER IV - DEATH PENALTY VIS-A-VIS HUMAN RIGHTS 112-155
1. General
2. Historical Perspective of Death Penalty
3. Capital Punishment in Ancient Rome and Greece
4. English Law on Death Penalty
5. Death Sentence under different statutes
6. Mode of Execution
7. Execution of Death Sentence
8. Capital Punishment (Death Sentence) under the Indian Penal Code.
1860
9. Related provisions of Criminal procedure Code, 1973
10. Concept of Rarest of Rare Cases
11. Retributed character of Death Punishment
12. Global perspective of Death Sentence
13. Previous Efforts to Abolish Death Penalty
14. Arguments for Retention of Death Penalty
15. Arguments for Abolition of Death penalty
16. Death Penalty is no more 'Mirage' in India
17. Judicial Trend Qua Death Penalty
18. Judicial Discretion and Death Penalty
19. Legality of Death Sentence
20. Reasonableness of Death Sentence
21. Reasons for abolition of Capital Punishment
22. Capital Punishment in India
23. Law Commission on Capital Punishment
24. Indian law on Death Penalty
25. Human Rights and Capital punishment
26. Conclusion.
CHAPTER V - HUMAN RIGHTS AND CRIMINAL JUSTICE: 156-209
ROLE OF JUDICIARY
1. General
2. Human Rights and Judicial Activism
(i) Court and Presumption of innocence
 (ii) Police Torture
(iii) Custodial Violence
(iv) Hand-cuffing
(v) Prisoner’s Grievances
(vi) Guidelines relating to Administration of Polygraph
Test (Lie Detector Test) on an Accused
(vii) Rules for Bail
(viii) Onus of Proof in Criminal Cases
(ix) Fair Trial
(x) Speedy Trial
(xi) Right to Appeal
(xii) Curative Petitions
(xiii) Legal Aid
(xiv) Delayed Execution of Death Sentence
(xv) Damages for violation of rights
(xvi) Justice to Victim
3. Relaxation of Procedural Requirements in Public Interest Litigation
for Protection of Rights of Undertrials / Arrested Persons.
4. Judicial Activism on Human Rights Issues.
5. Conclusion
CHAPTER VI - CONCLUSIONS AND SUGGESTIONS 210-239
1. Conclusions
2. Suggestions
BIBLIOGRAPHY 240-246
 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
1
 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.
2
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.

3
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.
4
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
5
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
6
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 Bihar4 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 trial9 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 silence11, 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.
7
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.

8
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.

9
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
10
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:
11
(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
12
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
13
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
14
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.

15
 CHAPTER – II
HUMAN RIGHTS AND CRIMINAL JUSTICE: A
HISTORICAL PERSPECTIVE
1. General
Proponents of human rights regard them as being inherent, inalienable and
universal; inherent in the sense that they are the birth right of all human beings
and people enjoy them simply by virtue of their human existence and, as such,
they do not have to be granted to them by any superior or sovereign authority;
inalienable in the sense that people cannot agree to give them up or have them
taken away from them; and universal in the sense that they do not just apply to
individuals as "citizens" or groups but to all persons regardless of their group
identities. These basic ingredients of human rights as proposed by the proponents,
inter alia, pose certain fundamental questions regarding the very ethics of the
subject because of the fact that the question of "human rights has always been an
important, interesting and acute one" within the discourse of social science,
particularly in recent times. In this context, many researchers have promoted to
explore the basis, nature and scope of this subject. So an historical enquiry may
help us to understand its growth and development in different phases of human
history.1 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 prevalence, relevance and recognition as well as
their effectiveness.
Of course for various reasons, Adolf Hitler knew history.2 Knowledge of
history prompted him to chuck out the 'filthy, felony races and replace them with
the spruces of Aryan race'. Inspired by the removal of inferior races in the United
States Hitler showed what happens when someone picks up 'wrong stories' from

1 Yogesh Kumar Tyagi, "Third World Response to Human Rights", Indian Journal of
International Law, Vol. 21, 1981, p. 119.
2 Warren Rosenblu, History and Human Rights, available at www
webster.edu/depts/artsci/i/pdf/humanriqhts&history.pdf

16
the past. As all knew from many brilliant studies, Hitler converted Germany into
a 'breathing hell' for Jews during 1940s. One could wonder what is so special
about Hitler and human rights, especially when we have a world filled with
blood-thirsty autocrats and craving despots having legendary aversion to human
values who have always sought to wipe out ordinary human beings in the name
of race, religion, culture, sex, political choices and so on. For instance how could
we simply forget terrors such as the civilizing mission of Africa under the
leadership of King Leopold II (1870), the C.I.A code that shot at democracy in
Congo- 'Jews to take over Satan' (1960), Stalin's millions of victims (1940-50),
Saloth Sar Poi Pot's twenty-thirty millions, the partition victims of India ?
Therefore, yes, nothing so special about this man with toothbrush moustache,
except in the context that the rise and end of Third Reich in Germany fuelled in
many ways the establishment of an interventionist mechanism of human rights,
both as an establishment and international standard applicable irrespective of
regional-specific sensitivity. It is tempting, then, to explain the sagacity of human
rights as a sequence of historical events single-handedly loaded with the dance of
time. Therefore, the present discussion has two purposes. Firstly, to make a
coherent reading of the history of human rights in modern world, and secondly, to
critically evaluate the image, reflection, impacts and reverberations of this
umbrella term on the hegemonic and one-track suzerainty in many forms.
2. Historical Background
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

17
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. As well, in the American struggle for independence, human rights had
been elevated to what Thomas Jefferson called "self-evident truths" of human
freedom and equality. As Lynn Hunt shows, these empathies of new individual
experiences, the rise of anti-colonial, anti-slavery movements, response and
resistance to torture etc. created the space for human rights.3 Similarly, we can
also see that the Universal Declaration of Human Rights was a compromise to
keep the normative order of post-war international relations, creating fire-walls
against atrocities.4 Therefore, modern day Human Rights is a product of both an
intellectual enquiry since the 17th century and an atrocious historical background
in which the unholy lust of modern western nations for 'world hegemony' shed
the blood of innocent millions. This saturation point in the history of modern
west was soon maligned by a static social situation and deprived political entity
There were many reasons for such a different tone; the two world wars had
already annihilated approximately 50-70 million people, keeping millions in
abrupt devastation and redrawing the political map of the globe being divided
mainly into two camps of capitalism and communism. Along with these
developments, the rise of modem nation states became influential and the
development of freedom struggle across the globe challenged totalitarian
regimes. At this moment, the establishment of the United Nations in 1945 was a
preparation also for elevating Human Rights as an ideological platform for
democratically keeping peace and prosperity. Then onwards the world witnesses
the rise of Human Rights as an institution and idea.
While assuming that human rights is a product of at least four hundred
years of intellectual response and the culmination of politico-legal development
following the two world wars and the birth of a new world order, we have ample
historical sources to argue that human rights were always part of political process
in the modern world. It should be assumed that while pre-modern forms of
human rights were exclusive in nature, meaning that rights and privileges were

3 Lynn Hunt (2007) Inventing Human Rights. A History, New York: W.W. Norton &
Company.
4 Michael Ignatieff, Human Rights as Politics II Human Rights as Idolatry, The Tanner
Lectures on Human Values Delivered at Princeton University, April 4-7, 2000, p.289.
available at www. tannerlectures.utah.edu/lectures/documents/lqnatieff 01.pdf

18
granted to certain individuals and communities on the basis of their special rights,
modern day human rights practices exclusive policies in different platforms. This
takes place with modem day human rights when we accept them as a universal
order applicable irrespective of race, religion, caste and region.
In addition, the universal form of human rights as an inalienable right of
every human being across the world emerged from the ruptures of western
intellectual conflicts with the super-power of medieval periods- the Roman
Catholic Church. Enlightenment, Renaissance and Reformation, as we would call
them, enabled men in Western Europe to negate the supremacy that the Roman
church enjoyed in matters of knowledge. Slowly, by breaking the walls of
medieval prejudges about, human life and the Universe, an era of scientific
exploration began. As Hendrik Willem Van Loon has rightly pointed out, the age
of the engine was succeeded by the age of science in which many of the scientists
who spearheaded the conflict between rationality and prejudices redefined what
science can contribute towards human emancipation. As a backdrop we must also
note that these scientists in the age of 'science in the womb of history' suffered
terrible penalties, as noted by Van Loon, and went through unexplainable human
causalities:
"Many of these scientific pioneers suffered poverty and contempt and
humiliation. They lived in garrets and died in dungeons. They dared not print
their names on the title-pages of their books and they dared not print their
conclusions in the land of their birth, but smuggled the manuscripts to some
secret punting shop in Amsterdam 01 Haarlem. They were exposed to the bitter
enmity of the church, both Protestant and Catholic, and were the subjects of
endless sermons, inciting the pensioners to violence against the 'heretics''.5
Coming back to the issue of human rights, it isobserved that these many
sufferings and tortures imposed upon the scientific explorations did not stop the
birth of a scientific community. This development was also supported by the
essential political developments that drastically transformed the political
environment of entire Europe. The 1800s had witnessed the imposition of Code
Civil des Frangais or the Napoleonic code. The imposition of Napoleonic Code
contributed in many ways to the rise of human rights as an institution later. The

5 Willem van Loon, The Story of Mankind, Pocket Books, New York, 1973 (firstly
published 1921), p.410.
19
imposition of Napoleonic code abolished privileges based on birth and allowed
freedom of religion and reserved that government jobs be provided to the most
qualified. The abysmal of Napoleonic war and then the revolutions that swept
across Europe in the 19th century, irrespective of their all limitations, gave
predominance to people in the governance of country and ended a system of
absolutism for while. Likewise, late nineteenth century also witnessed the rise of
an industrial proletariat, afresh agents of political and social transformation. This
proletariat and their struggle in the form of united political action warned
authoritarian states across Europe and laid out the foundation for universal
brotherhood of working-class. Following these developments, new laws were
enacted to abolish child labour, slavery etc and to legalize trade unions. This
period also saw the emergence of a Welfare State concept in Europe and states
acted as responsible agents of social change. It was in this era of 'balanced world
order' that events erupted leading finally to the First World War in 1918. The
First World War, as many historians would have told, was a war for political
power at the time of the decline of the Ottomans. Along with so many causalities
and bloodshed, the First World War also spearheaded the establishment of
League of Nations, a forerunner of human rights in many ways. The League of
Nations can be considered a milestone in the history of human rights as this
organization established and to some extend tried to impose a sort of balanced
political order between nations while recognizing the rights of citizens.
Moreover, the basic philosophy of the League was based on Immanuel Kant's
Perpetual Peace: A Philosophical Sketch. As history proceeded, new events took
place leading to holocaust and the Second World War. The atrocities committed
on human civilization on the pretext of pure-race by Hitler and other power-
hungry nations challenged the very idea of civilization in the 1940s. The response
to this blood thirsty political environment led to the origin of United Nations
which was established as a peace keeping mechanism in 1945. The United
Nations is the source and agent of human rights standards today from its
inception in 1945 and acceptance of the Universal Declaration of Human Rights
in Paris in 1948. In the two covenants, featuring the right to self-determination
and freedom from discrimination based upon "race, color, sex, language, religion,
or political or other opinions", adopted in 1966 added further strength to
Universal Declaration of Human Rights (UDHR). Later, the International
20
Covenant on Economic, Social, and Cultural Rights and the International
Covenant on Civil and Political Rights combined with the UDHR into an
International Bill of Human Rights. Today, these form the basis for maintaining
what we call the Human Rights in the world. As well, Human Rights, according
to the United Nations Charter, is an inalienable right of every human being and it
promotes all member nations to promote universal respect for, and observance of,
human rights. Practically, human rights is now used as a tool of measurement or
value judgment to examine the political legitimacy of regimes in the world.
While the development of an international standard of human rights has in many
ways contributed to the rise of a right-sensitive society, it also gave institutional
power for some states to act arbitrary and assume political hegemony.
3. Concept of Human Rights
International Law was solely concerned with States in the classical period
which was influenced by the theory of State sovereignty. The view was based on
the thesis that only States create rules of International Law and as such rules are
valid for them alone. Thus, no place was left for the individuals, and therefore,
they had no legal significance from the International Law point of view.
Individuals were related to one State through the bond of citizenship or
nationality, and this stood in relation to other States in the role of aliens. If an
injury was caused to an individual it was the State (to which the individual
belonged) alone owed the responsibility under International Law to another State.
Even in those cases where individuals enjoyed certain rights and duties in
conformity with, or according to International Law such as the rights enjoyed
while on foreign territory by Heads of State, diplomatic envoys and even private
citizens-those individuals have not thereby become subjects of International Law.
Rights in question were enjoyed by the individuals concerned not as rights in
International Law but as rights derived from national law.6
Thus, as for both substance and procedure, States were the only subjects
of International Law; other entities including individuals were mere objects. The
dignity of individuals was largely a matter of State jurisdiction. However, the
importance of the object/subject dichotomy appears to have been exaggerated.
The fact is that there are no subjects or objects; they are participants.

6 Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 847.

21
 The transformation of the position of the individuals after the Second
World War has been one of the most remarkable developments in contemporary
International Law. In addition to the States, individuals are regarded as the real
subjects and beneficiaries of International Law by virtue of having rights and
duties flowing directly from International Law. While a few rules are directly
concerned with regulating the position and activities of individuals, a few others,
indirectly affect them.7 However, as long as the international community is
composed of States, it is only through the exercise of their will alone rights and
duties are conferred to them. They may agree to confer particular rights on
individuals which will be enforceable under International Law, independently of
municipal law. For instances, nationals of the Allied and Associated Powers were
empowered to bring cases against Germany before the Mixed Arbitral Tribunal in
their own names for compensation in accordance with Article 304(b) of the
Treaty of Versailles of 1919. Further, Treaty of 1907 between five Central
American States establishing the Central American Court of Justice provided for
individuals to bring cases directly before the Court. Human rights is one of such
rights which has been conferred to individuals by the States in the modern
International Law.
4. Sources of International Human Rights Law
International human rights law has been developing extensively since the
creation of the United Nations. The most fundamental point about human rights
law is that it establishes a set of rules for all the people of all the States.
International human rights law derives from the variety of sources which are as
follows :
(i) International Treaties :
Treaties are the most important sources of international human rights law.
Presently, a number of multilateral treaties relating to human rights are in force
which are legally binding to those States which are parties to them. The most
important amongst them is the United Nations Charter itself which, is binding on
all the States in the World and establishes at least general obligations to respect
and promote human rights.

7 Id at p. 846.

22
 In addition to the Charter, a number of other multilateral human rights
treaties have been concluded under the auspices of the United Nations and its
specialized agencies which create obligations to the contracting parties. Regional
treaties on human rights such as European Convention on Human Rights.
American Convention on Human Rights and African Charter on Human and
People's Rights are also legally binding on the contracting States and they
therefore are the sources of international human rights law.
(ii) International Custom :
Certain international human rights have acquired the status of customary
International Law by their widespread practice by States and they, therefore, are
binding on all the States without regard to whether they have been expressly
consented. The 1987 Restatement (Third) of the Foreign Relations Law of the
United States takes the position that customary International Law protects at least
certain basic human rights. Section 702 of the Restatement provides, "A state
violates International Law if, as a matter of State policy, it practices, encourages,
or condones (a) genocide, (b) slavery or slave .trade, (c) the murder or causing
the disappearance of individuals, (d) torture or other cruel, inhuman or degrading
treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial
discrimination, or (g) a consistent pattern of gross violations of internationally
recognized human rights."
Although the above list might not be exhaustive or other may disagree to
the above list of human rights as to have acquired the status of customary rule of
international law, there seems to be widespread agreement that a number of rights
are at present included within customary international law and consequently they
are the source of international law. It is desirable that a study is conducted to
prepare a list of those human rights which have acquired the status of
international customary law. It would be immense help to the International Court
of justice, States and to their courts as they would come to know about them.
(iii) Other International Instruments :
A great number of international declarations, resolutions and
recommendations relating to human rights have been adopted under the auspices
of the United Nations which have established broadly recognized standards in
connection with human rights issues despite the fact that they are not legally

23
binding on the States. The most important of these is the Universal Declaration of
Human Rights (UDHR), 1948 which possesses a moral or political force that may
be useful in persuading government officials to observe human rights standards.
Some of the rights referred therein have acquired the character of customary rule
of International Law. Declarations adopted by the Tehran Conference (1968) and
the Vienna Conference (1993) also serve as the source of the commitment by the
international community.
(iv) Judicial Decisions :
Decisions of the various judicial bodies are relevant in the determination
of the rules on human rights issues. Although action by the International Court of
Justice in the area has been limited, there is no doubt; that cases could fall within
its competency. European Court of Human Rights - a regional court, since the
Lawless case decided in 1960 has adjudicated many disputes successfully. The
increasing case load prompted a lengthy debate which resulted into the creation
of a new European Court of Human Rights on November 1, 1998. Although a
few cases have been brought before the Inter-American Court of Human
Rights, case law under the American Convention is as yet in its infancy.
Decisions of the municipal courts on human rights issues have contributed
immensely to the development of international human rights law.
In addition to the judicial complaints of human rights violations under the
various treaties also assist in the determination of the rules relevant to
international human rights.
(v) Official Documentations :
Official documents of the United Nations and its subsidiary bodies have
produced a vast amount of documentation relating to human rights matter.
Human Rights Law Journal, Human Rights Review and European Law Review
and the collective work done under the auspices of the international bodies are of
considerable value.
The above are the important sources of international human rights law but
they by no means are exhaustive. Many international and national institutions
contribute to the protection of human rights despite the fact that they primarily
concern with other international bodies; have too supported specific effects to
protect human rights.

24
5. International Human Rights Law
The idea that human rights could be protected by International Law in
addition to municipal law developed slowly mainly because State sovereignty - a
fundamental principle of international law since its emergence in the seventeenth
century, proved a stumbling block in the efforts to impose international legal
obligations upon States to protect individuals. The doctrine of State sovereignty
continued to prevail in the nineteenth and early twentieth century wherein human
rights questions were regarded as matters entirely within each State's own
domestic jurisdiction and wholly inappropriate for regulation by international
law. International human rights was considered as an attack upon the concept of
State sovereignty. No doubt, there were exceptions to the above rule which
included the adoption of the Slavery Convention of 1926 and the establishment in
1919 of the International Labour Organization and its subsequent activities. The
Covenant of the League of Nations, adopted at the end of the First World War
was silent on the issue of human rights. It pledged for the protection of minority
rights and respect for the human rights of the subject peoples under the mandate
system whereby newly decolonized nations were to be assisted towards political
development. However, the protection of human rights was dependent upon the
provisions of the national laws.
The realization of the worth of the human personality led the Institute of
International Law in 1929 to issue a proclamation of the rights of the man against
the State. However, instead of enumerating the rights of human beings; it laid
down six duties of the States which are : (1) to recognise the right of every
individual to life, liberty and property and to accord to all within its territory the
full and entire protection of their right without distinction as to nationality, sex,
race, language or religion; (2) to recognize the right of every individual to the
free practice, both public and private, of every faith, religion or belief; (3) to
recognize the right of every individual both to the free use of the language of his
choice and to the teaching of such language; (4) to recognise that no motive
based directly or indirectly on distinction of sex, race, language or religion,
empowers States to refuse to any of their nationals, private and public rights; (5)
to recognise that the equality as contemplated herein is not to be nominal, but
effective; (6) to recognise that except for motives based upon its general

25
legislation, no State shall have right to withdraw its nationality from those whom
for reasons of sex, race, language or religion, it should not deprive of the
guarantee contemplated in this proclamation. The proclamation, being the will of
the members of the Institute, did not impose any obligation on the States.
However, it laid down for all nations the standard of conduct towards all men
including their own nationals. The proclamation may be regarded as the first
attempt towards the universalization of human rights.
The turning point for the traditional approach in International Law came
in 1940's in midst of the extreme human rights abuses in war-torn Europe. During
the World War II, shocking crimes were committed against the humanity and
there was a total suppression of fundamental human rights. Nazi leaders of
Germany had established a regime of complete lawlessness and tyranny. They
had barbarously negated human values and dignity within their territories under
their occupation. Violation of human rights was considered as a source of
international conflict and protection of human rights was regarded as necessary
for international peace. It was at that time realised that the restoration of the
freedoms and rights to the people is one of the essential conditions for the
establishment of international peace and security. This conviction was reflected
in the proclamation8 issued by the President Franklin D. Roosevelt on January 6,
1941 which came to be known as 'Four Freedoms'. These he listed as freedom of
speech, freedom of religion, freedom from want and freedom from fear. In the
message he declared : "Freedom means the supremacy of human rights
everywhere. Our support goes to those who struggle to gain these rights or keep
them."
The efforts for the creation of an international organization, in order to
establish peace, were being made even when the World War II was in progress. A
number of conferences and meetings9 were held before the United Nations, an
international organization, was established in 1945. Many declarations adopted
by the conferences laid down the importance of human rights. The Joint
Declaration issued by the President Franklin D. Roosevelt of the United States
and the Prime Minister Winston Churchill of the United Kingdom on August 14,

8 Document of American Foreign Relations, Vol. Ill, p. 26.

9 Declaration of St. James Palace (1941), Atlantic Charter (1941), United Nations
Declaration (1942), Moscow Declaration (1943), Tehran Declaration (1943), Dumbarton
Oaks Conference (1944), San Francisco Conference (1945).
26
1941 in a document known as the Atlantic Charter, cherished the hope for a peace
which will afford assurance that all the men in all the lands may live out their
lives in freedom from fear and want.' The Declaration of the United Nations
signed on January 1, 1942 at Washington10 was the first document which used the
term human rights. In this document the signatories who were fighting against the
Axis Powers recognized the need "to preserve human rights and justice in our
(own) land as well as in other lands". The Declaration confirmed the principles of
the Atlantic Charter when it proclaimed that the protection of human rights in all
countries was to be one of the results which was desired to be obtained from the
victory over the Axis. In the Moscow Conference a Declaration was signed on
October 30, 1943 wherein it was stated that the individual Germans shall be held
responsible for their violations of rules of International Law. They signed the
Agreement for the Prosecution and Punishment of the Major War Criminals of
the European Axis on August 8, 1945. The Agreement was accompanied by the
Charter of the International Military Tribunal. Later, the Allied Powers
established the Nuremberg Trial. Dumbarton Oaks proposals, 1944 contained
only a brief reference to the promotion of human rights as one of the activities to
be performed by the proposed General Assembly, and, under its authority, the
Economic and Social Council.
(i) Human Rights Under the United Nations Charter
At the San Francisco Conference it was expressed by several delegates
that the United Nations should establish an International Bill of Rights. Although
that could not be done, it was well realised by the members that it should be the
obligation of the international community to cooperate in eradicating the scourge
of war, and they were therefore determined that the promotion and respect for
human rights which at present constitute so important and so conspicuous be an
integrated part of the U.N. Charter.
The result was that the Charter contains a number of provisions for the
promotion and protection of human rights and fundamental freedoms in the
Preamble and in Articles 1, 13(1)(b), 55, 56, 62(2), 68 and 76(c) which are as
follows :

10 The Declaration was signed by 26 States including the four Great Powers U.S.A., U.K.,
U.S.S.R. and China.

27
(1) The Preamble of the Charter in its first substantive paragraph laid down
that....'we the peoples of the United Nations determined to reaffirm faith
in fundamental human tights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and
small...'
(2) Para 3 of Article 1 of the Charter provided that the achievement of
international co-operation in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as
to race, sex, language or religion shall be one of the purposes of the
United Nations. The above provision shows that the desirability of
promoting and encouraging respect for human rights and fundamental
freedoms' without distinction as to race, sex, language or religion was
generally recognised. There was a general agreement that all human
beings are entitled to some basic rights. It marked the birth of the
international and universal recognition of human rights. However, despite
the differences as to what rights and freedoms are, the achievement of the
maximum freedom and dignity of the human beings was the primary aim
of the United Nations.
(3) The General Assembly and the Economic and Social Council were given
the task for the realisation of the promotion of human rights and
fundamental freedoms. By the terns of Article 13, the General Assembly
was empowered to initiate studies and make recommendations for the
purpose of assisting in the realisation of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Most of the items relating to human rights are considered by the
Assembly's Third Committee (Social, Humanitarian and Cultural
Committee), but others may be referred to other Committees such as the
Sixth Committee (Legal) or the First Committee (Political and Security)
or the Special Political Committee. The Assembly has also established
subsidiary organs for dealing with issues relating to specific human rights
such as Special Committee on Decolonization, the Special Committee on
Apartheid and the Special Committee to Investigate Israeli Practices in
the Occupied Territories.

28
(4) Article 55 provided that the United Nations shall promote : (a) higher
standards of living, full employment and conditions of economic and
social progress and development; (b) solutions of international economic,
social, health and related problems, and international cultural and
educational cooperation; and (c) universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion. It is to be noted that Article 55 is not self-
explanatory. Wordings of the Article suggest that human rights are limited
to those subjects which are mentioned in paragraph (c), and the subjects in
paragraphs (a) and (b) are not rights at all but only policies that should be
promoted.
(5) Article 56 provided that the members of the United Nations pledged
themselves to take joint and separate action in co-operation with the
Organisation for the achievement of the purposes set forth in Article 55.
(6) Article 62 of the Charter authorized the Economic and Social Council to
'make recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all.'
(7) Article 68 directed the Council to set up commissions in economic and
social fields and for the promotion of human rights, and such other
commissions as may be required for the performance of its functions. The
Commission on Human Rights and the Commission on the Status of
Women are the subsidiary bodies of the Economic and Social Council.
(8) Para (c) of Article 76 stipulated that one of the basic objectives of the
trusteeship system is to encourage respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language
or religion, and to encourage recognition of the interdependence of the
peoples of the World.
In addition to the above provisions, the Charter has referred repeatedly the
concept of 'fundamental human rights', 'the dignity and worth of the human
person', 'equal rights', 'justice', 'social progress' and fundamental freedoms. The
Charter devoted three Chapters to the self-determination of peoples.
The above provisions of the Charter make it clear that the State's
treatment of its own citizens has become a matter of international concern.

29
Although there was no universal agreement as to the precise extent of the 'human
rights and fundamental freedoms' guaranteed to all by the Charter, there is at
present no dissent from the view that they have become one of the basic
principles of international law.
The Charter by incorporating the provisions relating to promotion of
human rights and fundamental freedoms opened a new dimension towards the
progressive development of International Law. Individuals became a focus of
international concern by acquiring their own rights. All member States were
required to promote observance of fundamental human rights without distinction
as to race, sex, language or religion. The Charter universalized and
internationalized the concept of human rights which hitherto was adopted in some
countries since last 200 years. It was universalized in the sense that there was a
general acceptance of rights by national governments and was internationalized
because the treatment of citizens in one country became the business of other
countries as well. It was the first international document which recognised the
respect for human rights and fundamental freedoms as a principle of International
Law. Their recognition and their further realisation was deemed necessary as they
were regarded as one of the methods of achieving greater unity between the
States and also because they are indispensable for the maintenance of
international peace and security. It is clear from the wordings of Article 55 of the
Charter which lays down that the United Nations shall promote universal respect
for, and observance of human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion with a view to the creation of
conditions of stability and well-being which are necessary for peaceful and
friendly relations among nations. The observance of human rights therefore
contains an essential element of peace justice and well-being necessary to ensure
the development of friendly relations and cooperation among themselves as
among all States. President Truman at the closing address to the San Francisco
Conference as to relationship of the promotion of human rights and the
maintenance of international peace and security had stated that :

30
 The Charter is dedicated to the achievement and
observance of human rights and fundamental
freedoms. Unless we can attain these objectives for
all men and women everywhere without regard to
race, language or religion one cannot have
permanent peace and security in the world.

It is to be noted that the Charter is a global Constitution without a bill of

rights. It neither defined the human rights nor they were enumerated therein.
There is no provision in the Charter laying down expressis verbis that there is a
legal obligation resting upon nations to observe human rights and fundamental
freedoms. The guarantee for the protection of human rights and fundamental
freedoms was also not provided therein. Although it was proposed by the Latin
American States during the drafting of the Charter at San Francisco Conference
that it should contain an 'International Bill of Rights, a specific list of rights could
not be prepared due to lack of sufficient time, and therefore, promotion as well
protection of human rights was explicitly rejected. Provisions relating to human
rights in the Charter are therefore general and vague. However, since the
adoption of the Charter, international human rights law has been developing in an
unprecedented way, and presently, it has become a substantive part of
international law as a whole.
(ii) Universal Declaration of Human Rights
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.

31
 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 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 General Assembly referred this matter to the Economic and Social
Council for study by the Commission on Human Rights.11 The mandate extended
to the Commission on Human Rights was inspired by 'the desire to establish a
comprehensive system for the promotion and protection of human rights. The
Commission in January 1947 appointed a Committee known as Drafting
Committee for the preparation of the draft of the Bill of Rights.
The procedure for the preparation of the draft of the International Bill of
Rights was also prescribed by the Economic and Social Council. The Drafting
Committee, at its First Session,12 prepared a preliminary draft of the International
Bill of Rights which was considered by the Commission on Human Rights at its
Second Session held from December 2 to 17, 1947. However, due to the
differences of opinion as to its forms and contents, the Commission decided to
apply the term 'International Bill of Human Rights' to a series of documents in
preparation and established three working groups. The Commission therefore
decided to draw up simultaneously two sets of documents, i.e., a draft declaration
consisting of a declaration of general principles on human rights, and a draft
convention, which would be a convention on such specific rights as would lend
themselves to binding legal obligations. The Commission along with the above
two documents also prepared a memorandum on the question of implementation.
The three documents to be known as International Declaration on Human Rights,
International Covenant on Human Rights and Measures for Implementation.
They would together form the International Bill of Human Rights.13

11 General Assembly Resolution 7 (1) dated January 29, 1946.

12 The First Session was held from January 9 to 25, 1947.
13 Report of the Commission on Human Rights, Second Session.
32
 In order to prepare the documents on these topics, the Commission
established three Working Groups. While considering the report of the Working
Groups, the Commission considered the draft declaration, and in somewhat less
detail the draft covenant, but decided to take no action on any specific principles
on or recommendations contained in the report of implementation. However, it
decided to forward the report of its Working Groups to the Governments for their
comments.
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 International Bill of Human Rights represents a milestone in the
history of human rights, a veritable Magna Carta marking man kinds arrival at a
vitally important phase; the conscience acquisition of human dignity and worth.
Judges of the International Court of Justice have occasionally invoked principles
contained in the International Bill of Human Rights as a basis of their decisions.
National courts of many states have frequently cited principles set out in the Bill
in their decisions.

33
(iii) International Covenants on Human Rights
The Universal Declaration of Human Rights stated the common standard
of achievements for the enjoyment and protection of human rights. It was not
legally binding on the States. The fact is that it was not intended to be legally
binding. The Commission on Human Rights in 1947, while considering the
preliminary draft of an International Bill of Human Rights prepared by the
Drafting Committee, decided to draw up a separate Covenant which would be a
Covenant on such specific rights as would lend themselves to binding legal
obligations.14 The document was to be known as International Covenant on
Human Rights. In order to prepare it, a Working Group was established which
prepared a Draft Covenant consisting of twenty-seven articles divided into three
parts. The first part described the obligations of States which adhered to the
Covenant ; the second part defined some of the rights and freedoms listed in the
Draft Declaration, in more precise terms, and the third part described how
accession to the Covenant would be effected and how amendments would come
into force. The Draft Covenant was forwarded to the Governments for their
comments in January, 1948.
The Drafting Committee re-drafted the Draft Covenant at its Second
Session held in 1948.15 However, it was not examined by the Commission.16 The
Commission in 1949 completed the draft of most of the articles of the proposed
Covenant on Human Rights.17 It also decided to submit it to the Governments for
their observations and after having received the answers and comments of the
Governments, it would be presented to the Economic and Social Council for
submission to the General Assembly in 1950. In the meantime, a proposal was
made in the Commission by Australia, the Soviet Union and Yugoslavia for the
inclusion in the Covenant of articles on economic, social and cultural rights.18
However, the Commission decided to limit the Covenant to certain essential civil
freedoms, but agreed at the same time to consider in future for the preparation of
an additional Covenant on measures dealing with economic, social, cultural and
other categories of human rights.

14 Supra 13.
15 The Report of the Drafting Committee of its Second Session, see Doc. E/CN.4./95.
16 Report of the Commission on Human Rights, Third Session (1948),
17 Report of the Commission on Human Rights, Fifth Session (1949),
18 Report of the Commission on Human Rights, Sixth Session (1950),
34
(iv) Preparation of the Drafts of the Two Covenants
In 1950, the General Assembly recommended the inclusion of the
economic, social and cultural rights in the Covenant.19 Accordingly, the
Commission at its 1951 Session proceeded to draft the articles on economic,
social and cultural rights.20 When the draft was being considered by the
Economic and Social Council, a number of objections were made by many
countries as to having both the categories of rights in one Covenant. The
argument advanced by them was that the economic, social and cultural rights are
different in nature and they are secondary rights. It was a misunderstanding
which was further spread by a terminology which grouped these rights into
different 'generation'. The economic and social rights were meant for second
generation. Later, in 1952, the General Assembly, on the recommendation of the
Economic and Social Council, decided that the two Covenants shall be drawn up
and directed to the Commission on Human Rights to prepare two drafts, one
dealing with civil and political rights, the other with economic, social and cultural
rights.21 However, it was stated that each Covenant should contain as many of the
provisions as possible 'to stress the unity of the aim in view'.
The Commission completed the preparation of the drafts of the two
Covenants by the year 1954 and presented them to the Economic and Social
Council. The latter after considering them submitted them to the General
Assembly.22 The Assembly assigned consideration of the question to its Third
Committee (Social, Humanitarian and Cultural) which worked intermittently on
the drafts during twelve years. An annoted text of the Commission's drafts, taking
account of the observations made, was distributed to the Governments. Numerous
amendments or additions to the articles were considered during that period.23 The
text of each Article was thoroughly discussed and vigorously scrutinized.
Discussions also concerned the observations of the specialized agencies and of
the non-governmental organisations. In addition, the Third Committee also
considered the Working Papers on specific aspects of the texts.

