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HUMAN RIGHTS OF THE ACCUSED

PERSONS

AN INDIAN PERSPECTIVE

Jlan Kupar K. Rymbai


Associate
BBPM Law Associates
jlankupar@bbpmlaw.com
The Article is just an overview of the constitutional
protections accorded to a person in India in terms of certain
criminal procedures with an idea to protect fundamental
human rights.

Jlan Kupar Rymbai

Associate

BBPM Law Associates


A-13, First Floor,
Nizamuddin East,
New Delhi-110 013
jlankupar@bbpmlaw.com
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I Introduction:-

I.1 Human rights are derived from the basis of natural law. It is neither derived from
any social order nor is it conferred upon the individual by the Society. It confines itself to
the fact that such Rights are inherent in an individual to enable the individual to sustain
himself as a human being. Such rights are independent to the development of society
and pre-exists a person‟s participation in the society. Basically, Human Rights includes
within its ambit the Right to Equality, Life and Personal Liberty, Freedom of Speech and
Expression, Right against Arbitrary Arrest, Freedom of Conscience and Religion and
Right for demanding enforcement of such guaranteed human rights.

I.2 Out of the numerous legal safeguards in international and domestic law that are
intended to protect an „Indian Citizens', Fundamental Rights seem to have very little
meaning to the citizens of India especially those of the accused persons [pre-trial and
under-trial prisoners, even the convicts] as the Indian government has failed to
adequately protect the right to life of its citizens. Although the Supreme Court of India
has attempted through judicial activism to create standards for the enforcement of
international and domestic laws, their actions have not sufficiently trickled down to those
to whom it matters most. This activism has resulted in numerous so-called landmark
cases. However, violations of the right to life are still prevalent and have permeated the
deepest reaches of the country. This apparent apathy to people's rights has resulted in a
broad discrepancy between the "laws of the land" and day-to-day practice. It is important to
note that:-

 Human rights are indivisible and inalienable. They cannot be taken away
except in specific situations. However, the right to liberty can be restricted
if a person is found guilty of a crime by a court of law.

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 Human rights are interrelated and interdependent. The violation of one


right will often affect several other rights.

I.3 Rights of Man, as embodied in the declaration proclaimed at the French


Revolution, during the later part of the Eighteen Century is a symbolic depiction of the
aspirations of man to free himself from oppression and tyranny from his fellow men and
his innate urge for equality and fraternity amongst homo-sapiens. The Magna Carta of
12151 which introduced the concept of jury trial further provides that2:

“No freeman shall be taken or imprisoned or outlawed or banished, or in any way


destroyed, nor will we go upon him, nor send upon him, except by legal judgment of his
peers or by the law of the land”

I.4 Following this, the Bill of Rights, 1689, evolved and gave birth to the idea of
Parliamentary Democracy against arbitrary power and unbridled authority of King of
England and it assured to the people equality before the law. The Habeas Corpus Acts of
1640 and 1679 had attempted to provide legal remedies against arbitrary detention and
imprisonment. The measure had come to be accepted as a tool to move the authority
seeking immediate release either for unlawful detentions or even lawful incarceration but
on appropriate grounds3. The American Declaration of Independence of 1776 and the French
Revolution of 1789 – 1793 were influenced and inspired by the earlier crusades for liberty
participated by many and galvanized into action by the free thinking leading lights of the
preceding centuries.

1
Magna Carta, also called Magna Carta Libertatum (the Great Charter of Freedoms), is an English legal charter, originally issued in
the year 1215. It was written in Latin and is known by its Latin name. The usual English translation of Magna Carta is Great
Charter
2
Article 39 of the Magna Carta, 1215.

3 Dr.S.Krishnamurthy, “Human Rights and the Indian Police”, [Second Edition 1996, RR Publishers Bangalore 560055], at page
30

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I.5 The English concept which stipulated that “the King can do no wrong” was not
prevalent in the ancient system in India as the ancient system in India did not
differentiate in favor of the ruling class. Crimes were degraded according to the gravity
but the punishment was not absolutely uniform as the same act done by different persons
could be dealt differently depending upon a logical argument which viewed the
implications of each such acts. For example, a Brahmin was not expected to commit theft
and should he be held guilty of that charge, then he would be imposed a greater fine in a
graded scale covering the four Varnas. Female, as a rule were exempted from capital
punishment and even in matters of money fines, women were obliged to pay half the fine
that could be imposed on a mole for a similar offence.

I.6 Human rights are generally violated by arbitrarily making the innocent persons an
accused of some offence which one has not committed or is in involved due to enmity,
or due to victimization. An accused person is supposed to be innocent unless charge of
some offence if proved against him. Similarly, in the provision of Articles – 14(2)4 of the
international covenants of civil and political rights. Everyone charged with criminal
offence shall presume to be innocent until proved guilty according to the law.

