Human rights, Refugee Law And Humanitarian

Law
Assignment on
Rights of the Accused in the Administration of
Justice

SUBMITTED BY:- SUBMITTED TO:-

ZIAUL HAQ Ms. SAMIA KHAN

B.A. LLB (HONS.)

5th SEMESTER

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

 ACKNOWLEDGMENT

Any accomplishment requires the effort of many people and same is true about this

project. This project is a result of collective effort. There are innumerous helping

hands behind it who have guided me on my way.

First and foremost I would like to thank my Human Rights professor for creating

such an opportunity for the students to broaden their frame of skills. It was an

interesting and informative topic and the project helped me in understanding the

topic really well as well as various aspects of RIGHTS OF THE ACCUSED IN

THE ADMINISTRATION OF JUSTICE.I would also like to thank my friends

who helped me in making this project and also the Almighty.

Thanking you

Ziaul Haq
 CONTENTS

1. INTRIDUCTION

2. KEY OBJECT OF MONITORING ADMINISTRATION OF JUSTICE

3. WHO IS AN ACCUSED?

4. RIGHT OF A PERSON TO BE PRODUCED BEFORE THE

MAGISTRATE

5. RIGHT TO BE PRESUMED INNOCENT UNTIL PROVED GUILTY

6. RIGHT AGAINST SELF INCRIMINATION

7. RIGHT TO SPEEDY TRIAL

8. RIGHT TO FAIR TRAIL AND FAIR HEARING

9. RIGHT TO LEGAL AID

10.CONCLUSION

11.BIBLIOGRAPHY
 INTRODUCTION
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.

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 abroad 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
 Human rights are interrelated and interdependent. The violation of one right
will often affect several other rights.

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, thre 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 buton 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.

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

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

3
Dr.S.Krishnamurthy, “Human Rights and the Indian Police”, [Second Edition 1996, RR Publishers Bangalore
560055], at page 30.
would be imposed a greater fine in agraded 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.

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.

An accused person is entitled to the following protection relating to his arrest

andproduction 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 procedure1973,
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

(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

4
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty
according to law
(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.

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 defense.
(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.

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 victim were not thought of. Both accusatorial and inquisitorial
were established with anaim 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.

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.

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

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.
 KEY OBJECTIVES OF MONITORING ADMINISTRATIVE JUSTICE

The existence of administrative justice is a fundamental requirement of a society

based on the rule of law. It signifies a commitment to the principle that the
government, and its administration, must act within the scope of legal authority. It
also signifies the right of private persons to seek legal redress whenever their
rights, liberties or interests are negatively affected when the public administration
exercises its duties in an unlawful or inappropriate manner 5. In such cases,
meaningful redress should be obtainable through the initiation of an administrative
proceeding in a court or tribunal. The court or tribunal should have the power to
exercise judicial review to determine the lawfulness or appropriateness of an
administrative act, or both, and to adopt suitable measures that can be executed
within a reasonable time6. A balance should be struck between the legitimate
interests of all parties, with a view to reviewing the complaint without delay, and
efficient and effective public administration. Guaranteeing judicial review of
administrative acts by a competent and independent court or tribunal that adheres
to international and regional fair trial standards is fundamental to the protection of
human rights and the rule of law.
In the criminal justice field, trial monitoring has become a regular component of
technical assistance and capacity-building within rule of law and human rights
programmes. It has proven to be an important tool to support judicial reform and to
assist states to effectively address outstanding problematic aspects of their justice
systems. Likewise, trial monitoring in administrative disputes may also be
employed as a multidimensional tool serving to improve administrative justice by
ensuring that state legislation and judicial proceedings are in compliance with
international and regional fair trial standards.
Three key objectives of trial monitoring of administrative justice proceedings are
of particular importance and are explained in more detail below:
 improving the quality of justice delivery;
5
“Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration”,
Council of Europe, 20 June 2007, <https://wcd.coe.int/ViewDoc.jsp?id=1155877&Site=CM>.
6
See “Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of
administrative acts”, Council of Europe, 15 December 2004, <https://wcd.coe.int/ViewDoc.jsp?
id=802925&Site=COE>; “Recommendation Rec(2003)16 of the Committee of Ministers to member states on the
execution of administrative and judicial decisions in the field of administrative law”, Council of Europe, 9
September 2003, <https://wcd.coe.int/ViewDoc.jsp?id=65519&Site=CM>.
 supporting new courts and tribunals; and
 raising awareness and understanding among the public and administrative
authorities
Three key objectives of trial monitoring of administrative justice proceedings are
of particular importance and are explained in more detail below:
 improving the quality of justice delivery;
 supporting new courts and tribunals; and
 raising awareness and understanding among the public and administrative
authorities
WHO IS AN ACCUSED?

