A Project Work In JUDICIAL REVIEW (HONOURS II)

JUDICIAL ACTIVISM AND ITS SIGNIFICANCE IN PROTECTING RIGHTS OF

ACCUSED

SUBMITTED TO: Dr. KAUMUDHI CHALLA

FACULTY: - CONSTITUTIONAL LAW

SUBMITTED BY: PRANAV KHANDELWAL

SEMESTER 9
SECTION A
ROLL NO. 94

SUBMITTED ON:
26th SEPTEMBER, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Raipur, Chhattisgarh
 DECLARATION

I, Pranav Khandelwal, student of Hidayatullah National Law University, Raipur hereby

declare that the project work entitled Judicial Activism And Its Significance In Protecting
Rights Of Accused submitted to the University is a record of an original work done by me,
under the guidance of Dr. Kaumudhi Challa, faculty of Judicial Review, Hidayatullah
National Law University, Raipur.

Date: 26th September 2016 Pranav Khandelwal

Semester-IX

i
 CERTIFICATE

This is to certify that the project report entitled Judicial Activism And Its Significance In
Protecting Rights Of Accused submitted by Pranav Khandelwal in partial fulfillment of the
requirement for the award of degree of B.A. LL.B.(Hons.) to Hidayatullah National Law
University, Raipur is a record of the candidates own work carried out by him under my
supervision. The matter embodied in this project is original and has not been submitted for the
award of any other degree.

Date: (Dr. Kaumudhi Challa)

Faculty, Judicial Review

ii
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty.

I would like to sincerely thank my faculty for Judicial Review Dr. Kaumudhi Challa Maam
for giving me this topic and guiding me throughout the project. Through this project I have
learned a lot about the aforesaid topic and this in turn has helped me grow as a student.

My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.

PRANAV KHANDELWAL

iii
 TABLE OF CASES

1. A.K. Gopalan v. State of Madras AIR 1950 SC 27:1950 SCR 88

2. Anwar v. State of J&K, AIR 1971 SC 337
3. Babu Singh v. State of UP, AIR 1978 SC 527
4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, 1984 SCR (2) 67
5. Charles Sobraj v. Supt. Central Jail, AIR 1978 SC 1514
6. D.K. Basu v. State of W.B, AIR. 1997 SC 610
7. DLF power limited v. Central Coalfields Ltd., (2009) 6 SCC 258
8. Haskot v. State of Maharashtra, AIR 1978 SC 1548
9. Hussainara Khatoon v. State of Bihar, AIR. 1979 SC 1360
10. I. C. Golaknath v. State of Punjab, AIR 1967 SC 1643, 1967 SCR (2) 762
11. Indira Gandhi v. Raj Narain, AIR1975 SC 865, 1975 SCR (3) 333
12. Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104
13. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349
14. Kaism Bahi v. State of Gujarat, AIR 1980 SC 1232
15. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42
16. Kartar Singh v. State of Punjab, AIR 2008 SC 471
17. Kesavanand Bharati v. State of Kerala, AIR 1973 SC 1461
18. Kharak Singh v. State of U.P, AIR 1963 SC 1295
19. Khatri v. State Of Bihar, AIR 1981 SC 928
20. Kishore Singh v. State of Rajasthan, AIR 1981 SC 625
21. Lal Kamlendra Pratap Singh v. State of Uttar Pradesh, (2009) 4 SCC 437
22. Maneka Gandhi v. Union of India, AIR 1978 SC 597
23. Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025
24. Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551
25. Prem Shankar v. Delhi Administration, AIR 1980 SC 1535
26. Raj Deo Sharma v. State of Bihar AIR. 1998 SC 3281
27. Sakal Newspapers (Private) Ltd. v. Union of India AIR 1962 SC 305, 1962 SCR (3)
842
28. State of Maharashtra v. Champalal, AIR 1981 SC 1675
29. State Of Maharashtra v. Manubhai Pragaji Vashi, AIR 1983 SC 624
30. State of Maharashtra v. Prabhakar, AIR 1966 SC 424.

iv
31. State of Punjab v. Baldev Singh, AIR 1999 SC 2378
32. Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991
33. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
34. Surinder Singh v. State of Punjab , (2005) 7 SCC 387
35. Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355
36. Varkey Joseph v. State of Kerala, AIR 1993 SC 1892
37. Zahira Habibullah. Sheikh v. State of Gujarat, (2004) 4 SCC 158

v
 TABLE OF CONTENTS
DECLARATION ........................................................................................................................ i

CERTIFICATE ..........................................................................................................................ii

ACKNOWLEDGEMENTS ..................................................................................................... iii

TABLE OF CASES .................................................................................................................. iv

CHAPTER I ............................................................................................................................... 1

INTRODUCTION ....................................................................................................................... 1

RESEARCH METHODOLOGY .................................................................................................... 3

Issue ................................................................................................................................... 3

Rationale ............................................................................................................................ 3

Objective ............................................................................................................................ 3

Review of Literature .......................................................................................................... 3

Hypothesis.......................................................................................................................... 4

Nature of Study .................................................................................................................. 4

Sources of Data .................................................................................................................. 4

Contribution ....................................................................................................................... 4

Limitation ........................................................................................................................... 4

Chapterisation .................................................................................................................... 5