I.7 An accused person is entitled to the following protection relating to his arrest and
production before the court and judicial trial if any against him to be launched.

1. A police officer may arrest an accused person without warrant in certain


circumstance mention in Section - 41 of the code of criminal procedure
1973, herein referred to as the code in this part –

(a) he has been concerned in any cognizable offence where a reasonable


complaint has been made against him, or some credible information has
been received against him or a reasonable suspicious exist against him

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“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.

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(b) Who has some implement of house breaking in his possession without
lawful excuse

(c) Who has been proclaimed as an offender under the code or

(d) In whose possession some suspected stolen property is found

(e) Who obstruct a police officer from his duty or who has escape or attempts
to escape from lawful custody

(f) Who is suspected to be deserter from armed forces

(g) Who. If released convicts breaks any condition of his release or requisition
for whose arrest has been made from some other police station.

I.8 Art -11 of the Universal Declaration of Human Rights, 1948 declares that –

(1) 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.

(2) No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal
offence was committed.

I.9. India has the adversary or accusatorial model of criminal justice administration
which is different from the inquisitorial model followed elsewhere in the world. Both the
system originates and developed at the time and during a period when the concept of
victim justice system, crimino-victim justice system or equal justice to crimino-doers and

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victim were not thought of. Both accusatorial and inquisitorial were established with an
aim of administering justice to the criminals only. In the accusatorial system, the accused in a
crime is presume innocent and every charge against the accused has to be proved by the investigating
agency. A person becomes an accused only when a confession is received from the
suspect. It may be remembered here that several courts in India including the Supreme
Court have been reminding the police time and again that they cannot and should not
resort to third degree method during the investigating of the case

I.10 Coming to the American Constitution, from colonial times until the present,
Americans have believed in an old English saying: “It is better for 99 guilty persons to go free
than for one innocent person to be punished.” In the United States, a person accused of a crime
is presumed guilty until proven innocent. The burden of proving the suspect guilty is
upon the government prosecutors.

I.11 If we are to go by the principle of human rights then all kinds of arrest, be it with
or without warrant, would amount to violation of human rights as arrest is physical
restraint of a person which involves deprivation of human dignity and of personal liberty
and so also in case of imprisonment which is unreasonable restriction. But human being
cannot live alone but live as a society and thereby bound by certain rules and regulations.
The fact of living in a society renders it indispensable that each should be bound to
observe a certain lines of conduct towards one another. When any part of the conduct
affects prejudicially the interests of others violation is said to have occurred and as such
we need certain rules and regulations to control such conduct, act or action which can
affect the interests of another. Therefore, we have binding rules, regulations and laws, but
these entire have its own limits and have to be exercised without arbitrariness and
unlawfulness by the power holders without violating the rights and interests of the power
addressees. These laws, rules and regulations giving certain rights and protection to the
accused and at the same time limits the power of the State and of the enforcement
agencies has to be studied very carefully.

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I.12 The main concern is on the constitutional rights as well as the international
covenant of the accused regarding freedom from arbitrary and unlawful arrest, detention
and torture, right to be informed of grounds of arrest and right to counsel, right to be
presumed innocent until proved guilty, right not to be subjected to retrospective
punishments (ex post facto), right against double jeopardy, right to bail, right to fair trial
and also rights for preserving human dignity and self-pride.

II. Right to fair Trail and Fair Hearing:

II.1 Articles 10 of the UDHR declares that everyone entitle in full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination of his legal
rights and obligation and of any criminal charges against him. Articles 14(1) of the
international covenants on civil and political rights provide that all people shall be equal
before the court and tribunals. In the determination of any criminal charges against him
or of his right and obligation in a suit at law everyone shall be entitle to fair and public hearing by
a competent, independent and impartial tribunal established by law. This right to fair trial will embrace
the following guaranteed rights of accused:

III. Right To Be Presumed Innocent Until Proved Guilty:-

III.1 The presumption of innocence has been accepted as a central safeguard


against the exercise of arbitrary power by public authorities. It means the prosecution has
the ultimate burden of establishing guilt. If, at the conclusion of the case, there is any
reasonable doubt on any element of the offence charged, an accused person must be
acquitted. In India, a system of adversarial form of adjudication is followed which is also
known as „accusatorial system‟ in case of criminal procedure and the underlying principle
of this system is “presumption of innocent until-proved-guilty”. The legal ethics of our criminal
justice system is “let thousand of criminal’s be let out, but a single innocent should not be punished”.