19 General Assembly Resolution 421 (V), December 4, 1950.

20 Report of the Commission on Human Rights of Seventh Session (1951).
21 General Assembly Resolution 543 (VI) and 545 (VI), February 5, 1952.
22 ECOSOC Resolution 545 (XVIII) July 29, 1952.
23 Report of the Third Committee of the General Assembly.
35
(v) Adoption of the Two Covenants
On the recommendation of the Third Committee, the General Assembly
on December 16, 1966 adopted the two Covenants24 : International Covenant on
Civil and Political Rights and International Covenant on Economic, Social and
Cultural Rights. It also adopted an Optional Protocol to the International
Covenant on Civil and Political Rights.25 The General Assembly on December
15, 1989 adopted the Second Optional Protocol to the International Covenant on
Civil and Political Rights Aiming at the Abolition of the Death Penalty.26 The
Second Optional Protocol came into force on July 11, 1991 in accordance with
Article 8, Para 1. With the adoption of the two Covenants and two Optional
Protocols, the United Nations completed the task of formulating the international
standard of human rights of the individuals. They together along with the
Universal Declaration of Human Right is regarded to have constituted
International Bill of Human Rights. Thus, the United Nations fulfilled one of the
main objects which it had cherished in 1947.
The Covenants and the Protocols embody legal, moral and political
values. They are legal because they involve the implementation of rights and
obligations. They are moral because they are a value-based system and preserve
human dignity. They are political in the larger sense of the word.
The two Covenants were open for signature on December 19, 1966. Each
required 35 ratifications or accessions before coming into force. The First
Optional Protocol, subject to entry into force of the Covenant on Civil and
Political Rights, required ten instruments of ratification or accession.
Accordingly, the Covenant on Economic, Social and Cultural Rights, and the
Covenant on Civil and Political Rights came into force on January 3, 1976 and
March 23, 1976 respectively. The First Optional Protocol came into force on
March 23, 1976. By May, 2013 while the Covenant on Civil and Political Rights
had 167 parties, the Covenant on Economic, Social and Cultural Rights had 160

24 General Assembly Resolution 2200A (XXI), December 16, 1966. The Covenant on
Economic, Social and Cultural Rights was adopted unanimously by a vote of 105 to 0
and the Covenant on Civil and Political Rights by a vote of 106 to 0.
25 The Optional Protocol to the International Covenant on Civil and Political Rights was
adopted by a vote of 66 to 2 with 38 abstentions.
26 General Assembly Resolution 44/128, dated December 15, 1989.

36
parties. The First Optional Protocol had 45 signatories and 13 State Parties as in
April, 2014.
(vi) Covenant on Civil and Political Rights
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. The Article further states that
in no case may a people be deprived of its own means of subsistence, and that the
States Parties shall promote the realisation of the right of self-determination and
shall respect that right. The Covenant on Economic, Social and Cultural Rights
also stipulated the above provisions in toto under Article 1.
Part II stipulated rights and obligations of the States Parties to the
Covenant. It included the obligations of the States to take necessary steps to
incorporate the provisions of the Covenant in the domestic laws and to adopt such
legislative or other measures as may be necessary to give effect to the rights
recognised in the Covenant. The States Parties ensure the equal right of men and
women to the enjoyment of all civil and political rights.
Part III deals with the specific rights of the individuals and the obligations
of the States Parties. Following substantive rights have been provided under this
part:
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).

37
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 above rights set forth in the Covenant are not absolute and are subject
to certain limitations. While the formulation of the limitations differed in so far as
details are concerned from Article to Article, it could be said that by and large the
Covenant provided that rights should not be subjected to any restrictions except
those which were provided by law, were necessary to protect national security,
public order, public health or morals or the rights and freedoms of others.
(vii) Civil and Political Rights in Emergency
The Covenant made provisions under Article 4 relating to public
emergency which threatens the life of the nation. Para 1 of the above Article lays
down that the States Parties to the Covenant may take measures derogating from
their obligations under the Covenant to the extent strictly required by the
exigencies of the situations. Thus, the declaration of emergency permits a State to
suspend human rights. However, the restrictions must be provided by law and
applied solely for the purpose for which they have been provided. Further, they
should not give rise to any discrimination on the grounds of race, sex, colour,

38
language, religion or social conditions. The scope and ambit of judicial review
and judicial independence must be ensured at all times.
The Covenant under Para 2 of Article 4 provided that there are certain
rights in respect of which no derogation can be made. For instance, there cannot
be any derogation in the (1) right to life (Article 6) ; (2) freedom from inhuman
or degrading treatment (Article 7); (3) freedom from slavery, slave trade (Article
8, Para 1) and servitude (Article 8, Para 2) ; (4) freedom from imprisonment for
inability to fulfil a contractual obligations (Article 11) ; (5) non-retroactive
application of criminal law (Article 15) ; (6) right to recognition as a person
before the law (Article 16) ; and (7) the freedom of thought, conscience and
religion (Article 18).
The above rights are non-suspendable rights as they have been identified
as 'Core of essential human rights'. In this connection it may be stated that the
concept of an essential core can never be static. It is dynamic in nature and,
therefore, certain additional rights may be included with the passage of time in
the list of non-suspendable rights. Any State Party to the Covenant availing itself
of the right of derogation shall immediately inform the other States parties to the
Covenant through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by
which it was actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.
(viii) Implementation Procedure
Part IV of the Covenant laid down the procedure for the implementation.
A provision was made for the establishment of the Human Rights Committee
which was the monitoring body under the Covenant.
(ix) Covenant on Economic, Social and Cultural Rights
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)

39
3. Right to form and join trade unions (Article 8)
4. Right to social security (Article 9)
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.
Part II of the Covenant laid down the undertakings of the States Parties to
the Covenant. Article II provided that each States Party undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognised in the
Covenant by all appropriate means including particularly the adoption of
legislative measures. It appears from the above provision that the States are not
under an obligation to abide by the provisions of the Covenant immediately, i.e.,
from the date of ratification of the Covenant. Thus, the Covenant has set the
standard which the States Parties are required to achieve in future. Its provisions
shall be implemented progressively by the States depending on the resources
available to them. Times, the Covenant is essentially a 'promotional convention'
stipulating objectives more than standards and requiring implementation over
time - rather than all at once.
The importance of the Covenants lies in the fact that they recognized the
inherent dignity and of the equal and inalienable rights of all members of the
human family which is the foundation of freedom, justice and peace in the World.
It is an obligation of the States to provide these rights to the individuals as they
derive from the inherent dignity of the human person ; and also because they are
essential for the development of one's personality.
(x) Universal Declaration and the Two Covenants
The key stone of the Covenants was the Universal Declaration of Human
Rights. The two Covenants in general elaborated the rights set forth in the

40
Declaration. However, there are exceptions. Many rights set forth in the
Declaration are not reflected in either of the Covenants such as the right of
everyone to own property alone as well as in association with others, and the
prohibition of arbitrary deprivation of property ; the right of everyone to seek and
to enjoy in other countries asylum from persecution ; the right of everyone to a
nationality and the right not to be arbitrarily deprived of one's nationality. The
Covenant on Civil and Political Rights, however, affirms the right of every child
to acquire nationality. On the other hand, the Covenants recognised some rights
which are not listed in the Declaration such as right of peoples to self-
determination and their right to dispose of their natural wealth and resources and
the right of ethnic, religious, or linguistic minorities to enjoy their own culture, to
profess and practice their own religion, and to use their own language.
Although certain rights set forth in the Covenants are different from that
of the Declaration, it was desirable to maintain the uniformity in the Declaration
and the Covenants as they both contain the basic and inalienable rights of the
human beings and also because both the instruments were adopted under the
auspices of the United Nations Organisation. The Universal Declaration, the two
Covenants and the two Optional Protocols to the International Covenant on Civil
and Political Rights is referred to International Bill of Human Rights.
(xii) Relationship between the Two Covenants
There is a close relationship between the two Covenants which have
enumerated various civil and political rights and economic, social and cultural
rights. It is evident from the fact that Preamble and Articles 1, 2, 3 and 5 are
virtually identical in both the Covenants. Preamble of both the Covenants
recognize that these rights derive from the inherent dignity of human persons.
Article 1 of each Covenant affirms that all peoples have the right to self-
determination and by virtue of that right they are free to determine their political
status and to pursue their economic, social and cultural development. While
Article 2 in both the Covenants reaffirms the principle of non-discrimination,
Article 3 stresses that States should ensure the equal right of men and women to
the enjoyment of all human rights. Article 5 of both the Covenants provided
safeguard against the destruction or undue limitations of any human rights and
fundamental freedoms.

41
Their relationship was recognized by the International Conference on Human
Rights which was held in Tehran in 1968.27 It declared in the final proclamation :
'Since human rights and fundamental freedoms are indivisible, the full realisation
of civil and political right without the enjoyment of economic, social and cultural
rights is impossible.28 The General Assembly in 1977 reiterated in a resolution29
which stated 'All human rights and fundamental freedoms are indivisible and
inter-dependent and equal attention and urgent consideration should be given to
the implementation, promotion and protection of both civil and political, and,
economic, social and cultural rights.' The resolution also stated that 'full
realisation of civil and political rights without, the enjoyment of economic, social
and cultural rights is impossible. Civil and political rights are the means to the
social and economic power of the people. Vienna Conference on Human Rights
held in 1993 in Vienna recognised under Para 1 that the World Conference on
Human Rights reaffirms the solemn commitment of all States to fulfil their
obligations to promote universal respect for, and observance and protection of, all
human rights and fundamental freedoms for all. Under para 5, the Declaration
stipulated that all human rights are universal, indivisible and inter-dependent and
inter-related. The international community must treat human rights globaly in a
fair and equal manner, on the same footing and with the same emphasis. It is
desirable, therefore, that the States should give equal emphasis to the rights
stipulated in both the Covenants in view of their inter-dependence.
(xii) Criticism of the Covenants
The two Covenants have been criticized by the authors on different
grounds which are as follows :
(1) It has been asserted that human rights cannot be universal in character.
They differ from one State to another depending upon the different
economic, social and political conditions of the States. According to them,
the rights of the individuals of developed, developing and least-developed
countries cannot be identical. But this aspect has not been taken into
consideration by the drafters of the Covenants.

27 The Conference was held at Tehran from April 22 to May 13, 1968.
28 Para 13 of the Proclamation of Tehran.
29 General Assembly Resolution 32/130, December 16, 1977.

42
 It is submitted that neither human rights can be different for Eastern
countries to Western countries nor they can be different for developed countries
and for the Third World countries. Human rights are colour blind and direction
blind. They know neither right nor left, but only the human. The universality and
indivisibility of human rights have come to be particularly emphasised recently.
It is human dignity which gives substance to human rights. Human beings carry
human dignity wherever they are and whatever the circumstances. The human
rights therefore are not place and time relative. Further, there cannot be several
categories of the rights of human beings because they all are equal, and the rights
mentioned in the Covenants are universal and are inherent in them by virtue of
their human beings. If certain rights cannot be made available to the individuals
of some countries, particularly, those which are not economically and politically
sound because of their other problems which by nature are more serious and
acute and which require immediate attention ; it does not mean that the
individuals of such countries are not capable or competent of possessing them. It
should be the endeavour of such States to make them available when the
conditions allow them to do so. They might be undesirable and irrelevant for
some countries at present, but the object for the respect of human rights has been
laid down before them by the adoption of the Covenants, and their desire and
attitude would certainly result in the observance of human rights in accordance
with the provisions of the two Covenants.
(2) The two Covenants are criticised sometimes on the ground that there are
certain glaring omissions therein. One of these grounds is the provision to
recognise and protect the property rights. Neither of the Covenants
protected property rights.
It is to be noted that the omission appears to be intentional. Had it been
included therein, the Socialist States would have not agreed to their conclusion. It
is, therefore, submitted that failure to include the protection of property rights
does not in any way make undesirable or unimportant those rights which have
been proclaimed.
Other grounds on which the Covenants are criticised are the provisions
regarding the self-determination in both the Covenants and the limitations on
freedom to speech as evident from Articles 17, 19 and 20 of the Covenant or,

43
Civil and Political Rights. But these criticisms do not carry much importance.
These criticisms are made mainly because of the different systems of law, and
also because of different ideologies and policies of the governments of the States.
In fact, there is much of substantial benefit in the Covenants and they can help to
ensure human dignity, worth and freedom throughout the World.
Although the Covenants lay down the universal human rights, they are yet
to be considered as to have acquired universal in scope in view of the trend as to
their ratification. The Covenants lay down the universal human rights. They have
become an important tool in the struggle to enforce human rights in the World.
Those States which have not ratified or acceded to the Covenants are not legally
bound by their provisions, yet they have definitely improved their human rights
records. The Covenants, no doubt, will be binding on third States when they
acquire the status of the customary rule of International Law.30
Although at present the provisions of the Covenants have not acquired the
status of the customary rule of international law, some of their provisions may be
regarded as binding on all the States, irrespective of the ratification, by virtue of
their being the general principles of law which is also a source of international
law.31 In other words, certain rights because of their common appearance in the
Constitutions of different States, Covenants represent the recognition of
obligation by States. A study32 made on the basis of the Constitution of France,
China, the Soviet Union and the United State reveals that certain rights stipulated
in the Covenant on Civil and Political Rights, such as, the right of self-
determination ; right to freedom of thought, conscience and religion ; right to
freedom of expression, orally or in writing or in print, the right of peaceful
assembly, the right to freedom of association with others ; the right to vote, the
right to security of the person and the right to inviolability of one's property have
become the general principles of law. Besides them, certain rights stipulated in
the Covenant such as the right to fundamental equality, the right to non-
discrimination, the right of the State to modify or suspend certain rights without
giving certain circumstances and proper notification, and the right to a fair and

30 Article 38 of the Vienna Convention on the Law of Treaties of 1969.

31 Article 38(1 )(c) of the Statute of International Court of Justice.
32 Natalie Kaufman Hevener and Steven A. Moshar, 'General Principles of Law and the
U.N. Covenant on Civil and Political Rights', ICLQ Vol. 27 (1978).

44
public hearing when a criminal charge is involved may' be found in one form or
another in the above Constitutions and are open to a greater range of
interpretation and application.33
However, so long all die provisions of the Covenant do not acquire the
character of customary rule of international law or they do not acquire the status
of general principles of international law they shall be binding only on those
States which are parties to them. The rights mentioned therein shall be available
to all the human beings of such States only. It implies that the individual's human
rights and fundamental freedoms is subjected to the will of the State. Thus, by
becoming a party to the Covenants, a State recognizes that there were limits on its
power over its people.
6. International Conventions on Inhuman Acts
The Charter of the United Nations had expressed the desirability of
promoting and encouraging respect for human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion. But the basic
question on which there existed difference of opinion was that what those rights
and freedoms are ? The Universal Declaration of Human Rights in 1948 laid
down a number of rights as a common standard of achievements of all peoples
and for all nations. However, rights enshrined therein were not legally binding on
States since it was not an international agreement. The Declaration simply
stipulated the basic principles of human rights and freedoms. The two Covenants
- International Covenant on Civil and Political Rights and International Covenant
on Economic, Social and Cultural Rights - were legally binding instruments but
they are by no means the only human rights treaties drafted and adopted under
the auspices of the United Nations. A number of conventions have been adopted
under the auspices of the United Nations to prevent the commission of certain
acts because of their being inhuman and because their commission is against the
dignity and worth of human persons such as genocide, apartheid, slavery and
slave trade, forced labour, torture, cruel, inhuman and degrading treatment or
punishment, and traffic in persons. The United Nations has been successful in the
adoption of the conventions specifically on these aspects which are as follows :

33 Ibid.

45
(i) Genocide
The term genocide has derived from the Greek term 'genos' (race) and the
Latin word 'cide' (killing)'. Thus, genocide is an act which is committed in order
to exterminate fully or partially, a national, ethical, racial or religious group as
such. The term was devised by Prof. Raphael Lemkin who first used in his work
Axis Rule in Occupied Europe (1944). The wholesale killing was done by
Germany under the National Socialist regime during the Second World War and
as a result of which it became necessary to enact rules so that such acts may not
be repeated.
The General Assembly, as early as in 1946,34 began the process of
formulating a convention on genocide. It adopted a resolution in 1946 wherein it
unanimously declared that genocide—the killing of a group of human beings—is
a crime under International Law. The Assembly on December 9, 1948 adopted
the Convention on the Prevention and Punishment of Genocide35 which came
into force on January 12, 1951. As in 2013, the Convention had 144 States
Parties. The main purpose of the Convention was to prevent and punish the
genocide.
(a Meaning of Genocide :
The Convention under Article 1 defined the term 'genocide' as an
international crime irrespective of whether it is committed in time of war or
peace. Article II enumerated specific acts which may be referred to genocidal.
Accordingly, genocide is the commitment of certain acts with intend to destroy in
whole or in part a national, ethnic, racial or religious group as such. Acts
constituting genocide are killing, causing serious or bodily or mental harm,
deliberately inflicting conditions of life calculated to bring about physical
destruction in whole or in part imposing measures intended to prevent birth and
forcible transfer of children. It is the duty of States to prevent and punish the acts
of genocide.
(b) Punishment for the Crime of Genocide :
Preamble of the Convention stated that genocide is a crime under
International Law. It is contrary to the spirit and aims of the United Nations and
is condemned by the civilized World. The Convention under Article III provides

34 General Assembly Resolution 96(1), dated December 11, 1946.

35 General Assembly Resolution, dated December 9, 1948.

46
punishment for the genocide ; conspiracy to commit genocide ; direct and public
incitement to commit genocide and complicity in genocide. Persons committing
the above crimes shall be punished whether they are constitutionally responsible
rulers, public officers or private individuals.36 The plea of superior order cannot
be taken by the persons committing the crime of genocide. Persons committing
genocide shall be tried by a competent tribunal of the State in the territory on
which the act has been committed, or by such international penal tribunal as may
have jurisdiction.37 Genocide shall not be regarded as political crimes for the
purpose of extradition, and therefore States shall not refuse to extradite a person
committing genocide on grounds of political crimes. Thus, unescapable
punishment shall be given to the persons for committing genocide. However, the
Convention does not have an implementation system.
Penalties for persons guilty of genocide are not stated under the
Convention. The Convention has provided that the Contracting Parties shall enact
necessary legislation to provide effective penalties.38 The expression effective
penalties has not been elaborated. The parties undertake to enact, in accordance
with their respecting constitutions, the necessary legislation to give effect to the
provisions of the Convention, particularly to provide 'effective penalties'.
The Convention stipulates under Article IX that disputes between
Contracting Parties relating to interpretation, application or fulfilment of the
Convention, including those relating to the responsibility of a State for genocide
or for other offences enumerated under Article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the disputes.39
The Genocide Convention over the years has developed into a norm of customary
international law and it is universally recognized by the international community
that the rule prohibiting genocide has attained the status of jus cogens. It
therefore has peremptory status and applies to all members of the international
community. International Court of Justice in the advisory opinion on the
Reservation to the Genocide Convention has observed that :

36 Article IV of the Convention on the Prevention and Punishment of Genocide.

37 Article VI of the Convention on the Prevention and Punishment of Genocide.
38 Article V of the Convention on the Prevention and Punishment of Genocide.
39 Genocide Convention Against Yugoslavia and Rwanda.
47
 the principles underlying the Convention are
principles which are recognized by civilized nations
as binding on States even without any conventional
obligation....the Genocide Convention was intended
by the General Assembly and by the contracting
parties to be definitely universal in scope.40

The Convention on Genocide was adopted in 1948 but instances of the

commitment of the crime of genocide have occurred even after the adoption of
the Convention. Tutsi massacres of Hutu in Burundi in 1965 and 1972, the
Paraguayan massacre of Ache. Indians prior to 1974, Khmer Rouge killings in
Kampuchea between 1975 and 1978, ethnic cleansing and genocide committed in
various parts of Bosnia and Herzegovina by Yugoslovakia and genocide against
the Tutsi ethnic group committed by Hutu in Rwanda are the instances of
genocide which clearly show that genocide—the greatest violation of human
rights has not come to an end.
(ii) Apartheid
The United Nations, since its inception was involved in the struggle
against apartheid, a class of human rights violation that has hardly known any
parallel. It was condemned by the United Nations in 1966 as a 'crime against
humanity' which is incompatible with the Charter. The Universal Declaration of
Human Rights had stated that all human beings are born free and are equal in
dignity and rights, and that every one is entitled to all the rights, and freedoms set
forth in the Declaration, without distinction to any kind, such as race, colour or
national origin. Racial segregation and apartheid were condemned by the
International Convention on the Elimination of All Forms of Racial
Discrimination. With a view to the suppression and punishment of the crime of
apartheid and in order to make it possible to take more effective measures at the
international and national levels an International Convention on the Suppression
and Punishment of Crime of Apartheid was concluded on November 30, 1973.41
The Convention came into force on July 18, 1976. in 2013, the Convention had
107 States parties.
Apartheid is an African term which means separation or segregation. It is
an official name given by South Africa to its racial policy. The purpose of

40 ICJ Reports 1951 pp. 15, 23.

41 General Assembly Resolution 3068 (XXVIII), dated November 30, 1973.
48
apartheid is to perpetuate the domination of the Country by its White minority in
the face of rising nationalism throughout Africa.42 The Convention declared
under Article 1 that apartheid is a crime against humanity.
The crime of apartheid has been defined under Article II which states that
the crime of apartheid shall include similar policies and practices of racial
segregation and discrimination as practised in Southern Africa shall apply to the
following inhuman acts (a) denial to a member or members of a racial group or
groups of the right to life and liberty of person (i) by murder of members of a
racial group or groups; (ii) by the infliction upon the members of a racial group of
serious bodily or mental harm, by the infringement of their freedom or dignity, or
by subjecting them to torture or to cruel, inhuman or degrading treatment or
punishment ; (iii) by arbitrary arrest and illegal imprisonment of the members of
a racial group or groups ; (b) deliberate imposition on a racial group or groups of
living conditions calculated to cause its or their physical destruction in whole or
in part; (c) Any legislative measures and other measures calculated to prevent a
racial group or groups from participation in the political, social, economic and
cultural life of the country and the deliberate creation of conditions preventing
the full development of such a group or groups; (d) any measures, including
legislative measures, designed to divide the population along racial lines, the
prohibition of mixed marriages among members of various racial groups, the
expropriation of landed property belonging to a racial group or groups or
members thereof ; (e) exploitation of the labour of members of a racial group or
groups in particular by submitting them forced labour ; (f) persecution of
organisation and persons, by depriving them of fundamental rights and freedoms
because they oppose apartheid.
International criminal responsibility shall apply, irrespective of the motive
involved to individuals, members of organisations and institutions and
representatives of the State whether residing in the territory of the State in which
the acts are perpetuated or in some other States, whenever they commit,
participate in, or directly incite or conspire in the commission of the acts, directly

42 Apartheid in South Africa came to an end in 1993 with the installation of the non-racial
Transitional Executive Council. Later, elections were held in South Africa on April 26,
1994 to elect the government of their choice.

49
abet, encourage or co-operate in the commission of the crime of apartheid.43
Persons charged with the crime of apartheid may be tried by a competent tribunal
of any State party to the Convention which may acquire jurisdiction over the
person or by an international penal tribunal having jurisdiction to those States
Parties which shall have accepted the jurisdiction.44
States Parties have undertaken to adopt legislative or other measures
necessary to suppress as well as to prevent the crime of apartheid and to
prosecute, bring to trial and punish in accordance with their jurisdiction persons
responsible for the commission of the crime.45 States Parties undertake, to submit
periodic reports on the legislative, judicial, administrative or other measures that
they have adopted."46 The Commission on Human Rights in 1977 established a
three-member group, commonly known as the Group of Three to consider those
reports. The Group is made up of Commission members who are also
representatives of States Parties to the Convention. Copies of reports shall be
transmitted through the Secretary-General of the United Nations to the Special
Committee on Apartheid.47
(iii) Apartheid in Sports :
The General Assembly on December 14, 1977 adopted the International
Declaration Against Apartheid in Sports which affirmed the necessity for the
speedy elimination of apartheid in sports. In order to implement the principles
embodied in the Declaration and to secure the earlier adoption of practical
measures to that end the General Assembly on December 10, 1985 adopted the
International Convention against Apartheid in Sports.48

43 Article III, International Convention on the Supression and Punishment of Crime of

Apartheid.
44 Article V, International Convention on the Suppression and Punishment of Crime of
Apartheid.
45 Article IV, International Convention on the Suppression and Punishment of Crime of
Apartheid.
46 Article VII, International Convention on the Suppression and Punishment of Crime of
Apartheid..
47 The Special Committee on the Policies of Apartheid on the Government of the Republic
of South Africa was established in 1962 to keep the situation under review between
Assembly sessions, so that continuous attention might be given to the problem, and to
report to the General Assembly and to the Security Council as necessary.
In 1974, the name of the Committee was changed to "Special Committee Against
Apartheid".
48 General Assembly Resolution 40/65, dated December 10, 1985.

50
 States Parties to the Convention undertook to pursue by all appropriate
means the policy of eliminating the practice of apartheid in all its forms from
sports. They shall not permit sports contact with a country practicing apartheid
and shall take appropriate action to ensure that their sports bodies, teams, and
individual sportsmen do not have such contact. States parties shall take
appropriate action against them if they participate in sports activities which has
been practicing apartheid. They shall deny visas and/or entry to representatives of
sports bodies, teams and individual sportsmen representing a country practicing
apartheid. States Parties shall also prohibit entry into their countries of members
of teams and individual sportsmen participating or who have participated in
sports competitions in South Africa and shall prohibit entry into their countries of
representatives of sports bodies, members of teams and individual sportsmen who
invite on their own initiative sports bodies, teams or individual officially
representing a country practicing apartheid and participating under its flag.
A Commission Against Apartheid in Sports consisting of fifteen members
of high moral character and committed to the struggle against Apartheid shall be
appointed to consider reports submitted by the States Parties on the legislative,
judicial, administrative or other measures which they have adopted to give effect
to the provisions of the Convention within one year of its entry into force and
thereafter every two years. The Commission may request further information
from the States Parties. The Commission shall report annually through the
Secretary-General to the General Assembly of the United Nations on its activities
and may make suggestions and general recommendations based on the
examination of the reports and information received from the States Parties. Any
State Party may at any time declare that it recognizes the competence of the
Commission to receive and examine complaints concerning breaches of the
provisions of the Convention submitted by States Parties which have also made
such a declaration. The Commission may decide on the appropriate measures to
be taken in respect of breaches.
(iv) 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

51
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.49 The Convention came into force on June 26, 1987 when it was
ratified by 20 States. As in September 2013, the Convention had 154 States
Parties.
(v) Slavery and Slave Trade
Slavery which has been in practice through out the ages in some forms or
the other is a blot on humanity. In ancient days slavery could mean the total
dominance and personal control by the master is presently limited to the
economic bondage. At the beginning of the nineteenth century customary
international law did not condemn the institution of slavery and the traffic in

49 Regional conventions have also been concluded for the prevention of torture. For
instance, member States of the Council of Europe have concluded European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in
1987 and its First Second Protocol of 1993, and American States have concluded Inter-
American Convention to Prevent and Punish Torture in 1985.
52
slaves. However, in twentieth century it has been deprecated worldwide. The
Universal Declaration of Human Rights denounced slavery under Article 4 by
stating that no one shall be held in slavery or servitude. Slavery and the slave
trade shall be prohibited in all their forms. Under the auspices of the League of
Nations, the International Slavery Convention was adopted on September 25,
192650 which defined slavery under Article 1 Para 1 as the status or condition of
a person over whom any or all of the powers attaching to the right of ownership
are exercised. In 1953, the Protocol Amending the Slavery Convention of
September 25, 1926 was adopted which transferred to the United Nations
functions and powers that had been undertaken by the League of Nations.51 The
Protocol came into force on December, 1953. As on February 5, 2002 the
Protocol had 59 States Parties.
Slave Trade was defined by the Convention of 1926 as all acts involved in
the capture, acquisition or disposal of a person with intent to reduce him to
slavery, all acts involved in the acquisition of a slave with a view to selling or
exchanging him, all act of disposal by sale or exchange of a slave acquired with a
view to being sold or exchanged, and in general, every act of trade or transport in
slaves. A Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices similar to Slavery was adopted by a
Conference of Plenipotentiary convened by the Economic and Social Council,
and opened for signature at Geneva on September 7, 1956.52 The Convention
came into force on April 30, 1957. The Convention has 117 States Parties. The
Convention defined the term slavery under Article 7 similarly as defined under
the Convention of 1926.
The Convention under Article 1 laid down that States Parties to the
Convention shall take all practicable and necessary legislative and other measures
for the complete abolition or abandonment of the (a) Debt bondage, that is to say,
the status of condition arising from a pledge by a debtor of his personal services
or of those of a person under his control as security for a debt, if the value of
those sendees as reasonably assessed is not applied towards the liquidation of the

50 The Convention came into force on March 7, 1927.

51 The Protocol was approved by the General Assembly through a Resolution 794 (xviii) of
October 23, 1953.
52 Economic and Social Council Resolution 608 (xxi) of April 30, 1956.

53
debt or the length and nature of those services are not respectively limited and
defined ; (b) Serfdom, that is. to say, the condition of status of a tenant who is by
law, custom or agreement bound to live and labour on land belonging to another
person ; (c) Any institution or practice whereby (i) a woman, without the right to
refuse, is promised or given in marriage on payment of a consideration in money
or in kind to her parents, guardian, family or any other person or group ; or (ii)
the husband of a woman, his family, or his clan has the right to transfer her to
another person for value received or otherwise ; or (iii) a woman on the death of
her husband is liable to be inherited by another person, (d) Any institution or
practice whereby a child or young person under the age of 18 years, is delivered
by either or both his natural parents or by his guardian to another person, whether
for reward or not, with a view to the exploitation of the child or young person or
his labour.
The Convention under Section II made provisions for the Slave Trade.
Article 3 laid down that the act of conveying or attempting to convey slaves from
one country to another by whatever means of transport shall be a criminal offence
under the laws of the States Parties and persons convicted thereof shall be liable
to very severe penalties.
Section III of the Convention stated that in those States where the slavery
has not been abolished or where the institutions or practices similar to slavery has
not yet completed, the act of mutilating, branding or otherwise marking a slave or
a person of servile status in order to indicate his status, or as a punishment, or for
any other reason, or of being accessory thereto, shall be criminal offence and
persons convicted thereof shall be liable to punishment.
The States Parties undertook to co-operate with each other and with the
United Nations to give effect to the provisions of the Convention. Any dispute
between the States Parties relating to the interpretation or application of the
provisions shall be referred to the International Court of justice at the request of
any one of the parties to the dispute, unless the parties concerned agree on
another mode of settlement.
It is to be noted that despite the Covenant on the Abolition of Slavery and
Slave Trade, Slavery and slavery-like practices still exist in many parts of the

54
World. States are urged to take immediate measures as a matter of priority to end
such practices, which constitute flagrant violations of human rights.
(vi) Forced or Compulsory Labour
Forced or compulsory labour constitutes a violation of the rights of man
referred to in the Charter of the United Nations and enunciated by the Universal
Declaration of Human Rights. In order to suppress it, a Convention was
concluded for the Abolition of Forced Labour Convention which was adopted by
the General Conference of the International Labour Organization on June 25,
1957. The Convention came into force on January 17, 1959. Earlier, the General
Conference of the International Labour Organization had adopted the Forced
Labour Convention in 1930 which defined the 'forced or compulsory labour'
under Article 2 as all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself
voluntarily. Nevertheless, for the purpose of the Convention the term forced or
compulsory labour shall not include (a) any work or service exacted in virtue of
compulsory military service laws for work of a purely military character; (b) any
work or service which forms part of the normal civic obligations of the citizens of
a fully self-governing country; (c) any work or service exacted from any person
as a consequence of a conviction in a court of law, provided that the said work or
service is carried out under the supervision and control of a public authority and
that the said person is not hired to or placed at the disposal of 'private individuals,
companies or associations; (d) any work or service exacted in cases of
emergency, that is to say, in the event of war or of a calamity or threatened
calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic
diseases, invasion by animal, insect or vegetable pests and in general any
circumstance that would endanger the existence or the well-being of the whole or
part of the population; (e) minor communal sendees of a kind which, being
performed by the members of the community in the direct interest of the said
community.
The Convention provided under Article 1 that each member of the
International Labour Organization which ratifies this Convention undertakes to
suppress and not to make use of any form of forced or compulsory labour:53

53 Convention No. 105.

55
(a) As a means of political coercion or education or as a punishment for
holding or expressing political views or views ideologically opposed to
the established political, social or economic system;
(b) As a method of mobilizing and using labour for purposes of
economic development;
(c) As a means of labour discipline;
(d) As a punishment for having participated in strikes;
(e) As a means of racial, social, natural or religious discrimination. States
Parties to the Convention undertake to take effective measures to secure
the immediate and complete abolition of forced or compulsory labour.
(vii) Traffic in Persons and Prostitution
The prostitution and the accompanying evil of the traffic in persons for
the purpose of prostitution are incompatible with the dignity and worth of the
human person. The United Nations in 1949 consolidated in a single Convention a
series of international instruments which were adopted under the auspices of the
League of Nations. These included (1) International Convention for the
Suppression of the Traffic in Women and Children of September 30, 1921 ; (2)
International Convention for the Suppression of the Traffic in Women of Full
Age of October 11, 1933 aimed at ending what had been known as the "white
slave trade." It is estimated that more than two million people World-wide are
being trafficked each year, the majority of whom are women and children. In
order to curb traffic in persons a Convention for the Suppression of the Traffic in
Persons and the Exploitation of the Prostitution of Others was concluded on
December 2, 1949 under the auspices of the United Nations.54 States agreed to
punish any person who procures or entices or leads away another person for the
purpose of prostitution even with the consent of that person and exploit the
prostitution of another person even with the consent of that person.55 The States
Parties also agreed to punish any person who (1) keeps or manages, or knowingly
finances or takes parts in the financing of a brothel ; (b) knowingly lets or rents a
building or other place or any part thereof for the purpose of the prostitution of

54
The Convention was. approved by the General Assembly Resolution 317 (IV) adopted
on December 2, 1949.
55
Article 1.
56
others.56 Each party to the Convention agreed to take all the necessary measures
to repeal or abolish any existing law, regulations or administrative provision by
virtue of which persons are engaged in such activities.
The Convention came into force on July 25, 1951 in accordance with
Article 24 of the Convention. As in April 2014, the Convention had 187 States
Parties.
(viii) Elimination of Racial Discrimination
The Universal Declaration of Human Rights under Article 2 laid down
that the rights and freedoms provided in the Declaration shall be available to all
the persons irrespective of race, colour, sex and religion. In 1963, the Assembly
proclaimed the Declaration on the Elimination of All Forms of Racial
Discrimination. The Declaration affirmed the fundamental equality of all persons
and confirmed that discrimination between human beings on the grounds of race,
colour or ethnic origin is a violation of the human right and is an obstacle to
friendly and peaceful relations among nations and peoples. In order to make the
provisions binding on the States a Convention was adopted by the General
Assembly on December 21, 1965 which is known as International Convention on
the Elimination of All Forms of Racial Discrimination.57 The Convention came
into force on January 4, 1969. As on November 2, 2003 the Convention had 169
States Parties.
7. The Indian Perspective on Human Rights
The vast literature that has grown in the West around the concept of rights
is in itself an indication that the concept had to be defended and philosophically
justified.58 In the long history of the Indian civilization, the freedom of thought
and speech, the freedom of one's life in the light of one's beliefs, the freedom of
association, the freedom of public debate between the contending philosophical
schools were taken to be the natural foundations of human relationships.59 It was
always taken for granted, and consequently there is hardly any literature available
on the idea of rights. When the word 'Adhikar' was used to convey a similar
sense, it always had a much deeper meaning. However, the freedom of the

56 Article 2.
57 General Assembly Resolution 2106 (XX), dated December 21, 1965.
58 J.C. Johari, Human Rights and New World Order : Towards Perfection of the
Democratic Way of Life, (1996) p 2.
59 Scott Davidson, Human Rights, (1993) p. 37.
57
individual in the western societies was secured after a long and bitter struggle
against the Church and the State; in India, those freedoms were seen as the very
substance of human existence. Therefore, in view of the fact that the West
possesses rich literature to its defence, and the same is absent in India, it would
be wrong to conclude that the idea of freedom is chiefly a Western one.60
The foundations of human rights may be established in two different
frameworks of perceiving man and the world; one is that of the modern Western
political thought and the philosophy of law; and the other of 'Dharma' and its
method that characterizes the journey of Indian civilization. Keeping this in view,
the Western philosophy had its own way of perceiving man, society and their
relationship from which it deduced the foundation of human rights, but
nevertheless, the Indian philosophy characterizes the foundation in the ancient
conception of Dharma and Danda which regulated the governance of State and its
citizens. The concept of Sanatan Dharma which laid down these foundation in
ancient civilization is 2000 years older than Western Christianity with a central
theocratic doctrine.61 It laid down the foundation of a sane society is ancient
Indian civilization encompassing a moral code, righteousness and
responsibilities. It was certainly wider and broader than the concept of religion,
as used in the Western historiography. It was on the basis of those existing
principles that detailed rules were laid down for the guidance of the king. It was
his duty to uphold the law and he was as much subject to law as any other person
(equality before law and equal protection of law can be deduced from that
practice). One of his chief duties was administration of justice according to the
laws of religious texts, local customs and usages and written codes. It was
obligatory for him to enforce not only the sacred laws of the existing texts but
also the customary laws (rights and claims) of the subjects.62 This was possibly
the human rights enforcement' situation in its embryonic stage. The guiding
principles laid down for the kings were, however, taken mainly from the species
of dharmic texts like the Vedas and the Vedanta under the genus Sanatan Dharma
which enshrines "Truth is one" and "Go resides in every human being". Besides

60 A.C. Kapur, Principles of Political Science, 1987, p. 210.]

61 Supta Das, Arjun Dev and Indira Arjun Dev, Human Rights : A Sour Book, 1996,
Introduction Part.
62 24. Yogesh Kumar Tyagi, "Third World Response to Human Right", 1981,p. 40.