CHAPTER II - JUDICIAL ACTIVISM IN INDIA ................................................................ 6

CHAPTER III- EVOLUTION AND GROWTH OF JUDICIAL ACTIVISM ......................... 8

JUDICIAL ACTIVISM FROM 1950 TO 1975 ................................................................................ 8

POST-EMERGENCY ACTIVISM: FUNDAMENTAL RIGHTS .......................................................... 9

CURRENT SCENARIO ............................................................................................................. 10

CHAPTER IV: ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF ACCUSED 11

JUDICIAL INTERVENTION IN ACCUSEDS RIGHTS CASES ....................................................... 12

vi
 VARIOUS RIGHTS OF ACCUSED AS HELD BY SUPREME COURT ........................................... 15

1. In Case of Arrest .......................................................................................................... 15

2. Right to Fair Trial and Investigation ............................................................................ 16

3. Right to Speedy Trial ................................................................................................... 17

4. Right to Bail ................................................................................................................. 19

5. Right to Legal Aid ....................................................................................................... 20

6. Handcuffing of Under Trials ........................................................................................ 21

CONCLUSION ........................................................................................................................ 23

BIBLIOGRAPHY .................................................................................................................... 24

ACTS/STATUTES ................................................................................................................... 24

BOOKS .................................................................................................................................. 24

ARTICLES .............................................................................................................................. 24

INTERNET SOURCES .............................................................................................................. 24

vii
 CHAPTER I

INTRODUCTION
In recent times judiciary has been very active in various facets of life. The concept of Judicial
Activism is another name for innovative interpretation. Judicial Activism implies laying
down priorities policies and programmes and giving direction to execute them when they are
not obligatory and are entirely at the discretion of the executive and legislative or other
authorities. Sometimes it goes beyond its jurisdiction in public interest and interferes with the
working of the independent autonomous authorities. In other words activeness on the part of
the members of judiciary is termed as Judicial Activism.

Webster's Dictionary of Law, Judicial Activism is "the practice in the judiciary of protecting
or expanding individual rights through decisions that depart from established precedent or
are independent of or in opposition to supposed constitutional or legislative intent".

According to Black's Law Dictionary, Judicial Activism is "a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other factors,
to guide their decisions, usually with the suggestion that adherents of this philosophy tend to
find constitutional violations and are willing to ignore precedent."

Judicial Activism involves innovative interpretations of the nuances of law. The pro-active
approach of the judiciary with regard to particular socio economic conditions prevailing in
the country is Judicial Activism.

The role of the judiciary in interpreting existing laws according to the needs of the times and
filling the gaps appears to be the true meaning of Judicial Activism. In other words, it is a
continuous process that helps to advance the cause of law in the wider interest of the public.
In a way, Judicial Activism constitutes an integral part of judicial review.

Over the course of its evolution, Judicial Activism has opened up a new dimension of the
justice delivery mechanism. It has also given renewed hope to the millions of Indians who
seek justice.

The protection of the accused is not a new concept. The landmark in the protection of the
accused and people at large can be traced back down to the Habeas Corpus and Bills of
1
Rights. Then gradually the concepts such as Rule of Law and fair hearing developed. Many
of these concepts are embodied in the broad doctrine of Natural justice.

After Independence protection afforded to an accused in the Indian system should be

appraised within the Constitution and outside. A number of statues catered for the protection
of the Accused and the Suspect. The protections are so important that the law requires the
police to investigate fairly and according to law into offences i.e., according to the broad
principle of fair trial, a procedure to be fair or just must embody the principle of Natural
justice.

Indian law before Independence and afterwards acknowledges the fundamental right of an
accused person to get a fair trial, including the protection related to confession. Fundamental
rights are sacrosanct Individual Freedom is one among the most essential freedoms. It is the
situation of man who should not be arrested, detained, but who should enjoy his liberty of
movement.

2
 RESEARCH METHODOLOGY

Issue
The issue to be dealt in this research is to see how far does the judiciary goes for the
protection of accused rights, and the recognition of various rights of the accused by the
judiciary in India.

Rationale
This research is much needed to understand the limits which the judiciary should not cross
while performing the role of activist so as to maintain the proper separation of power between
the three wings. This research will also help in understanding the need and role of judiciary
for the protection of various rights of an accused.

Objective

To discuss the evolution and growth of judicial activism in India.

To study the current scenario of judicial activism in India.
To analyze the role played by judiciary in protecting various rights of accused.

Review of Literature
MP JAIN INDIAN CONSTITUTIONAL LAW, NAGPUR, LEXIS NEXIS, SIXTH
EDITION, 2012
It talks about various rights recognized by the Indian judiciary and the broad interpretation
which was taken so as to provide more and more benefits to prisoners which they deserved.
Also it refers to various land mark judgements delivered by Supreme Court for the protection
of right of accused.

S.P SATHE, JUDICIAL ACTIVISM IN INDIA, DELHI, OXFORD UNIVERSITY

PRESS, 2002
Judicial activism, argues Prof. Sathe, is inherent in judicial review. It is through judicial
activism that the constitutional Court to an activist one has been as ongoing process. Sathe
tackles the question of the Court's accountability, and the role and the concept of the social
accountability of Courts. The coverage is not only legal, but also historical, political, and
philosophical.