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III.2 This right of the accused is the most important and basic component of a fair
trial. The presumption of innocence, among others, means that the burden of proof in a
criminal trial lays on the prosecution and that the accused has the benefit of the doubt.
No guilt can be presumed until the charge had been proved beyond reasonable doubt. It
implies that an accused has a right to be treated in accordance with this principle and as
such all public authorities have a duty not to prejudice the outcome of a trial. The fact
that the accused has committed an act which fulfills the description of a criminal offence
does not mean that the court can terminate the proceeding or the trial, otherwise it would
amount to violation of the right to be presumed innocent until proved guilty. The
purpose of the presumption of innocence is to minimize the risk that innocent person
may be convicted and imprisoned.

IV. Right To Speedy Trial:-

IV.1 The right to be tried without undue delay has been expressly recognized by all
the above discussed international documents and conventions except the UDHR. “Delay
defeat equity” is a maxim of the law of equity, justice delayed is justice denied is the well known
principles of criminology. The American constitution clearly state that in its sixth
amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense”

V. Right Of A Person to be produced before the Magistrate:-

V.1 Every accused have the right to produce before a magistrate within twenty
four hours of his arrest. Articles 9(3) ICCPR provides that anyone arrested or detained
on a criminal charge shall be brought promptly before a judge or other officer authorized

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by law to exercise judicial power and shall be entitle to trial within a reasonable time. In
consonance with Section 565 CrPC provide for a person not to be detained more than
twenty four hours. It lays down that no police office shall detain a person in custody a
person arrested without warrant for a longer period than under all circumstances of the
case is reasonable and such period shall not, in absence of a special order of magistrate
under Section 167, exceed twenty four hours exclusively of the time necessary for the
journey from the place of arrest to the magistrate office.

VI. Conclusion /Suggestion:-

VI.1 Persons accused of any offence are always looked down and treated as criminal
even before they are proved guilty which is against the principle of criminal
jurisprudence. They are denied of their basic rights as a human being and are treated as
animal and subjected to all kinds of torture by the police and that amounts not only to
violation of the Constitutional and Statutory provisions but also a grave violation of
human rights of the accused. Some recommendation under the Indian constitution is
mention below

VI.2 Clauses (1) and (2) of Article 226regarding “pre-trial detention” with order of the
Magistrate have to be struck down as it is unconstitutional and against the guarantees of
Article 19(1) and it is violation of human rights to detain a person before he is proved
guilty of the offence for which he is being charged. The word “excluding” (the time
necessary for the journey from the place of arrest to the court of the Magistrate) in
Article 22(2) should be replaced by the word “including” as the word “excluding” gives

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A police officer 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.
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(1) 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.

(2) 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.

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leeway for the police to rob the accused of their rights and it renders the clause
ineffective

VI.3 An accused person could be, before arresting him, called to present himself before
the Court at first, on failing which arrest can be carried out but in such a manner so as
not to harm his or her dignity.

VI.4 The law providing for rights of accused must first be clear and certain and free
from ambiguity and it must be a valid law and should answer the requirements of Article
14 and Article 19(1). Some provisions of the Constitution and Statutory Law have to be,
if not struck down wholly, amended in order to curb the misuse of powers by the power
holders and violation of human rights of an individual generally and of the accused
particularly.

VI.5 Though the international documents, charter and conventions have recognized
and guaranteed certain rights and protection to the accused the future does not seem to
be very bright and hopeful as far as the pre-trial, under-trial and convict persons are
concerned. The stipulation of the rights in the international documents or conventions
alone is not enough. They themselves cannot serve any useful purpose unless the rights
and protections set forth in their provisions are implemented by the member states. At
present, there is a wide gap between the promise and performance because of the
absence of effective international implementation machinery so far as penal processes are
concerned. Efforts made in the past at international level to protect the human rights of
the accused have not been very promising. This may be due to different ideas of concept
of sovereignty and of human rights itself. As long as the States would continue to differ
on the basic concept of national sovereignty and of human rights, the implementation of
the provisions of the international documents and conventions is unlikely to be
successful.

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VI.6 An effective procedure for the protection of human rights in general and of the
accused in particular is needed which would mean substantial change in the distribution
of power between member states and the United Nations, and within member states
between active decision makers and the individual human beings. It would further mean
that the member states should agree themselves for the curtailment of national
sovereignty to some extent. If the states are at all serious for the protection and
promotional of human rights, it is quite essential to provide remedy at international level.
There are frequent complaints regarding inhuman treatment given to the prisoners in jail.
They are deprived of the best medical facilities and treatment and a large number of
prisoners are suffering from diseases. There is dispute regarding fair, adequate and
equitable wages to the prisoners, the under-trial prisoners are not produced before the
court. There is an immediate need to review the international human rights law as far as
the rights of accused are concerned.

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