58
Vedas, Upanishads, Mahabharata and Bhagavat Gita also furnished philosophic
foundations for subsequent social developments, thereby enriching the doctrine
of human rights. Upanishads, emphasizing the individual self and its truth say
that "there is nothing higher than the person". Mahabharata also emphasizes the
point that "without ethical and moral principles, there is no true happiness and a
society cannot hold together; the principles such as truth, self-control, asceticism,
generosity, non-violence, constancy in virtue should serve as the means of one's
success". Bhagavat Gita being a part of Mahabharata preaches us to meet the
obligations and duties of life, always keeping in view the spiritual background of
human existence which is the manifestation of an ultimate and the infinite. It is
evident that the subsequent scriptures emphasizing on the individual, and the
guiding principles of his success, form the base from which the essence of the
modern conception of human rights can be deduced.63
However, even at the individual level, there were some significant
contributions by the religious prophets with regard to the basis of human rights.
Mahavir, the founder of Jainism said that the foundation of human freedom in its
deepest sense, advocated that the truth, known as Anekantaved, which
demonstrates the idea of the relative pluralism and many sides of truth. This
attitude towards truth gives a profound implication for various aspects of human
life - personal and social. During Chandra Gupta Maurya's regime, Kautilya in
his Arthashastra, which depicted the political, social and economic codes of
conduct, laid down certain principles of the law of punishment as the foundation
of social existence.64 These principles then became the basis of the law against,
inter alia, illegal arrests and detention, custodial death, ill-treatment of women
such as rape, inequality of gender, corrupt judicial system, etc. The legendary
king Ashoka in the post-Kalinga regime had sown the seeds of a humanitarian
society, which, in its operational content was not sharply asymmetrical from the
Western version of a welfare State; the law of piety being its leit-motif. Ashoka's
policy of tolerance bears a close resemblance to the concept of civil liberties. He
desired that all animate beings should have security, self-control, peace of mind

63 Badrinath Chaturvedi, "Dharma and Jainism; Universal Foundations of Human Rights",

The Times of India, dated 25th September, 1995.
64 Yogesh Kumar Tyagi, "Third World Response to Human Right”, p. 123.
59
and joyousness; inhuman treatment or torture of prisoners were prohibited in
Ashoka's administration.65
In the medieval period, however, the three basic elements of the ancient
Indian tradition: universalism and humanism in its philosophical thought, the
struggle against caste ; discrimination and religious tolerance received a fresh
relevance and impetus from Islam following the Muslim conquest during the
tenth century A.D. Emphasising the greatness of this ' religion, Abdul Aziz says
"in Islam as in other religious traditions, human rights are concerned with the
dignity of the individual, the level of self-esteem that secures personal identity
and promotes human community". He further argues that it also established a
social order designed to enlarge freedom, justice and opportunity for the
perfectibility of human beings keeping an eye on the overall social, political and,
economic development of the society. However, "the operational ramifications of
the Islamic norms can be gleaned f;rom the Mughal history of India. Though the
Mughal Government could be typically characterised as centralised despotism, its
judicial administration contained all the basic elements of modern doctrine of
due process of law, fair trial and independent judiciary". Akbar's (1526-1605)
great regard for rights, justice and secularism could be cited as an example in this
regard. In his religious policy Din-e-Ilahi (divine religion), he tried to preach the
ideas of secularism (respect for all religions) and; religious tolerance. Similarly,
parallel to Akbar's exquisite religious reform policies, religious movements like
Bhaktim (Hindu) and Sufi (Islamic) made remarkable contributions towards
eliminating the irreligious practices of the contemporary society.66 These
movements tried to revive the, ancient humanist tradition and preached the sacred
principles of humanism and universalism denouncing the narrow! sectarianism
prevalent in both the religions - Hindu and Muslim. Further efforts were also
made in the modern era by Britishers to break and politicise the amity of these
two religions on the basis of their famous principle 'divide and rule' by bringing
into practice certain measures like the introduction of English education, the
merit system for recruitment and a system of discriminatory representation, and

65 Supra Note 60, p. 212.

66 Bhanu Prakash Maheswari, Growth and Development of Human Rights
Historical Perspective (1995) , p. 26.
60
communal representation at a later stage.67 However, some Indian leaders being
influenced by English education started a movement for Renaissance and
Reformation. Raja Ram Mohan Roy, one of those leaders, demanded the
abolition of Sati system, female infanticide, caste system and also initiated a
movement for widow remarriage and female education. Here, once again the
attention centered around the human being rather than tiod; which was somewhat
a new approach to human reason and human dignity. Further, establishment of
Brahmo Samaj (1828) and Arya Samaj (1875) lend support to this cause.
For the political freedom of India the formation of the Indian National
Congress (1885) also gave a new vista for the cause of human rights which was
being violated by the British rule in India.68
Influenced by the reformist movements in different parts of the world for
the cause of freedom, the Nehru Report of 1928, the first commitment to civil
liberties, and the Karachi Resolution of 1930, the most important commitment to
individual and group rights, were prepared. These were included in the
Constitution of India as Fundamental Rights in Part III, and as Directive
Principles of State Policy in Part IV, respectively.69
To conclude, however, the Indian perception of human rights does not
emanate from the theory of a priori or natural rights doctrine of the West, rather it
has its own base in ancient Indian culture and civilization. 'The Indian vision of
rights emphasises not only the individual but also the total person, a person
whose interdependent rights and duties are determined by his/her position within
a hierarchical network of relationship". The impact of Islamic religion,
renaissance and reforms movements, British colonialism and the nationalist
ideology played a vital role in the formation and practice of human rights in
India.70
8. Conclusion
Human Rights are the basic rights which are needed for the development
of an individual, i.e. rights which one possesses by virtue of being a human. The

67 Vimal P. Chandra, The Progressive Vision of Civil Society and Human Rights :
Universal Aspects (1997), p. 121.
68 Vimal P. Chandra, The Progressive Vision of Civil Society and Human Rights :
Universal Aspects (1997) pp. 122-123.
69 C. Rajashekar, Social Revolution and the Indian Constitution (1993) p. 18
70 Vijay Pal Arora, Right to Life, Freedom and Equality (1996), p.122.
61
assertion of right embodies ‘is’ and ‘ought’ statements. It proclaims What
‘ought’ to be by reference to what ‘is’ the claim here is such rights are inherent in
all human beings and therefore ought to be respected. Thus rights have a common
heritage of mankind. Human rights are something that all share. They are about
recognizing the value and dignity of all people. In learning about human rights,
one learn about idea of respect, fairness, justice and equality; learn about standing
up for own rights and responsibility; to respect the rights of others.
Understanding human rights shapes our thinking and our actions because human
rights are about real life issues. Human Rights cannot exist in isolation For
example, an individual on a desert island does not really have any right because
there is no one to meet the corresponding responsibilities that go with them. In
other words, human rights connect to each other in a shared set of right and
responsibilities and duties towards other people and the community. Individuals
often have a responsibility to ensure that they exercise their rights with due
regard for the rights of other .Government have a particular responsibility to
ensure that people are able to enjoy their rights. They are required to establish
and maintain law and services that enable their citizens to enjoy the life in which
their rights are observed.
In recent decades there has been a tremendous growth in how system
think about and apply human rights ideas. This has had many positive results.
Knowledge about human rights can empower individuals and offer solutions for
specific problems. Value of tolerance, equality and respect can help reduce
frictions within society. Putting human rights ideas into practice can help a State
to create the kind of society, all want to live in. Undoubtedly, it is rightly
described that human rights are sure and sound guarantee of democracy. Every
person should know that they have rights and they are protected by the State. A
supplementary recognition and human rights respecting guarantee is the
harmonization of the juridical frame of the republic and the international
normative acts to which the democratic republic has adhered to. Human Rights
and respecting laws obviously and evidently confirm the degree and the status of
civilization of a nation. It is easy to understand the universal truth that, all people
are born equal, that their Creator invests them with some inherent, indivisible,
inalienable, non negotiable and non-derogatory natural and basic rights and
through this one can count the effort to decent life, liberty, freedom, happiness
62
and harmony. Human Rights, broadly speaking, may be regarded as those
fundamental and natural rights which are essential for a decent life as human
being. They are the rights which are possessed by every human being irrespective
of his or her nationality, race, religion, sex, colour. Simply and only because he
or she is a human being. Human Rights and fundamental freedom allow human to
fully develop and use their human qualities, their intelligence, their talents and
their conscience and to satisfy their physical, spiritual and other needs as human
beings. They are founded upon mankind’s increasing demand for normal but
decent life in which the inherent dignity and worth of each human being will
receive regard and respect, protection and parental care. Human Rights are
sometimes characterized as fundamental rights or natural rights or basic rights.
All the countries including India have given due respect to the basic human rights
and incorporated these rights into their respective laws directly or indirectly.

63
 CHAPTER - III

HUMAN RIGHTS OF ACCUSED IN INDIA

1. General

The three segments of Criminal Justice System viz., the police, the
judiciary and the correctional institutions ought to function in harmonious and
cohesive manner. But in practice, one often finds that it is not the case. The
police, instead of protecting and promoting human rights, are often found to
violate them. The National Human Rights Commission has been receiving reports
of custodial deaths, non-registration of cases, arbitrary arrests, custodial violence
etc. 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. There are some provisions which expressly and
directly create important rights in favour of the accused/arrested person.

2. Provisions of Indian Constitution and Criminal Procedure Code

Following are some important provisions creating rights in favour of the

accused/ arrested persons:-

64
(i) 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. Article 11, para 2 of the Universal
Declaration of Human Rights, 1948 provides freedom from ex-post facto laws1.

An ex post facto law is a law which imposes penalties retrospectively, i.e.,

on acts already done and increases the penalty for such acts. The American
Constitution also contains a similar provision prohibiting ex post facto laws both
by the Central and the State Legislatures. If an act is not an offence at the date of
its commission it cannot be an offence at the date subsequent to its commission.
The protection afforded by clause(1) of Article 20 of the Indian Constitution is
available only against conviction or sentence for a criminal offence under ex post
facto law and not against the trial. The protection of clause (1) of Article 20
cannot be claimed in case of preventive detention, or demanding security from a
person. The prohibition is just for conviction and sentence only and not for
prosecution and trial under a retrospective law. So, a trial under a procedure
different from what it was at the time of the commission of the offence or by a
special court constituted after the commission of the offence cannot ipso facto be
held unconstitutional. The second part of clause (1) protects a person from ‘a
penalty greater than that which he might have been subjected to at the time of the
commission of the offence.’ Ín Kedar Nath v. State of West Bengal,2 the
accused committed an offence in 1947, which under the Act then in force was
punishable by imprisonment or fine or both. The Act was amended in 1949
which enhanced the punishment for the same offence by an additional fine
equivalent to the amount of money procured by the accused through the offence.
The Supreme Court held that the enhanced punishment could not be applicable to
the act committed by the accused in 1947 and hence, set aside the additional fine
imposed by the amended Act. In the criminal trial, the accused can take

1 Article 15 of International Covenant on Civil and Political Rights, 1966.

2 AIR 1953 SC 404.

65
advantage of the beneficial provisions of the ex-post facto law. The rule of
beneficial construction requires that ex post facto law should be applied to
mitigate the rigorous (reducing the sentence) of the previous law on the same
subject. Such a law is not affected by Article 20(1) of the Constitution.

(ii) 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. The doctrine of “autrefois acquit” and “autrefois convict” has been
embodied in Section 300 of Criminal Procedure Code as follows:

Person once convicted or acquitted not to be tried for

same offence - (1) a person who has once been tried by a
Court of competent jurisdiction for an offence and
convicted or acquitted for such offence shall, while such
conviction or acquittal remains in force, not be liable to be
tried again for the same offence, nor on the same facts for
any other offence for which a different charge from the one
made against him might have been made under sub-section
(1) of section 221, or for which he might have been
convicted under sub-section (2) thereof.

The dismissal of a complaint, or the discharge of the accused, is not an

acquittal for the purposes of this section. Constitutional provision to the same
effect is incorporated in Article 20 (2) which provides that no person shall be
prosecuted and punished for the same offence more than once.

These pleas are taken as a bar to criminal trial on the ground that the
accused person had been once already charged and tried for the same alleged
offence and was either acquitted or convicted. These rules or pleas are based on
the principle that “a man may not be put twice in jeopardy for the same offence”.

66
Article 20(2) of the Constitution recognizes the principle as a fundamental right.
It says,” no person shall be prosecuted and punished for the same offence more
than once”. While, Article 20(2) does not in terms maintain a previous acquittal,
Section 300 of the Code fully incorporates the principle and explains in detail the
implications of the expression “same offence”.3

In order to get benefit of the basic rule contained in Sec 300(1) of

Criminal Procedure Code is necessary for an accused person to establish that he
had been tried by a “court of competent jurisdiction” for an offence. An order of
acquittal passed by a court which believes that it has no jurisdiction to take
cognizance of the offence or to try the case, is a nullity and the subsequent trial
for the same offence is not barred by the principle of autrefois acquit. To operate
as a bar the second prosecution and consequential punishment there under, must
be for the “same offence”. The crucial requirement for attracting the basic rule is
that the offences are the same, i.e. they should be identical. It is therefore
necessary to analyze and compare not the allegations in the two complaints but
the ingredients of the two offences and see whether their identify is made out.
Section 300 of Criminal Procedure Code bars the trial for the same offence and
not for different offences which may result from the commission or omission of
the same set of the act. Moreover, the principle of issue-estoppel, as enunciated
and approved in several decisions of the Supreme Court, is simply is, that where
an issue of fact has been tried by a competent court on a former occasion and a
finding has been reached in favour of an accused, such a finding would constitute
an estoppel or res judicata against the prosecution not as a bar to the trial and
conviction of the accused for a different or distinct offence but as precluding the
reception of evidence to disturb that finding of fact when the accused is tried
subsequently even for a different offence which might be permitted by law.4

(iii) 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

3 Natrajan v. State, 1991 Cri LJ 2329 (Mad).

4 Masud Khan v. State of U.P. (1974) 3 SCC 469: 1973 SCC (Cri) 1084, 1086.

67
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 proved5. It is the duty of the prosecution to prove the offence. The accused
need not make any admission or statement against his own free will. The
fundamental rule of criminal jurisprudence against self-incrimination has been
raised to a rule of constitutional law in Article 20(3).The guarantee extends to
any person accused of an offence and prohibits all kinds of compulsions to make
him a witness against himself. Explaining the scope of this clause in M.P.
Sharma v. Satish Chandra6, the Supreme Court observed that this right
embodies the following essentials:

(a) It is a right pertaining to a person who is “ accused of an offence.”

(b) It is a protection against “ compulsion to be a witness”.

(c) It is a protection against such compulsion relating to his giving evidence “

against himself.”

In Nandini Satpathy v. P.L. Dani7, the Supreme Court has considerably

widened the scope of clause (3) of Article 20. The Court has held that the
prohibitive scope of Article 20(3) goes back to the stage of police interrogation
not commencing in court only. It extends to, and protects the accused in regard to
other offences-pending or imminent, which may deter him from voluntary
disclosure. The phrase compelled testimony’ ‘must be read as evidence procured
not merely by physical threats or violence but by psychic (mental) torture,
atmospheric pressure, environmental coercion, tiring interrogatives, proximity,
overbearing and intimidatory methods and the like. Thus, compelled testimony is
not limited to physical torture or coercion, but extend also to techniques of
psychological interrogation which cause mental torture in a person subject to
such interrogation8.

5 Article 11, Clause 1 of Universal Declaration of Human Rights, 1948 which lays down:
“Everyone charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.”
6 AIR 1954 SC 300.
7 AIR 1978 SC 1025.
8 Article 5 of Universal Declaration of Human Rights, 1948.

68
 Right to silence is also available to accused of a criminal offence. Right
to silence is a principle of common law and it means that normally courts tribunal
of fact should not be invited or encouraged to conclude, by parties or prosecutors,
that a suspect or an accused is guilty merely because he has refused to respond to
question put to him by the police or by the Courts. The prohibition of medical or
scientific experimentation without free consent is one of the human rights of the
accused9. In case of Smt. Selvi & Ors. v. State of Karnataka & Ors.10,
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. Following observations were made
in this landmark case:

(i) No individual should be forcibly subjected to any of the techniques in

question, whether in the context of investigation in criminal cases or
otherwise. Doing so would amount to an unwarranted intrusion into
personal liberty.

(ii) Section 53, 53-A and 54 of Criminal Procedure Code permits the
examination include examination of blood, blood-stains, semen swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail
dipping by the use of modern and scientific techniques including DNA
profiling. But the scientific tests such as Polygraph test, Narcoanalysis
and BEAF do not come within the purview of said provisions.

(iii) It would be unjustified intrusion into mental privacy of individual and

also amount to cruel, inhuman or degrading treatment.

(iv) Voluntary administration of impugned techniques are, however,

permissible subject following safeguards, but test results by themselves
cannot be admitted in evidence.

9 Article 7 of the International Covenant on Civil and Political Rights, 1966.

10 2010 (2) R.C.R. (Criminal) 896.

69
(a) 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.

(b) 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.

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

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

(e) 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.

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

(g) The actual recording of the Lie Detector Test shall be done by an
independent agency (such as a hospital) and conducted in the presence of
a lawyer.

(h) A full medical and factual narration of the manner of the information
received must be taken on record.

The underlying rational of right against self incrimination is as under

(i) The purpose of the ‘ rule against involuntary confessions’ is to ensure that
the testimony considered during trial is reliable. The premise is that
involuntary statements are more likely to mislead the judge and the
prosecutor, thereby resulting in a miscarriage of justice.

(ii) The right against self-incrimination’ is a vital safeguard against torture

and other ‘third-degree methods’ that could be used to elicit information.

(iii) The exclusion of compelled testimony is important, otherwise the

investigators will be more inclined to extract information through such
compulsion as a matter of course. The frequent reliance on such ‘short-

70
 cuts’ will compromise the diligence required for conducting meaningful
investigations.

(iv) During trial stage the onus is on the prosecution to prove the charges
leveled against the defendant and the ‘right against self-incrimination’ is a
vital protection to ensure that the prosecution discharges the said onus11.

(iv) 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.
In addition to the constitutional provision, Section 50 of Criminal Procedure
Code also provides for the same.

(i) According to Section 50(1) of Criminal Procedure Code, every police

officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he
is arrested or other grounds for such arrest.

(ii) When a subordinate officer is deputed by a senior police officer to arrest a

person under Section 55 of Criminal Procedure Code, he shall deliver to
the officer required to make the arrest an order in writing, specifying the
person to be arrested and the offence or other cause for which the arrest is
made and the officer so required shall, before making the arrest, notify to
the person to be arrested the substance of the order and, if so required by
such person, shall show him the order. Non-compliance with this
12
provision will render the arrest illegal.

(iii) In case of arrest to be made under a warrant, Section 75 provides that the
police officer or other person executing a warrant of arrest shall notify the
substance thereof to the person to be arrested, and if so required, shall
show him the warrant. If the substance of the warrant is not notified, the
arrest would be unlawful.13

11 Ibid.
12 Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau).
13 Satish Chandra Rai v. Jodu Nandan Singh, ILR 26 Cal 748; Abdul Gafur v. Queen-
mpress, ILR 23 Cal 896.

71
 The right to be informed of the grounds of arrest is recognized by
Sections 50, 55 and 75 in cases where the arrest is made in execution of a warrant
of arrest or where the arrest is made by a police officer without warrant. If the
arrest is made by a magistrate without a warrant under Section 44, the case is
covered neither by any of the Sections 50, 55 and 75 nor by any other provision
in the Code requiring the Magistrate to communicate the grounds of arrest to the
arrested person. This lacuna in the Code, however, will not create any difficulty
in practice as the Magistrate would still be bound to state the grounds under
Article 22(1) of the constitution. The word “forthwith” in section 50 (1) of the
Code of Criminal Procedure creates a stricter duty on the part of police officer
making the arrest and would mean immediately. The right to be informed of the
grounds of arrest is a precious right of the arrested person.14 The grounds of arrest
should be communicated to the arrested person in the language understood by
him; otherwise it would not amount to sufficient compliance with constitutional
requirements.

(v) 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. The right of the accused to have a counsel of his choice is fundamental
and essential to fair trial. The right is recognized because of the obvious fact that
ordinarily an accused person does not have the knowledge of law and the
professional skill to defend himself before a court of law wherein the prosecution
is conducted by a competent and experienced prosecutor. This has been
eloquently expressed by the Supreme Court of America in Powell v. Alabama.15
The Court observed that “The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in the science
of law. If charged with crime, he is incapable, generally, of determining for
himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a proper

14 Udaybhan Shuki vs. State of U.P. 1999 CRI LJ 274 (All).

15 287 US 45 (1932).

72
charge, and convicted upon incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the skill and the knowledge
adequately to prepare his defence, even though he has a perfect one. He requires
the guiding hand of counsel at every step of the proceeding against him. Without
it, though he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. If that be true of men of intelligence, how
much more true is it of the ignorant and illiterate, or those of feeble intellect.”16

The Criminal Procedure Code has specifically recognized the right of a

person against whom proceedings are instituted to be defended by a counsel.
According to Section 303 of Criminal Procedure Code, any person accused of an
offence before a criminal court, or against whom proceedings are instituted, may
of right be defended by a pleader of his choice.

In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar17, the

Supreme Court after adverting to Article 39-A of the Constitution and after
approvingly referring to the creative interpretation of Article 21 of the
constitution as propounded in its earlier epoch-making decision in Maneka
Gandhi v. Union of India18, has explicitly observed as follows:

The right to free legal services is, therefore, clearly an

essential ingredient of ‘reasonable, fair and just’ procedure
for a person accused of an offence and it must be held
implicit in the guarantee of Article 21. This is a
constitutional right of every accused person who is unable
to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado
situation and the State is under a mandate to provide a
lawyer to an accused person if the circumstances of the
case and the needs of justice so required, provided of
course the accused person does not object to the provision
of such lawyer.19

It has been categorically laid down by the Supreme Court that the
constitutional right of legal aid cannot be denied even if the accused failed to
apply for it. It is now therefore clear that unless refused, failure to provide legal

16 Ibid.
17 (1980) 1 SCC 98: 1980 SCC (Cri) 40, 47: 1979 Cri LJ 1045.
18 (1978) 1 SCC 248: AIR 1978 SC 597.
19 Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98, 105: 1980
SCC (Cri) 40, 45: 1979 Cri LJ 1045; M.H. Hoskot v. State of Maharashtra, (1978) 3
SCC 544, 557: 1978 SCC (Cri) 468, 481: 1978 Cri LJ 1678.

73
aid to an indigent accused would vitiate the trial, entailing setting aside of
conviction and sentence.20

These questions are now of academic importance only. Because the

Supreme Court has now recognized that every indigent accused person has a
fundamental constitutional right to get free legal services for his defence, and this
recognition goes far beyond the length and breadth of Section 304 even if
liberally interpreted. The provisions of Section 304 of the Code never comes in
the way of right of accused to be defended by an advocate of this choice. The
person who has been granted legal aid as per the provision of Section 304 of the
Code can always on the later stage of the trial engage a counsel of his own
choice. Thus, The Constitution as well as Section 303 of Code of Criminal
Procedure recognized the right of every arrested person to consult a legal
practitioner of his choice. Article 22 (1) provides, “ No person who is arrested
shall be detained in custody without being inform, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice”.

Section 303 of Criminal Procedure Code deals with the provisions

relating to right of person against whom proceedings are instituted to be
defended, it provides that any person accused of an offence before a criminal
court, or against whom proceedings are instituted under this court, may of right
be defended by a pleader of his choice. The right begins from the moment of
arrest i.e. pre-trial stage21. The arrestee could also have consultation with his
friends or relatives. The consultation with the lawyer may be in the presence of
police officer but not within his hearing.22

(vi) 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. A police officer

20 Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401: 1986 SCC (Cri)
166.
21 Llewelyn, Evans Re. ILR 50 Bom 741: 27 Cri LJ 1169, Moti Bai v. State, AIR 1954 Raj
241.
22 Sundar Singh v. Emperor 32 Cri LJ 339.

74
making an arrest without warrant shall, without unnecessary delay and subject to
the provisions herein contained as to bail, take or send the person arrested before
a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station.

(vii) Person Arrested not to be detained more than twenty-four hours

Section 57 of Criminal Procedure Code provides that no police officer

shall detain in custody a person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and such period shall not, in
the absence of a special order of a Magistrate under section 167, exceed twenty-
four hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate Court. It may also be noted that the right has been further
strengthened by its incorporation in the Constitution as a fundamental right.
Article 22(2) of the Constitution provides:

“Every person who is arrested and detained in custody shall

be produced before the nearest Magistrate within a period
of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the
court of the Magistrate and no such person shall be
detained in custody beyond the said period without the
authority of a Magistrate.”
In case of arrest under a warrant the proviso to Section 76 of the Criminal
Procedure Code provides a similar rule in substance which reads as below:

The police officer or other person executing a warrant of

arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay brings the person
arrested before the Court before which he is required by
law to produce such person; Provided that such delay shall
not, in any case, exceed twenty-four hours exclusive of the
time necessary for the journey from the place of arrest to
the Magistrate’s Court.
The right to be brought before a Magistrate within a period of not more
than 24 hours of arrest has been created with aims:

(i) to prevent arrest and detention for the purpose of extracting confessions,
or as a means of compelling people to give information;

(ii) to prevent police stations being used as though they were prisons - a
purpose for which they are unsuitable;

75
(iii) to afford an early recourse to a judicial officer independent of the police
on all questions of bail or discharge.23 The precautions laid down in
Section 57 seem to be designed to secure that within not more than 24
hours some magistrate shall have watch of what is going on and some
knowledge of the nature of the charge against the accused, however
incomplete the information may be.24

This healthy provision contained in section 57 of Criminal Procedure

Code enables the Magistrates to keep a check over the police investigation and it
is necessary that the Magistrate should try to enforce this requirement and where
it found disobeyed, come down heavily upon the police. 25

If a police officer fails to produce an arrested person before a magistrate

within 24 hours of the arrest, he shall be held guilty of wrongful detention.26

(viii) No Right to Police officer to cause death of the accused

Sub-section (3) of Section 46 Criminal Procedure Code enjoins in clear

terms that though police officer/any other person making arrest can use all
necessary means for the purpose but they have not been given any right to cause
the death of a person who is not accused of an offence punishable with death or
imprisonment for life.27 Again Section 49 Criminal Procedure Code provides that
‘the person arrested shall not be subjected to more restraint than is necessary to
prevent his escape’.28

The case law produced by the courts in response to the demand for
protecting women has made the Parliament to enact sub-section (4) to Section 46
of Criminal Procedure Code laying down that no woman shall be arrested after
sunset and before sunrise, and where such exceptional circumstances exist, the
woman police officer shall, by making a written report, obtain the prior

23 Mohd. Suleman v. King-Emperor, 30 CWN 985, 987 (FB).

24 Dwarkadas Haridas v. Ambalal Ganpatram, 28 CWN 850, 853, Manoj v. State of M.P.,
(1999) 3 SCC 715: 1999 SCC (Cri) 478: 1999 Cri LJ 2095, Hari Om Prasad v. State of
Bihar, 1999 Cri LJ 4400 (Pat).
25 Khatri (II) v. state of Bihar, 1981 SCC (Cri) 228, 233-34: (1981) 1 SCC 627, D.G. &
I.G. of Police v. Prem Sagar (1999) 5 SCC 700, 1999 SCC (Cri) 1036.
26 Sharifbai v. Abdul Razak AIR 1961 Bom 42.
27 Karam Singh v. Hardayal Singh, 1979 Cri LJ 1211, 1215 (P&H).
28 Citizens for Demoracy v. State of Assam. (1995) 3 SCC 743:1995 SCC(Cri) 600,
G.L.Gupta v. R.K. Sharma, 1999 SCC (Cri) 1150.

76
permission of the judicial Magistrate of first class within whose jurisdiction the
offence is committed or arrest is to be made.29

(ix) Information of arrest to a nominated person

The rules emerging from decisions such as Joginder Singh v. State of

30
U.P. and D.K. Basu v. State of West Bengal31 have been enacted in Section
50-A32. Sub Section (1) of Section 50-A of Criminal Procedure Code provides
every police officer or other person making any arrest under this code shall
forthwith give the information regarding such arrest and place where the arrested
person is being held to any of his friends, relatives or such other persons as may
be disclosed or nominated by the arrested person for the purpose of giving such
information. Sub Section (2) of Section 50-A of Criminal Procedure Code
provides the Police Officer shall inform the arrested person for the purpose of
giving such information of his right under Sub Section (1) as soon as he is
brought to police station. Sub Section (3) of Section 50-A of Criminal Procedure
Code provides an entry of the fact as to who has been informed of the arrest of
such person shall be in a book to be kept in the police station in such form as may
be prescribed in this behalf by the State Government. Sub Section (4) of Section
50-A of Criminal Procedure Code provides that it shall be the duty of Magistrate
before whom such arrested person is proceed, to satisfy himself that the
requirement of sub-section (2) and Sub-Section (3) have been complied with in
respect of such arrested person.

These rights are inherent in Article 21 and 22 of the Constitution and

required to be recognized and scrupulously protected.

(x) Right to be released on bail in bailable offences

Section 50(2) of Criminal Procedure Code provides that where a police

officer arrests without warrant any person other than a person accused of a non-
bailable offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf. This will

29 Inserted By the Code of Criminal Procedure (Amendment) Act, 2005. It came into
force with effect from Jun 23,2006.
30 (1994) 4 SCC 260.
31 (1997) 1 SCC 416.
32 Section 50-A Inserted by Act 25 of 2005 effective from 23-6-2006.

77
certainly be of help to persons who may not know about their rights to be
released on bail in case of bailable offences.

(xi) Right to receive the copy of the receipt after search

Power to search under Section 51 of Criminal Procedure Code is available

only if the arrested person is not released on bail. After search all the articles
other than necessary wearing apparel found upon the arrested person are to be
seized, and it has been made obligatory to give to the arrested person a receipt
showing the articles taken in possession by the police. This would ensure that the
articles seized are properly accounted for. In case the arrested person is a woman
the search can be made only by a female with strict regard to decency.

(xii) Right of medical examination of arrested person

Section 54 Criminal Procedure Code gives the accused the right to have
himself medically examined to enable him to defend and protect himself
properly. It is considered desirable and necessary “that a person who is arrested
should be given the right to have his body examined by a medical officer when he
is produced before a Magistrate or at any time when he is under custody, with a
view to enabling him to establish that the offence with which he is charged was
not committed by him or that he was subjected to physical injury. According to
the Supreme Court, the arrested accused person must be informed by the
Magistrate about his right to be medically examined in terms of Section 54.33 In
case of the examination taking place at the instance of the accused under sub-
section (1) a copy shall be given to him.34

(xiii) Right to free legal aid

The ‘right to counsel’ would remain empty if the accused due to his
poverty or indigent conditions has no means to engage a counsel for his defence.
The state is under a constitutional mandate(implicit in Article 21 of the
constitution, explicit in Article 39-A of the constitution-a directive principle) to
provide free legal aid to an indigent accused person. Section 304 of the Code of
Criminal Procedure also provides such a right to the accused. Section 304 of

33 Sheela Barse v. State of Maharashtra, 1983 SCC (Cri) 353: (1983) 2 SCC 96
34 See Sections 53-A and 54(2) inserted by Act 25 of 2005 brought into force with effect
from 23-6-2006.

78
Criminal Procedure Code deals with the provisions relating to legal aid to
accused at State expenses in certain cases. Section 304(1) provides that where, in
a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the Court that the accused has not sufficient means to
engage a pleader, the Court shall assign a pleader for his defence at the expense
of the State. A failure to inform the accused of this right and non compliance with
this requirement would vitiate the trial as held in Sukhdas V. Union Territory
of Arunachal Pradesh.35

In Khatri (II) V. State of Bihar36, the Supreme Court has held that the
State is under a constitutional mandate to provide free legal aid to an indigent
accused person, and that their constitutional obligation to provide legal aid does
not arise only when the trial commences but also when the accused is for the first
time produced before the Magistrate as also when he is remanded from time to
time. However this constitutional right of an indigent accused to get free legal aid
may prove to be illusory unless he is produced before promptly and duly
informed about it by the court when he is produced before it. The Supreme Court
has therefore cast a duty on all Magistrate and courts to inform the indigent
accused about his right to get free legal aid.

In 1987, Legal Services Authorities Act was enacted to give a statutory

base to legal aid programmes throughout the country on a uniform pattern. This
Act was finally enforced on 9th of November, 1995 after certain amendments
were introduced therein by the Amendment Act of 1994. The National Legal
Services Authority (NALSA) has been constituted under the Legal Services
Authorities Act, 1987 to provide free Legal Services to the weaker sections of the
society and to organize Lok Adalats for amicable settlement of disputes. In every
State, State Legal Services Authority has been constituted to give effect to the
policies and directions of the NALSA and to give free legal services to the people
and conduct Lok Adalats in the State. The State Legal Services Authority is
headed by Hon’ble the Chief Justice of the respective High Court who is the
Patron-in-Chief of the State Legal Services Authority. In every District, District
Legal Services Authority has been constituted to implement legal services

35 1986 SCC (Cri) 166: (1986) 2 SCC 401: 1986 Cri LJ 1084.
36 (1981) 1 SCC 627: 1981 SCC (Cri) 228.

79
programmes in the district. The District Legal Services Authority is situated in
the District Courts Complex in every District and chaired by the District Judge of
the respective district.

These authorities provides legal aid to the needy persons including

accused, convicts and victims of criminal cases.