3
P.M BAKSHI, PUBLIC INTEREST LITIGATION, DELHI, ASHOKA LAW HOUSE,
THIRD EDITION, 2012
It talks about the origin and development of rights of accused with the passage of time and
also talks explains various inherent rights of accuse which cannot be taken away in any case.

Hypothesis
The hypothesis on which this research stands is that an accused has legal and constitutional
rights also a mere accusation does not automatically extinguish all legal rights of an accused
person. And there are various rights which can never be taken from any person whether or
not he is an accused or not and also full protection is granted for the same.

Nature of Study
This research project is doctrinal and historical in nature. Since it is largely based on
secondary & electronic source and no empirical method or field research has been done while
making this project. All data has been taken from various books and also some of the articles
which were referred through internet.

Sources of Data
This research project was completed with the help of secondary sources ranging from books,
journals, articles and other online sources and as far as case laws are concerned these cannot
be said to be primary sources since they are not first-hand information or judgement reports
but a modified form found in books or journals.

Contribution
This research will help in understanding the areas where the legislature needs to make
suitable provisions, so that court does not have to interfere with its working. And also the
same would keep the judiciary within the limits. The research would also help a laymen to
understand the significant role played by the judiciary in protecting the rights of an accused
person.

Limitation
The scope of this study has been limited to the role played by judiciary through means of
judicial activism for protecting rights of an accused person in India through its various
landmark judgments.

4
Chapterisation
Chapter I of the projects gives an introduction of the project study and the research
methodology involved and used.
Chapter II of the project introduces and deals with the concept of judicial activism in India.
Chapter III of the projects deals with the evolution and growth of concept of judicial activism
in India. Finally, Chapter IV of the project deals with various Rights of an Accused person in
India which have been protected by Supreme Court through its various landmark decisions in
form of judicial activism.

5
 CHAPTER II - JUDICIAL ACTIVISM IN INDIA

In India Judicial Activism was made possible by PIL (Public Interest Litigation). Before the
Court takes up a matter for adjudication, it must be satisfied that the person who approaches
it has sufficient interest in the matter. It was made so in favour of social action and the Court
accepts its validity and steps in to set things right. Ideologically, such litigation and judicial
intervention born of it has transformed the classical liberal rights model enshrined in the
Constitution into a paradigm provided rights. Undoubtedly, such litigation has provided an
ordinary man an access to the Apex Court of the country.

During the last three decades, judicial activism has played a major role in protecting the
rights and freedoms of individuals, as guaranteed under the constitution. After the landmark
decision in the Maneka Gandhis case1, courts have assumed an activist posture and come
forward to the rescue of aggrieved citizens. In a number of cases, subsequent to the Maneka
Gandhis case, the judiciary interpreted the constitutional provision in its wider possible
meaning to protect basic civil liberties and fundamental rights.

During this period, our judiciary developed the concept of social action litigation and public
interest litigation by discarding the traditional and self-imposed limitations on its own
jurisdiction.

Judicial Activism has been a very frequent and common phenomenon during one and a half
decade. It is said to have been born in India in 1986. Its credit goes to Justice P.N. Bhagwati
who introduced the tradition of hearing on PIL even on a postcard. Justice Bhagwati has
clearly stated, The Supreme Court has adopted a pro-active approach for the last two years,
particularly, having regards to the peculiar socio-economic conditions prevailing in the
country.

Thus, Judicial Activism was born out of a public litigation appeal. Judicial Activism is
developed in each and every aspect of life, including social, economic, political, religious,
educational, etc. Undoubtedly, it has strengthened the faith of masses in the judiciary of the
country

1
Maneka Gandhi v Union of India AIR 1978 SC 597
6
If everyone else is working, we do not have to step in. These words of Justice Verma
clearly define the situation in which Judicial Activism is required. It would not be out of
place to mention that in recent past when there were news of various scams and scandals, the
executive did not take proper action against those bureaucrats and politicians involved in
them. In such situations, the judiciary has to go beyond its jurisdiction to ensure justice and
build public faith in constitutional bodies.

Justice P.B. Sawant, former Justice of the Supreme Court says, It is circumstances which
compel it to intervene and assert its role as the guardian of the law when the law is not
respected by those who ought to enforce it. Thus, it is clear that when the executive is lax or
the legislators lack initiative to mend outdated laws or bring about changes as per the
changing socio-economic conditions, or remain impervious to public pressure to bring about
a change when public interest clashes with the members collective self-interest, the judiciary
is forced to step in as the guardian of the Constitution.

Judicial activism in India has touched almost every aspect of life. Be it the case of bonded
labour, rehabilitation of freed bonded labour, payment of minimum wages, protection of
pavement and slum dwellers, juvenile offenders, child labour, illegal detentions, torture and
maltreatment of woman in police lock-up, the implementation of various provisions of the
constitution, environment problems, the courts took cognizance of each case and laid down
various judgments to protect the basic human rights of each and every member of society.

The Court undertakes a delicate task of reconciling with the changing situations and the
resultant needs. It is the duty of the executive to implement faithfully the laws made by the
legislature. When the executive fails to discharge its obligations, it becomes the primordial
duty of judiciary to compel the executive to perform its lawful functions.

