Human Rights of Accused

It is better to allow 10 guilty men to go free than to punish a single innocent man The right of every man are diminished when the rights of one man are threatened - John F. Kennedy When we talk about accused, words like crime, guilt, innocence, delinquency, detention, and torture came into our mind. The term accused has not been specifically defined in any code but in broad spectrum accused means the person charged with an infringement of law for which he is liable and if convicted then to be punished. In the battle against crime and delinquency, state and its officers cannot have recourse to extra-legal method towards accused. State should insist on good behavior from others when their own behavior is unjust, blame worthy and illegal. Thus, in a democratic society even the rights of accused are sacrosanct, through accused of an offence does not become a non-person. When an individual is accused of criminal activity, he or she is automatically granted certain rights. If the law isnt follow during the investigation and trial, the accused can be set free based on those technicalities rather than based on his or her innocence. For that reason law enforcement personnel, judges and prosecutors are careful to follow the law through entire procedure. There are various national and international law, declarations and conventions were introduced in order to protect the same. Indian criminal justice system is based on well recognized principle of jurisprudence, they are, presumption of innocence and right to remain silence, burden of proof is always on prosecution and all of them have got right to fair trial, which justify the principle of natural justice i.e., equity, justice and good conscience. In various statues of India various provisions regarding rights of accused and suspects are enshrined. Supreme Court said, Constitutional Evidentiary and procedural law have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail.1However it was also interpreted by the court that the procedure adopted by the state must be just, fair and reasonable.2 Article 20, article 21, article 22 are the provisions of Indian constitution which provides various safeguards to the person accused of crime. Article 20 talks about protection in respect of conviction for offence: 20(1) says that no person shall be convicted of any offence except for violation of a law in forced 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 commission of offence. 20(2) says no person shall be prosecuted and punished for the same

1 2

Kishore Singh Ravinder Dev Etc. v. state of Rajasthan (1981) 1 SCC 503 Maneka Gandhi v. union of India (1978) 1 SCC 248

Copyright 2014. DEADLY LAW

offence more than once. 20(3) says that no person shall be compelled to be a witness against himself.3 Clause (1) of article 20 prohibits the legislature to make to make retrospective criminal law. However, it does not prohibit imposition of civil liability retrospectively, i.e. with effect from past date.4So, a tax can be imposed retrospectively.5 The protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. Clause (2) of article 20 based on the maxim nemo debet vis vexari which means that no man should be put twice in peril for the same offence. This clause will have no application where punishment is not for the same offence. Thus, if the offences are distinct the rule of double jeopardy will not apply. Likewise, clause (2) of article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is mere continuation of the previous proceeding, e.g., in the case of appeal against acquittal.6 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 bed rock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved, the accused need not make any admission or statement against his own free will.7 In M.P. Sharma v. Satish Chandra8 the Supreme Court observed that this right embodies the following essentials: 1) It is a right pertaining to a person who is accused of an offence. 2) It is a protection against compulsion to be a witness. 3) It is a protection against such compulsion relating to his giving evidence against himself. Article 21 talks about protection of life and personal liberty: it says that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Free and fair trial is sine qua non of article 21 of the constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of public in system and woe would be the rule of law. Apart from this, article 21 says, right to fair trial includes right to fair investigation, right to free legal aid, right against solitary confinement, right to speedy trial, right against handcuffing, right against delayed execution, and right against inhuman treatment. Article 22 talks about protection against arrest and detention in certain case. Clause (1) and (2) of article 22 guarantee four rights on a person who is arrested for any offence under an ordinary law:
3 4

The constitution of India, 1950 Hathi Singh Manufacturing Co. v. Union of India, AIR 1960 SC 923 5 Sundaramier & Co. v. state of Andhra Pradesh, AIR 1958 SC 468 6 State of M.P. v. Veereshwar, (1957) SCR 868. 7 Dr. J.N. Pandey, the constitutional law of India (Central law agency, Allahabad, 48 th edn.,2011) 8 AIR 1954 SC 300