(xiv) Right of accused to know of the accusation

One basic requirement of a fair trial in criminal cases is to give precise

information to the accused as to the acquisition against him. In a criminal trial
charge is the foundation. Section 218 of Criminal Procedure Code give the basic
rule that for every distinct offence there shall be a separate charge. Fair trial
requires that the accused person is given adequate opportunity to defend himself.
Such opportunity will have little meaning, or such an opportunity will in
substance be the very negation of it, if the accused is not informed of the
accusations against him. The Code therefore provides in unambiguous terms that
when an accused person is brought before the court for trial, the particulars of the
offence of which he is accused shall be stated to him.37 In case of serious
offences, the court is required to frame in writing a formal charge and then to
read and explain the charge to the accused person.38 Details provisions have been
made in the Code in Sections 211-224 of Criminal Procedure Code regarding the
form of charge, and the joinder of charges.

(xv) Right to be tried in presence of accused

The personal presence of the accused throughout his trial would enable
him to understand properly the prosecution case as it is unfolded in the court.
This would facilitate in the making of the preparations for his defence. A criminal
trial in the absence of the accused is unthinkable. A trial and a decision behind
the neck of the accused person is not contemplated by the Code, though no
specific provision to that effect is found therein. The requirement of the presence
of the accused during his trial can be implied from the provisions which allow the
court to dispense with the personal attendance of the accused person under

37 Ss. 228, 240, 246, 251 of Cr.P.C.

38 Ss. 228,240,246 of Cr.P.C.

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certain circumstances. Section 273 of Criminal Procedure Code requires that the
evidence is to be taken in the presence of the accused person; however, the
section allows the same to be taken in the presence of the accused’s pleader if the
personal attendance of the accused person is dispensed with. Fair trial requires
that the particulars of the offence have to be explained to the accused person and
that the trial is to take place in his presence. Therefore, as a logical corollary,
such a trial should also require the evidence in the trial to be taken in the presence
of the accused person. Section 273 attempts to achieve this purpose. The section
makes it imperative that all the evidence must be taken in the presence of the
accused. Failure to do so would vitiate the trial, and the fact that no objection
was taken by the accused is immaterial.39 This rule is of course subject to certain
exceptions made by the provisions of the Code of Criminal Procedure, viz.
Sections 205, 293, 299, 317.

Evidence given by witnesses may become more reliable if given on oath

and tested by cross-examination. A criminal trial which denies the accused
person the right to cross-examine prosecution witnesses is based on weak
foundation, and cannot be considered as a fair trial.40

Though the burden of proving the guilt is entirely on the prosecution and
though the law does not require the accused to lead evidence to prove his
innocence, yet a criminal trial in which the accused is not permitted to give
evidence to disprove the prosecution case, or to prove any special defence
available to him, cannot be any standard to be considered as just and fair. The
refusal without any legal justification by a Magistrate to issue process to
witnesses named by the accused person was held enough to vitiate the trial.41

Though the imperative rule contained in the section confers a right on the
accused to be present in the course of the trial, it presupposes that the accused
accepts it and does not render its fulfillment and impossibility. This obligation or
the right is not so absolute in character that its requirement cannot be dispensed

39 Ram Singh v. Crown, (1951) 52 Cri. LJ 99, 102: AIR 1951 Punj 178, Bigan Singh v.
King-Emperor, (1927) ILR 6 Pat 691: (1928) 29 Cri LJ 260; Ram Shankar v. State of
Bihar, 1975 Cri LJ 1402, 1403 (Pat).
40 Sukhrah v. State of Rajasthan, AIR 1967 Raj. 267.
41 Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51: 1954 Cri LJ 338, 348 T.N.,
Janardhanan Pillai v. State, 1992 Cri LJ 436 (Ker ) ; Sredhar Pillay v. P.J,. Alexander,
1992 Cri LJ 3433( Ker.)

81
with even in a case where the accused by his own conduct renders it impossible
to comply with its requirements.42 The right created by the section is further
supplemented by Section 278 of Criminal Procedure Code . It, inter-alia,
provides that wherever the law requires the evidence of a witness to be read over
to him after its completion, the reading shall be done in the presence of the
accused, or of his pleader if the accused appears by pleader. If any evidence is
given in a language not understood by the accused person, the bare compliance
with Section 273 of Criminal Procedure Code will not serve its purpose unless
the evidence is interpreted to the accused in a language understood by him.

(xvi) Interpretation of evidence to accused or his pleader

Section 279 of Criminal Procedure Code provides that whenever any

evidence is given in a language not understood by the accused, and he is present
in Court in person, it shall be interpreted to him in open Court in a language
understood by him. If he appears by pleader and the evidence is given in a
language other than the language of the Court, and not understood by the pleader,
it shall be interpreted to such pleader in that language. When documents are put
for the purpose of formal proof, it shall be in the discretion of the Court to
interpret as much thereof as appears necessary. However, non-compliance with
Section 279(1) of Criminal Procedure Code will be considered as more
irregularity not vitiating the trial if there was no prejudice or injustice cause to the
accused person.43

(xvii) Rights of the accused where accused does not understand proceedings

An accused person, though not of unsound mind, may be deaf and dumb,
may be foreigner not knowing the language of the country and no interpreter is
available, and if such accused is unable to understand or can not be made to
understand the proceedings, there is a real difficulty in giving effect to Section
273 of Criminal Procedure Code in its proper spirit. Section 318 of Criminal
Procedure Code attempts to deal with such cases. It provides procedure where
accused does not understand proceedings. Section 318 of Criminal Procedure
Code provides that if the accused, though not of unsound mind, cannot be made

42 State v. Ananta Singh , 1972 Cri LJ 1327, 1331 (Cal).

43 Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986, 990: 1967 Cri LJ 946.

82
to understand the proceedings, the Court may proceed with the inquiry or trial,
and in the case of a Court other than a High Court if such proceedings result in a
conviction, the proceedings shall be forwarded to the High Court with a report of
the circumstances of the case, and the High Court shall pass thereon such order as
it thinks fit.

(xviii) Right to get copies of police report and other documents

(a) Where the proceedings is instituted on a police report- where a police

officer investigating the case finds it convenient to do so, he may furnish to the
accused copies of all or any of the documents referred to in Section 173(5) of the
Criminal Procedure Code.44 According to Section 207 of Criminal Procedure
Code the magistrate is under an imperative duty to furnish to the accused, free of
cost, copies of statements made to the police and of other documents to be relied
upon by the prosecution. The object of furnishing the accused person with copies
of the statements and documents as mentioned above is to put him on notice of
what he has to meet at the time of the inquiry or trial and to prepare himself for
his defence.45 The right conferred on the accused is confined to the documents
enlisted in the section and does not extend to other documents. From the
language of Section 207, it appears that the right to have copies of statements
recorded by the police is only in respect of statements recorded in the same case,
and not in respect of statements recorded in any other case.46

At the commencement of the trial in a warrant case it is the duty of the

magistrate conducting the trial to satisfy himself that he has complied with the
provisions of Section 20747. In a summons case instituted on a police report no
such duty has been specifically cast on the magistrate conducting the trial.
However free copies have to be supplied to the accused in such cases by the
magistrate in view of the imperative duty created by Section 207.48 Similarly in a
case exclusively triable by a court of session such a duty is not imposed by any

44 S. 173 (1), Cr.P.C.

45 Gurbachan Singh v. State of Punjab, AIR 1957 SC 623: 1957 Cri LJ 1009; Geevarghese
v. Philipose, 1987 Cri LJ 1605 (Ker): Brojendra Nath Kolay v. State, 1994 Cri LJ 1194
(Cal).
46 Gurbachan Singh v. State of Pujab, AIR 1957 SC 623: 1957 Cri LJ 1009; Purshotam
Jethanand v. State of Kutch, AIR 1954 SC 700: 1954 Cri LJ 1751.
47 Section 238 Cr.P.C.
48 Veerappa, Re AIR 1959 Mad 405: 1959 Cri LJ 1092.

83
express provision in the Code on the court of session. However if such a duty is
implied in a summons case, a fortiori, it is very much implied in a case
exclusively triable by a Court of Session.

(b) Where the proceeding is instituted otherwise than on a police report-

In cases where cognizance of the offence has been taken otherwise than on a
police report, the case is not ordinarily investigated by the police and naturally
there are no statements recorded by the police. Therefore the valuable right given
to the accused by Section 207 Criminal Procedure Code regarding the supply of
copies would not be available in such cases. In the absence of any preliminary
inquiry preceding trial, and when no police record is available to the accused
person before his trial, it might cause considerable hardship to the accused to
prepare himself for his defence, particularly when the offence alleged is a serious
one exclusively triable by the court of session. Section 208 of Criminal
Procedure Code tried to remove this hardship and enables the accused to know
the case made against him and to prepare for his defence. Section 207 and 208 of
Criminal Procedure Code deals with supply to the accused of copy of police
report and other documents and supply of copies of statements and documents to
accused in other cases triable by Court of Session respectively.

According to Section 238 of Criminal Procedure Code at the time

commencement of the trial in a warrant case it is the duty of the Magistrate to
satisfy himself that he has complied with the provisions of Section 207 of
Criminal Procedure Code However in a summons case instituted on a police
report no such duty has been specifically cast on the Magistrate conducting the
trial. However free copies have to be supplied to the accused in such cases by the
Magistrate in view of the imperative duty created by Section 207 of Criminal
Procedure Code. If the copies of the statements etc. are not supplied to the
accused person as required by Section 207 of Criminal Procedure Code. It is
undoubtedly a serious irregularity, however this irregularity in itself will not
vitiate the trial. It will have to see whether the omission to supply copies has in
fact occasioned a prejudice to the accused person in his defence. It is found in
positive, the conviction of the accused person must be set aside, and a fair retrial

84
after furnishing to the accused all the copies to which he is entitled must be
ordered.49

(xix) Right to cross-examine prosecution witnesses and to produce

defence evidence

Evidence given by witnesses may become more reliable if given on oath

and tested by cross-examination. A criminal trial which denies the accused
person the right to cross-examine prosecution witnesses is based on weak
foundation, and cannot be considered as a fair trial.50 It is mandatory that every
accused must have assistance of counsel during the time of examination of
prosecution witnesses. In Mohd. Hussain @ Julfikare Ali v. The State (Govt.
of NCT) Delhi51, it was held that right to have counsel at the cost of state where
accused is unable to engage a counsel is part of fair trial. The right of a person
charged with crime to have the services of a lawyer is fundamental and essential
to fair trial. The right to cross-examine a witness apart from being a natural right
is statutory right. In Mohd. Sukur Ali v. State of Assam52, it was held that a
criminal case should not be decided against accused in the absence of the
Counsel. An accused in criminal case should not suffer for the fault of his counsel
and in such a situation appoint another counsel as amicus curiae to defend the
accused. In Man Singh & Anr v. State of M.P.53, it was held that Lawyers in
criminal courts are necessities, not luxuries. For an accused lawyer's service is
indispensable in all circumstances.

A lawyer is also duty bound to accept the case of all types of accused. In
A.S. Mohammed Rafi v. State of Tamil Nadu rep. by Home Dept. and
others54, it was held that Professional ethics requires that a lawyer can not refuse
a brief, provided a client is willing to pay his fee and lawyer is not otherwise
engaged. Bar can not pass a resolution that none of the lawyer shall appear for a
particular person whatsoever heinous crime he has committed. Chapter II of the

49 S. 465 Cr.P.C.
50 Sukanraj v. State of Rajasthan, AIR 1967 Raj 267, 268: 1967 Cri LJ 1702.
51 AIR 2012 SC 750.
52 AIR 2011 SC 1222.
53 2008 (4) RCR (Criminal) 55.
54 AIR 2011 SC 308.

85
rules by Bar council of India states about " standards of Professional conduct and
etiquette."

An advocate is bound to accept any brief in the Court or tribunal or before

any of the authorities in or before which he proposed to practice at a fee
consistent with his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

Though the burden of proving the guilt is entirely on the prosecution and
though the law does not require the accused to lead evidence to prove his
innocence, yet a criminal trial in which the accused is not permitted to give
evidence to disprove the prosecution case, or to prove any special defence
available to him, cannot be any standard to be considered as just and fair. The
refusal without any legal justification by a Magistrate to issue process to
witnesses named by the accused person was held enough to vitiate the trial.55

(xx) Court’s power and duty to examine the accused person

With a view to give an opportunity to the accused person to explain the

circumstances appearing in evidence against him, Section 313 of Criminal
Procedure Code provides for the examination of the accused by the court. This if
of immense help to the accused person, particularly when he is undefended.
Most of the accused persons are poor, uneducated and helpless. As observed by
Stephen, an ignorant, uneducated man has the greatest possible difficulty in
collecting his ideas, and seeing the bearing of facts alleged. He is utterly
unaccustomed to sustain attention or systematic thought and the criminal trial
proceedings which to an experienced person appear plain and simple, must be
passing before the eyes and mind of the accused like a dream which he cannot
grasp. Under these circumstances the importance of Section 313 is self-evident; it
requires the courts to question the accused properly and fairly so that it is brought
home to the accused in clear words the exact case that the accused will have to
meet, and thereby an opportunity is given to the accused to explain any such
point.56

55 Habeeb Mohd v. State of Hyderabad, AIR 1954 SC 51: 1954 Cri LJ 338, 348.
56 Parichhat v. State of M.P. (1972) 4 SCC 694: 1972 Cri LJ 322, 326.

86
(xxi) Accused person as a competent witness

According to provisions of Section 315 of Criminal Procedure Code, the

accused can be a competent witness for defence and can give evidence in
disproof of the charges made against him or against his co-accused. He may give
evidence on oath in disproof of the charges made against him or any person
charged together with him at the same trial but he shall not be called as a witness
except on his own request in writing and his failure to give evidence shall not be
made the subject of any comment by any of the parties or the Court or give rise to
any presumption against himself or any person charged together with him at the
same trial.

(xxii) Right to speedy trial

Justice delayed is justice denied. This is all the more true in a criminal
trial where the accused is not released on bail during the pendency of the trial and
trial is inordinately delayed. However, the code does not in so many words
confer any such right on the accused to have his case decided expeditiously.
Section 437(6) of Criminal Procedure Code provides that if the accused is in
detention and the trial is not completed within 60 days from the first date fixed
for hearing he shall be released on bail. But this only mitigates the hardship of
the accused person but does not give him speedy trial and secondly this rule is
applicable only in case of proceedings before a Magistrate. The code has given a
more positive direction to courts when it says.

In every inquiry or trial the proceedings shall be held as expeditiously as

possible, and in particular, when the examination of witnesses has once begun,
the same shall be continued from day today until all the witnesses in attendance
have been examined unless the court finds the adjournment of the same beyond
the following day to be necessary for reasons to be recorded57. A criminal trial
which drags on for unreasonably long time is not a fair trial. The court may drop
proceedings on account of long delay even in case where the delay was caused
due to malafide moves of the accused. But in such a case the court may make the
accused to suffer exemplary costs Section 309(1) of Criminal Procedure Code
gives directions to the courts with a view to have speedy trials and quick

57 Section 309(1) Cr.P.C.

87
disposals. The right of the accused in this context has been recognized but the
real problem is how to make it a reality in actual practice. The provisions with
regard to limitation help the accused to certain extent.

In Hussainara Khatoon (IV) V. State of Bihar58, the Supreme Court

considered the problem in all its seriousness and declared that speedy trial is an
essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article
21 and that it is the constitutional obligation of the state of devise such a
procedure as would ensure speedy trial to accused. The State cannot avoid its
constitutional obligation to provide speedy trial to the accused by pleading
financial or administrative inability. The State is under a constitutional mandate
to ensure speedy trial and whatever is necessary for this purpose has to be done
by the State. It is also the constitutional obligation of this court, as the guardian
of the fundamental rights of the people, as a sentinel on the qui vie, to enforce the
fundamental right of the accused to speedy trial by issuing necessary directions to
the State.59

The spirit underlying these observations have been consistently rekindled

by the Supreme Court in several cases.60 This has again been expressed in Raj
Deo Sharma (II) v. State of Bihar61 wherein the court ordered to close the
prosecution cases, if the trial had been delayed beyond a certain period in
specified cases involving serious offences.

The right to speedy trial came to receive examination in the Supreme

Court in Motilal Saraf v. State of J&K.62 Dismissing a fresh complaint made
after 26 years of an earlier complaint the Supreme Court explained the meaning
and relevance of speedy trial right thus:

The concept of speedy trial is read into Article 21 as an

essential part of the fundamental right to life and liberty
guaranteed and preserved under our Constitution. The right
to speedy trial begins with actual restraint imposed by
arrest and consequent incarceration, and continues at all

58 AIR 1995 SC 366

59 S. Guin v. Grindlays Bank Ltd., 1986 SCC(Cri) 64: (1986) 1 SCC 654: 1986 Cri LJ 255;
Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (Pat), Mihir Kumar Ghosh
v. State of West Bengal, 1990 Cri LJ 26 (Cal).
60 A.R. Antulay v. R.S Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93.
61 (1998) 7 SCC 507; 1998 SCC(Cri) 1692
62 (2007) 1 SCC (Cri) 180

88
 stages, namely, the stage of investigation, inquiry, trial,
appeal and revision so that any possible prejudice that may
result from impressible and avoidable delay from the time
of the commission of the offence will if consummates into
a finality, can be averted.63
(xxiii) Compensation for wrongful arrest

Section 358 Criminal Procedure Code empowers the court to order a

person to pay compensation to another person for causing a police officer to
arrest such other person wrongfully. Usually it is the police officer who
investigates and makes the arrest and the complainant, if at all can be considered
to have a nexus with the arrest, it is rather indirect or remote. For applying
Section 358 some direct and proximate nexus between the complainant and the
arrest is required. It has been held that there should be something to indicate that
the informant caused the arrest of the accused without any sufficient grounds.
The Section does not make any express provision for giving an opportunity to the
complainant or other concerned person to show that there was sufficient ground
for causing the arrest to be made or to show cause as to why an order to pay
compensation under this section should not be passed against him. However,
looking to the consequences which are likely to follow from the order of payment
of compensation, the principles of natural justice would require that such an
opportunity should be given to the complainant or other concerned person.

(xxiv) The Right of Appeal

The Supreme Court has observed: “One component of fair procedure is

natural justice. Generally speaking and subject to just exceptions, at least a single
right of appeal on facts, where criminal conviction is fraught with loss of liberty,
is basic to civilized jurisprudence. It is integral to fair procedure, natural justice
and normative universality save in special cases like the original tribunal being a
high bench sitting on a collegiate basis. In short, a first appeal as provided in the
Criminal Procedure Code, manifests this value upheld in Article 21.”64

Appeal is one of the two important review procedures. An appeal is a

complaint to a superior court of an injustice done or error committed by an

63 Ibid
64 M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544: 1978 SCC (Cri) 468, 476:
1978 Cri LJ 1678

89
inferior one, whose judgment or decision the court above is called upon to correct
or reverse.65 An appeal is a creature of statute and there can be no inherent right
of appeal from any judgment or determination unless an appeal is expressly
provided for by the law itself.

3. 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. However,
misguided youths can be reformed by reformative theory of criminal
administration of justice. According to reformative theory of criminal
jurisprudence man can learn the system of reform in every stage of life. There is
no limit and time to learn the co-operation and co-existing activities of the
society. This can be achieved by reformative process of criminal administration
of justice. Reformative theory prescribes that the offences are committed under
the influence of motive upon character. Therefore, they can be checked either by
the change of motive or by the change of their activities. The basic purpose of
reformative theory is to reform the criminal is pathological aberration. On the
basis of reformative theory terrorists can be reformed by the social change of his
surroundings. Though terrorists created problem is crime against the humanity.
However, this problem can be solved by the sociological treatment. If terrorists’
problems are in organized manner, it means their ideology is polluted by habitual
criminal activities. They have no religion, no caste, no creed and humanity. Their
behavior is in human and antisocial. Thus, the deterrent method of administration
of criminal justice are administered on the habitual hardcore criminal terrorists.

(i) Human Rights and Concept of Terrorists under Preventive Detention

laws- Terrorists denotes an attempt to take control over Government by force.
Terrorist’s means, a person fighting against the Government or armed forces of
their own country. The definition of terrorists shows the act of unwanted person.
Section 15 of the Unlawful Activities (Prevention) Amendment Act 2008
provides:

65 Black’s Law Distionary, 4th Ed.., p. 124.

90
 Whoever does any act with intent to threaten or likely threaten to the
unity, integrity, security or sovereignty of India or with intent to strike terror in
the people or any section of the people in India or in any foreign country –

a) By using bombs, dynamite or other explosive substance or firearms or

other lethal weapons or poisonous or noxious gases or other chemical or
by any other substances (whether biological, radioactive, nuclear or
otherwise) of a hazardous nature or by any other means of whatever
nature to cause or likely to cause-

i. Death of, or injuries to, any person or persons; or

ii. Loss of, or damage to, or destruction of, property; or

iii. Disruption of any supplies or services essential to the life of the

community in India or in any foreign country. Or

iv. Damage or destruction of any property in India or in Foreign country used

or intended to be used for the defence of India or in connection with any
purposes of the government of India, any state government or any of their
agencies; or

b) Overawes by means of means of criminal force or show of criminal force

or attempts to do so to causes death of any public functionary or attempts
to cause death of any public functionary: or

c) Detains kidnaps or abducts any person and threatens to kill or injury to

such person or does any other act in order to compel the Government of
India, any state Government or the Government of a foreign country or
any other person to do or abstain from doing any act, commits a terrorist
act.

Explanation- for the purpose of this section public functionary means

Constitutional authorities and other functionary notified in the official Gazette by
the Central Government as a public functionary.

The above act of terrorist can be controlled by deterrent method, because

they are violating the human rights of innocent persons. Human rights denote
inherent dignity, equality and inalienable rights of all members of the human
family. Human rights are the foundation of freedom, justice and peace in the
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world.66 Threaten or likely to threaten the unity and integrity of any nation is the
violation of human rights of the community and to cause and is likely to cause
death of any person is violence of human rights of the community and to cause
and likely to cause death of any person is violence of life and liberty of individual
person which is the foundation of freedom of human being. A new concept is in
new definition of terrorist as provided by Unlawful Activities (Prevention)
Amendment Act 2008 is that “if there is any threat to foreign country by the
activities of the terrorist that will also amount the terrorist activities and the
Indian law will apply in such matters.” Other text of the definition is the same as
provided by Section 3(1) of the Prevention of Terrorists Act (POTA) 2002.
Henceforth, due to the new activities of cross border terrorism the definition
amended and incorporated in the Unlawful Activities (Prevention) Amendment
Act 2008.

The term terrorism has come to mean different things to different people
over different times. Those once called terrorists can easily be legitimized and
may as is the situation in Zimbabwe is called liberation fighters. The 2002 Report
of United Nation Policy Working Group on the UN and Terrorism offers some
guidelines that without attempting a comprehensive definition of terrorism it
would be useful to delineate some broad characteristics of the phenomenon.
Terrorism is, in most cases, essentially a political act. It is meant to inflict
dramatic and deadly injury on civilians and to create an atmosphere of fear,
generally for a political or ideological (whether secular or religious) purpose.
Terrorism is a criminal act, but it is more than mere criminality. To overcome the
problem of terrorism it is necessary to understand its political nature as well as its
basic criminality and psychology.67 Moreover, every kind of activity of the
terrorist is in violation of human rights of general public.

(ii) Preventive Detention Statutes and Quest of Human Rights – 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

66 Dr. S. D. Sharma, Solution of Insurgency and Enigma of Human Rights, All L.J. (2004)
pp. 31-35.
67 Report of United Nations (U.N.) 2002 ,Policy of Working Group on UN and Terrorism.

92
law in contradiction of human rights protection68. 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, another amendment
was made in 2008 for providing more teeth to the Police investigating agencies.
After these amendments, still there is continuous demand from the opposition to
enact separate law like POTA, nevertheless the Union Progressive Alliance
(UPA) Government is not interested to enact the separate law because of the
violation of the human rights, moreover, the Unlawful Activities (Prevention) Act
amended twice. Whereas, it is also germane and apt to discuss the legal
provisions of Unlawful Activities (Prevention) Act 2008, which are either in
contravention of the human rights or controversial on the ground of the violation
of human rights.

The most important portion of the said law is Preamble of the Act. In
preamble there are some important words, which are the anxiety of human rights
activist on the basis of violation of inherent human rights of property69. It has
mentioned in the preamble “Security Council of the United Nations requires the
States to take action against certain terrorists and terrorist organizations to freeze
the assets and economic resources.” On the basis of the this direction of the
Security Council, Indian Parliament incorporated Section 51 A in the Unlawful
Activities (Prevention) Act, it provides that “for the prevention of and for coping
with terrorist activities the Central Government shall have power to – (a) freeze,
seize or attach funds and other financial assets or economic resources held by, on
behalf of or at the direction of the individuals or entities listed in the schedule to
the order or any other person engaged in or suspected to be engaged in terrorism.

68 The Terrorism and Disruptive Activities Act, 1985 repealed in 1996. this was the most
controversial law because of violation of basic fundamental freedoms as well as human
rights of accused under preventive detention.
69 Article 17 (1) of the Universal Declaration of Human Rights, 1948 provides that
everyone has the right to own property alone as well as association with others, and
clause (2) provides that no one shall be arbitrarily deprived of his property.

93
The direction given by the Security Council to freeze the assets of the member of
the terrorist organization and engaged in terrorist activities has confined up to
freeze of the assets, however, the provision incorporated in the Unlawful
Activities (Prevention) Act 1967 is wider than the direction of the Security
Council because the words used by the legislature under Sec. 51 A (a) are to
freeze, seize or attach. It means Central Government can attach the assets of the
persons only on the ground of member of the terrorist organization. The meaning
of the freeze, seize or attach is totally different to each other, freeze means
congeal, turn to ice, harden, immobilize; chill, ice, frost, kill,, fix and stabilize
etc. in the same way the meaning of seize is that to grasp, clutch, capture, arrest,
appropriate, confiscate, afflict, detain, comprehend and understand etc., Whereas
attach means adjunct and legal seizure etc. this shows under the attachment
process the property will be attached with the control and property of the another
person. Henceforth, this is also the question of violation of human rights of a
person, who is under the presumption as offender under Section 15 read with
Section 43E of the unlawful Activities (Prevention) Amendment Act 2008.70
Presumption clause provides that on the basis of fulfilling the requirement of
Section 43E of the Act the person deemed to be offender. Thus, presumption
clause should not be treated to be absolute and conclusive evidence unless the
corroborative evidence will not support this. Thus presumption clause is one of
the obstacles in the protection of human rights. The basis of presumption for
determining the offender and attach his property is in violation of Article 17 (2)
of the Universal Declaration of Human Rights, 1948. Because of presumption
clause for depriving from the property is the arbitrary aspect of the law. Hence, it
can be said against the human rights. In this context, it is relevant and apt to
quote here the resolutions No. 1267 (1999), 1333 (2000), 1363 (2001), 1390
(2002), 1455 (2005), 1735 (2006) and 1822 (2008) of the Security Council of
United States that “to take action against certain terrorists and terrorist
organizations to freeze the assets and other economic resources to prevent the
entry into or the transit through their territory and prevent direct or indirect

70 Under this law at the place of presumption of innocence, the presumption of guilt has
been provided.

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supply, sale or transfer of arms and ammunitions to the individuals or entries
listed in the schedule.” These resolutions clearly indicate that if any person is the
member of any terrorist organization his property can freeze. It has not been
mentioned in the resolutions that the property can seize or attach, these words are
the extra words in section 51A (a) of Unlawful Activities (Prevention)
Amendment Act, 2008. Thus, by way of this correlative aspect of the resolutions
of Security Council of United Nations and provisions of the Unlawful Activities
(Prevention) Amendment Act, 2008 it can be said that resolutions adopted by the
Security Council of United Nations is within the parameters of the provisions of
human rights buts provisions legislated by Indian legislators is out of purview of
the human rights laws.71

Another controversial aspect of the Unlawful Activities (Prevention)

Amendment Act 2008 as extraordinary laws and protection of human rights is
Sec. 43C which provides modified application of certain provisions of the
Criminal Procedure Code.” This provisions proves the extraordinary aspect of a
cognizable offence within the meaning of Clause (C) of Section 2 of the Code,
and “cognizable case” as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence
punishable under this Act subject to the modification that in sub-section (2) – (a)
the references to “fifteen days”, wherever they occur, shall be construed as
reference to “thirty days” “ninety days” respectively: and (b) after the proviso,
the following provisions shall be inserted, namely:

Provided further that if it is not possible to complete the investigation

within the said period of ninety days, the Court may if it is satisfied with the
report of the Public Prosecutor indicating the progress of the investigation and the
specific reasons for the detention of the accused beyond the said period of ninety
days, extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigation under this
Act requests, for the purpose of investigation, for police custody from judicial
custody of any person in judicial custody, he shall file affidavit stating the

71 The Terrorist and Disruptive Activities Act, 1985 (TADA) and Prevention of Terrorists
Act, 2002 were enacted as strict criminal laws for terrorists.

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reasons for doing so and shall also explain the delay, if any, for requesting such
police custody.

Supreme Court said in Moti Ram v. State of M.P.72 that the release on
bail is crucial to the accused as the consequences of the pre-trial detention are
grave. If release on bail is denied to the accused, it would mean that though he is
presumed to be innocent till the guilt is proved beyond reasonable doubt he
would be subjected to the psychological and physical deprivations of jail life. The
jailed accused loses his job and is prevented from contributing effectively to the
preparation of his defence. Equally important, the burden of his detention
frequently falls heavily on the innocent members of his family. In Hussainara
Khatoon v. State of Bihar73, Supreme Court also said that it is the duty of the
Magistrate to inform the accused that he has the right to be released on bail under
the proviso to Section 167(2) of the Criminal Procedure Code. Thus, the laws for
prevention of the activities of terrorists are different from the original law of the
land.

Capital punishment or life imprisonment is also prescribed by terrorist

activities prevention laws, thus not to release to the terrorists up to one hundred
eighty days under the Unlawful Activities (Prevention) Amendment Act 2008 is
contradiction of the Section 167 of Criminal Procedure Code 1973. In this
reference, it is also relevant to quote here that murder and threat to State is a same
category of offence, whether the offender commits it under the Indian Penal Code
or Terrorists Prevention laws. Thus laws should not provide the different legal
provisions for the bail. Hence different treatment of trial can be said legal
discrimination; therefore it is violation of human rights jurisprudence.

Second controversial aspect of the law in Unlawful Activities

(Prevention) Amendment Act 2008 is that according to Section 43D (4) of the
said Act, bail provisions as prescribed under Section 438 of the Code shall not
apply in the matters of terrorists activities and arrested person under the Unlawful
Activities (Prevention) Act. Human rights protection law provides that “no one

72 AIR 1978 SC 1594.

73 1979 Cr. LJ. 1052 (SC).

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shall be subjected to arbitrary arrest, detention or exile.”74 Anyone who is
deprived of his liberty by arrest or detention shall be entitled to take proceedings
before a Court in order that Court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful, henceforth, only
on the basis of apprehension of involvement in terrorist activities bail cannot be
denied. Such provision can also be in violation of human rights of human being,
because proviso of Section 43 D (5) of Unlawful Activities (Prevention)
Amendment Act 2008 provides that accused who involves in terrorist activities
and accusation against such person is prima facie true shall not be released on
bail. The meaning of this provision clearly indicates that person against whom
the prima-facie case is lodged, he cannot be released on bail.

In the same manner the bail shall not be granted to a person accused of an
offence punishable under this Act, if he is not an Indian citizen and has entered
the country unauthorizedly or illegally except in very exceptional circumstances
and for reasons to be recorded in writing.75

(iii) State legal Instruments and human rights

Besides the Union legislations there are other laws, which are enacted by
the States. These are the Andra Pradesh Control of Organized Crime Act 2001,
Bihar Control of Crime Act 1981, the Delhi Control of Carrying Explosive
Regulations 1980. The Karnataka Control of organized Crimes Act 2000. The
Madhya Pradesh Rajaya Suraksha Adhiniyam 1990, the Maharashtra Control of
Organized Rules 1999, the Maharashtra prevention of Communal Anti-Social and
other Dangerous Activities Act 1980, the Rajasthan Dacoits Affected Areas Act
1986, the Uttar Pradesh Gangsters and Anti-Social Activities(Prevention) Act
1986 and Uttar Pradesh Control of Goondas Act 1970 etc.

In this way, it can be said that there are number of laws enacted by the
parliament and state legislatures but there is a serious problem of the successful
legislations for the purpose of protection of human rights and combating
terrorism problem.

74 Article 9, Universal Declaration of Human Rights, and Article 9(1) to (5) of the
International Covenant on Civil and Political Rights.
75 Ibid.

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 The 21st century is the century of technology e.g. chemical weapons,
explosive, explosive devices and digital terrorism etc. thus the new techniques are
for the development of the society. But terrorists are misusing this technology.
Terrorism problem is a global problem. It is not a problem in India but every
developed and developing country is facing this problem. Thus on 12th April
2010 in Washington International Nuclear Security Summit (NSS) discussed the
matter of nuclear weapons by the terrorist. It was suggested that nuclear material
should physically secure around the world, so that terrorists don’t get hold of
them-with an element of smoke and mirrors. In this Summit the then Indian
Prime Minister Dr. Man Mohan Singh focused on nuclear terrorism and the
proliferation of sensitive nuclear materials and technologies. The consensus
documents, which was released by the summit, speaks to keep all nuclear
material physically secure, regardless of how the State, which owns it, intends to
use it.

Terrorism is the serious, heinous, inhuman and barbaric crime. It is a

crime against the humanity. Though India is facing this problem from long back,
however, it is not only the problem of India but it is the problem of the all world
countries that are facing this problem.

In the human rights era of civilized society every human being wants to
live with dignity, liberty, justice, peace and tranquility. But in complex society
these desires of human beings are violating by unwanted elements of the society.
In violating of these golden principles of civilized society these questions are
most relevant that who are those elements? How they become unwanted? What is
the remedy or how they will come into the main stream of the society? All these
questions and their answers are very much essential for the protection of human
rights of accused as well as victims and society as a whole.

4. Some other Provisions for Human Rights of Accused

The above said rights are not the exhaustive rights of accused/arrested
persons, other rules have also been made in the consideration of interest of them.
Some of them have been created by the judiciary and later on incorporated in the
concerned laws. The idea underlying is to protect the basic human rights of
accused in all circumstances. Some of these are as following.

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(i) 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. The quality of a nation's
civilisation can be largely measured by the methods it uses in the enforcement of
criminal law. The Supreme Court in Nandini Satpathy v. P.L. Dani76 quoting
Lewis Mayers and stated:

To strike the balance between the needs of law enforcement

on the one hand and the protection of the citizen from
oppression and injustice at the hands of the law-
enforcement machinery on the other is a perennial problem
of statecraft. The pendulum over the years has swung to the
right. We have earlier spoken of the conflicting claims
requiring reconciliation. Speaking pragmatically, there
exists a rivalry between societal interest in effecting crime
detection and constitutional rights which accused
individuals possess. Emphasis may shift, depending on
circumstances, in balancing these interests as has been
happening in America. Since Miranda there has been
retreat from stress on protection of the accused and
gravitation towards society's interest in convicting law-
breakers. Currently, the trend in the American jurisdiction
according to legal journals, is that 'respect for
(constitutional) principles is eroded when they leap their
proper bounds to interfere with the legitimate interests of
society in enforcement of its laws...'. (Couch v. United
State). Our constitutional perspective has, therefore, to be
relative and cannot afford to be absolutist, especially when
torture technology, crime escalation and other social
variables affect the application of principles in producing
humane justice.
(a) Maximum detention of undertrial person

In Hussainara Khatoon (II) v. Home Secretary77, 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

76 (1978) 2 SCC p.433, para 15.