Judicial activism as a benign phenomenon, which is at least within the Indian context is not
only desirable but even necessary. This support for the activism of Supreme Court is caused
by the desire to protect the rights of people. Judicial activism in India has been also called as
an anti majoritarian check on democracy.2

2
http://www.jstor.org/stable/1410775 Judicial Activism in India: Transgressing Borders and Enforcing Rights by
S. P. Sathe
7
 CHAPTER III- EVOLUTION AND GROWTH OF JUDICIAL ACTIVISM

JUDICIAL ACTIVISM FROM 1950 TO 1975

The Supreme Court of India began as a positivist court and strictly followed the traditions of
the British courts. In A.K. Gopalan v. State of Madras3 the Court declined an invitation made
on behalf of the petitioner, Mr. Gopalan, a communist leader who had been detained under a
law of preventive detention, to read the provisions of the Constitution liberally so as to give
effect to the spirit of the Constitution rather than remaining in the confines of its text. The
Court gave a narrow construction to words such as personal liberty and procedure
established by legitimated law contained in Article 21 of the Constitution. In matters of
personal liberty as well as regulation of the economy, the Court observed judicial restraint
and legitimated the actions of the government. Since the Constitution allowed Parliament to
amend the constitution, a decision of the Court could be circumvented.

While on the topic of the right to property the Court was humbled, it had started interpreting
other provisions of the Constitution more meaningfully so as to expand the rights of the
people. In 1962 in Sakal Newspapers (Private) Ltd. V. Union of India4, it held that a law
which prescribed the number of pages, price and space for advertisement of a newspaper
violated the freedom of the press, which was included in freedom of speech guaranteed by
Article 19(1)(a) of the Constitution. The Court held that unlike any other business which
could be regulated in the interest of the general public as provided by Clause (6) of Article
19, the press could be restricted only on the specific grounds given in clause (2) of that
Article, such as the sovereignty and integrity of India, the security of the State, friendly
relations with foreign states, public order, decency or morality or in relation to contempt of
court, defamation, or incitement to an offence. The Court thus inferred the doctrine of
preferred freedoms from the subtle distinction between Clauses (2) and (6) of Article 19.
Similarly, the Court held that affirmative action programs in favour of discriminated classes
of people enjoined by Clause (4) of Article 15 had to complement, and not contradict, the
general provision contained in Article 15(1), which forbade discrimination on grounds such
as religion, race, caste, sex or place of birth. Reserved seats in educational institutions or jobs

3
AIR 1950 SC 27:1950 SCR 88
4
AIR 1962 SC 305, 1962 SCR (3) 842
8
in government service could be reserved for discriminated classes without eliminating the
right to equality. Therefore discriminated status should not be determined on the basis of
caste alone, though it could be one of the factors for such a determination, and the total
number of seats or jobs reserved should not exceed more than half of the total number of
seats or jobs available. This was judicial activism during the sixties.

During the late sixties, the Court seems to have become bolder, and it soon challenged
Parliaments power to amend the Constitution. This brought about a major confrontation
between the Court and Parliament. In 1967, the Court, by a thin majority of 6-5, held in I. C.
Golaknath v State of Punjab,5 that Parliament could not amend the Constitution to take away
or abridge fundamental rights. This decision was severely criticized. Parliament retaliated by
passing the Twenty-Fourth Amendment which explicitly stated that Parliament was not
limited in its power of constitutional amendment. When that amendment was challenged, the
Court, sitting in its largest strength of 13 judges held in Kesavanand Bharati v. State of
Kerala,6 that although Parliament could amend every provision of the Constitution, it could
not alter the basic structure of the Constitution. However, during the 1975 emergency, the
ruling party passed such draconian amendments with the help of its brute majority and
absence of any political opposition that the limitation upon Parliaments power of
constitutional amendment acquired legitimacy. The Supreme Court struck down in Indira
Gandhi v. Raj Narain,7 a constitutional amendment which sought to validate the election of
the Prime Minister, earlier set aside by the Allahabad High Court on some technical ground
deemed destructive of the basic structure of the Constitution.

POST-EMERGENCY ACTIVISM: FUNDAMENTAL RIGHTS

The post emergency period (1977-98) is known as the period of judicial activism because it
was during this period that the Courts jurisprudence blossomed with doctrinal creativity and
innovations. Activism, however, can easily transcend the borders of judicial review and turn
into populism and excessivism. Activism is populism when doctrinal effervescence

5
AIR 1967 SC 1643, 1967 SCR (2) 762
6
AIR 1973 SC 1461
7
AIR1975 SC 865, 1975 SCR (3) 333
9
transcends the institutional capacity of the judiciary to translate the doctrine into reality, and
it is excessivism when a court undertakes responsibilities normally discharged by other co-
ordinate organs of the government.

Post emergency judicial activism grew out of the realization that narrow construction of
Constitutional provisions like Article 21 in A. K. Gopalan v. State of Madras,8 was
contradicting the Courts liberal stance in the basic structure cases. If the Court had
envisioned a more positive role for itself in Indian democracy through the basic structure
doctrine, it could no longer continue to adopt a positivistic role while interpreting other
provisions of the Constitution. Post-emergency judicial activism was probably inspired by the
Courts realization that its elitist social image would not make it strong enough to withstand
the future onslaught of a powerful political establishment. The Court became much more
accessible and its doctrinal law more people oriented. For this, the Court adopted two
strategies: (1) it reinterpreted the provisions for fundamental rights in a more liberal manner
in order to maximize the rights of the people, particularly the disadvantaged; and (2) it
facilitated access to the courts by relaxing its technical rules of locus standi, entertaining
letter petitions or acting suo moto, and developing pro-active public law technology for the
enforcement of human rights.