1) The right to be informed as soon as may be of ground of arrest. 2) The right to consult and to be represented by lawyer of his own choice. 3) The right to be produced before a magistrate within 24 hours, 4) The freedom from detention beyond the said period except by the order of magistrate. Clause (3) says rights given under clause (1) and (2) are not available to an enemy alien and a person arrested and detained under a preventive detention law. Clause (4) to (7) of Article 22 provides the procedure which is to be followed if a person is arrested under the law of Preventive Detention. The word preventive is used in contradistinction to the word punitive. It is not a punitive but a preventive measure. While the object of punitive detention is to punish a person for what he has already done, the object of preventive detention is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved nor is any charge formulated. The sole justification of such detention is suspicion or reasonable probability of the detenu committing some act likely to cause harm to the society or endanger the security of government, and not the criminal conviction which can only be warranted by legal evidence.9 The accuseds right to silence and to not be a witness in the case against him is upheld by making confessions inadmissible as evidence in Court if they were obtained through inducement, threat or promise or referred to the specific charge against the accused, proceeded from a person in authority or if in the opinion of the Court, was made through an induced belief that the confession would be advantageous for the accused in the case against him. Hence, to maintain fairness to the accused, confessions obtained through force or deceit are completely ruled out as evidence based on which the accused may be convicted. Furthermore, the confession of a co-accused which criminates the accused may not be treated as substantive evidence against him.10 The Honble Supreme Court, in D.K Basu v. State of West Bengal11, has laid down specific guidelines required to be followed while making arrest. These are the rights of accused. The principles laid down by the Supreme Court are given hereunder: 1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particular of all such personnel who handle interrogation of the arrestee must be recorded in a register. 2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where
9

A.K. Gopalan v. State of Madras, AIR 1950 CS 27. Balbir v. state of Orissa, 1995 CrLJ 1762 (Ori). 11 (1997) 1 SCC 216
10

the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aids Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclosed the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is. 7. The arrestee should, where he so request, be also examines at the time of his arrest and major and minor injuries, if any present on his /her body, must be recorded at that time. The Inspector Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctor appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. 9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. 10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 11. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognize the power of the State to arrest any person as a part of its primary role of maintaining law and order. The Constitution requires a just, fair and reasonable procedure established by law under which alone such deprivation of liberty is permissible. Although Article 22(1) of the Constitution provides that every person placed under arrest shall be informed as soon as may be the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice and S.50 of the Code of Criminal Procedure, 1973 (Cr. PC) requires a police officer arresting any person to forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. In actual practice these requirements are observed more in the breach. Likewise, the requirement of production of the arrested person before the court promptly which is mandated both under the Constitution [Article22 (2)] and the Cr. PC (Section 57) is also not adhered to strictly. A large number of complaints pertaining to Human Rights violations are in the area of abuse of police powers, particularly those of arrest and detention. It has, therefore, become necessary, with a view to narrowing the gap between law and practice, to prescribe guidelines regarding arrest even while at the same time not unduly curtailing the power of the police to effectively maintain and enforce law and order and proper investigation.12 It is clear that in an area of law so thoroughly politicized, culturally freighted and passionately punitive as war crimes there is a need for even greater protections for the accused. The protection of the accused remains invariably in the interest of all civilized systems of law. All legal systems provide certain standards for the rights of the accused. Those rights guarantee that if criminal proceedings are held no harm will be done to the alleged offender and his right to a fair trial will be assured. Those ideas, developed in the human rights law, have been adopted both on the national and international level. International human rights law is a post-Second World War phenomenon that arose from the necessity of ensuring that the tragedies and misfortunes of that period would never happen again, or would at least be limited with respect to the group of standard rules referred to as human rights. In other words it asserts that every human being, in every society, is entitled to have basic autonomy and freedoms respected and basic needs satisfied.13 To achieve all of its aims, international human rights law consists of a group of treaties, conventions and declarations which provide the international community with guidelines and obligations regarding rights that are indispensable and need to be protected on both the national and international levels. United Nations organization adopted such important sources of international law as the charter on United Nations14 and UDHR15 whose creation spawned the adoption of countless treaties
12