77 AIR 1997 SC 1369.

99
serious view and added Section 436-A in the Criminal Procedure Code by 2005
Amendment Act.

In case titled Common Cause v. Union of India & others78 decided on

01-05-1996, it was held as under:

I (a) Where the offences under IPC or any other law for the time being in force
for which the accused are charged before any criminal Court are punishable with
imprisonment not exceeding three years with or without fine and if trials for such
offences are pending for one year or more and the concerned accused have not
been released on bail but are in jail for a period of six months or more, the
concerned criminal Court shall release the accused on bail or on personal bond to
be executed by the accused and subject to such condition if any, as may be found
necessary, in the light of Section 437 of the Criminal Procedure Code.

(b) Where the offences under IPC or any other law for the time being in force
for which the accused are changed before any Criminal Court are punishable with
imprisonment not exceeding five years, with or without fine, and if the trial for
such offences are pending for two years or more and the concerned accused have
not been released on bail but are in jail for a period of six months or more, the
concerned Criminal Court shall release the accused on bail or on personal bond to
be executed by the accused and subject to the imposing of suitable conditions, if
any, in the light of Section 437 Criminal Procedure Code.

(c) Where the offences under Indian Penal Code or any other law for the time
being in force for which the accused are charged before any Criminal Court are
punishable with seven years or less, with or without fine, and if the trials for such
offences are pending for two years or more and the concerned accused have not
been released on bail but are in jail for a period of six months or more, the
concerned Criminal Court shall release the accused on bail or on personal bond to
be executed by the accused and subject to the imposing of suitable conditions, if
any, in the light of Section 437 Criminal Procedure Code.

II (a) Where Criminal proceedings are pending regarding traffic offences in any
Criminal Court for more than two years on account of non serving of summons to

78 AIR 1996 SC 1619.

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the accused or for any other reason whatsoever, the Court may discharge the
accused and close and cases.

(b) Where the cases pending in Criminal Courts for more than two years
under IPC or any other law for the time being in force are compoundable with
permission of the Court and if in such cases trials have still not commenced, the
Criminal Court shall, after hearing the public prosecutor and other parties
represented before it or their advocates, discharge or acquit the accused, as the
case may be, and close such cases.

(c) Where the cases pending in Criminal Courts under Indian Penal Code or
any other law for the time being in force pertain to offences which are non
cognizable and bailable and if such pendency is for more than two years and if in
such cases trials have still not commenced, the Criminal court shall discharge or
acquit the accused, as the case may be, and close such cases.

(d) Where the cases pending in Criminal Courts under Indian Penal Code or
any other law for the time being in force are pending in connection with offences
which are punishable with fine only and are not of recurring nature, and if such
cases trial have still not commenced, the Criminal court shall discharge or acquit
the accused, as the case may be and close such cases.

(e) Where the cases pending in Criminal Courts under Indian Penal Code or
any other law for the time being in force are punishable with imprisonment up to
one year with or without fine, and if such pendency is for more than one year and
if in such cases trials have still not commenced, the Criminal court shall
discharge or acquit the accused, as the case may be and close such cases.

(f) Where the cases pending in Criminal Courts under Indian Penal Code or
any other law for the time being in force are punishable with imprisonment up to
three years with or without fine, and if such pendency is for more than two years
and if in such cases trials have still not commenced, the Criminal court shall
discharge or acquit the accused, as the case may be and close such cases.

III For the purpose of directions contained in clauses (i) and (ii) above, the
period of pendency of Criminal Cases shall be calculated from the date the
accused are summoned to appear in the Court.

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IV Directions(i) and (ii) made herein above shall not apply to cases or offences
involving:

(a) corruption, misappropriation of public funds, cheating, whether under the

Indian Penal Code, Prevention of Corruption Act or any other statute,

(b) smuggling, foreign exchange violation and offences under the Narcotics
Drugs and Psychotropic Substances Act,

(c) essential Commodities Act, Food Adulteration Act, Acts dealing with
Environment or any other economic offences,

(d) offences under Arms Act, Explosive Substances Act, Terrorists and
Disruptive Activities Act,

(e) offences relating to the Army, Navy and Air Force,

(f) public tranquility,

g) offences relating to public servants,

(h) offences relating to coins and Government stamps,

(i) offences relating to elections,

(j) offences relating to giving false evidence and offences against public
justice,

(k) any other type of offences against the State,

(l) offences under the taxing enactments and

(m) offences of defamation as defined in Section 499, IPC.

The aforesaid judgment was clarified by the Hon’ble Supreme Court in

the subsequent case, also titled Common Cause v. Union of India79, decided on
28-11-1996) wherein it was held as under:

(i) The time limit mentioned regarding the pendency of criminal cases in
paragraphs from 2(a) to 2(f) of our judgment shall not apply to cases wherein
such pendency of the criminal proceedings is wholly or partly attributable to the
dilatory tactics adopted by the concerned accused or on account of any other

79 AIR 1997 SC 1539.

102
action of the accused which results in prolonging the trial. In other words, it
should be shown that the criminal proceedings have remained pending for the
requisite period mentioned in the aforesaid clauses of paragraph 2 despite full
cooperation by the concerned accused to get these proceedings disposed off and
the delay in the disposal of these cases is not at all attributable to the concerned
accused, nor such delay is caused on account of such accused getting stay of
criminal proceedings from higher Courts. Accused concerned are not entitled to
earn any discharge or acquittal as per paragraphs 2(a) to 2(f) of our judgment if it
is demonstrated that the accused concerned seek to take advantage to their own
wrong or any other action of their own resulting in protraction of trials against
them.

(ii) The phrase ‘pendency of trials’ as employed in paragraphs from 1(a) to

1(c) and the phrase ‘non-commencement of trial’ as employed in
paragraphs from 2(b) to (f) shall be constructed as under:

(a) In case of trials before Sessions Court, the trials shall be treated to have
commenced when charges are framed under Section 228 of the Code of
Criminal Procedure, 1973 in the concerned cases.

(b) In cases of trials of warrant cases by Magistrates if the cases are instituted
upon police report, the trials shall be treated to have commenced when
charges are framed under section 240 of the Code of Criminal Procedure,
1973 while in trials of warrant cases by Magistrates when cases are
instituted otherwise than on police report such trials shall be treated to
have commenced when charges are framed against the concerned accused
under section 246 of the Code of Criminal Procedure, 1973.

(c) In cases of trials of summons cases by magistrates, the trials would be

considered to have commenced when the accused who appear or are
brought before the Magistrate are asked under section 251 whether they
plead guilty or have any defence to make.

(iii) In paragraph 4 of our judgement in the list of offences to which directions

contained in paragraphs 1 and 2 shall not apply, the following additions
shall be made:

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(n) matrimonial offences under Indian Penal Code including Section 498-A
or under any other law for the being in force;

(o) offences under the Negotiable Instruments Act including offences under
Section 138 thereof;

(p) offences relating to criminal misappropriation of property of the

complainant as well as offences relating to criminal breach of trust under
Indian Penal Code or under any other law for the time being in force;

(q) offences under Section 304-A of the Indian Penal Code or any offence
pertaining to rash and negligent acts which are made punishable under
any other law for the time in force;

(r) offences affecting the public health, safety, convenience, decency and
morals as listed in Chapter XIV of the Indian Penal Code or such
offences under any other law for the time in force.

It is further directed that in criminal cases pertaining to offences

mentioned under the above additional categories (n) to (r) wherein accused are
already discharged or acquitted pursuant to our judgement dated 1st May, 1996
and they are liable to be proceeded against for such offences pursuant to the
present order and are not entitled to be discharged or acquitted as aforesaid, the
concerned Criminal Court shall suo moto or on application by the concerned
aggrieved parties issue within three months of the receipt of this clarificatory
order at their end, summons or warrants, as the case may be, to such discharged
or acquitted accused and shall restore the criminal cases against them for being
proceeded further in accordance with law. It is however made clear that in trials
regarding other offences which are covered by the time limit specified in our
earlier order dated 1st May 1996 wherein the concerned accused are already
acquitted or discharged pursuant to the said order, such acquitted or discharged
accused shall not be liable to be recalled for facing such trials pursuant to the
present clarificatory order which qua such offences will be treated to be purely
prospective and no such cases which are already closed shall be reopened
pursuant to the present order.

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 Subsequent thereto, in the case titled Raj Deo Sharma v. The State of
Bihar80 the Apex Court issued the following supplementary directions:

(i) In cases where the trial is for an offence punishable with imprisonment
for a period not exceeding seven years, whether the accused is in jail, or
not, the court shall close the prosecution evidence on completion of a
period of two years from the date of recording the plea of the accused on
the charges framed whether the prosecution has examined all the
witnesses or not, within the said period and the court can proceed to the
next step provided by law for the trial of the case.

(ii) In such cases as mentioned above, if the accused has been in jail for a
period of not less than one half of the maximum period of punishment
prescribed for the offence, the trial court shall release the accused on bail
forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a period
exceeding 7 years, whether the accused is in jail or not, the court shall
close the prosecution evidence on completion of three years from the date
of recording the plea of the accused on the charge framed, whether the
prosecution has examined all the witnesses or not within the said period
and the court can proceed to the next step provided bylaw for the trial of
the case, unless for very exceptional reasons to be recorded and in the
interest of justice the court considers it necessary to grant further time to
the prosecution to adduce evidence beyond the aforesaid time limit.

(iv) But if the inability for completing the prosecution evidence within the
aforesaid period is attributable to the conduct of the accused in prolonging
the trial, no court is obliged to close the prosecution evidence within the
aforesaid period in any of the cases covered by clauses (1) to (3).

In the case titled Dharam Pal v. State of Haryana81 reported in decided

on 08-09-1999, it has been held by a Division Bench of our own Hon’ble Punjab
and Haryana High Court that the under mentioned category of convicts who

80 (1998) 7 SCC 507.

81 1999 (4) RCR (Crl.) 600.

105
apply for bail during the pendency of the hearing of their appeals against
convictions ordered by the trial courts are entitled to be released on bail.

(i) Life convicts who have undergone five years of imprisonment, of which
three years should after conviction, should be released on bail pending
hearing of their appeals.

(ii) Same principles ought to apply to those convicted by court martial.

(iii) Period of five years should be reduced to four years for females and
minors, with at least two years imprisonment after conviction. It was
however held in the aforesaid judgement that the above referred directions
will not apply in cases where grant of bails is forbidden by law and nor to
those who are convicted of heinous offences such as dacoity with murder,
rape with murder or murder of a child below 14 years of age.

The Court rightly emphasized that right to bail is not to be denied merely
because of the sentiments of the community against the accused. This
admonition was necessary because of the media frenzy surrounding hearing of
bail applications of corporate honcho and which reflected the public
misconception that when bail is granted, the accused is acquitted and is set free.
The reason for granting bail is that there is no justification for depriving an
accused of his fundamental right to personal liberty guaranteed under Article 21
of the Constitution unless the prosecution by cogent evidence establishes that the
accused when temporarily set free by grant of bail will thwart the criminal trial.

(b) Media Trial and its effect on bail of accused

Are the trial court judges in high profile case like 2G scam working under
media pressure to deny bail to the accused? The assurance from the top court
came after senior advocates Ranjit Kumar and Mukul Rohtagi without
specifically mentioning the 2G case, made an apparent reference to it with Kumar
stating that the trial court judges were working under “tremendous media
pressure” and fearing that any adverse publicity to their orders in high profile
cases might affect their “annual confidential report (ACR)”. Due to such a
pressure, the basic principle that “bail is a rule and jail an exception” as laid
down by the Supreme Court was being given a go by. “The bail is even denied in

106
cases where maximum punishment is only five or seven years,” Kumar said while
arguing for the bail of Vikas Kumar Sinha, an alleged front man of former
Jharkhand Chief Minister Madhu Koda, facing charges of corruption. Kumar said
Sinha had been chargesheeted by the CBI with offences carrying minimum
sentence of 3 years and maximum seven years almost a year back and he was in
jail for two years now.

(ii) Venue of the Trial

The provisions regarding venue i.e. the place of inquiry or trial, are
contained in Sections 177 to 189. Basic rule as stipulated in Section 177 is that
every offence shall ordinarily be inquired into and tried by a court within whose
local jurisdiction, it was committed. If the place of trial is highly inconvenient to
the accused person and causes various impediments in the defence preparation,
the trial at such a place cannot be considered as fair trial. Apart from exceptional
circumstances, it would be convenient both to the prosecution and to the defence
if the trial is conducted by a court within whose local jurisdiction the crime was
committed. Trial at any other distant place would generally mean hardship to the
parties in the production of evidence.

(iii) Right Against Solitary Confinement

Although, one of the mode of punishment is solitary confinement, but

certain restrictions have imposed on the type of punishment to protect the right of
convict to mingle with other convicts. In Sunil Batra (1) v. Delhi
Administration82, it was held 'if by imposing solitary confinement there is total
deprivation of camaraderie (friendship) among co prisoners commingling and
talking and being talked to, it would offend Article 21 of the Constitution. The
liberty to move, mix mingle, talk, share company with co-prisoners if
substantially curtailed would be violative of Article 21 unless curtailment has the
backing the law. The Court held that continuously keeping a prisoner in fetters
day and night reduces the prisoners from a human being to an animal and that this
treatment was cruel and unusual that the use of bar fetters was against the spirit of
the Constitution.

82 AIR 1978 SC 1575.

107
(iv) Right Against Inhuman Treatment

The accused and convict in criminal system of the country have the rights
to live with dignity. Therefore, they should not be subjected to the inhuman
treatment. In Kishore Singh v. State of Rajasthan83 the Supreme Court held that
the use of third degree method by police is violative of Article 21 and directed the
Government to take necessary steps to educate the police so as to inculcate a
respect for the human person. The Court also held that punishment of solitary
confinement for a long period from 8 to 11 months and putting bar fetters on the
prisoners in jail for several days on flimsy ground like loitering in the prison,
behaving insolently and in an uncivilized manner, tearing of his history ticket
must be regarded as barbarous and against human dignity and hence violative of
Article 21, 19 and 14 of the Constitution Krishna Iyer, J. declared, "Human
dignity is a clear value of our Constitution not to be bartered away for mere
apprehension entertained by jail officials.

Similarly, torture and ill treatment ow women suspects in police lockups

has been held to be violative of Article 21 of the Constitution. The Court gave
detailed instructions to concern authorities for providing security and safety in
police lockup and particularly to women suspects. The female suspects should be
kept in separate police lockups and not in the same in which male accused are
detained and should be guarded by female constables. The Court directed the I.G.
prisons and State Board of Legal Aid Advice committee to provide legal
assistance to the poor and indigent accused male and female whether they are
under trials or convicted prisoners84.

(v) Fair Trial

The fair trial is the foremost requirement of criminal proceedings and it is

utmost right of an accused. In the recent case titled as Dr. Rajesh Talwar and
another v. C.B.I. and another85 the Supreme Court observed that Article 12 of
the universal declaration of Human Rights provides for the right to a fair trial
what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the
heart of Criminal jurisprudence and, in a way, an important facet of democratic

83 AIR 1981 SC 625.

84 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.
85 2013 (4) R.C.R.(Criminal) 687.

108
polity and is governed by rule of law. Denial of fair trial is crucifixion of human
rights.

Fair Trial is the main object of criminal procedure and such fairness
should not be hampered and threatened in any manner. Fair Trial entails the
interests of the accused, the victim and of the society. Thus, fair trial must be
accorded to every accused in the spirit of right to life and personal liberty and the
accused must get a free and fair, just and reasonable trial on the charge imputed
in a criminal case. Any breach or violation of public rights and duties adversely
affects the community as a whole and it becomes harmful to the society in
general. In all circumstances, the Courts have a duty to maintain public
confidence in the administration of justice and such duty is to vindicate and
uphold the majesty of the law and the Court can not turn a blind eye to vexations
or oppressive conduct that occurs in relation to criminal proceedings.

Denial of fair trial is as much injustice to the accused as is to the victim

and the society. It necessarily requires a fair trial before an impartial judge, a fair
prosecutor and an atmosphere of judicial calm. Since the object of the trial is to
mete out justice and to convict the guilty and protect the innocent, the trial
should be a search for truth and not a bout over technicalities and must be
conducted under such rules as will protect the innocent and punish the guilty.
Justice should not only be done but should be seen to have been done. Therefore,
free and fair trial is a sine quo non of Article 21 of the Constitution . Right to get
a fair trial is not only a basic fundamental right but a human right also. Therefore,
any hindrance in a fair trial could be violative of Article 14 of Constitution.86 In
so many judgment the Supreme Court has expressed the importance of fair trial to
accused.87

(vi) Curative Petitions

The Supreme Court has ruled in Rupa Ashok Hurra v. Ashok Hurra88
that while certainly of law is important in India, it cannot be at the cost of justice.
The court has observed in this connection that in the area of personal liberty for

86 Ibid.
87 Natasha Singh v. C.B.I., 2013 (3) R.C.R.(Criminal) 368, Mohd. Hussain @Julfikar Ali v.
State (Govt. of N.C.T. Delhi) AIR 2012 SC 750.
88 (2002) 4 SCC388.

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sometime now, this is the manifestation of the “dynamic constitutional
jurisprudence” which the Supreme Court is evolving in this area. A curative
petition can be filed by accused himself or on his behalf by any other person in
the Supreme Court to review the earlier order of the Supreme Court itself.

(vii) Right to Information under Right to Information Act, 2005

Even when a person is convicted and deprived of his liberty in accordance

with the procedure established by law, a prisoner still retains the residue of
constitutional rights. Article 14, 19 and 21 “are available to prisoners as well as
freemen. Prison walls do not keep out Fundamental Rights.” The arrestee has a
right to submit an application through Superintendent Jail for receipt of
documents/information as permissible under the Right to Information Act, 2005.

5. Conclusion

"Human rights" as the expression goes, means certain rights which are
considered to be very basic for an individual's full physical, mental and spiritual
development. Human rights encompasses the fundamental principles of humanity
and these are the rights which every human being is entitled to enjoy on the basis
of the fact of being born human. Indeed, the conception of rights, which every
human being is entitled to enjoy by virtue of being a member of human society,
has evolved through the history of struggles for the recognition of these rights. In
plain simple words, human rights are the rights which every human being
possesses by virtue of being a human. The dictionary meaning of the word right
is a “privilege”. But when it is used in the context of “human rights” it is about
something more basic. Human rights are fundamental to the stability and
development of countries all around the world. Great emphasis has been placed
on international conventions and their implementation in order to ensure
adherence to a universal standard of acceptability.

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
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;

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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. If a person commits any wrong, undoubtedly he should be penalized or
punished, but it is never necessary to humiliate him and maul his dignity as a
human being.

Every prisoner has been conferred with certain rights by the Constitution
of India and various statutory laws so that his life as a prisoner is dignified and
comfortable. Though, these rights are must for every convicted person to
maintain and balance his mental status as a human being, the inefficiency of
Indian law enforcement system prevents prisoner from enjoying these rights. But
Supreme Court, National Human Rights Commission and various NGOs (Non-
Government Organizations) in country are working for this cause with
considerable results. If these agencies keep working this pace they will definitely
be able to make a mark. But the citizens must be aware themselves so as to what
rights one can enjoy if they get locked up unfortunately. Liberty is an important
feature of civilized society and it should not be lightly transgressed. When
authorities have to enforce the criminal law in a fair and just manner, it must
never give up the basic civil liberties which were won by after a considerable
time, after great sacrifices, as these are essential for the progress of nation as a
whole.

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 CHAPTER - IV

DEATH PENALTY VIS-A-VIS HUMAN RIGHTS

1. General

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.

What is it that separates humans from animals? What do human have,

that animals don’t. Human consider themselves civilized creatures and to live in a
civilized manner, they must be governed by certain laws formulated by the
governing bodies, which have been formulated by the people themselves. Every
human being is born with the inherent right to life. Human life is considered to be
one of the most sacred things throughout history. Kings have gambled their
wealth, power and status just to protect it. So the question that really comes to
mind is that if the State cannot give life, does it have the right to take it. Capital
punishment or the death penalty is a legal process whereby a person is put to
death by the State as a punishment for a crime. The judicial decree that someone
be punished in this manner is the death sentence, while the actual process of
killing the person is an execution. Crimes that can result in a death penalty are
known as capital crimes or capital offences. The term capital originates from the
Latin capitals, literally “regarding the head”(referring to execution by
beheading). The right to live is the birth right of all living beings. Article 3 of the
Universal Declaration of Human Rights, 1948 states quite clearly that everyone
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has the right to life, liberty and security of person. In the light of this fundamental
right to life, the United Nations Organization (U.N.O.) has tried to make the use
of death punishment as limited as possible, aiming of course at a total stop. In
1989 US’s General Assembly passed the “Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of
death penalty”. This protocol declares quite clearly that the abolition of death
penalty will strengthen the human dignity and develop the human rights. In the
course of social evolution; it can be seen that certain practices are given up and
no longer tolerated. Ritual human sacrifice, slavery by the way of example etc.
have largely been abandoned. Vestiges do continue but those are aberrations that
further underscore the fact that would has turned against these practices. There is
no denying that some heinous crimes are beyond description and violate human
dignity and life in the grimmest of fashion.

Death sentence has been used as an effective weapon of retributive justice

for centuries. The justification advanced is that it is lawful to forfeit the life of a
person who takes away another’s life. A person who kills another must be
eliminated from the society and therefore, his execution is justified.1 The motive
for death penalty may include vengeance which is a compensatory and reparatory
satisfaction for an injured party, group or society. When regulated and controlled
by law, vengeance is also socially useful. Legal vengeance solidifies social
solidarity against law-breakers and probably is the only alternative to the
disruptive private revenge of those who feel harmed.2

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 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

1 David Dressler : Reading in Criminology and Penology (Second Ed.)p. 501

2 Ernest Van den Haag, Is Capital Punishment Just? P. 406
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commuted or pardoned in the last resort and its final execution is seldom carried
out.

2. Historical Perspective of Death Penalty

Unlike animals, human beings in the course of time have upgraded their
social standards in which they reside and where they can claim to be proud
residents of a protective society, where they have a prerogative claim to basic
civic, political, economic and legal rights, where State watches and prevails over
crime and they are also the recipients of persistent and unwavering justice, which
being stringent ensures that any slight deviation from time honoured and accepted
behaviour by any citizen brings them under the austere eyes of the law which
then helps in preserving the fabric of the society and the efficiency of its social
network which de facto is one core reason why society should have capital
punishment as a tool and aid to be used as a deterrent; it has been universally
supported by the great political thinkers like John Locke who propounded his
concept of capital punishment containing elements of retributive and utilitarian
theory, where he contends that a person forfeits his rights for the commission of
even minor crimes and such rights are forfeited, punishments can be rightly
pronounced on them as they have made a breach to the social contract to which
they had agreed and the remedy is punishment to the wrongdoer which in itself is
an endeavour to darn the damage done to the social fabric.

Punishment is needed to protect our society by deterring crime through

such examples, does society may punish the criminal in anyway it deems
necessary which may include taking away his life so as to set an example for
other would be criminals and is further justified for the reason that the acts which
are so wile and destructive for society and dignity of the people. Invalidating the
right of the perpetrator to membership and even to life, because preciousness of
life in a moral community must be so highly honoured that those who do not
honour the lives of others make null and void their own right to membership,
which is why in a community based on love and ideals when made to face the
music of hostility and having to deal with people who have committed brutal
errors of terror, violence and murder, face a dilemma by the way of the set of
ideals the community propagates; it cannot imbibe the philosophy of , “An eye

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for eye, a tooth for a tooth and a life for a life”. But would be forced to act for the
safety of the members of the community from further destruction and would have
to treat the perpetrators who had shown no respect for life to be restrained,
permanently if necessary, so that they could not further endanger other members
of the community which would leave a sense of satisfaction and happiness to all
with whom the wrong has been done or relatives of the victim and to society as
such, if he who breaks the law is not punished then he who obeys it is cheated
which can also be rightly corroborated from the utilitarian and retributive
perspective of capital punishment.

Jurist Hobbes asserted that every man had under the natural order has the
right of repraisal for wrongs done to himself or anyone else. Then he said that
social contract had left this right to the sovereign while taking it away from
everyone else. Jurist Kant viewed that every political society had a duty to
enforce retributive justice. Jurist Roussoeu felt that the subject ought not to
complain if the sovereign demanded the subject’s life. He considered death as a
proper punishment, if the criminal was beyond redemption. Jurist Salmond has
said that a society which felt neither anger nor indignation at outrageous conduct
would hardly enjoy an effective system of law.

3. Capital Punishment in Ancient Rome and Greece

In ancient times, the law administrators unflinchingly executed murderers

because they believed that "the life of each man should be sacred to each other
man". They realized that it is not enough to proclaim the sacredness and
inviolability or human life, it must be secured as well, by threatening with the
loss of life of those who violate what has been proclaimed inviolable the right of
innocent to live. Murder, being the worst of crimes, must deserve the highest
penalty which is death sentence. This shall also be in accordance of the principle
that punishment must be in proportion to the gravity of the offence. Ancient
Romans accepted the deterrent value of death penalty. Under the Roman criminal
law, the offender was put to public ridicule and his execution took the form of a
ceremony. Death was caused to the condemned person in a most tortuous
manner. For example, one who killed his father was sewn in a sack along with a
live dog, cat and a cobra and thrown into river. The object was to make him die

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most painfully. The sentence of death could be awarded even to a debtor who was
unable to pay off the debt of his creditor. Thus, a creditor who found that his
debtor was unable to pay off the debt, could vent his wrath upon the debtor by
marching him up the Tarpeian rock and hurling him from there to death. The
Greek penal system also provided death sentence for many offences. The
offenders were stripped, tarred and feathered to death publicly. Execution of
death penalty in public places was favoured because of its deterrent effect.

4. English Law on Death Penalty

The history of crime and punishment in England during the medieval

period reveals that infliction of death penalty was commonly practiced for the
elimination of criminals. Henry VIII who reigned in England for over fifty
years,3 was particularly infamous for his brutality towards the condemned
prisoners. He used to boil the offenders alive. His daughter Queen Elizabeth who
succeeded him, was far more stiff in punishing the offenders. The offenders were
not put to death at once but were subjected to slow process of amputation by bits
so that they suffer maximum pain and torture. The condemned offenders were
often executed publicly. These brutal methods of condemning the offenders were,
however, abandoned by the end of eighteenth century when the system of
transporting criminals to distant American Colonies at their option was firmly
established.

Dr. Fitzgerald observed that the history of capital punishment in England

for the last two hundred years recorded a continuous decline in the execution of
this sentence.4 During the later half of the eighteenth century as many as two
hundred offences were punishable with death penalty. The obvious reason for the
frequency of execution was the concern of the ruler to eliminate criminals in
absence of adequate police force to detect and prevent crimes. The methods of
putting offenders to death were extremely cruel, brutal and torturous.

As the time passed, the severity of capital punishment was mitigated

mainly in two ways : Firstly, this sentence could be avoided by claiming the
'benefit of clergy' which meant exemption from death sentence to those male

3 Henry VIII ruled over England from 1491 to 1541 AD.

4 Fitzerald, P.J., Criminal Law and Punishment ,1962 p. 216.
116
offenders who could read and were eligible for holy Order.5 Secondly, the
prisoners who were awarded death sentence could be pardoned if they agreed to
be transported to American Colonies. During later half of the eighteenth century,
condemned felons could be transported for seven years in lieu of capital sentence.
In course of time, death punishment for felony was abolished,6 and in 1853, the
system of transporting criminals also came to an end and a new punishment of
penal servitude was introduced.Commenting on the frequency of executions
during the eighteenth century Donald Taft observed that during no period in the
history of western civilization were more frantic legislative efforts made to stem
crime by infliction of capital punishment as in that century.7 In his opinion, the
growing importance of this punishment was owing to the agrarian and industrial
changes in the English society resulting into multiplicity of crimes which had to
be suppressed by all means. Supporting this view it was observed that more than
190 crimes were punishable with death during the reign of George III in 1810.
However, with the advance of nineteenth century, the public opinion disfavoured
the use of capital punishment for offences other than the heinous crimes.
Bentham and Bright, the two eminent English law reformers opposed frequent
use of capital punishment. Sir Samuel Romilly also advocated a view that the
use of capital punishment should be confined only to the cases of intentional and
willful murder.

The irrevocable and irreversible nature of death penalty gave rise to a

number of complications which invited public attention towards the need for
abolition of death sentence. Consequently, the British Royal Commission on
Capital Punishment was appointed in 1949 to examine the problem. As a result of
the findings of this Commission, death sentence was suspended in England and
Wales for five years from 1965 and was finally abolished by the end of 1969.
However, the constant rise in the incidence of crime in recent decades has
necessitated Britain to re-assess its penal policy regarding death penalty. The two

5 In subsequent years, this benefit was extended to women also. It was finally
abolished in 1927.
6 Death as a punishment for felony was abolished in 1827.
7 Taft & England, Criminology (4th Ed.) p. 297.
117
decisions8 of the Privy Council emphatically stressed that the award of death
sentence is not violative of human rights or fundamental rights.

5. Death Sentence under different Statutes

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.

Several legislative attempts to abolish the death penalty in India have

failed. Before Independence a private Bill was introduced in the year 1931
Legislative Assembly to abolish the death penalty for Penal Code offences. The
British Home Secretary at the time however rejected the motion. The
Government of Independent India also rejected a similar Bill introduced in the
first Lok Sabha. Resolutions introduced in the Rajya Sabha in 1958 and 1962
house debates of the Law Commission which was at the time reviewing the
Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. The Law
Commission in its Report presented to the Government in 1967 and to the Lok
Sabha in 1971 concluded that the death penalty should be retained and the
executive (President) should continue to possess powers of mercy. National
discussion about the death penalty has resurfaced from time to time. The Lok
Sabha specifically discussed abolition of the death penalty in 1983. While the
Prime Minister at the time publicly favoured abolition, her Minister in Home
Affairs denied that the Government was considering any specific proposals to
abolish the death penalty. Some time back, the debate over the death penalty was
reinvigorated when all 26 defendants in the Rajiv Gandhi assassination case were
sentenced to death.

In fact in recent years the Indian Parliament (Lok Sabha and Rajya Sabha)
has dramatically extended the scope of the penalty. The Terrorist and Disruptive

8 Eston Baker v. Queen, 1975 PC 774 and Michael de Fraeities v. George

Ramoutar Benny, 1976 PC 239.

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Activities (Prevention) Act, 1985 (TADA) which was extended in 1987
empowered special courts to impose the death penalty for certain broadly defined
‘terrorist’ acts. Although the Parliament decided to let this hugely unpopular and
controversial Act lapse in 1995, it is now considering new legislation, in the form
of the Prevention of Terrorism Bill which would reintroduce many aspects of the
Terrorist and Disruptive Activities (Prevention) Act, 1985 TADA.

Use of the death penalty has also been extended through other legislation.
The Commission of Sati (Prevention) Act, 1987, which prescribes punishment by
death for any person who either directly or indirectly abets the commission of
‘Sati’(immolation of a widow). The Narcotics, Drugs and Psychotropic
Substances (Amendment) Act, 1988, introduced the death penalty as a
punishment for financing, or engaging in the production, manufacture or sale of
narcotics or psychotropic substance of specified quantities (eg. opium 10 kgs,
cocaine 500 grams) after previous convictions. The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced the death
penalty for fabricating of providing false evidence that results in the conviction
and execution of an ‘innocent’ member of a scheduled caste or scheduled tribe. In
February 2013, the Criminal Amendment Act, 2013 came into force which
provides death penalty for causing death of rape victim.9

6. Mode of Execution

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.

9 This amendment was made on the recommendations of Justice Verma Committee

constituted for reform in criminal law. This Committee was the outcome of hue and cry
of people for severe punishment for rape offenders against the 16 December, 2012 gang
rape case in Delhi.
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7. Execution of Death Sentence

Section 413 of Criminal Procedure Code provides that when in a case

submitted to the High Court for the confirmation of a sentence of death, the court
of session receives the order of confirmation or other order of the High Court
thereon, it shall cause such order to be carried into effect by issuing a warrant or
taking such other steps as may be necessary.

Section-414 of the Criminal Procedure Code provides that when a

sentence of death is passed by the High Court in appeal or in revision, the court
of session shall, on receiving the order of the High Court, cause the sentence to
be carried into effect by issuing a warrant.

Section-415 (1) of the Criminal Procedure Code provides that where a

person is sentenced to death by the High Court and an appeal from its judgment
lies to the Supreme Court under sub clause (1) of clause (1) of Article 134 of the
Constitution, the High Court shall order the execution of the sentence to be
postponed until the period allowed for preferring such appeal has expired, or if an
appeal is preferred within that period, until such appeal is disposed of. Section
415 (2) of the Criminal Procedure Code provides that where a sentence of death
is passed or confirmed by the High Court, and the person sentenced makes an
application to the High Court for the grant of a certificate under Art. 132 or under
sub- clause(c) of clause(1) of Article 134 of the Constitution, the High Court
shall order the execution of the sentence to be postponed until such application is
disposed of by the High Court, or if a certificate is granted on such application,
until the period for preferring an appeal to the Supreme Court on such certificate
has expired. Further, Section 425 (3) of the Criminal Procedure Code provides
that when a sentence of death is passed or confirmed by the High Court, and High
Court is satisfied that the person sentenced intends to present a petition to the
Supreme Court for the grant of special leave to appeal under Article 136 of the
Constitution, the High Court shall order the execution of the sentence to be
postponed for such period as it considers sufficient to enable him to present such
petition.

Section-416 of the Criminal Procedure Code provides that if a woman

sentenced to death is found to be pregnant, the High Court shall order the
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execution of the sentence to be postponed and may, if it thinks fit, commute the
sentence to imprisonment for life.

8. Capital Punishment (Death Sentence) Under The Indian Penal Code,

1860

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)10

6. Abetment of suicide of child, insane person (Section 305)

7. Dacoity accompanied with murder (S. 396)

8. Attempt to murder under sentence of imprisonment. If hurt is caused

in such attempt (Section 307)

9. Kidnapping for ransom (Section 364-A)

10. Causing death or resulting in persistent vegetative state of victim

(Section 376-A)11

Despite frequent demand from some sections of society, India has not
so far, abolished capital punishment. But even in India there has been a decline in
the frequency of such punishment, it is now awarded only in case of hardened
criminals and only when it is established that the murder was not the result of
momentary impulse, the result of serious provocation, but well planned and cold
blooded. In such cases, it is felt that nothing less than capital punishment would

10 In Mithu v. State of Punjab, AIR 1983 SC 45, Section 303 of Indian Penal Code has
been declared unconstitutional.
11 This section has been substituted by Amendments Act 13 of 2013, and it has been
enforced from 03-02-2013.
121
meet the ends of justice, that it is just and proper that such beasts of society are
eliminated. It is, therefore, in the fitness of things that India has not so far
abolished capital punishment but used it more judiciously, sociologists are of the
view that capital punishment serves no useful purpose.