CURRENT SCENARIO

As in any constitutional democracy, the Supreme Courts primary role is to interpret the
Indian Constitution. However, as in the United States, the line between interpretation of law
and making laws often gets blurred in Supreme Court rulings. The basic structure doctrine,
articulated by the Indian Supreme Court in the landmark Kesavananda case, more about
which later, means that that the Court can nullify any legislation that it thinks runs counter to
the fundamental principles of the Constitution. This seeks to place the Court as the final
arbiter of the Constitution.

In the post-Emergency era, the courts would significantly expand their scope of operation
through the Public Interest Litigation (PIL) revolution from the 1980s. Chief Justice P. N.

8
AIR 1950 SC 27, 1950 SCR 88
10
Bhagwati, who was one of the prime movers behind the idea of PILs, said in a historic
judgment in Bandhua Mukti Morcha v. Union of India9:

Public interest litigation is not in the nature of adversity litigation but it is a challenge and
opportunity to the Government and its officers to make basic human rights meaningful to the
deprived and vulnerable sections of the community and to assure them social and economic
justice, which is the signature tune of our Constitution

In the PIL cases, the Court has allowed a wide range of matters to be heard. Letters addressed
to the Court are entertained as PILs so long as they meet guidelines. The guidelines, as listed
by the Supreme Court, cover a wide range of issues. On the one hand, this has made access to
the courts easier; on the other it has enabled the courts to dramatically expand their powers.
The Courts PIL initiatives have allowed judges to force widespread policy changes and
implementation in a host of areas. Many of these initiatives have been welcomed by the
public and a media fed up with a slow moving and messy political process. Indeed, the
Courts interventions have quite often provided for quick and beneficial remedies.

CHAPTER IV: ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF

ACCUSED

Judiciary in every country has an obligation and a Constitutional role to protect Human
Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to
the superior judiciary namely the Supreme Court of India and High Courts. The Supreme
Court of India is perhaps one of the most active Courts when it comes into the matter of
protection of Human Rights. It has great reputation of independence and credibility. The
independent judicial system stems from the notion of the separation of powers where the
executive, legislature and judiciary form three branches of the government. This separation
and consequent independence is key to the judiciary's effective in upholding the rule of law
and human rights.

The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed
human rights jurisprudence for the preservation and protection of rights of accused to

9
AIR 1984 SC 802, 1984 SCR (2) 67
11
maintain human dignity. Any violation of this right attracts the provisions of Article 14 of the
Constitution, which enshrines right to equality and equal protection of law.

Any excess committed on an accused by the police authorities not only attracts the attention
of the legislature but also of the judiciary. The Indian judiciary, particularly the Supreme
Court, in the recent past, has been very vigilant against violations of the human rights of the
prisoners.

JUDICIAL INTERVENTION IN ACCUSEDS RIGHTS CASES

In the beginning the judiciary has a conservative attitude towards the right to life and
personal liberty and limited its scope to bodily restrains only. In A.K.Gopalan v. State of
Madras10 personal liberty was held to mean liberty of the physical restrains of body only. In
this case, the court held that the expression procedures established by law means procedure
prescribed by the law of the State, if the following conditions are satisfied:

i. There should be a law

ii. Law should be a valid law; and
iii. The procedure laid down by law should be followed.

Court refuses to infuse in that procedure the principles of natural justice. But this restrictive
interpretation of the Article 21 has not been accepted in subsequent cases. It was held that
right to life means something more than mere animal existence.11 The protection guaranteed
under Article 21 extends to all persons, not merely citizens,12 including even persons under
imprisonment. A prisoner has the right to freedom of expression reading and writing except
in so far as it is circumscribed by the fact of imprisonment.13
In Maneka Gandhi v. Union of India,14 the Indian Supreme Court pronounced a landmark
judgment that the procedure contemplated by Article 21 should be in conformity with the
principles of natural justice and it was so, it would be no procedure at all, the requirement of
Article 21 would not be satisfied.

10
AIR. 1950 SC 27
11
Kharak Singh v. State of U.P, AIR 1963 SC 1295
12
Anwar v. State of J&K., AIR 1971 SC 337
13
State of Maharashtra v. Prabhakar, AIR 1966 SC 424.
14
AIR. 1978 SC 597
12
Prior to this decision in 1978, Article 21 was constructed as a guarantee against executive
action unsupported by law, as was held in Gopalan Case. However, Maneka case opened up
new dimensions. A great transformation has come about in the judical attitude towards the
protection of human rights of persons. From Gopalan to Maneka, judicial exploration has
completed its trek from North to South Pole. This process of development of law is so well
illustrated by how from A.K. Gopalan to Maneka Gandhi, it took the Supreme Court of India
more than a quarter of a century to read a new dimension into Article 21 of the Indian
Constitution.