Supreme Court guidelines on arrest on D.K Basu v. State of West Bengal, Need for guidelines available at http://aks71.wordpress.com (visited on November 15, 2013) 13 Peter Malanzuck and Akehurst, Modern Introduction to International Law, (Routledge, 7th edn., 1997) 14 Charter of the United Nations, 59 Stat. 1031 (adopted on 26 June 1945 entered into force on 24 October 1945) TS 993.

covering issues concerning human rights. Other than UDHR there are some covenants and conventions which talk about the human rights of accused. Article 10 of UDHR declares that Everyone is entitled in full equality to a fair and public by an independent and impartial tribunal, in the determination of his legal rights and obligation and of criminal charges against him.16 Article 11 of UDHR declares that 1) everyone charged with a penal offence has the right to be presumed innocent until proved guilty. 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 and 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 penal offence was committed.17 . Right to fair trial is defined in more detail in international covenant on civil and political right (ICCPR)18. This right is protected under article 14 and 16 of ICCPR which is binding in international law on 72 states that have ratified it.19 Some of the worldwide rights of accused and suspects are: All persons are equal before the law and before the courts and they should be treated accordingly. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law, to have adequate time and facilities for the preparation of his defence and to communicate with the counsel of his own choosing. The persons charged with any offence have the right to examined, or have examined, they should be provided with the free assistance of an interpreter if he cannot understand or speak the language used in court. They are not to be compelled to testify against himself or to confess guilt. In case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. United Nations has also introduced the Convention against torture and other cruel, inhuman or

15

Universal declaration on Human Rights, Adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948. The Universal Declaration is available in 369 language variations on the website of the Office of the United Nations High Commissioner for Human Rights. 16 Universal Declaration on Human Rights, 1948 available at http://www.un.org/en/documents/udhr/ visited on November 30, 2013. 17 Universal Declaration on Human Rights, 1948 available at http://www.un.org/en/documents/udhr/ visited on November 30, 2013. 18 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations. It entered into force on 23 March, 1976. 19 International covenant on civil and political rights available at http://en.wikipedia.org/wiki/visited on November 30, 2013.

degrading treatment or punishment of 1984.20 The convention follows the structure of UDHR, ICCPR and ICESCR and is divided into three parts with a preamble and 33 articles. This convention puts total ban on torture, refoulement and cruel and degrading treatment. This convention treats the torture (Article 1)21 as a criminal offence. Parties to the convention must investigate any allegation and victims of torture must have an enforceable right to compensation. CAT i.e., committee against torture has been set up by United Nations under this convention and this is the body of independent experts that monitors implementations of the provisions of this convention. All state parties are obliged to submit regular reports to the committee on how the rights are being implemented. State must report initially one year after acceding to the convention and then every four years. The committee examines each report and addresses its concern and recommendations to the state party in the form of concluding observation.22 Under certain circumstances, CAT may considers complaints or communication from individuals claiming their rights under the convention have been violated and then take appropriate measures. Nationally and internationally, many safeguards have been acknowledged to protect the rights of accused but the delinquency is in their implementation mechanism. There is a need to bring more strong and strict enforcement machinery so that the rights which are conferred should be properly enforced and the violation or breach of any of them will result into strict punishment. Our goal is not to punish the wrongdoer but to socialize and reform him through the right ways.

20

The text of this convention was adopted by the United Nations General Assembly on 10 December 1984 and came into force on 26 June 1987. The convention has 154 state parties. 21 Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 22 UN Committee against Torture (CAT) available at www. refworld.org/publisher/CAT.html (visited on 15 December 2013)