9. Related provisions of Criminal Procedure Code, 1973

Section 354(3), (5) of the Criminal Procedure Code requires that when the
conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall the
state reasons for such sentence. Further, when any person is sentenced to death,
the sentence shall direct that he be hanged by the neck till he is dead.

Section 366 of the Criminal Procedure Code procedure that when the
Court of Session passes a sentence of death, the proceedings shall be submitted to
the High Court, and the sentence shall not be executed unless it is confirmed by
the High Court. The court passing the sentence shall then commit the convicted
person to jail custody under a warrant.

Section 367 of the Criminal Procedure Code procedure that When such
proceeding are submitted, the High Court thinks that a further inquiry should be
made into, or additional evidence taken upon, any point bearing upon, any point
bearing upon the guilty or innocence of the convicted person, it may make such
enquiry or take such evidence itself, or direct it to be made or taken by the court
of session. The inquiry contemplated under Sec. 367 would take in the
examination of the accused under Sec. 313(1)(a). When the inquiry or evidence
(if any) is not made or taken by the High Court, the result of such inquiry or
evidence shall be certified to such court. Unless the High Court otherwise directs,
the presence of the convicted person may be dispensed with when such inquiry is
made or such evidence is taken.

Section 368 of the Criminal Procedure Code procedure requires that no

order for confirmation shall be made until the period allowed for preferring an
appeal has expired, or if any appeal is presented within such period, until such
appeal is disposed of. Section 369 of the Criminal Procedure Code procedure
requires that in every case so submitted, the confirmation of the sentence, or any

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new sentence or order passed by the High Court, shall when such court consists
of two or more judges, be made, passed and signed by at least two of them.
Further, Section 370 of the Criminal Procedure Code procedure provides that
where any such case is heard before a bench of judges and such judges are
equally divided in opinion, the case shall be decided in the manner provided by
Section 392 of the Criminal Procedure Code. As per the Section 371 of the
Criminal Procedure Code procedure in cases submitted by the Court of Session to
the High Court for the confirmation of a sentence of death, the proper officer of
the High Court shall, without delay, after the order of confirmation or other order
has been made by the High Court, send a copy of the order under the seal of the
High Court and attested with his official signature, to the Court of Session.

10. Concept of Rarest of Rare Cases

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. Full weightage should be given to the mitigating
circumstances and even after that if the Court feels that justice will not be done if
any punishment less than the death sentence is awarded, then and then only death
sentence should be imposed.

Again in Machhi Singh v. State of Punjab12 the court laid down :-

“In order to apply these guidelines inter- alia the following questions may
be asked and answered :-

(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) Are there circumstances of the crime such that there is no alternative but
to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offenders?”

12 AIR 1983 SC 947.

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 The principles laid down by the Apex Court were reiterated in its
judgment in Sushil Murmu v. State of Jharkhand13 :

In rarest of rare cases, when the collective conscience of

the community is so shocked that it will expect the holders
of the judicial power center to inflict death penalty
irrespective of their personal opinion as regards desirability
or otherwise of retaining death penalty, death sentence can
be awarded.

The Supreme Court has also discussed the circumstances in various cases.
These circumstances include:-

• Murder committed in an extremely brutal, grotesque, diabolical, revolting

or dastardly manner so as to arouse intense and extreme indignation of the
community.

• Murder for a motive which evinces total depravity and meanness.

• Murder of a Scheduled Caste or Scheduled Tribe arousing social wrath(

not for personal reasons)

• Murderer is on dominating position, position of trust or in course of

betrayal of the motherland.

• Where it is enormous in proportion.

• Victim-innocent child, helpless woman, old/infirm person, public figure

generally loved and respected by the community.

If upon taking an overall view of all the circumstances and taking it into
account the answers to the question posed by way of the test of rarest of rare
cases, the circumstances of the case are such that death penalty is warranted, the
court would proceed to do so. In Lalit Kumar Yadav @ Kuri v. State of Uttar
Pradesh14,In the present case, the circumstantial evidence comes to only one
conclusion that appellant attempted to commit rape and because of resistance he
committed the murder of the deceased. The appellant was aged about 21 years at
the time of offence. Initially when the matter for confirmation of death sentence

13 2004 (2) SCC 338.

14 2014 STPL (Web) 318 SC.
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was heard by the two learned Judges of the High Court there was a divided
opinion, one Judge confirmed the death sentence while the other acquitted the
appellant. It is the other Bench which affirmed the death sentence. It is not the
case of the Prosecution that the appellant cannot be reformed. In fact the
possibility of his reformation cannot be ruled out. There is no criminal antecedent
of the appellant. The Court has to consider different parameters as laid down in
15
Bachhan Singh followed by Machhi Singh16 and balance the mitigating
circumstances against the need for imposition of capital punishment. Court
observed that considering the age of the accused, the possibility of reforming him
cannot be ruled out. He cannot be termed as social menace. Further, the case does
not fall under the “rarest of rare” category.

11. Retributive Character of Death Punishment

The punishment is retributive in character. The object of sentencing

should be to see that the crime does not go unpunished and the victim of crime as
also the society has the satisfaction that justice has been done to it lest it may lead
to Lynch Law. There have been instances where victim’s relative killed the
accused. Criminal Law has its origin in vengeance. Punishment mechanism
revolves around the satisfaction of law-abiding person’s anger. Anger is not
always bad but it is the indifference of community towards the circumstances,
which is more harmful. One of the purposes of law is to calm the community’s
anger by punishing the criminal. Anger which is not selfish like greed or jealousy
is socially constructive and when it erupts for right cause it should be rewarded.
Punishment is primarily satisfaction of private revenge and at the same time an
emphatic denunciation of the crime by the society. Any civilized society which
shies away from showing righteous indignation has nothing to distinguish it from
main soul. The Criminal Law stands to the passion of revenge in much the same
relation as marriage to sexual appetite.

The theory of deterrent punishment draws its inspiration from the

hedonistic philosophy of Beccaria’s Classical school of criminology. A rigorous
and maximum punishment as against a moderate and lesser punishment helps to

15 Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

16 Supra 12.
125
prevent the commission of a crime. For the incorrigibles and habitual and
hardened criminals death penalty is best suited and it is the only method teaching
hardened criminals. The incorrigible and hardened criminals as a rotten limb of
the society must be eliminated. The prevalence of recidivism offers a serious
stumbling block to a too ready acceptance of the idea of readily achieved
reformation. The recidivist becomes the criminal who after having experienced
rehabilitation treatment returns to crime and ultimately to prison again to be
rehabilitated further. Making murder a safer proposition, a less deadly
proposition for the killer will have a hostile effect on society. The capital
punishment is an effective tool to curve the grave wrong act such as of killing and
it can also be instrumental in preventing society from becoming ever more
imperfect than it need be.

12. Global Perspective of Death Sentence

Given the abolition of the death penalty in Europe and a number of other
nations including Canada, Australia and Mexico, the question of unanimity has
been rendered superfluous in these States. A number of other States which
continue to award the death sentence require a unanimous verdict by all judges.
Even in countries of the Commonwealth that retain the jury system – Malta,
Ghana, Anguillas, Guyana and the Bahamas- a unanimous verdict is essential for
a death sentence. Indeed common law follows a strong tradition of commuting a
death sentence to life in the case of a non-unanimous verdict.

Though the death penalty is imposed frequently in the United States of

America, (more than 900 people have been executed since 1976 and 3500 more
await a similar fate), the law is clearly in favour of unanimity. Criminal cases are
tried by a twelve member jury and after the landmark judgment in Ring v.
Arizona17, the jurors reserve the power to decide the sentence. No person may be
awarded the death sentence except by the unanimous verdict of a twelve member
jury. This is the law- in criminal as well as federal cases- in all 38 states that have
retained the death penalty. In US Martial and Martial Tribunal Courts, the
Uniform Civil Code of Military Justice notes that a death sentence can only be
handed out with unanimity of opinion of a five member panel that tries the case.

17 536 US 584(2002)
126
The panel must agree that no other sentence is more appropriate than death. In
addition to such safeguards, the convening authority has the power to reduce- but
not increase- the sentence and set aside a finding a guilt.

The Law Council of Australia has reported that even the Military
Commissions set up to try Guantanamo Bay detainees will follow the same
procedure and therefore can only unanimously impose the death penalty.
Previously, even the Nuremberg and Tokyo war crimes tribunals set up after the
Second World War have required unanimity. In South Asia – Nepal, Bhutan, Sri
Lanka and the Maldives have abolished the death penalty either in law or
practice. However Pakistan and Bangladesh retain the death penalty and follow
the majority rule in awarding death sentences. In the Zulfiqar Ali Bhutto case in
the Supreme Court of Pakistan in 1977, the seven judge bench sentenced the
former Prime Minister and former President, Mr. Bhutto to death by a majority
verdict with four judges in favour of the death sentence.18

An international survey carried out in 1962 by the United Nations,

however, confirmed that neither suspension nor abolition of death penalty had
any immediate effect in increasing the incidence of crimes punishable with
sentence of death. The countries which had abolished capital punishment,
notably, Germany, Austria, Scandinavia, Netherlands, Denmark and some Latin
American States reported no ill-effects of abolition.

It is significant to note that with the abandonment of the torturous and

barbarous methods of inflicting death penalty, the meaning of the term 'capital
punishment' now extends only to death sentence for murder or homicides.
Particularly, in western countries rape is no longer serious crime for two main
reasons. Firstly, with general laxity in morality, the gravity of this offence is fast
declining. In the second place, scientists have established rape as a mere passive
surrender by the victim because in their opinion it is practically impossible to
commit rape unless the victim is made unconscious. Likewise, treason being
exclusively a war-time offence, it is futile to enlist it as a peace-time offence and
to provide death penalty for it.

18 PLD 1978 Lahore 523 (Criminal Original Case. No. 60 of 1977.

127
 In the modern reformative era, the retributive principle of 'tit for tat' does
not serve any useful purpose. Retribution can only do more harm than good to the
criminals and can never be an effective measure of suppressing crime. Retaliation
and retribution, apart from being outdated are also against the accepted norms of
modern criminal justice. Beccaria was perhaps the first criminologist who raised
a crusade against capital punishment in 1764. He strongly protested against the
use of cruel and barbarous modes of punishing the offenders and emphasized the
need of individualized treatment. He expressed a view that death as a sentence
symbolizes man's cruelty and insignificance of human life. In course of time,
mens rea became the guiding principle for determining the guilt and punishment
of the offender though it is true that in certain cases, it is difficult to determine
mens rea of the offender.19

Yet another reason for discarding retribution as a principle of criminal

justice to be found in the fact that putting a person to death virtually amounts to
killing him deliberately. That apart, experience has shown that more than eighty
per cent of the persons committing murder are not really murderers but are
persons who have fallen a prey to this heinous crime due to circumstances such
as passion, provocation, jealousy, sexual impulsiveness, poverty or intoxication.
Obviously, death sentence is hardly an appropriate punishment for such
offenders. The human rights supporters have expressed doubts about the
adequacy of capital punishment as it involves the risk of innocent person being
sent to guillotine. In a number of cases bona fide errors of judgment as to guilt of
the accused are known to have occurred. If an innocent person is hanged due to
miscarriage of justice, his life is lost for ever and the loss is obviously
irredeemable. Perhaps it is for this reason that slightest doubt about the guilt of
the accused entitles him for an acquittal on the plea of 'benefit of doubt20 under
the criminal law of most Countries.

The abolitionists strongly argue that since death penalty is irrevocable and
against the human rights, it should not be awarded. But the elaborate safeguards
provided in the procedural law clearly indicate that though the sentence of death
is irrevocable, it is awarded only after a thorough scrutiny at every stage of the

19 Dr. Vimla Devi v. Delhi Administration, AIR 1963 SC 1572.

20 Daiya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1730.
128
case and therefore, chances of human error or judgment are not only minimized
but reduced to almost nil. Slightest doubt the guilt of the accused who is to be
sentenced to death is sufficient to entail him benefit of doubt. As such, abolition
of death penalty on the ground of irrevocability hardly seems to be justified.

13. Previous Efforts to Abolish Death Penalty

Legislative attempts to abolish the death penalty in India have failed.

Before Independence a private Bill was introduced in 1931 in Legislative
Assembly to abolish the death penalty for penal code offences. The British Home
Secretary at the time however rejected the motion. The Government of India
rejected a similar Bill in the first Lok Sabha. Efforts were also made in Rajya
Sabha to move resolution for abolition of death sentence in 1958 and 1962 but
were withdrawn after some debate. The Law Commission in its Report presented
to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death
penalty should be retained and that the executive (President) should continue to
possess powers of mercy.

The issue of constitutional validity of Section 302 of Indian Penal Code,

the Supreme Court in Jagmohan vs. State of U.P.21 Apart thrashed out I.P.C. in
detail from the constitutional validity, the Supreme Court also discussed position
in other countries, the structure of Indian Criminal Law, the extent of Judicial
discretion etc. It was held in Jagmohan Singh vs. State of U.P.22, that death
sentence act as deterrence but as token of emphatic disapproval of the crime by
the society, where the murder is diabolical in conception and cruel in execution
and that such murderers cannot be simply wished away by finding alibis in the
social maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and so also the
general intellectual levels are different. The Court referred to the 25th Report of
the Law Commission of India, in which it was stated that India cannot risk the
experiment of abolition of capital punishment. The fact that the possibility of an
error being committed in the matter of sentence can be corrected by appeals and
revisions to higher courts was relied upon.

21 AIR 1973 SC 947.

22 Ibid.
129
 The approach of our Supreme Court in the matter of death sentence is
cautious as well as restrictive which is in consonance with the modern and liberal
trends in criminal jurisprudence. The doctrine of Rarest of Rare evolved by the
Apex Court reflects the humanist Jurisprudence. There have been ample instances
where the Supreme Court has restricted the use and imposition of death penalty
only to cases coming with in the category of rarest of rare case. Under Sec.
354(3) of the Criminal Procedure Code, 1973 a new provision has been
introduced to say when the conviction is for an offence punishable with death or,
in the alternative with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reason for the sentence awarded and in the case of
sentence of death, the special reason for such sentence.

14. 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.

130
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

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.

15. 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

131
book would better serve the ends of justice, though in practice it may be used
sparingly. This approach to capital punishment is well reflected in the judicial
pronouncements handed down by the Supreme Court ever since the historic
23
Bachhan Singh's case, where the Court laid down the "rarest of rare case"
24
principle.

16. Death Penalty is no more 'Mirage' in India

Death penalty entangles unavoidable element of suffering and

humiliation. If delay occurs in the execution of death penalty it causes severe
mental anguish to the person awaiting death which is cruel and inhuman. At
international level, with the endeavours of the United Nations Organization
General Assembly and the Commission on Human Rights, Second Optional
Protocol to the International Covenant on Civil and Political Rights, has been
adopted by which, State Parties to the Covenant took an additional obligation of
abolition the death penalty.

In our country, in this context, it is well settled legal position that the
death penalty may be awarded only in the case of rarest of rare cases and the
Hon’ble Judge of the Supreme Court Mr. Krishna Iyer25 had propounded key
verdict that in criminal trial possibility of imposing death penalty should be only
if the nature and manner of offences committed fall in category of rarest of rare
cases. Decades past, the Indian Courts have followed this magic judicial note
resulting undeclared abolition of death penalty although the punishment as to
death penalty has not been removed from Indian Penal Laws.

On number of occasions the Supreme Court of India has laid down that
the delay in execution of death sentence would entitle the convicted person to
seek conversion or alteration of death sentence into life imprisonment. In Triveni
Ben v. State of Gujrat,26 the five judge Bench of the Supreme Court has held
that undue delay in execution of the death sentence will entitle the condemned
person to approach the court to seek commutation of death sentence into life

23 Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

24 Earlier, in Jagmohan Singh v. State of U.P., AIR 1973 SC 947 also the Supreme Court
held that death penalty per se is not violative of Art. 19.
25 Supra 23.
26 AIR 1989 SC 142.
132
imprisonment. The Court expressed the view that before passing order of
commutation it is necessary to examine the nature of delay and circumstances of
the case. Even if the person facing death penalty shows genuine repentance which
is evident from report of jail authorities, it was held by the Supreme Court that
the death sentence could be commuted to life imprisonment.27 Thus, in case of
delay in execution of death sentence it could be commuted to life imprisonment.
Article 21 of the Constitution of India, 1950 which guarantees right to life and
personal liberty can be invoked by the person anticipating death penalty.
Recently on march 31, 2014, the Supreme Court commuted the death penalty of
terror convict Devinder Pal Singh Bhuller to life term over mental illness and an
inordinate delay by the government in deciding his mercy plea.28

17. Judicial Trend Qua Death Penalty

The magistracy has more often than, not, used Section 354(3) of the Code
of Criminal Procedure to justify its stand either in support of or against the award
of capital punishment. The abolitionists see this provision a green signal for
dilution of capital punishment while for the receptionists the special reasons
contemplated by Section 354 (3) implicitly suggest that death sentence is legally
and constitutionally permissible.

A perusal of some of the Supreme Court decisions involving award of

death penalty would reveal that sudden impulse or provocation29 uncontrollable
hatred arising out of sex indulgence,30 family feud or land dispute, infidelity of
wife31 or sentence of death hanging over the head of the accused for a
considerable long period of time due to law's delay,32 have been accepted as
extenuating circumstances justifying lesser penalty of life imprisonment instead
of death sentence. Mr. Justice Krishna Iyyer of the Supreme Court of India,
however, made it clear in Rajendra Prasad v. State of U.P.,33 that where the

27 Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231.

28 Navneet Kaur v. State of NCT Delhi, 2014 STPL (Web) 226 SC.
29 Ummilal v. State of M.P., AIR 1981 SC 1710, Dalbir Singh v. State of Punjab, AIR
1979 SC 1384, Gura Singh V. State of Rajasthan, (1984) Cr. L.J. 1423 (1428).
30 Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.
31 Bishnu Dev Shaw v. State of West Bengal, AIR 1979 SC 702.
32 T. V. Vatheeswaran v. State of Tamil Nadu, 1983 Cr LJ 481.
33 AIR 1979 SC 916.

133
murder is deliberate, premeditated, cold-blooded and gruesome34 and there are no
extenuating circumstances, the offender must be sentenced to death as a measure
of social defence.35
The pros and cons of "life or death" sentence have been extensively dealt
with by the Supreme Court of India in Rajendra Prasad's36 case. Therefore it
would be pertinent to state the facts of the case to analyse the entire issue in its
proper perspectives.
The Supreme Court in Ranjit Singh v. Union Territory of
Chandigarh37 was once again called upon to decide an appeal relating to the
question of sentence. In the instant case, murder was committed by appellant, a
life convict during parole. The accused was sentenced to death on conviction
under Section 303, I.PC. and the co-accused was awarded life-imprisonment.
Agreeing with the contention of deceased's counsel the Supreme Court commuted
the sentence of death to that of imprisonment for life as Section 303, I.P.C, had
been declared unconstitutional in Mithu v. State of Punjab.38 The Court held
that during parole appellant should have behaved like a law abiding citizen but
instead he indulged into heinous crime of murder hence the case fell within the
category of "rarest of rare cases".

Again, in Mahesh etc. v. State of M.P.39 the Supreme Court maintaining

the sentence of death passed by the High Court observed :

it would be mockery of justice to permit the

appellants to escape the extreme penalty of
law..............and to give lesser punishment for the
appellants would be to render justicing system of
this country suspect, the common man would lose
faith in courts.
The Supreme Court in its decision in T. V. Vatheeswaran v. State of
Tamil Nadu,40 reiterated that prolonged delay in execution exceeding two years
will be a sufficient ground to quash death sentence since it is an unjust, unfair and

34 Harihar Singh v. State of U.P., AIR 1975 SC 1501.

35 Sarveshwar Prasad Sharma v. State of M.P., AIR 1977 SC 2423.
36 Supra 33.
37 AIR 1984 SC 45.
38 AIR 1983 SC 473.
39 AIR 1937 SC 1346.
40 AIR 1983 SC 361.
134
unreasonable procedure and the only way to undo the wrong is to quash the death
sentence. The Court further observed that the cause of delay is immaterial when
the sentence is that of "death" and a person under sentence of death may also
claim fundamental rights, i.e. procedure under Article 21 must be just, fair and
reasonable.

At present time, the Indian judiciary is playing a role, which has no

parallel in the history of the judiciaries of the world. It has been upholding the
rights of citizens, both the formal political rights contained in Part III and also the
socio economic rights in Part IV of the Constitution. Many people regard the
judiciary as the last hope of the nation, despite all its defects. The Indian judiciary
must therefore prove itself worthy of the trust and confidence which the people
reposes in it. Justice must prevail in all circumstances.

18. 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 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. There is also a debate going on,
about the extent of this judicial discretion. In Jagmohan’s41 case the Supreme
Court held:-

The structure of our criminal law which is

principally contained in the IPC and the Cr.P.C.
undertakes the policy that when the legislatures
have defined an offence with clarity and prescribed
the maximum punishment, therefore a wide
discretion in the matter of fixing the degree of
punishment should be allowed to judges.
Thus the Supreme Court was in favour of wide discretion to be given to
judges for deciding the degree of punishment. However, this wide discretion was
restricted by Section 354(3) of Criminal Procedure Code, 1973 which laid down

41 Supra 21.

135
the law for death sentence special reasons Judges are left with the task of
discovering ‘Special Reasons’.

In the case of Dalbir Singh v. State of Punjab42, the court expressed its
concern for the way in which this discretion was being used:

Notwithstanding the catalogue of grounds

warranting death sentence as an exceptional
measure, ‘life’ being the rule, the judicial decisions
have been differing at various levels with the result
the need for a through re-examination has been
forced on courts by counsel on both sides.
In Bachan Singh’s case43 this problem was solved by the Apex Court
itself to a very large extent. The court observed:

It is imperative to voice the concern that courts,

aided by the broad illustrative guidelines indicated
by us, will discharge the onerous function with
evermore scrupulous care and humane concern,
directed along with high road of legislative policy
outlined in Sec. 354(3) of Criminal Procedure
Code.
19. Legality of Death Sentence

In the case of Jagmohan v. State of U.P.44, the question of constitutional

validity of Sec. 302, I.P.C. was discussed in detail by the Supreme Court. Apart
from the constitutional validity, the Supreme Court also discussed positions in
other countries, the structure of Indian Criminal Law, various policies and bills
proposed in the Parliament, the extent of Judicial discretion etc. On the question
of constitutional validity the Court observed:-

The Cr.P.C. requires that the accused must be

questioned with regard to the circumstances
appearing against him in the evidence. He is also
questioned generally on the case and there is an
opportunity for him to say whether he wants to
say………… In important cases like murder, the
Court always gives a chance to the accused to
address the Court on the question of sentence.
Under the Cr.P.C. after convicting the accused, the

42 AIR 1979 SC 1384.

43 Supra 23.
44 Supra 21.
136
 Court has to pronounce the sentence according to
the law.
On all these grounds the Supreme Court rejected the argument that under
Section 302, Indian Penal Court, life of convict is taken without any procedure
established by law and therefore, it violates Article 21 of the Constitution. Thus,
the Supreme Court settled this controversy long back in 1973. However even
after Jagmohan’s case45 this question came up again and again. The Supreme
Court reviewed Jagmohan’s Case46 in the case of Bachhan Singh v. State of
Punjab47 because after Criminal Procedure Code, 1973, death sentence cease to
be the normal penalty for murder. 354(3). Another reason was that Maneka
Gandhi’s case48 gave a new interpretation to Article 14, 19 and 21 of the
Constitution and their interrelationship. Main issues before the SC were
constitutional validity of Sec. 354(3) of Criminal Procedure Code, 1973.

In Shankar Kisanrao Khade v. State of Maharashtra,49 , the Supreme Court

noticed 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

45 Ibid.
46 Id.
47 Supra 23.
48 AIR 1978 SC 597.
49 (2013) 5 SCC 546.
137
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.

20. Reasonableness of Death Sentence

The need of retaining death penalty as well as its constitutionality has

already been upheld in the Supreme Court. The Supreme Court in the case of
Bachhan Singh v. State of Punjab50 observed:

if notwithstanding the view of the abolitionists to

the contrary, a very large segment of people, the
world over, including sociologists, legislature,
Jurists, judges and administrators still firmly believe
in the worth and necessity of capital punishment
for the protection of society, if in the perspective of
prevailing crime conditions in India, contemporary
public opinion canalized through the people’s
representative in Parliament, has repeatedly
including the one made recently to abolish or
specifically restrict the area of death penalty, if
death penalty is still a recognized legal sanction for
murder or some types of murder in most of the
civilized countries in the world, if the framers of the
Indian Constitution were fully aware of the
existence of death penalty as punishment for
murder, under the Indian Penal Code, if the 25th
Report and subsequent reports of Law Commission
suggesting retention of death penalty, and
recommending revision of the Cr.P.C. and the
insertion of the new sections 235
(2) and 354(3) were before the Parliament when it
took up revision of the Cr.P.C. , it is not possible to
held that the provision of death penalty as an
alternative punishment for murder, in Sec. 302,
Penal Code is unreasonable and not in the public
interest. The impugned provision in Sec. 302,

50 Supra 23.
138
 violates neither the letter nor the ethos of Article
19”.51
21. Reasons for Abolition of Capital Punishment

The reasons why countries have abolished Capital Punishment in different

countries varies. Spain abandoned that last remains of capital punishment in 1995
stating that the death penalty has no place in general penal system of advanced,
civilized societies. What more degrading or afflictive punishment can be
imagined than to deprive a person of his life. The right to life and dignity are the
most important of all human rights and this must be demonstrated by the state in
everything that it does, including the way it punishes criminals.

Richard Jaffe his recent book 'Quest for Justice' wrote “I always keep in
mind the maxim that history will judge a society by the way it treats it weakest
and most vulnerable. Although most would assume that applies to the poor and
elderly, all one has to do is look at those who end up on death row, on
overwhelming number are poor, disenfranchised and suffer from some marital
defeat or we brain damage.”52

In India in July 2012, 14 retired Indian Judges wrote to President Pranab

Mukherjee urging in him to work towards abolishing, the death penalty in the
country. Among the other things the judges pointed out the Supreme Court had
itself admitted that it had gone wrong in three cases in which it had upheld the
death sentence. One of the persons has already been hanged while the Other two
are awaiting elimination, This is indeed a very chilling fact about death penalty.
If the legal system goes wrong, as it can since its manned by humans, we can
never reverse death. That is why "it's better that ten guilty persons escape than
one innocent suffer". There is total justification in the argument that if one cannot
given life back, one has no right to take it, whatever the circumstances maybe.
India maintains that it imposes capital punishment in only the "rarest of rare"
cases. In July 14, 2012 retired judges asked the president to commute the death
sentences. of 13 inmates erroneously upheld by the Supreme Court over the past
nine years. This followed the Court is admission that these death sentences where
rendered per in curium (out of error or ignorance). In November, the Supreme

51 Rajender Prasad v. State of U.P., AIR 1979 SC 916.

52 Richard Jaffe, Quest for Justice, 2014, Introduction part.
139
Court also conceded that the "request of rare" standard has not been applied
uniformly over the years and that the principles for judging what constitutes
"rarest of rare" crimes need " a first look".53

Moreover, the fate of most of death-row inmates of prolonged solitary

confinement for indefinite period in prison is a retribution enough. The court of
Appeals in the United Kingdom recently quashed the conviction of Belfast man
named Liam Holden for allegedly murdering a soldier in 1972. Fortunately, his
death sentence had been reduced to life imprisonment and he spent 17 years in
jail. Had he been executed, the acquittal by the Court of Appeals would have had
no meaning. Leain Holder in his 1973 testimony said that after the interrogation
he was taken from the school and driven to the outstretch of Belfast. There he
signed a statement admitting to shooting of Peter Bell. In 2012, Holden summed
up his feelings at the time: "By the time they had finished with me I would have
admitted to killing JFK."

India too has been moving steadily towards the abolition of the death
penalty. Before independence and for many years after that, the death sentence
was liberally handed down to convicts. But the number of voices joining this
international debate on abolition of death penalty is steadily increasing. The
watershed came in the year 1980 when a constitutional bench of the Supreme
Court considered the case of Bachhan Singh54. The court upheld the
constitutional validity of the death sentence but made it clear that henceforth the
death sentence could only be given in the rarest of rare cases. In giving some
definition to what rarest of rare could mean. The court held that such a crime
must have been deliberately planned, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in such a ghastly manner as to shock the conscience
of everyone and therefore disturb the moral fabric of society. This judgment has
indeed had a salutary effect because, over the years fewer and fewer people have
been sentenced to death and subsequently killed. In the last 12 years, India has
hanged only two persons.

53 Human Rights Watch World Report, 2013, p 321.

54 Supra 23.
140
 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 14 retired S.C. judges who recently wrote to
the President, however, felt that the doctrine was altogether active and arbitrary
because upholding the death penalty depends entirely on the personal sophy and
morality of our judges. One set of judges may sentence a man to death while the
facts and circumstances may induce another set of judges to hand him the mild of
life imprisonment. A close study of Supreme Court judgments on the subject can
leave one bewildered. India one day abolish the death sentence? That prospect
does not seem to be looming. The death sentence acts as a deterrent has many
believers in our country even though is increasing evidence to show this may not
be true.

Sometimes the crime is so gruesome and diabolic, it shocks everyone.

Taking the Delhi rape case55, the senior leaders asking for death penalty for
people have committed the rape. They get mixed up with the issues. They say
that two wrongs make it, that's effectively what they are saying. Somebody
commits a crime, so we will commit more. As far as human rights view is
concerned, it says that death penalty under any circumstances is a crime, they
think it is contrary to right to life. There's a real direct problem. The empirical
evidence that doesn't have a deterrent effect. There is no correlation between the
two. We are long to India to become one of the states that completely stops
execution. The concern about mistakes in capital cases is indeed the most
powerful driving force which needs re-evaluation of the death penalty even in
United States of America, presently, Supreme Court Justices, legislators,
political leaders and commentators have all expressed deep concerns about
nations of innocent people on death row in recent years. From the human right's

55 On the night of 16 th December, 2012 , one student was brutally raped by six persons in
a moving bus, due to the incident a public outrage for awarding death penalty to the
rapists was occurred and 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.
141
perspective, anger of executing an innocent person has played a key role in the
abolition of the death penalty in other countries.

22. Capital Punishment in India

The ancient law of crimes in India provided death sentence for quite a
good number of offences. The Indian epics, viz., the Mahabharata and the
Ramayana also contain references about the offender being punished with
vadhadand which meant amputation by bits. Fourteen such modes of amputating
the criminals to death are known to have existed which included chaining and
imprisonment of the offender.

Justifying the retention of death penalty, King Dyumatsena observed : "if

the offenders were leniently let off, crimes were bound to multiply". He pleaded
that true ahimsa lay in the execution of unworthy persons and therefore,
execution of unwanted criminals was perfectly justified.56 His son Satyaketu,
however, protested against the mass scale execution and warned his father that
destruction of human life can never be justified on any ground. But Dyumatsena.
ignored the advice of his son and argued that distinction between virtue and vice
must not disappear and vicious elements must be eliminated from society.57

The great ancient law-giver Manu also placed the element of fear as an
essential attribute of judicial phenomenon. According to him, in order to refrain
people from sinful murders, death penalty was necessary and in absence of this
mode of punishment, state of anarchy will prevail and people would devour each
other as the fish do in water, the stronger eating up the weaker.

During the medieval period of Mughals rule in India, the sentence of

death revived in its crudest form. At times, the offender was made to dress in the
tight robe prepared out of freshly slain buffalo skin and thrown in the scorching
sun. The shrinking of the raw-hide eventually caused death of the offender in
agony, pain and suffering. Another mode of inflicting death penalty-was by
nailing the body of the offender on walls. These modes of putting an offender to
death were abolished under the British system of criminal justice administration

56 Mahabharat-Shantiparva chapter CCLXVII Verses 4-13.

57 Ibid.

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during early decades of nineteenth century when death by hanging remained the
only legalised mode of inflicting death sentence.

23. Law Commission on Capital Punishment

In response to the resolution moved in the Parliament in 1962 on the
abolition of capital punishment, the Government of India referred the question to
the Law Commission. The Commission decided to take up this subject separately
for the revision of the general criminal law in view of its importance. The
Commission presented its report to the Lok Sabha on November 18,1971, in
which it inter alia observed :

even after all the arguments in support of abolition

of capital punishment are taken into account, there
does not remain a residium of cases where it is
absolutely impossible to enlist any sympathy on the
side of the criminal.58

The Commission further expressed a view that ‘retribution’ involved in

capital punishment does not connote the primitive concept of ‘eye for an eye’ but
it is an expression of public indignation at a shocking crime, which can better be
described as ‘reprobation’. Therefore, the Commission did not recommend any
material change in the offences which are made punishable with death under the
Indian Penal Code. As regards the question of exempting certain categories of
persons from death sentence, the Law Commission in its 42nd Report published in
June 1971 suggested that:

1. Children below 18 years of age(at the time of commission of the crime)

should not be sentenced to death.59

2. It is not necessary to exempt women generally from the death penalty.

3. It is unnecessary to insert a statutory provision relating to “diminished

responsibility” in the statute book.

58 42nd and 48th Report of the Law Comission of India (1971-72)

59 Under the Juvenile Justice (Care and Protection of Children) Act 2000, the maximum
term for a juvenile is three years in a Special Home.

143
4. An attempt to commit suicide should cease to be an offence in India. The
present law in this regard is “ harsh and unjustifiable and it should be
replaced”.60

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 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.

24. Indian Law on Death Penalty

The members of the judiciary are sharply divided on the crucial issue of
life or death sentence. Those who support abolition argue that death penalty is
degrading and contrary to the notion of human dignity; it is irrevocable and an
expression of retributive justice, which has no place in modern penology. The
retentionists, on the other hand, justify capital punishment as a social necessity
having a unique deterrent force.
The shifting trend towards imposition of death sentence for the offence of
murder is clearly discernible from the amendments made in criminal law from
time to time. Prior to 1955, judicial discretion in awarding a lesser penalty instead
of death sentence was circumscribed by requiring the Judge to record his reasons
for awarding a lesser punishment. This in other words, meant that the discretion
of the Judge was open to further judicial review. However, it was subsequently
realised that this restriction on the power of Court was unnecessary because at
times it nullified the achievement of the Judge if his reasons for awarding life
imprisonment instead of death sentence, did not argue well even though he might
be ultimately correct in his final judgment. Thus, in Avtar Singh v. Emperor,61

60 In Rathinam Nagbhusan Patnaik v. Union of India, AIR 1994 SC 1844, the Supreme
Court had ruled that attempt to commit suicide(i.e. Sec. 309 IPC) deserves to be effaced
from IPC being violative of Art. 21 of the Constitution. But this decision was
subsequently over-ruled by the Supreme Court in Gyan Kaur v. State of Punjab, AIR
1996 SC 946 and consequently Sec. 309, IPC is valid.
61 17 CWN 1213
144
the Judge concerned considered it proper to award a sentence of life
imprisonment instead of death, for the reason that the accused was initially
condemned to death which remained suspended for a period of over six months.
Giving reasons for his decision, the learned Judge observed that it was unjust to
keep the sentence of death hanging over the head of the accused for a long period
of over six months because it must have caused him great mental torture. The
Judge therefore, thought it proper to reduce the sentence of death to that of life
imprisonment. But in another case, i.e., Queen v. Osram Sungra,62 where the
accused committed a deliberate cold blooded murder for ulterior motives, the
Court awarded a lesser punishment of life imprisonment instead of death, without
recording reasons of such leniency.