In Maneka Case, the Supreme Court has widened the scope of the words personal liberty and
said the expression personal liberty in Article 21 is of widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of a man and some of them have
been raised to the status of district fundamental rights and given protection under Article 19.
The view of Justice S.R. Das in Gopalans case stood for 28 years until it came to be
overruled by Justice Bhagwatis judgment in Maneka Gandhis case. This Judgment was
largely influenced by the dynamic and creative approach of Justice Bhagwati and agreed by
Justice Chandrachud, Justice Untwalia and Justice Fazal Ali and the judges insisted that the
concept of reasonableness must be projected into the procedure contemplated by Article 21.
In this famous decision which according to many jurists marks a watershed in the history of
the constitutional law of the Country the Supreme Court for the first time took the view that
procedure under Article 21 has to include natural justice.

After Manekas case the right to life has been given an expansive interpretation and the
courts have come down hard in cases of violation of Human Rights. Supreme Court has held
in Sunil Batra v Delhi Administration15 that fetters especially bar fetters shall be shunned as
violative of human dignity. Bart fetters were held violative of human dignity in Charles
Sobraj v Supt. Central Jail16 also. In Nandini Satpathy v P.L. Dani17 the Supreme Court held
than an accused has the right to consult a lawyer during interrogation and that the right not to
make self-incriminatory statements should be widely interpreted to cover the pre-trial stage

15
AIR 1978 SC 1675
16
AIR 1978 SC 1514
17
AIR 1978 SC 1025
13
also. In Haskot v State of Maharashtra18 the Supreme Court held that right to free legal aid is
a fundamental right. Further in Suk Das v Union Territory of Arunachal Pradesh,19 it was
held that failure to provide free legal aid to an accused at state cost, unless refused by the
accused will vitiate the trail.

In Hussainara Khatoon v. State of Bihar20 while considering the plight of the under trails in
Jail, Speedy trial was held to be an integral part of the right to life and liberty contained in
Article 21 of the Constitution of India. In Raj Deo Sharma v. State of Bihar21 the Supreme
Court has issued guidelines for speedy disposal of criminal cases besides its earlier
guidelines. In Kishore Singh v. State of Rajasthan22 Justice Krishna Iyer shows deep concern
regarding police cruelty in the following words:

Nothing is more cowardly and unconscionable than a person in police custody being beaten
up and nothing inflicts a deeper wound on our Constitutional culture than a state official
running berserk regardless of human rights.

Further in D.K. Basu v. State of W.B,23 it was observed by the apex court of India; An
accused has right against any form of torture or cruel or inhumane degrading treatment during
investigation, interrogation or otherwise in respect of a criminal case. Brutalities of police
towards an accused to make confession was held violative of Article 21 of the Indian
Constitution in Kaism Bahi v. State of Gujarat.24 Further it was held that use of third degree
method by police is violative of Article 21.25
Where a person is imprisoned, he does not lose all the fundamental rights belonging to all
persons under Indian Constitution, excepting those which cannot be enjoyed to the fact of
incarceration, such as right to move freely throughout the territory of India26 or to reside and

18
AIR 1978 SC 1548
19
AIR 1986 SC 991
20
AIR 1979 SC 1360
21
AIR 1998 SC 3281
22
AIR 1981 SC 625
23
AIR 1997 SC 610
24
AIR 1980 SC 1232
25
Supra note 22
26
Article 19 (1) (d) of the Constitution of India
14
settle in any part of the territory of India27 and to practice any profession or to carry on any
occupation trade or business.28 Our state cannot bear the title of Honble fraud or glorious
crime committed through its agent. Hence Honble Supreme Court and High Courts have
from time to time passed rules and regulation through case law the mode of arrest, rules and
regulation as to the arrest, treatment as to the person in custody to prevent abuse of police
power, to prevent custodial violence, to prevent death in the custody. These basic rules
restraining the custodial violence leading to custodial death are like Ten Commandments of
the Holy Bible which commands thou shall not kill (Exodus 20:13) has been enunciated in
D.K. Basu v. State of West Bengal29 and includes guarantee against torture and assault by
state or its functionaries any from or torture or cruel, inhumane of degrading treatment which
would fall within the ambit of Article 21 irrespective of its occurrence either during
interrogation or investigation.

Judiciary has now laid down certain guidelines regarding right to bail of an accused. The
grant, refusal or cancellation of bail is a judicial act and has to be performed with judicial
care. Refusal to grant bail even in a murder case without reasonable ground would amount to
deprivation of personal liberty under Article 21 of the Indian Constitution.30

VARIOUS RIGHTS OF ACCUSED AS HELD BY SUPREME COURT

1. In Case of Arrest
In Joginder Kumar v. State of Uttar Pradesh,31 the Apex Court has issued directions
regarding arrest. The Court has emphasised that a police officer may have the power to arrest
but justification for exercising the power is quite another matter.
Arrest can cause incalculable cause to a persons reputation and self esteem. Arrest should
not be made merely on suspicision but only after a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of the complaint and a reasonable as to the

27
Article 19 (1) (e) of the Constitution of India
28
Article 19 (1) (g) of the Constitution of India
29
Supra Note 23
30
Babu Singh v. State of UP, AIR 1978 SC 527
31
AIR 1994 SC 1349
15
persons complicity and even as to the need to effect arrest. The Court has now expressly said
that arrest is not a must in all cases of cognizable offences.32

The arrested man has certain rights, viz., he has a right that a relative/friend of his be
informed about his arrest and the place of his detention; he has a right to consult a lawyer
privately.