Restrictions on the discretion of the Judge to record reasons for awarding

a lesser punishment of life imprisonment to the murderer instead of sentence of
death were withdrawn by the Amendment Act,63 of 1955. After this amendment,
the Judge had the discretion to commute the sentence of death to that of life
imprisonment, but in case he considered the imposition of death sentence
necessary, he had to state the reasons as to why a lesser penalty would not serve
the ends of justice. Thus, the amendment clearly reflected the shift in trend
towards death penalty.

The Code of Criminal Procedure, 1973, also contains a provision

regarding death sentence. Section 354 (3) of the Code provides that while
awarding sentence of death, the Court must record "special reasons" justifying the
sentence and state as to why an alternative sentence of life-imprisonment would
not meet the ends of justice in that particular case. Commenting on this provision
of the Code, Mr. Justice V.R. Krishna Iyer of the Supreme Court (as he was
then) observed that the special reasons which Section 354(3) of Criminal
Procedure Code speaks of reasonableness as envisaged in Article 19 as a relative
connotation dependent on a variety of variables, cultural, social, economic and
otherwise".64

62 (1886) 6 WR (Cr) 82.

63 Section 66 of the Criminal Law Amendment Act, (XXVI of 1955).
64 Rajendra Prasad v. State of U.P., AIR 1979 SC 916 (931).
145
 The Code of Criminal Procedure, 1973 further requires that the sentence
of death imposed by the Sessions Judge can be executed only after it is confirmed
by the concerned High Court.65 That apart, Section 235(2) of the Code further
casts a statutory duty upon the Court to hear the accused on the point of sentence
The Court should also call upon the State, i.e., the Public Prosecutor to mention
giving reasons whether or not that extreme penalty prescribed by law is called for
in view of the facts and circumstances of the case.

It is thus evidently clear that a heavy duty cast by Section 302 of the
Indian renal Code on the Judge, of choosing between death and imprisonment for
life for the person found guilty of murder, is expected to be discharged in a
highly responsible mariner by complying with the provisions contained in
Sections 354(3) and 235(7) of the Code of Criminal Procedure so that the
principle of natural justice and fair play holds its sway in the sphere of
sentencing. These provisions also help the Judge to individualize sentencing
justice and make it befitting to the crime and the criminal. The rationale of the
above procedural safeguards and the aweful consequences of a death sentence on
the convict, his family and society were considered by the Supreme Court once
again in the case of Allauddin Mian v. State of Bihar.66, in this case the Apex
Court held that when the Court is called upon to choose between the convict's cry
'I, want to live' and the prosecutor's demand, 'he deserves to die', it must show a
high degree of concern and sensitiveness in the choice of sentence.

The Supreme Court further observed that 'special reason clause' contained
in Section 354(3) of Criminal Procedure Code implies that the court can impose
extreme penalty of death in appropriate cases. The provision of Section 235(2) of
the Code calls upon the Court that the convicted accused must be given an
opportunity of being heard on the question of sentence. This provides the accused
an opportunity to place his antecedents, social and economic background and
mitigating and extenuating circumstances before the Court. Besides the statutory
provisions, the Constitution of India also empowers the President67 and the

65 Section 366(1) of the Code of Criminal Procedure, 1973.

66 AIR 1989 SC 1456.
67 Art. 72 of the Constitution of India.
146
Governor68 of the State to grant pardon to the condemned offenders in
appropriate cases. These powers are, however, co-extensive with the legislative
powers. The power to cut short a sentence by an act of executive clemency69 is
not subject to judicial review. It is an exclusive domain of the executive in India70
and elsewhere.71 It is significant to note that the controversy once for all in the
case of Sarat Chandra v. Khagendra Nath,72 which affirmed the principle that
sentencing powers of judiciary and executive are readily distinguishable. A brief
analysis of the cases decided by the S.C. regarding the question of death sentence
over last 25 years, will reveal how differing/dithering the judgments have been.

In 1994, while deciding the case of Anshad v. State of Karnataka73, the

Supreme Court commuted death sentence to life imprisonment while the accused
was convict of a brutal, diabolical murder. The sentence was commuted because
the SC felt that there are chances of reformation of accused. With due respect to
the court’s view, it is submitted that there still remains a question creating doubts
on such judgments as to how to judge the chances of reformation of an accused in
a particular case. However, it can be done on the line of Supreme Court’s
judgment in Javed Ahmed Abdul Hamid Passawa v. State of Maharashtra74
on this case. The death sentence of accused was affirmed in 1983, but later, on
the basis of serious atonement, the SC commuted the sentence to life
imprisonment.

Then comes the very important case of Mohd. Chaman v. State

(N.C.T.) of Delhi75, in this case a one and a half year old girl was raped by the
accused, and because of the heinous act, she sustained serious injuries and died.
High Court confirmed the death sentence awarded by the Session Court. But the
Hon’ble Supreme Court commuted death sentence into life imprisonment,
observing:-

68 Art. 161 of the Constitution of India.

69 The Prerogative of Mercy the Power of Pardon & Criminal Justice, Public Law
(London) 1983 pp. 398-439.
70 AIR 1962 SC 605
71 AIR 1968 SC 497.
72 AIR 1968 SC 497.
73 1994 (4) SCC 381.
74 AIR 1985 SC 231.
75 2001(2) SCC 28.
147
 The crime committed is undoubtedly serious and heinous and the conduct
of the appellant is reprehensible. It reveals a dirty and prevented mind of a
human being who has no control own his carnal desires….. We are not persuaded
to accept that the case can be called one of the ‘rarest of rare cases’ deserving
death penalty. We find it difficult to hold that the appellant is such a dangerous
person that to spare his life will endanger the community. It is our considered
view that the case is one in which a humanist approach should be taken in the
matter of awarding punishment.

Can it be said that justice was done? In order to avoid controversies and to
put forward their liberal approach, Judges often change the degree of offence
avoiding the guidelines laid down by the Apex Court itself. This should not
happen. It is the basic duty of a judge to render justice in – toto and while doing
so he shall not get affected by any surrounding circumstances or controversies
which may arise in future. But this is an idealistic approach and cannot be
followed completely. Indian legal system is no different and it seems that the
judges also get prejudiced with their surroundings and social circumstances. This
could be the only reason that one see such different approaches being taken by
different judges in offences of similar nature.

In the case of Mohd. Chaman76, on the question of extent of judicial

discretion, the Court observed:-

Such standardization is well high possible. Firstly degree of culpability

cannot be measured in any case. Secondly criminal cases cannot be categorized
there being infinite, unpredictable and unforeseeable variations. Thirdly in such
categorization, the sentencing procedure will cease to be judicial. And fourthly,
such standardization or sentencing discretion is policy matter belonging to the
legislature beyond the courts functions.

Despite the fact that full discretion is given to judges, in ultimate analysis,
it can safely be said that such wide discretion has resulted into enormously
varying judgments, which does not potray a good picture of the justice delivery
system. What is needed to be done; therefore; is to revise and review the
guidelines and principles laid down in cases like Bachan Singh or Machhi

76 Ibid.
148
Singh77, or if it is felt that these guidelines still stand firm and fit perfectly in the
present social scenario, then these guidelines have to be strictly complied with, so
that the persons convicted for offence of similar nature are awarded punishments
of identical degree. The Supreme Court had another opportunity to rectify its
position, when the case of V. Mohini Giri v. Union of India78, was argued
before it in 2002. In this case the petitioner had sought the issuance of a guideline
as to what should be appropriate approach in the cases where one of the judges in
the Bench of this Court while hearing an appeal against death sentence, acquits
the accused person. The Apex Court declined issuing such a guideline arguing
that it would curtail the judicial discretion of the bench.

25. Human Rights and Capital Punishment

While human rights defenders have long campaigned for the abolition of
the death penalty in India, it is former President Abdul Kalam who has brought it
to the center stage with his request to the government to review all pending cases
due to the capital punishment being so obviously applied with a bias against the
economically and socially weaker sections: meaning the poor and the ‘lower’
castes. India is one of the 78 countries including the US, China, Iran and Vietnam
which have not banned the death penalty. Near about 86 countries and territories
have abolished the death penalty for all crimes, and a total of 121 countries have
abolished the death penalty in law or practice. Over 40 countries have abolished
the death penalty for all crimes since 1990. 10 December 2005, the International
Human Rights Day was observed as Anti-Capital Punishment Day in India. There
are several arguments against the capital punishment. Some are systemic, some
procedural and some are ideological. Mahatma Gandhi provides the best logic:
What is not permissible for an individual (in this case to kill) is not permissible
for a group.

Criminal Justice has to discharge three functions: deter, reform and punish.
Capital punishment does not give the criminal any chance to reform. Punishment
has two components: one to restore as close as possible, status quo ante, and to
fulfill the need for revenge of the victim. While other crimes can restore status

77 Supra 23.
78 2002 AIR SCW 5306.
149
quo ante, in this one, the victim who was murdered cannot be brought back to life
by ‘punishing’ the criminal by capital punishment. So it is not ‘restitution’ in any
sense of the term, but only codified revenge, and a futile one at that. Most
civilized societies accept that this form of ‘justice’ is only thinly veiled revenge.
Of the three, deterrence is the aspect most hotly debated. But studies prove that
capital punishment is not really a deterrent. Except for a slight surge- if at all- for
a short while after abolition, countries that have abolished death penalty actually
have less crime than otherwise. In the case of ‘hardcore’ criminals, the certainty
of capital punishment makes them even more reckless with the twisted logic of
no redemption as it means for a criminal “anyway I will be killed, so I might as
well be killed for a hundred murders rather than one”.

One of the flip side, there are many reasons why there should not be a
death penalty. The first and foremost is that when mistakes are made- and they
are made very often – there is no way in which it can be reversed. Death is final.
USA has executed about 1000 people in the last 30 years. 115 have been released
because they were found innocent- after being found ‘guilty beyond reasonable
doubt’ several times over by courts from the local to the state level, and the
review boards recommending no pardon! Advances in technology- such as DNA
testing – found that these men could not have committed the crimes they were
convicted of. Crime syndicates routinely bribe or blackmail innocents into
confessions, then coach them on the details of crime so that their confession is
‘authentic’. Political parties do the same in India or elsewhere. In India, the death
penalty is handed out only in the ‘rarest of rare’ cases. Even so, it has several
flaws. For one, it is unevenly applied on the weaker sections. The ‘urge to
punish’ is always a reflection on social bias. The ‘untidy’ ‘uncouth’ and
‘unkempt’ child- often dark- is more likely to be punished, and more severely,
than a neat ‘fair’ one. The same applies for all punishments- right up to capital
punishment. If you are poor and ‘low’ caste, you are more likely to be hanged
than if you kill and stuff the body into an oven and belong to a national political
party.

The second flaw is that the law itself gives capital punishments only to the
‘lower class crimes’. Causing death, even fully knowing the consequences, by

150
‘white collar crimes’ such as adulteration of food or medicine does not attract the
death penalty. Causing death by denying basic needs is not even considered a
social crime, but rather an economic virtue and is promoted as ‘structural reform’
by governments. The third flaw is that the ‘rarest of the rare’ is still an evolving
concept. Many religions prescribe the death penalty for apostates. In India the
‘rarest of rare’ was a Dalit learning how to read and write. Now it is a conspiracy
to murder. An important part of jurisprudence is that the criminal always get the
benefit of the progress of understanding. Capital Punishment negates the concept.
There are proposals to extend capital punishment to many more crimes. That is
an escapist attitude that seeks magic bullets without engaging with the process
that leads to increased violence or question its structural origins. Does that ‘rarest
of the rare’ actually work to deter, reform or punish in the case of suicide
bombers, who actually welcome death with open arms? Extending capital
punishment to more and more crimes is not the answer.

What we require is a social consciousness where murder, for whatever

reason, is outlawed. If killing is justified for the ‘rarest of the rare’ then citizens
will claim the right and freedom to judge what is ‘rarest of rare’ in their opinion,
and then claim the logical right to follow through on their judgment- meaning
execute. It is only when the normative value base of society shifts to making all
killing unlawful, and all violence abhorrent, that the ‘rarest of the rare’ will
disappear. The right to life is sacred at all times for all people. Most people want
to know the ‘alternative’. There is already an alternative in law that fulfills all the
three conditions of deter, reform and punish life imprisonment. The modern
jurisprudence for capital punishment originates from Europe – which has given it
up. It thrives mainly in the U.S., which has more people in their jails than on their
farms. India has a rich history of rehabilitating criminals, of whom Valmiki is but
one. India would not have a Ramayana if Valmiki lived in modern India. He
would have been declared a ‘terrorist’ or a naxalite, given no chance for reform
and executed. We need to build on such traditions of enlightened tolerance, rather
than following the regressive practices of others. It is high time that India joins
the civilized world in outlawing capital punishment.

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26. Conclusion

It may be reiterated that capital punishment is undoubtedly against the

notions of modern rehabilitative processes of treating the offenders. It does not
offer an opportunity to the offender to reform himself. That apart, on account of
its irreversible nature, many innocent persons may suffer irredeemable harm if
they are wrongly hanged. As a matter of policy, the act of taking another's life
should never be justified by the State except in extreme cases of dire necessity
and self-preservation in war.79 Therefore, it may be concluded that though capital
punishment is devoid of any practical utility yet its retention in the penal law
seems expedient keeping in view the present circumstances when the incidence of
crime is on a constant increase in India. Time is not yet ripe when complete
abolition of capital punishment can be strongly supported without endangering
the social security. It is no exaggeration to say that in the present time the
retention of capital punishment seems to be morally and legally justified. It serves
as a reminder to everyone that in case of unpardonable crime one has to forfeit
his own right to life and survival. For example, no sensible man can suggest any
other punishment for the culprits of 16 December, 2012 gang rape case in Delhi.

It must also be noted that the essence of criminal jurisprudence has

always been to provide protection, as also to contrive measures against the fears
both from within and without, for the individuals and also for the social order
itself. The criminal jurisprudence while it provides protective devices through
punitive sanctions, also aims at securing better social order by insulating against
the unwarranted acts emanating from the individual. It is with this backdrop that
the desirability or otherwise of the capital punishment has to be judged. While
administrating justice, a look to the human rights of victims is also must for fair
justice. As a note of caution S. Venugopal Rao who chaired the session on
capital punishment of International Congress of Criminal Law,80 rightly pointed
out that there is no objection to according a humane treatment to the offender but
this should not mean that the victims be at the mercy of criminals who pose a

79 Kethaleen J. Smith : "A Cure to Crime" Gerald Duckworth Ltd., London (1964), p.
57.
80 The International Congress of Criminal Law was held in New Delhi on 8th Feb.,
1983.
152
danger to the society and deserve treatment through deterrent and preventive
measures. Therefore, there is a need for searching out a viable alternative to
deterrence, which has a vital protective function in society.

At present, as many as 127 countries out of 191 countries of the world

have retained death penalty but renovations are continuously being made by them
in the methods of execution81 so that the person on whom the sentence has been
ordered suffers minimum torture. The Amnesty International had started a global
campaign in 1989 for the abolition of death sentence but it has not yet fully
succeeded in its mission though many countries have reopened favourably to its
appeal and abolished death penal from their criminal law. The Indian law in this
regard, however, seems to be satisfactory as the Supreme Court.

The Supreme Court in Allauddin Mian v. State of Bihar82 has stressed

on the penological aspect of death sentence and observed that provisions of
Sections 354(3) and 235(2) of the Code of Criminal Procedure, 1973, require the
sentencing Judge to state reasons for awarding death sentence and giving an
opportunity to the condemned person to be- heard on the point of sentence,
satisfy the rule of natural justice, and fair play. This enables the sentencing Court
to endeavour to see that all the relevant facts and circumstances which have
bearing on the question of sentence are brought on record and no injustice is
caused to the accused. In the instant case, the Apex Court noted that the trial
Judge had not attached sufficient importance to mandatory requirements of the
above provisions and the High Court confirmed the death sentence without
having sufficient material placed before it on record to know about the
antecedents of the accused, his socio-economic conditions and impact of crime
etc. which rendered the rationale of the judgment doubtful.

The Indian sentencing law contains certain admirable principles which the
Judges who have responsibility for passing sentence, should bear in mind while
finalising the sentence of the accused. The objectives of sentences and the range
of sentences have widened over the years and this calls for properly marshalled
observation of the results of similar sentences imposed in similar circumstances

81 The Law Commission of India in its 45th Report on capital punishment suggested
the use of lethal injection for execution as it is simplest decent and ensues.
82 AIR 1989 SC 1456.
153
in the past. The sentencing courts should therefore, keep themselves abreast of
the penological developments, specially when the choice is between 'death' or
'life imprisonment. At present, there is no provision in law which provides only
death penalty.

From the time immemorial this has for long remained a controversial
question both at national and international level. The issue has been tirelessly
debated on national as well as international level but nothing conclusive has
come out till now. No doubt the problem is of serious nature but the difficulty
involved should not deter us from venturing into the pros and cons involve in the
question. The opinion of intellectuals such as Legal Philosophers, Jurists, Judges,
and other social scientists stands divided. In many countries capital punishment is
an integral part of criminal justice system and it has remained to be accepted
form of justice through the ages though its form may have been different because
of reasons of geography, culture, and the passing of time. One of the arguments
of abolitionists is that death penalty is against Hindu Philosophy but this will not
stand the scrutiny of mythological texts. The imposition of death penalty in India;
appears to go back to ancient times according to the country’s epics and
mythology; stories abound in Indian mythology of the destruction of demons
who, became a deadly menace to the life, property and authority of mortals and
the divine race alike; tales of Hiranyakashyapu, Bali and Mahishasura etc. No
doubt religion preaches against killing of human being but that presupposes an
ideal society and if one cannot of particular aspect in isolation. The statistics,
which talks of absence of any relationship between death penalty and occurrence
of crime, cannot be straightway trusted for such an important policy decision as
that of death penalty. The statistics derived from a quantitative method may not
be an appropriate method to judge the basic truth about the qualitative aspect of
those results.

In the ultimate analysis, it will be seen that considered from the angle of
social justice and protection of society from hard-core criminals, death sentence
is not unreasonable or unwarranted or obsolete type of punishment. The noted
Italian criminologist Garofalo, while disapproving the abolition of death sentence
from the statute Book commented, "when State abolishes the sentence of death, it

154
authorises murderer and says to the criminal 'the risk you run in killing a human
being is a change of abode, the necessity of spending your days in my house (i.e.
prison) instead of your own.' Will it be proper to do so? The death penalty is no
doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably,
discriminatory, freakishly or wantonly, but if it is administered rationally,
objectively and judiciously, it will enhance people's confidence in criminal
justice system. With growing international consensus towards abolition of the
death penalty, India’s continuation of award of non-unanimous death sentences is
equivalent to taking steps backward. Fair and reasonable procedure is a vital
safeguard for the enjoyment of human rights- more so where people are charged
with crimes punishable by death. Under international human rights standards,
such accused are entitled to the strictest observance of all fair trial guarantees and
to certain additional safeguards. The requirement of unanimity of judges in
imposing death sentences could act as an additional safeguard.

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 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.
160
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.

203
 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
204
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.

205
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.
206
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)
207
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.

209
 CHAPTER – VI

CONCLUSIONS AND SUGGESTIONS

1. Conclusions

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. Lord Chief Justice of England
& Wales in his farewell speech delivered at the conclusion of Indo British Legal
Forum meet in Edinburg in 2006, publicly appreciated 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 very 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 and
customs which, unlike local customs, governed the whole country.1 Since human
rights are not created by any legislation, they resemble very much the 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

1 J.E.S. Faweett, The Law of Nations, Alien Lane, The Penguin, London, 1968, p. 151

210
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.2 This has also been prominently included in the Convention on Civil and
Political Rights to which India is now a party. Our Constitution recognizes it as a
fundamental right. There is no doubt that even an accused/arrested person has
valuable human rights. The term 'arrest' is not defined either in the procedural
Acts or in the various substantive Acts, though Section 46, Criminal Procedure
Code, 1973 lays down the mode of arrest to be effected. Arrest consists in the
taking into custody of another person under authority empowered by law, for the
purpose of holding or detaining him to answer a criminal charge or of preventing
the commission of a criminal offence. The Code gives ample power to police
officer for facilitating and making of arrest of accused persons. However, the
powers are subject to certain restraints. The restraints are primarily provided for
the protection of the interests of the person to be arrested and also of society at
large because a fair trial implies that it should be fair to both the prosecution as
well as the accused person. The imposition of the restraints can be considered, to
an extent, as the recognition of the rights of the arrested person. There are
however, some other provisions which have rather more expressly and directly
created important rights in favour of arrested persons.

The National Police Commission in its Third Report3 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. In Joginder
Kumar v. State of U.P.4 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

2 Article 3 of Universal Declaration of Human Rights provides for Right to life, liberty
and security of person.
3 The National Police Commission (NPC) was appointed by the Government of India in
1977with wide terms of reference covering the police organisation, its role, functions,
accountability, relations with the public, political interference in its work, misuse of
powers, evaluation of its performance etc. This was the first Commission appointed at
the national level after Independence. The Commission produced eight reports between
1979 and 1981, suggesting wide ranging reforms in the existing police set-up.
4 AIR 1994 SC 1349.

211
 another. The police officer must be able to justify the
arrest apart from his power to do so.

Method and the execution of arrest of a person intended to be arrested

should be performed only in the manner prescribed in the statute. Article 21 of
the Constitution provides that no person shall be deprived of his life or personal
liberty except according to procedure established by law. Further, the procedure
contemplated by this article must be ‘right, 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.5 The Indian Constitution bears
the impact of the Universal Declaration of Human Rights, International
Covenants, conventions and Conferences and this has been recognized by the
Supreme Court of India. In Golak Nath v. State of Punjab,6 the Supreme Court
observed that fundamental rights are the modern name for what have been
traditionally known as ‘natural rights’.

In Indian Constitution, though these rights do not find express mention in

the Constitution. These are either subsumed under the existing fundamental
rights or have been held to emanate from the existing rights under the theory of
emanation. The Right to life and personal liberty enshrined in Article 21 of
Constitution is of widest amplitude and several unenumerated rights fall within
the scope Article 21. 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
wished away. In our country, constitution is supreme in all organs of the
government i.e. the executive, the legislature and the judiciary derived their
powers from it. Any other law or statute contrary with constitutional provisions is
void. The constitution laid down various provisions which protect the arrested
persons and provide them some rights. Article 20 of the constitution provides

5 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

6 AIR 1967 SC 1643.

212
certain safeguards to accused or arrested persons. Article 20 constitutes a
limitation on the legislative power of the parliament or the state legislatures under
Article 246 of the constitution read with the three legislatives lists contained in
the seventh schedule to the constitution. The protection contained in Article 20
of the constitution is available to all persons-citizens or non-citizens in India.
The term “person” in Article 20 of the constitution includes a corporation which
is accused, prosecuted, convicted or punished for an offence. Article 20 of the
constitution provides protection against Ex-post facto laws7, Double jeopardy8,
Self-incrimination9.

In Maneka Gandhi V. Union of India10, the Supreme Court gave a new

dimension to Article 21 of the constitution. Though worded in negative terms, it
has been held that Article 21 of the constitution has both negative and affirmative
contents. Positive rights have, thus been held to be well conferred under Article
21 of the constitution. This case showed that Article 21 as interpreted in A.K.
Gopalan v. State of Madras11 could not play any role in providing protection
against any harsh law seeking to deprive a person of his life or personal liberty.
The Supreme Court in Rameshbhai Chandubhai Rathod v. State of Gujarat12
had 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 Article 21.

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

of widest amplitude and several unremunerated rights fall within Art. These
rights are the Right to Speedy Trial;13 Right to legal assistance14 Right not to be
subjected to torture or to cruel, inhuman or degrading treatment or punishment15 ,

7 Article 20(2) of the Constitution.

8 Article 20(2) of the Constitution.
9 Article 20(3) of the Constitution.
10 AIR 1978 SC 597.
11 AIR 1950 SC 27 : 1950 SCR 88
12 (2009) 5 SCC 740: (2009) 6 JT 132
13 Hussainara Khatoon (IV) v. Home Secretary v. State of Bihar, Patna, AIR 1979 SC
1360.
14 M. H. Hoskot v. State of Maharastra (1978) 3 SSC 554.
15 Hussainara Khatoon (IV) v. Home Secretary v. State of Bihar, Patna, AIR 1979 SC
1360, Dayal Singh v. Union of India, AIR, 1991 SC 1548.

213
Right against Solitary Confinement;16 Right against Bar Fetters;17 Right against
Handcuffing;18 Right against delayed execution;19Right against Custodial
Violence; 20 Right against Public Hanging;21 Right to compensation for unlawful
arrest and detention.22

Article 22 (1) of the Constitution provides that no person who is arrested

shall be detained in custody without being informed as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be
defended by a legal practitioner of his choice. Article 22(2) of the Constitution
provides that no person who is arrested shall be denied the right to consult a legal
practitioner of his choice. Every person who is arrested and detained in custody
shall be produced before the nearest Magistrate within a period of Twenty-four
hours of such arrest excluding the time necessary for the journey from the place
of arrest in the court of Magistrate.

Article 22(3) of the constitution provides exception to clause (1) and

clause (2) of Article 22 of the constitution. Article 22(3) makes two exceptions.
Article 22(1) and 22(2) do not apply to:

(a) Any person who for the time being is an enemy alien;

(b) Any person who is arrested or detained under any law providing for
preventive detention.

The criminal procedure code deals with the procedural aspects of arrest of
an accused person and provides various rights to accused/arrested persons. There
are some provisions which expressly and directly create important rights in
favour of the accused/arrested person. There is no Right in favour of Police
officer or other person making the arrest to cause death of the accused. No
woman shall be arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the woman police officer shall, by making a
written report, obtain the prior permission of the judicial Magistrate of first class

16 Sunil Batra v. Delhi Administration (1978) 4 SSC 494.

17 Charles Gurmukh Sobhraj v. Delhi Administration (1978) 4 SSC 494.
18 Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 373.
19 Vatheeswaran v. State of Tamil Nadu, AIR, 1983 SC 36.
20 Sheela Barse v. State of Maharashtra (1983) 2 SCC 96.
21 Attorney General of India v. Lachma Devi, AIR 1986, SC 467.
22 Rudul Sahu v. State of Bihar AIR 1983 SC 1107.

214
within whose jurisdiction the offence is committed or arrest is to be made.23 The
right to be informed of the grounds of arrest is recognized by Sections 50, 55 and
75 in cases where the arrest is made in execution of a warrant of arrest or where
the arrest is made by a police officer without warrant. If the arrest is made by a
magistrate without a warrant under Section 44, the case is covered neither by any
of the Sections 50, 55 and 75 nor by any other provision in the Code requiring the
Magistrate to communicate the grounds of arrest to the arrested person. The rules
emerging from decisions such as Joginder Singh v. State of U.P.24 and D.K.
Basu v. State of West Bengal25 have been enacted in Section 50-A26 which
provides that information about the arrest shall be provided to the relative of the
arrested person and its entry shall be made by police officer in a book.

The Delhi High Court in Court On its Own Motion v. CBI27’ made the
following observations /directions regarding arrests under section 498A/406 IPC.
The Court observed that Sections 498A/406 IPC which “are much abused
provisions and exploited by the police and the victims to the level of
absurdity…..every relative of the husband, close or distant old or minor is
arrested by the police ……….unless the allegations are very serious nature and
highest magnitude arrest should always be avoided”.There is need to review an
amend Section 498-A of the Indian Penal Code to prevent its misuse. The 19th
Law Commission in its report28 had recommended that offences under Section
498-A may be made as compoundable with the permission of the court. The
police powers of arrest, detention and interrogation needs to be streamlined.

The healthy provision contained in section 57 of Criminal Procedure

Code enables the Magistrates to keep a check over the police investigation and it
is necessary that the Magistrate should try to enforce this requirement and where

23 Inserted by the Code of Criminal Procedure (Amendment) Act, 2005. It came into force
with effect from Jun 23,2006. The sub-sec. enacts thus:“(4) Save in exceptional
circumstances, no woman shall be arrested after sunset and before sunrise, and where
such exceptional circumstances exist, the woman police officer shall, by making a
written report, obtain the prior permission of the Judicial Magistrate of the first class
within whose local jurisdiction the offence is committed or the arrest is to be made.”
24 (1994) 4 SCC 260.
25 (1997) 1 SCC 416.
26 Ins. By Act 25 of 2005 effective from 23-6-2006.
27 109 (2003) Delhi Law Times, 494.
28 The 19th Law Commission headed by Justice P.V. Reddy presented its 243rd report in
August 2012 on Section 498-A of Indian Penal Code.

215
it found disobeyed, come down heavily upon the police.29 Power to search under
Section 51 is available only if the arrested person is not released on bail. It has
been made obligatory to give to the arrested person a receipt showing the articles
taken in possession by the police. In case the arrested person is a woman the
search can be made only by a female with strict regard to decency. Section 54
gives the accused the right to have himself medically examined to enable him to
defend and protect himself properly. Basic requirement of a fair trial in criminal
cases is to give precise information to the accused as to the accusation against
him. In a criminal trial charge is the foundation. Section 218 give the basic rule
that for every distinct offence there shall be a separate charge. A criminal trial in
the absence of the accused is unthinkable. A trial and a decision behind the neck
of the accused person is not contemplated by the Code, though no specific
provision to that effect is found therein. All the evidence must be taken in the
presence of the accused. Failure to do so would vitiate the trial, and the fact that
no objection was taken by the accused is immaterial. An accused/arrested person
is entitled to copies of police report and other documents. If a person is tried and
acquitted or convicted of and 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 Code.

Indian police system is old system and there is need to make police
reforms for proper investigation and proper mechanism adopted by police. The
Hon'ble Supreme Court of India has stressed for reforms in the Police System and
suggested reforms in the Indian Police System. In the case Parkash Singh &
others v. Union of India & others,30 the Supreme Court in exercise of power
under Articles 32 read with Article 142 of Constitution directed the Central and
State Governments to implement the following directions the till new legislation
is enacted by appropriate legislations :-

29 Khatri (II) v. state of Bihar, 1981 SCC (Cri) 228. D.G. & I.G. of Police v. Prem Sagar
(1999) 5 SCC 700.
30 2006 (4) RCR (Criminal) 439.

216
(a) State Security Commission

The State Governments are directed to constitute a State Security

Commission in every State to ensure that the State Government does not exercise
unwarranted influence or pressure on the State police and for laying down the
broad policy guidelines so that the State police always acts according to the laws
of the land and the Constitution of the country.

(b) Selection and Minimum Tenure of Director General of Police (DGP)

The Director General of Police of the State shall be selected by the State
Government from amongst the three senior-most officers of the Department who
have been empanelled for promotion to that rank by the Union Public Service
Commission on the basis of their length of service, very good record and range of
experience for heading the police force. And, once he has been selected for the
job, he should have a minimum tenure of at least two years irrespective of his
date of superannuation.

(c) Minimum Tenure of Inspector General of Police (IG) & other officers

Police Officers on operational duties in the field like the Inspector

General of Police in-charge Zone, Deputy Inspector General of Police in-charge
Range, Superintendent of Police in-charge District and Station House Officer in-
charge of a Police Station shall also have a prescribed minimum tenure of two
years unless it is found necessary to remove them prematurely following
disciplinary proceedings against them or their conviction in a criminal offence or
in a case of corruption or if the incumbent is otherwise incapacitated from
discharging his responsibilities. This would be subject to promotion and
retirement of the officer.

(d) Separation of Investigation

The investigating police shall be separated from the law and order police
to ensure speedier investigation, better expertise and improved rapport with the
people. It must, however, be ensured that there is full coordination between the
two wings. The separation, to start with, may be effected in towns/urban areas
which have a population of ten lakhs or more, and gradually extended to smaller
towns/urban areas also.

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(e) Police Establishment Board

There shall be a Police Establishment Board in each State which shall

decide all transfers, postings, promotions and other service related matters of
officers of and below the rank of Deputy Superintendent of Police. The
Establishment Board shall be a departmental body comprising the Director
General of Police and four other senior officers of the Department. The State
Government may interfere with decision of the Board in exceptional cases only
after recording its reasons for doing so.

(f) Police Complaints Authority

There shall be a Police Complaints Authority at the district level to look

into complaints against police officers of and up to the rank of Deputy
Superintendent of Police. Similarly, there should be another Police Complaints
Authority at the State level to look into complaints Authority at the State level to
look into complaints against officers of the rank of Superintendent of Police and
above. The district level Authority may be headed by a retired District Judge
while the State level Authority may be headed by a retired Judge of the High
Court/Supreme Court.

(g) National Security Commission

The Central Government shall also set up a National Security

Commission at the Union level to prepare a panel for being placed before the
appropriate Appointing Authority, for selection and placement of Chiefs of the
Central Police Organizations (CPO), who should also be given a minimum tenure
of two years . The Commission would also review from time to time measures to
upgrade the effectiveness of these forces, improve the service conditions of its
personnel, ensure that there is proper coordination between them and that the
forces are generally utilized for the purposes they were raised and make
recommendations in that behalf.

Central and State Governments and Union Territories were directed to

comply with directions before 31-12-2006 and file affidavits of compliance by 3-
1-2007, but unfortunately, these directions have not been followed uniformly by
all the State governments and Union territories. For the proper working of the

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police agency and for fair investigation, the police reforms as suggested by the
Supreme court must be immediately executed.

Article 22 (1) of the Constitution as well as Section 303 of Code of

Criminal Procedure recognizes the right of every arrested person to consult a
legal practitioner of his choice. The state is under a constitutional mandate
implicit in Article 21 of the constitution, explicit in Article 39-A of the
constitution-a directive principle to provide free legal aid to an indigent accused
person A failure to inform the accused of this right and non compliance with this
requirement would vitiate the trial as held in Sukhdas v. Union Territory of
Arunachal Pradesh.31

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. To strike the
balance between the needs of law enforcement on the one hand and the protection
of the citizen from oppression and injustice at the hands of the law-enforcement
machinery on the other is a perennial problem of statecraft. The pendulum over
the years has swung to the right. In Hussainara Khaton (No. II) v. Home
Secretary,32 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
Cr.P.C. by 2005 Amendment Act. In cases titled A.R.Antulay v. R.S. Nayak,33
Common Cause v. Union of India & others34 ,Common Cause v. Union of
India,35 Raj Deo Sharma v. The State of Bihar36 ,Dharam Pal v. State of
Haryana,37 the Supreme Court of India had issued/clarified guidelines for the
grant of bail by the trial courts. Right to bail is not to be denied merely because of
the sentiments of the community against the accused. The reason for granting

31 1986 SCC (Cri) 166.

32 AIR 1997 SC 1369.
33 AIR 1998 SC 3281.
34 (1996) SC 1619.
35 AIR 1997 SC 1539.
36 (1998) 7 SCC 507.
37 1999 (4 ) RCR (Cri) 600 .

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bail is that there is no justification for depriving an accused of his fundamental
right to personal liberty guaranteed under Article 21 of the Constitution unless
the prosecution by cogent evidence establishes that the accused when temporarily
set free by grant of bail will thwart the criminal trial.

The rights of child prisoners came into prominence with the celebrated
Sheela Barse cases. In Sheela Barse (I) v. Union of India38 the Supreme Court
laid down several guidelines regarding children in jails. The Court interpreted
Art. 39(f) of the Constitution which provides that the State shall direct its policy
towards securing opportunities and facilities for children to develop in a healthy
manner, and in conditions of freedom and dignity, to provide for special rights for
child prisoners and issued various guidelines. Despites the directions, the most
shocking aspect of the Indian prison system is the “slave system” operating in
Indian jails. The slaves are boys, mostly undertrial prisoners, between ten and
eighteen years of age, employed as helpers. They cook, wash utensils, clean
rooms, fetch water and do back-breaking labour to help the men who do these
chores. They are woken up early in the morning to prepare tea and are allowed to
go to sleep only late at night after scrubbing the pots and pans. They are confined
in a ward which often has no sanitary facilities. These boys are kept in jail as long
as possible because without them the persons employed to do the menial duties
would have no time to relax. They are taken from one court to another to be tried
under one charge or another, and kept in jail all the while. In this way young
persons are exposed to violence and suffering in jail life, and rub shoulders with
hardened criminals. And all this is permitted by the legal system itself. This is the
prevalent situation in number of jails in country. There is need to reforms in jail
system. As stated by the Supreme Court in Mohammed Gias-ud-din v. State of
Andhra Pradesh,39 the 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:

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

38 AIR 1987 SC 656.

39 1977 (3) SCC 287.

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 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.

Justice delayed is justice denied. This is all the more true in a criminal
trial where the accused is not released on bail during the pendency of the trial and
trial is inordinately delayed. A criminal trial which drags on for unreasonably
long time is not a fair trial. “The State cannot avoid its constitutional obligation to
provide speedy trial to the accused by pleading financial or administrative
inability. The State is under a constitutional mandate to ensure speedy trial and
whatever is necessary for this purpose has to be done by the State. Therefore,
speedy justice the number of judges is being increased. One component of fair
procedure is natural justice. At least a single right of appeal on facts, where
criminal conviction is fraught with loss of liberty, is basic to civilized
jurisprudence. An appeal is a creature of statute and there can be no inherent right
of appeal from any judgment or determination unless an appeal is expressly
provided for by the law itself. Article 21 which had lain dormant for nearly three
decades, brought to life by Maneka Gandhi case40, now assumed a “highly
activist magnitude”. In Francis Coralie v. Union Territory of Delhi41,
Bhagwati J. remarked that Article 21 “emodies a constitutional value of supreme
importance in a democratic society”In P.S.R.Sadhanantham v. Arunachalam,42
the Supreme Court 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. The impact of the liberal
judicial approach on Fundamental Rights has been remarkable over a period of
time. The use of video conferencing may be helpful for speedy trial in criminal
cases. The Supreme court in State of Maharashtra v. Dr. Praful B. Desai43 held
that video-conferencing could be resorted to for the purpose of taking evidence of
a witness. In that case, one party was seeking direction of the court to take
evidence of a witness residing in the United States of America. Though a lower

40 AIR 1978 SC 597.

41 (1981) SCC 608.
42 AIR 1980 SC 856.
43 (2003) 4SCC 601.

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court had ordered such evidence to be taken with the help of video-conferencing,
the concerned High Court struck down that order on the grounds that the law
required the evidence to be taken in the presence of the accused. The Appeal
Bench of the High Court upheld the said latter order. The Supreme Court struck
down the High Court order by stating that recording of evidence satisfies the
object of Section 273 of the Code of Civil Procedure that evidence be recorded in
the presence of the accused. In explaining the benefits of video-conferencing, the
Court observed that:

In fact the Accused may be able to see the witness

better than he may have been able to if he was
sitting in the dock in a crowded Court room. They
can observe his or her demeanour. In fact the
facility to play back would enable better
observation of demeanour. They can hear and
rehear the deposition of the witness.

The role of advocates is very essential for the speedy trial. In Harish
Uppal v. Union of India44 a Constitution Bench of the Supreme Court declared
that the lawyers have no right to strike or to give a call for boycott not even of a
token strike.

Prisoner, whether a convict, undertrial or detenu, 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 accordance with the procedure
established by law, a prisoner still retains the residue of constitutional rights.
Article 14, 19 and 21 are available to prisoners as well as freemen. Prison walls
do not keep out Fundamental Rights. Thus, Supreme Court while interpreting
article 21 of the constitution, has laid down a new constitutional and prison
jurisprudence. The Court has ruled in Rupa Ashok Hurra v. Ashok Hurra45
that while certainly of law is important in India, it cannot be at the cost of justice.
The court has observed in this connection that 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.

44 (2003) 2 SCC 45.

45 JT 2002 (3) SC 609: (2202) 4 SCC 388.

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 There is a need for establishing Human Rights courts in India. One of the
objects of the Protection of Human Rights Act, 1993 as stated in the preamble of
the Act, is the establishment of human rights courts at district level. The creation
of Human Rights Courts at the district level has a great potential to protect and
realize human rights at the grassroots. The Protection of Human Rights Act, 1993
provides for establishment Human Rights Courts for the purpose of providing
speedy trial of offences arising out of violation of human rights. It provides that
the State Government may, with the concurrence of the Chief Justice of the High
Court, by notification, specify for each district a Court of Sessions to be a Human
Rights Court to try the said offences. The object of establishment of such Courts
at district level is to ensure speedy disposal of cases relating to offences arising
out of violation of human rights. The Act refers to the offences arising out of
violations of human rights. But it does not define or explain the meaning of
offences arising out of violation of human rights. It is vague. The Act does not
give any clear indication or clarification as to what type of offences actually are
to be tried by the Human Rights Courts. No efforts are made by the Central
Government in this direction. Unless the offence is not defined the courts cannot
take cognizance of the offences and try them. Till then the Human Rights Courts
will remain only for name sake. Even if, 'offences arising out of violations of
human rights' are defined and clarified or classified, another problem arises in the
working of the Human Rights Court in India. The problem is who can take
cognizance of the offences. What the Act says is in each district, one Sessions
Court has to be specified for trying “offences arising out of human rights
violation”. It is silent about taking of cognizance of the offence. The Prevention
of Corruption Act, 1988 empowering the Special Judge to take cognizance of the
offences under the said Act. In the Protection of Human Rights Act,1993 it is not
so.

Sessions Court of the district concerned is considered as the Human

Rights Court. Under the Criminal Procedure Code, 1973 a Session Judge cannot
take cognizance of the offence. He can only try the cases committed to him by
the magistrate under Section 193 of the Criminal Procedural Code. Similar
problem had arisen in working of the Scheduled Castes and Scheduled
Tribes(Prevention of Atrocities) Act, 1989 in the beginning. The Special Judges

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used to take cognizance of the offences. In Potluri Purna Chandra Prabhakara
Rao v. State of A.P.46, Ujjagar Singh and Others v. State of Haryana and
another47 and some other cases it was held that the Special Court(Court of
Session) does not get jurisdiction to try the offence under the Act without
committal by the Magistrate. The Supreme Court also held same view in Moly
and another v. State of Kerala48. Consequently, the trial of all the cases under
the Prevention of Atrocities Act were stopped and all the cases were sent to the
Courts of Jurisdictional Magistrates. Thereafter the respective Magistrates took
cognizance of the cases and committed them to the Special Courts. The Special
Courts started trying the cases after they were committed to them. The Act was
later amended giving the Special Courts the power to take cognizance of the
offences under the Act.

The situation in respect of the Human Rights Courts under the

Protection of Human Rights Act, 1993 is not different. Apart from the above, the
Special Courts will face yet another question whether provisions of Section 197
of Criminal Procedure Code are applicable for taking cognizance of the offences
under the Protection of Human Rights Act, 1993. In most of the cases of violation
of human rights, it is the police and other public officers who will be accused.
The offence relate to commission or omission of the public servants in discharge
of their duties. Definitely the accused facing the trial under the Act raise the
objection. There are plethora of precedents in favour of dispensing with the
applicability of Section 197 of Criminal Procedure Code on the ground that such
acts( like the ones which result in violation of human rights) do not come within
the purview of the duties of the public servants. But there is scope for speculation
as long as there is no specific provision in the Act dispensing with the
applicability of Section 197 of Criminal Procedure Code. The object of
establishment of such Courts at district levels is to ensure speedy disposal of
cases relating to offences arising out of violation of human rights. Unless the
lawmakers take note of the above anomalies and remove them by proper
amendments, the aim for which provisions are made for establishment of special
courts will not be achieved.

46 2002(1) Criminal Court Cases 150.

47 2003(1) Criminal Court Cases 406.
48 2004(2) Criminal Court Cases 514.

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2. Suggestions

For the proper implementation of human rights in the Criminal Justice system,
the following suggestions are submitted:

(i) Minimization of Arrest

A person is not liable to arrest merely on the suspicion of complicity in an

offence. There must be some reasonable justification in the opinion of the officer
effecting the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided. An arrest during the investigation may be
considered justified in one or other of the following circumstances:

(a) The case involves a grave offence like murder, dacoity, robbery, rape etc.,
and it is necessary to arrest the accused and bring his movements under
restraint to infuse confidence among the terror stricken victims.

(b) The accused is likely to abscond and evade the processes of law.

(c) The accused is given to violent behavior and is likely to commit further
offences unless his movements are brought under restraint.

(d) The accused is a habitual offender and unless kept in custody he is likely
to commit similar offences again.

(e) the person’s unwillingness to identify himself so that a summons may be

served upon him;

(f) the need to prevent the continuation or repetition of that offence;

(g) the need to protect the arrested person himself or other persons or
property;

(h) the need to secure or preserve evidence of or relating to that offence or to

obtain such evidence from the suspect by questioning him; and

(i) the likelihood of the person failing to appear at court to answer any charge
made against him.”

(ii) Strict Compliance of Post Arrest Procedure

(a) The person under arrest must be produced before the appropriate court
within 24 hours of the arrest (Section 56 and 57 Criminal Procedure

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 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.

(b) The person arrested should be permitted to meet his lawyer at any time
during the interrogation.

(c) 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.

(d) The methods of interrogation must be consistent with the recognized

rights to life, dignity and liberty and right against torture and degrading
treatment.

Though constitutional and statutory provisions have been enacted to

safeguard the personal liberty and life of citizens, incidents of torture and death in
police custody are ever on the rise. In spite of condemnation of such acts by court
certain police officials conduct themselves in a manner resulting in gruesome
torture and death of suspects. There is no manner of doubt that these are the most
heinous crimes committed by persons, who claim to be the protectors of the
citizens. What is distressing is that the incidents of torture and death take place
under the shield of uniform and authority, within the four walls of a police station
or in the lock-up, where the victims are totally helpless.

(iii) Implementation of Police Reforms

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
and for this purpose all the state government should constitute a State Security
Commission in every State to ensure that the State Government does not exercise
unwarranted influence or pressure on the State police and for laying down the

226
broad policy guidelines so that the State police always acts according to the laws
of the land and the Constitution of the country. There should be fixed tenure for
the higher police officials. The investigating police should be separated from the
law and order police to ensure speedier investigation, better expertise and
improved rapport with the people. Each State government should constitute a
Police Establishment Board which shall decide all transfers, postings,
promotions and other service related matters of officers of and below the rank of
Deputy Superintendent of Police and government should have minimum
interference in these matters. There should be a Police Complaints Authority at
the district level to look into complaints against police officers of and up to the
rank of Deputy Superintendent of Police. Similarly, there should be another
Police Complaints Authority at the State level to look into complaints Authority
at the State level to look into complaints against officers of the rank of
Superintendent of Police and above. These authorities should be headed by some
impartial person of other department.

(iv) Expansion of Right to Legal Aid

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. Courts
cannot be inert in the face of Article 21 and Article 39-A of the Constitution. If a
prisoner sentenced to imprisonment is virtually unable to exercise his
constitutional and statutory right of appeal, for want of legal assistance, it is
within the inherent powers of the Supreme Court under Article 142 read with
Article 21 and Article 39-A of the Constitution power to assign counsel for such
an imprisoned individual. This is a necessary incident of the right of appeal
conferred by the Criminal Procedure Code and allowed by Article 136 of the
Constitution. The inference is inevitable that this is the duty of the State, and not
an act of government charity. Furthermore, in order to provide an adequate
opportunity to an accused convicted of a crime to go in appeal against the
sentence the following facilities may be given by the concerned authorities:

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(a) Courts should furnish a free transcript of the judgment when sentencing
an accused to imprisonment. Presently only the copy of judgment in the
language of the court is provided to the convict irrespective of the fact
whether he is capable to understand it or not.

(b) In the event of any such copy being sent to the jail authorities for delivery
to the prisoner by the appellate, revisional or other court the official
concerned should ensure it is delivered to the accused.

(c) Where the prisoner seeks to file an appeal or revision, every facility for
the exercise of that right should be made available by the jail
administration.

(d) Where the prisoner is disabled from engaging a lawyer on reasonable

grounds, such as indigence or incommunicado situation, the Court should,
if the circumstances of the case, the gravity of the sentence, and the ends
of justice so require, assign competent counsel for the prisoner's defence,
provided the party does not object to such a lawyer.

(v) Reforms in Prison Administration

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.

(a) there is problem of overcrowding in jails. Generally the number of jail

inmates exceeds beyond the capacity of jails. This problem can be
removed by using the provisions of bail more liberally and reducing the
number of undertrial prisoners by speedy trials.

(b) 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

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 reasonable rules for classification of prisoners and these be strictly
followed.

(c) 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.

(d) Finally, sanitary conditions in jails 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.

(e) Selected law students under the guidance of a teacher not only for their
clinical education but as a Prisoner Grievance Gathering Agency be
allowed to visit jails in their respective areas and meet the prisoners and
do the needful in the matter. A Grievance deposit box should be kept in
all jails and access to it should be allowed to all prisoners.

(f) District Magistrate and Sessions judges should visit jails periodically
within their respective Court jurisdictions and afford effective
opportunities for ventilating grievances and taking suitable remedial
measures on monthly basis. Non-official visitors as per the Prison Manual
should be encouraged to visit the jails.

(g) The institutions should utilize all the remedial, moral, spiritual and other
forces and forms of assistance which are appropriate and available.
Community agencies be enlisted to assist the staff of the institution in the
task of social rehabilitation of the prisoners.

(h) It would be appropriate to set up an effective administrative grievance

committee apart from provisions for judicial review to look into prisoners
grievances from time to time. The administrative grievance setup should
consist of Internal programs (formal complaint procedure) and external
programs (Ombudsman, citizens investigation committee, mediators etc.)

(i) The model jail manual should be amended and rewritten so as to be in

consonance with the basic philosophy of the Constitution and human
rights. The present model jail manual is far from being model. It is

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 perhaps the product of personnel who are unaware of the concept of
human rights.

(j) There is an urgent need for a judicial agency whose presence, direct or
indirect within the prison walls will deal with grievances effectively. For
this a board of visitors with sufficient powers being constituted for every
jail to look into the grievances of the prisoners.

(k) There should be a prison ombudsman to hear the complaints and

grievances of the inmates. His primary role would be to conduct
investigations and make recommendations to the Court.

(l) A new chapter of offences carrying punishments for negligent prison

officials should be added in Indian Penal Code.

(m) There should be a compulsory educational course in the Constitution and

Human Rights for law-enforcement personnel and jail authorities.

(n) Open jails should be opened on a wider scale.

(o) Provisions for granting parole should be liberally interpreted so as to

uphold the spirit.

(p) The prisoners rights of conjugal visits should be recognised.

(q) Regarding prison education, the structure and content of the education
may be modified as to make the prisoners better and useful citizens of the
community.

(r) Restitution as a type of punishment can be introduced as it would benefit both

the offender and the victim.

(s) An independent bureau with proper co-ordination amongst the police,

courts and reformative institutions can be set up to provide for the
aftercare of the inmates.

(t) The practice of torture must be curtailed by making the Sessions judge
responsible through his personal visits to the jail. A complaints box must
be carried by the clerk of the Judge’s court, and to be opened only by the
Judge, should be sent once a week in order to give the prisoners an
opportunity to voice their grievances.

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(u) Enlightened prisoners can be appointed as members of the Prisons
Reforms Committee.

A new jurisprudence of correctional reform based on the reformative and

rehabilitative aspects has now set in. Prisoners should not go out to society with a
feeling that the rule of law is a casualty within prison walls. It has now been
accepted that the purpose of prison life is to train the inmates for a proper social
living where rule of law is respected. It will remain illusory and impaired if the
scheme of prison regulation is afflicted by arbitrariness and injustice.

(vi) Ban on Media Trials

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.

(vii) Increase in the Strength of judges

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 "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 strength of Judges should be
increase so that the number of pending cases may be reduced.

(viii) Improvement in Court Management and Infrastructure

Increase in the number of Judicial Officers will have to be accompanied

by proportionate increase in the number of court rooms. The existing court
buildings are grossly inadequate to meet even the existing requirements.
Establishment of additional courts at any level involves enormous expenditure –

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capital as well as recurring. Appointment of whole-time staff – judicial and
administrative for new courts involves considerable recurring expenditure. On the
other hand, if the existing courts could be made to function in two shifts, with the
same infrastructure, utilizing the services of retired Judges and Judicial Officers,
reputed for their integrity and ability, who are physically and mentally fit, it
would ease the situation considerably and provide immense relief to the litigants.
The accumulated arrears can be liquidated quickly and smoothly. Judiciary is
always held responsible for mounting arrears of Court Cases. But it does not
control the resources of funds and has no powers to create additional Courts,
appoint adequate Court staff and augment the infrastructure required for the
Courts.

Case Management Techniques deal with the problem at the micro level.
Today, court management has gained considerable importance because it has
been tried and tested in other parts of the world and has been found to be a
successful method of controlling the huge backlog of cases. This has now become
a science involving not only court management but also case-flow management.
In this era of globalization and rapid technological developments, which is
affecting almost all economies and presenting new challenges and opportunities,
judiciary cannot afford to lag behind and has to be fully prepared to meet the
challenge of the age. Inter-court and Intra-court communication facilities,
developed through use of Internet not only save time but also increase speed and
efficiency. Day-to-day management of Courts at all levels can be simplified and
improved through use of Technology including availability of Case Law and
administrative requirements. Using various I.T. tools it is possible to carry out
bunching/grouping of the cases involving same question of law. Moreover, There
should be regular training and orientation programs organised for judicial
officers. Regular training sharpens the adjudicatory skills of Judicial Officers. A
good training programs serves the futuristic needs of the system by improving the
potential to optimum level. If judgments at the level of trial courts are of a high
quality, the number of revisions and appeals may also get reduced. A notorious
problem particularly in the trial courts is the granting of frequent adjournments,
many a times on flimsy grounds. This malady has considerably eroded the
confidence of the people in the Judiciary. Adjournments not only contribute to

232
delays in the disposal of cases, they also cause hardship, inconvenience and
expense to the parties and the witnesses. The right to speedy trial is thwarted by
repeated adjournments. The practice of granting unnecessary adjournment must
be removes by strict control of higher courts on subordinate courts.

Working out of an Arrears Eradication Scheme, for tackling cases which

are pending for more than two years is also necessary. The scheme envisages
identification of cases which can be summarily disposed of under Section 262 of
the Code, as also the petty cases under Section 206 as well as the cases which can
be compounded. It is recommended that all the compoundable cases be sent to
Legal Services Authority for settling through Lok Adalat.. The scheme should be
formulated and implemented without further loss of time

(ix) Implementation of Video Conferencing

It is not uncommon for the criminal cases getting adjourned on account of

inability of the police or jail authorities to produce accused in the Court.
Sometimes the Witnesses are residing at far off places or even abroad. It is not
convenient for them to attend the Court at the cost of considerable time and
expense. Video conferencing is a convenient, secure and less expensive option,
for recording evidence of the witnesses who are not local residents or who are
afraid of giving evidence in open court, particularly in trial of gangsters and
hardened criminals, besides savings of time and expenses of traveling. The
Supreme Court also laid down the procedure to be followed when recording
evidence through video conferencing. The accused and his legal counsel should
be present for video conference. The accused should be permitted to cross-
examine the witness and place documents before the witness. The Indian
Evidence Act has been amended and Sections 65-A and Section 65-B have been
added to allow use of Video Conferencing for the purpose of giving remand of
accused persons thereby eliminating need for their physical presence before the
Magistrate and record the evidence of witnesses. To facilitate the video
conferencing, the required technological infrastructure should be provided to the
courts.

233
(x) Ban on Strike by Lawyers

Nowhere else, the strikes by lawyers is ever heard of. Legal profession is
essentially a service oriented profession. Though the entry to the profession can
be made merely by acquiring the requisite qualification, the honour as a
professional can be maintained by its members only from their conduct, both in
and outside the court. As responsible officers of the court they have an overall
obligation of assisting the court in a just and proper manner in the administration
of justice. It is high time, the lawyers realise the undesirability of strikes and the
immense damage they cause not only to the system but to their own credibility as
well.

(xi) Introduction of Pre-trial Hearing

The concept of pre-trial hearing, which is common in several countries

such as United Kingdom has neither been adopted nor given a statutory
recognition in our country. Section 294 of the Code of Criminal Procedure
envisages that the particulars of every document filed by the prosecution or the
accused shall be included in a list, and the other party or its pleader “shall” be
called upon to admit or deny the genuineness of each such document. Where the
genuineness of such document is not disputed, the document may be treated as
‘proved’. This provision, unfortunately, is rarely utilized. It is necessary to make
an express provision in the Code of Criminal Procedure holding pre-trial hearing
for dealing with the matters such as admission and denial of documents; to
explore the possibility of taking evidence on affidavits, as provided in Section
294 and 296 of the Code, to identify the question of law, if any, relating to
maintainability and jurisdiction, to decide the order of examination of witnesses,
to assess the time required for recording the evidence, to fix the dates for
examination of witnesses and to explore the scope of settlement without trial such
as compounding in appropriate cases.

(xii) Implementation of Plea Bargaining

In Criminal trial, the concept of plea bargaining should be frequently

used. Plea bargaining as most criminal justice reformers believe, is more suitable,
flexible and better fitted to the needs of the society. The complete enforcement of
plea bargaining shall reduce the number of cases pending in the court as well the

234
number of undertrials lodged in the jail. It shall be useful for the victim
compensation scheme as well as justice to victims.

(xii) Procedural improvements in trial of criminal cases

There is need to implement the procedural improvements in the trial of

criminal cases in the interest of justice. Some of them are as follows:

(a) Exemption from personal appearance of the accused:

No useful purpose is served from insisting upon personal appearance of

the accused except when he is required to be identified by the witnesses during
the course of evidence. Therefore, trial courts should be liberal in granting
exemption wherever the accused is represented by a counsel, who is ready to
proceed with the hearing of the case and the accused is not required to be
identified by the witnesses.

(b) Framing of charge in the absence of accused:

Many a times, framing of charge is to be deferred merely because the

accused or some of them are not present to answer the charge. Even where
exemption from personal appearance of the accused has been dispensed with and
they are represented by a lawyer, trial courts insist upon personal appearance of
the accused to answer the charge. There is no justification for insisting upon
personal appearance of the accused to answer a charge if his counsel is ready to
carry out the task on his behalf on his instructions and has been duly authorized
in this behalf.

(c) Compounding of offences:

A perusal of Section 320 of Code of Criminal Procedure shows that not

many cases can be compounded with or without permission of the Court. There is
an imperative need to enlarge the list of compoundable offences. In particular the
offences against human body and against private property, offences relating to
documents and property marks should be allowed to be compromised, barring
some valid exceptions. There is need for amendment of Section 320 of Code of
Criminal Procedure so as to provide for compounding of offences punishable
with imprisonment for a period not exceeding three year or with fine or with
both, besides offences enumerated in the Section. Due to the lack of provisions

235
for compounding of certain offences, it has been a common practice that
witnesses made hostile under outside compromise between parties which affects
the honour of courts, therefore, to curb this, the provisions for compounding of
offences should be made more liberal. A decision, based on compromise, none of
the parties is a loser. Rather, compromise not only brings peace and harmony
between the parties to a dispute, but also restores tranquility in the society. After
considering the nature of offences allegedly committed and the fact that both the
parties have amicably settled their dispute, continuance of criminal prosecution
would be an exercise in futility, as the chances of ultimate conviction are bleak.

(d) Statement of Case:

Prosecution may be required to file a statement of prosecution containing

all relevant particulars including date, time, particulars of offences, part played
by the accused, motive for the offence, nature of evidence, names of witnesses
and such other particulars as are necessary to fully disclose the prosecution case.
This statement shall be served on the accused and on framing of charges, he shall
submit the defence statement giving specific reply to other material allegations
made in the statement. If the accused is claming benefit of any general or special
exception, he will be required to plead the same in his reply. On considering the
prosecution statement and defence statement, the court shall formulate the points
of determination that arise for consideration and will also indicate on whom the
burden of proof lies. The allegations which are admitted or are not denied need
not be proved. The suggestions will go a long way in reducing the number of
witness and the time taken for completion of trial.

(xv) Importance to the Rights of Victims

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. The main needs of victims of crime that
must be taken into account are the right to access to mechanisms of justice,
including the right to be informed at every stage about those rights, participation

236
of the victim throughout the proceedings, respect for their dignity and privacy,
and the right to obtain redress. Views and concerns of victims of crime should be
presented and considered at appropriate stages in the proceedings, victims should
be provided proper assistance throughout the process, they should suffer only
minimal inconvenience, in particular with regard to their privacy, and that
unnecessary delays should be avoided in the proceedings. Victims of crime
should obtain prompt redress through expeditious, fair, inexpensive and
accessible procedures. Offenders should make fair restitution to victims, their
families or dependants and governments should consider restitution as an
available sentencing option. When compensation is not fully available from the
offender or other sources, the state should provide financial compensation. 49

(xvi) Protection to the Right of the Witnesses

Witnesses come to the court, take oath and quite often give false evidence
with impunity. Procedure for taking action for perjury is not simple and the
judges seldom make use of them. 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. The Criminal Justice System should find a fair balance between the
rights of the accused and witness protection at all stages of the trial. Measures of
witness protection must be exercised in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial.

Thus, All systems, be they adversarial or inquisitorial, must comply with

international human rights law i.e. to convict the guilty and to discharge the non-
guilty by seeking the truth by fair means. Any reform of the Indian criminal
justice system must be based on respect for human rights, in particular the rights
of the accused and the rights of victims. Whichever criminal justice system is
adopted, it has to be in conformity with the international human rights obligations
of India. Any reform of the criminal justice system must take into account and
seek to eradicate the root causes of its malfunctioning, i.e. discrimination, lack of

49 Section 357 ans 357-A of the Criminal Procedure Code provides for victim
compensation in criminal cases.

237
resources, corruption and the practice of torture. The criminal justice system
should give particular attention to improving the investigation, prosecution and
punishment of state officials who commit crimes and human rights violations.
There must be prompt, effective, impartial and independent investigations into all
allegations of ill-treatment, death or disappearance or other serious human right
violations; the investigating authority must, above all, be independent from the
authority whose actions are being scrutinized. The immunity clauses for state
officials should be revoked in all statutes. Justice Malimath Committee50 sought
to expedite the criminal process as it considers that the criminal justice system is
virtually collapsing under its own weight as it is slow, inefficient and ineffective
and that people are losing confidence in the system. The notion – that ordinary
people want black-robed judges, well dressed lawyers, fine paneled courtrooms
as the setting to resolve their disputes, is not correct. People with legal problems.
like people with pain, want relief and they want it as quickly and inexpensively,
as possible.

A National Court Management System Committee should be made to implement-

(I) National framework of court excellence to set standards of performance

for courts and address the issues of quality, responsiveness and timeliness.

(ii) A case management system to ensure user-friendliness of the judicial

process to stakeholders.

(iii) National system of judicial statistics for common national platform for
recording and maintaining judicial statistics across the country.

(iv) A court development plan system to provide a framework for 5-year

plan for future development of Indian judiciary.

(v) A human resource development strategy to set up standards for selection

and training of judges in the subordinate courts.

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

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

Malimath, it presented its report in march 2003.

238
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.

239
 LIST OF ABBREVIATIONS

A.C. Appeal Cases

A.C.H.R. Asian Centre for Human Rights
A.C.R. Annual Confidential Report
A.D. Anno Domini (the period after the birth of Christ)
A.I.R. All India Reporter
A.P. Andhra Pardesh High Court
AIDS Acquired Immuno-deficiency Syndrome.
All. Allahabad High Court
Anr. Another
Art. Article
B.E.A.F. Brain Electrical Activation Profile
D.N.A. Deoxyribonucleic Acid
Bom. Bombay High Court
C.B.C.I.D. Crime Branch Criminal Investigation Department
C.B.I. Central Bureau of Investigation
C.J. Chief Justice
C.J.I. Chief Justice of India
C.P.C. Civil Procedure Code
C.W.N. Conversation with Nostratawh, Campus wide Network
Cal. Calcutta High Court
Cr.L.J. Criminal Law Journal
Cr.P.C. Criminal Procedure Code.
Crl.M. Criminal Miscellaneous Petition
D.I.G Deputy Inspector General
Del. Delhi High Court
Dr. Doctor
e.g. Example of gratia (For Example)
ECOSOC Economic and Social Council
Ed. Edition
F.B. Full Bench
F.I.R. First Information Report

iv
Gau. Gauhati High Court
Guj. Gujra tHigh Court
H.C. High Court
H.I.V. Human Immuno-deficiency Virus.
H.P. Himachal Pradesh High Court.
I.C.J. International Court of Justice
i.e. That is.
I.G. Inspector General
I.L.I. Indian Law Institute
I.O. Investigating Officer
I.P.C. Indian Penal Code
Ibid Ibdem. (In the same place).
INTERPOL International Criminal Police Organization
J&K Jammu & Kashmir High Court
J. Justice
J.I.L.I Journal of Indian Law Institute
J.J. Judges
J.T. Judgment Today
Knt. Karnataka High Court
M.P. Madhya Pradesh High Court
Mad. Madras High Court
N.C.M.S.C. National Court Management System Committee
N.C.T. National Capital Territory
N.D.A. National Democratic Alliance
N.G.O. Non-Government Organization
N.S.S. Nuclear Security Summit
NHRC National Human Rights Commission
Ori. Orrisa High Court
P&H Punjab and Haryana High Court
PIL Public Interest Litigation
POTA Prevention of Terrorist Activities Act
P.U.C.L. Peoples Union for Civil Liberties
Pat. Patna High Court.

v
PC Privy Council
PIL Public Interest Litigation
Prof. Professor
PUCL People's Union For Civil Liberties
R.C.R. Recent Criminal Reports
Raj. Rajasthan High Court
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reports
S.C.W. Supreme Court Weekly
S.H.R.C. State Human Rights Commission
S.P. Superintendent of Police
Sec. Section
STPL Sewickley Township Public Library
Supp. Supplementary
Supra Above
U.D.H.R Universal Declaration of Human Rights.
U.J. Unreported Judgment
U.K. United Kingdom
U.N. United Nations
U.P. Uttar Pardesh High Court
U.P.A. United Progressive Alliance
U.S.S.C.R United States Supreme Court Reports
U.S.A United States of America
USSR Union of Soviet Socialist Republics.
v. Versus
V.C. Video Conferencing
Viz Namely
Vol. Volume
WLR Weekly Law Reports.

vi
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242
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243
(2) Reports

(i) National Human Rights Commission India Annual Report 2008-2009

(ii) Supreme Court of India, The Monthly Statement of Pending Cases For
The Month Of November, 2011

(iii) National Human Rights Commission D.O. No. 4/7/2008-PRP&P dated

12th May, 2010 – directions to all States regarding procedure to be
followed in case of deaths caused in Police action.

(iv) Important Judgments Having Bearing on Rights of

Arrestee/Undertrials/Convicts- Circulated by Govt. Of Haryana.

II

(3) Articles and News Reports

(i) Nearly 30 million cases pending in courts –Internet

(ii) Supreme Courts recent judgment on a murder case- Hari Kishan v. State
of Haryana Author : Farhan Choudhury

(iii) Public Interest Litigation: Potential and Problems - International

Environmental Law Research Center Geneva, Switzerland

(iv) Role of the Supreme Court towards a New Prison Jurisprudence -

Internet
(v) Comments of Justice G.S. Singhvi and H.L. Dattu regarding grant of bail
in high profile cases ---- Internet

(vi) Commissioner of Police, Police Headquarters, New Delhi – Standing

Order No. 330/2007 dated 08/11/2007 Regarding Guidelines for Arrest.

(vii) Punjab and Haryana High Court Justice Sobhag Mal Jain Memorial
Lecture on Delayed Justice Delivered by Hon’ble Shri Y.K. Sabharwal,
Chief Justice of India on Tuesday, the 25th July, 2006

(viii) Chief Justice has a plan for expeditious disposal of pending cases-
Article by J. Venkatesan in The Hindu—Posted in Judicial Activism,
Judiciary, Justice, Supreme Court By NNLRJ India On January 1, 2012.

(ix) Govt. faces SC ire over backlog – CJI proposes way to end pendency -
The Times of India, New Delhi/Chandigarh Friday January 13,2012.

(x) Police/Custodial Torture -2010 (January to April, 2010) –Compiled by K.

Samu, Human Rights Documentation, Indian Social Institute, Lodhi
Road, New Delhi, India.

244
(xi) Trial by Media: A Legal Dilemma Resolved With Reference To Jessica
Lal

(xii) Under Trial Prisoners and Access to Justice-- Internet

(xiii) Right to Speedy Trial Includes Lengthy Police Investigations ---

Published on August 16, 2008 ---- Internet

(xiv) Human Rights Newsletter-Monthly Newsletter of the National Human

Rights Commission, India Vol. 18 No. 10, October, 2011

(xv) CJI Writes to govt. proposing National Court Management System -

Dhananjay Mahapatra in The Times of India on January 13,2012 -Internet

(xvi) Criminal Justice Reforms in India : ICJ Position Paper Review of the
Recommendations made by the Justice Malimath Committee from an
international human rights perspective---Internet

REPORTS AND OFFICIAL DOCUMENTS

Constitution Assembly Debate
Law Commission of India 170th Report
The Manda Commission Report, December 1980
The National Commission to Review the working of Constitutions Report, March
31, 2002.

NEWSPAPERS
The Hindu
The Hindustan Times
The Indian Express
The Pioneer
The Statesman
The Times of India
The Tribune

JOURNAL AND PERIODICALS

All India Reporters
Civil and Military Law Journal
Journal of Indian Law Institutes
Journal of Constitutional and Parliamentary Studies
Judgment Today

245
Kurukshetra Law Journal
Supreme Court Cases
Supreme Court Reporter
Supreme Court Weekly

STATUTES
The Indian Evidence Act, 1872
The Constitution of India, 1950
The Criminal Procedure Code, 1973
The Indian Penal Code, 1860
The Right to Information Act, 2002
The Protection of Human Rights Act, 1993
The Prevention of Terrorist Activities Act, 2000
The Terrorist and Disruptive Activities (Prevention) Act, 1985

246
 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

1
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

2
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
3
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
4
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:
5
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)
6
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,

7
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.

8
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
9
 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

10
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
11
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)

12
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

13
 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

14
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
15
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
16
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

17
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

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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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