2. Right to Fair Trial and Investigation

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 the society. A
conviction resulting from an unfair trial is contrary to our concept of justice.33

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 witness gets
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.34

Right to fair trial in a criminal prosecution is enshrined in Art. 21. For example S.142 the
evidence act does not give power to the prosecution to put leading questions on the material
part of the evidence which a witness intends to give against the accused. To do so infringes
the right of the accused to have a fair trial which is enshrined in Art. 21. This is not a curable
irregularity.35 Right to have a fair trial strictly in terms of the juvenile justice act which would
inn procedural safeguard is a fundamental right of the juvenile.36

Article 21 envisages a fair trial, a fair procedure and a fair investigation. By reason of such a
right alone the appellant was entitled not only to be informed about his fundamental right and
statutory rights .Such right extends not only to actual proceedings in Court but also includes
within its sweep the preceding police investigation as well.37

32
Lal Kamlendra Pratap Singh v. State of Uttar Pradesh, (2009) 4 SCC 437
33
State of Punjab v. Baldev Singh, AIR 1999 SC 2378
34
Zahira Habibullah. Sheikh v. State of Gujarat, (2004) 4 SCC 158
35
Varkey Joseph v. State of Kerala, AIR 1993 SC 1892
36
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551
37
Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104
16
Although free and fair trial is sine qua non of Article 21, the apprehension of denial must
be reasonable and not imaginary. Reasonableness would obviously depend on the facts
and circumstances of a case and their evaluations by the Courts. 38

3. Right to 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
under trial in jail without trial. Nevertheless, the Supreme Court has recognized the same to
be implicit in the spectrum of Art. 21 and has derived the right of an accused to a speedy trial
from Art. 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. In every case, where the right to
speedy trial is alleged to have been infringed, the Court has to perform the balancing act
upon taking into consideration all the attendant circumstances and determine in each case
whether the right to speedy trial has been denied in a given case. The Court noted that the
prosecution had failed to show any exceptional circumstance which could possibly be taken
into consideration for condoning callous and inordinate delay of more than two decades in
investigations and the trial and in particular noted that even till date of the judgment the State
is not sure whether a sanction for prosecuting the appellant is required and if so, whether it
had been granted or not.39

Quick justice is now regarded as sine qua non of Art.21. Inordinately long delay may be
taken as presumptive proof of prejudice. 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
established by law. The procedure so prescribed must ensure a speedy trial for determination
of guilt of such person.40

38
DLF Power Limited v. Central Coalfields Ltd.,(2009) 6 SCC 258
39
Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355
40
Surinder Singh v. State of Punjab, (2005) 7 SCC 387
17
The Supreme Court has observed:

No procedure which does not ensure a reasonably quick trial can be regarded as
reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt
that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and
essential part of the Fundamental Right to life and liberty enshrined in Art. 21.

The Supreme Court has emphasized and re-emphasized this proposition again and again. In
Kartar Singh v. State of Punjab,41 the Court has observed:

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 the actual restraint imposed by arrest and consequent incarceration
and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and
revision so that any possible prejudice that may result from impermissible and avoidable
delay from the time of the commission of the offence till it consummates into a finality, can be
averred.

In Hussainara v. Home Secy. Bihar42 the Supreme Court has emphasized that financial
constraints and priorities in expenditure would not enable the Government to avoid its duty to
ensure speedy trial to the accused.

Thus, seriousness of the offence is not sufficient to oust Art. 21. Where currency notes were
recovered from the appellant in the year 1981 who was caught red-handed but charge-sheet
was filed in 2007 during the pendency of petition filed in 1998 under S. 482 CrPC alleging
undue harassment for eighteen years, the Court held that it was a clear case of violation of
fundamental rights of the accused conferred by Art. 21 and the criminal case was liable to be
quashed.43
Speedy trial is thus an integral and essential part of the Fundamental Right to life and liberty
enshrined in Article 21.44 The Court also said that any accused who is denied this right can

41
AIR 2008 SC 471
42
AIR 1979 SC 1369
43
Vakil Prasad, Supra note 39
44
State of Maharashtra v. Champalal, AIR 1981 SC 1675
18
approach the Supreme Court for the purpose of enforcing the right, and the Court in discharge
of its constitutional obligation has the power to give necessary directions to the government
for securing this right to the accused.

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. 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. Right to speedy trial flowing from Art. 21 encompass all the
stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial.

4. Right to Bail
The Supreme Court has diagnosed the root cause for long pre-trial incarceration to be the
present-day unsatisfactory and irrational rules for bail which insist merely on financial
security from the accused and their sureties. Many of the under trials being poor and indigent
unable to provide any financial security. Consequently, they have to languish in prison
awaiting their trial. I

But incarceration of persons charged with non-bailable offences during pendency of trial
cannot be questioned as violative of Art. 21 since the same are authorized by law.45

The Court has characterised the system of bail in India as antiquated. It is oppressive and
weighted against the poor improvement of the system is very necessary as the Court insists in
Babu Singh v. State Of Uttar Pradesh,46 .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.

The Court has made the constructive suggestion to change legal provisions for bail these
provisions need no longer be based merely on financial sureties but that the other factors
should also be taken into account so that the poor can get their release from the prison during
their trial.

45
Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42
46
AIR 1978 SC 527
19
5. Right to Legal Aid
The Supreme Court has taken a big innovative step forward in humanising 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 has emphasized that the
lawyers services constitute an ingredient of fair procedure to a prisoner who is seeking his
liberation through the Courts procedure. Bhagwati, J., has observed in Hussainara:

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.

The Supreme Court has reiterated this theme of providing legal aid to poor prisoners facing
prison sentences again and again. For example, in Hussainara, 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 Courts process that he should have legal services available to
him.

Providing free legal service to the poor and the needy is an essential element of any
reasonable fair and just procedure.47 The Court has exhorted the central and state
governments to introduce a comprehensive legal service programme in the country.

In support of this suggestion, the Court has also invoked Art.39A which provides for free
legal aid48 and has interpreted Art.21 in the light of Art.39A. Art. 39A lays stress upon legal
justice. Put simply, the directives require the state to provide free legal aid to deserving
people so that justice is not denied to any one merely because of economic disability.

47
Khatri v. State Of Bihar, AIR 1981 SC 928
48
State Of Maharashtra v. Manubhai Pragaji Vashi, AIR 1983 SC 624
20
The Court has emphasized that legal assistance to a poor or indigent accused who is arrested
and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not
only by Art. 39A but also by Arts.14 and 21. In the absence of legal assistance injustice may
result. Every act of injustice corrodes the foundations of democracy. The Court has upheld
the right to free legal aid to be provided to the poor accused persons not in the permissive
sense of Art. 22(1) and its wider amplitude but in the peremptory sense of Art. 21 confined to
prison situations.

In Khatri V. State of Bihar,49 the Supreme Court again emphasized that the state governments
cannot avoid their constitutional obligation to provide free legal service to the poor accused
by pleading financial or administrative inability.

The Court has further explained the question of providing free legal aid to the accused pet-
sons in Sukdas.50 It is an essential ingredient of reasonable, fair and just procedure to a
prisoner who is to seek his liberation through the Courts process that he should have legal
service available to him. Therefore, tree legal assistance at State cost is a Fundamental Right
of a person accused of an offence which may involve jeopardy to his life or personal liberty
and his Fundamental Right is implicit in the requirement of reasonable, fair and just
procedure prescribed by Art. 21.

6. Handcuffing of Under Trials

The Supreme Court has also bestowed its benign attention on questions of maltreatment of
under trials and convicted prisoners. Here the guiding motto of the Court has been:
imprisonment does not ipso facto mean that fundamental rights desert the prisoner.
The Supreme Court has declared in Prem Shankar,51 that hand cuffing is prima facie
inhuman and, therefore, unreasonable is over harsh and the first flush, arbitrary.
Accordingly, the Court has held that a rule requiring every under trial person accused of a
non-bailable offence punishable with more than 3 years prison term to be routinely
handcuffed during transit from prison to Court for trial violates Arts. 14, 19 and 21. To be

49
AIR 1981 SC 928
50
Sukdas v. Union Territory Of Arunachal Pradesh, AIR 1986 SC 991
51
Prem Shankar v. Delhi Administration, AIR 1980 SC 1535
21
consistent with Arts. 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 Art. 21.

The Court declared in Prem Shankar:-

We hereby declare that the rule, regarding a prisoner in transit between prison house and
Court house, is freedom from handcuffs and the exception, under conditions of judicial
supervision we have indicated earlier will be restraints irons to be justified before or after.
We mandate the judicial officer before 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
judgement.

22
 CONCLUSION
This new jurisprudence in the form of Judicial Activism has no doubt, contributed in a great
measure to the well-being of the society. People, in general, now firmly believe that if any
institution or authority acts in a manner, not permitted by the Constitution, the judiciary will
step in to set right the wrong.

However, judiciary has to work within the parameters laid down by the Constitution without
affecting the basic structures of any of the governments organs. Reconciliation of the
permanent value embodied in the Constitution with the transitional and changing
requirements of society must not result in undermining the integrity of the Constitution. Any
attempt leading to such a consequence would destroy the very structure of the constitutional
institutions. Conscious of the primordial fact that the Constitution is the supreme document
the mechanism under which laws must be made and governance of the country carried on, the
judiciary must play its activist role.

To conclude, a review of the decisions of the Indian Judiciary regarding the protection of
Rights of Accused indicates that the judiciary has been playing a role of saviour in situations
where the executive and legislature have failed to address the problems of the people. The
Supreme Court has come forward to take corrective measures and provide necessary
directions to the executive and legislature. From the perusal of the above contribution it is
evident that the Indian Judiciary has been very sensitive and alive to the protection of the
Human Rights of the people. It has, through Judicial Activism forged new tools and devised
new remedies for the purpose of vindicating the most precious of the precious Human Right
to Life and Personal Liberty.

23
 BIBLIOGRAPHY

ACTS/STATUTES

1. Constitution of India, 1950

BOOKS

1. JAIN, M.P. INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS, NAGPUR, SIXTH

EDITION, 2012
2. SATHE, S.P. JUDICIAL ACTIVISM IN INDIA, OXFORD UNIVERSITY PRESS,
DELHI, 2002
3. BAKSHI, P.M. PUBLIC INTEREST LITIGATION, ASHOKA LAW HOUSE,
DELHI, THIRD EDITION, 2012

ARTICLES
1. Judicial Activism in India: Transgressing Borders and Enforcing Rights by S. P. Sathe

INTERNET SOURCES
1. www.manupatra.com
2. www.indikanoon.org
3. http://www.jstor.org/stable/1410775

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