The term " accused " has not been specifically defined in the code but what we
generally understand is that the accused means the person charged with an
infringement of the law for which he is liable and if convicted then to be punished.
In other words, a person who is charged with the commission of offence. An
offence is defined as an act or omission made punishable by any law for the time
being in force. An accused cannot have similar footing with the convicted person.

In the Bill of Rights Ordinance, 1991 affirms that every accused has a right to be
presumed innocent until his guilt is proved. Thus, the accused person has every
right like other citizen of the country except his curtailment of person liberty in
conformity with laws. The basic difference is that an accusation has been made
against the accused person for violation of law or offence prevalent in the country.
The rights of the accused person are of much concern today.
Belatedly though, it has been observed the blatant and flagrant violation of their
rights in different stages. Under the Indian Constitution Art 20
 No person shall be convicted of any offence except for violation of a law in
force at the time of the commision of the act charged as an offence, nor be
subjected to a penalty greater than that might be inflicted under the law in
force at the time of the commission of the offence.
 No person shall be prosecuted and punished for the same offence more than
once.
 No person accused of any offence shall be compelled to be witness against
himself.
The implication of article Art. 21 of the Constitution of India is that a person could
be deprived of his life or personal liberty only in accordance with procedure
established by law. As per Art. 22 of C.O.I., a person who is arrested for whatever
reason, gets three independent rights. The first is the right to be told or informed
the reasons for the arrest as soon as an arrest is made, the second is the right to be
produced before a Magistrate within 24 hours and the third is the right to be
defended by an advocate of his choice.

The assignment deals with the rights of the accused under four headings:

1. Right Of A Person To Be Produced Before The Magistrate

2. Right To Be Presumed Innocent Until Proved Guilty
3. Right Against Self Incrimination
4. Right To Speedy Trial
5. Right To Fair Trail And Fair Hearing
6. Right to Legal Aid

RIGHT OF A PERSON TO BE PRODUCED BEFORE THE MAGISTRATE

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 by law to exercise judicial power and shall be entitle to trial within a
reasonable time. Inconsonance with Section 56 CrPC7 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.

7
A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions
herein contained as tobail, take or send the person arrested before a Magistrate having jurisdiction in the case, or
before the officer in charge of a police station.
The question, whether the Constitutional provisions regarding arrest and detention
guaranteed under Article 22 of the Constitution could be interpreted in favour of
state action, deviating from the language used, was recently posed in one of the
training courses conducted by this Institute. The question was raised par1icularly
with reference to judgment of Division Bench of the Allahabad in Amarnath and
another v. Union of India 8and others, in which the Bench, although held that the
provisions of Ar1icle 22 (2) including production before nearest Magistrate within
24 hours are imperative, yet observed elsewhere in the judgment that the question
of nearest Magistrate would be relevant only where person arrested and detained is
produced before another Magistrate beyond 24 hours and the benefit of travelling
period is claimed which benefit is available only when production is before
'nearest Magistrate’. The Bench ultimately held that in its view, the detention of
person detained in the interior of District Gonda who was produced before a
Magistrate at Allahabad within 24 hours itself and not before any Magistrate in
any of the intervening Districts, was not vitiated

RIGHT TO BE PRESUMED INNOCENT UNTIL PROVED GUILTY

“Everyone charged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to the law.”9

The presumption of innocence has been accepted as a central safe guard 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-

8
1990 All Cri. A. 634
9
(ICCPR Art. 14(2)
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”.

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.

RIGHT AGAINST SELF INCRIMINATION

Self-incrimination is the act of exposing oneself (generally, by making a statement)

"to an accusation or charge of crime; to involve oneself or another [person] in a
criminal prosecution or the danger thereof 10." Self-incrimination can occur either
directly or indirectly: directly, by means of interrogation where information of a
self-incriminatory nature is disclosed; indirectly, when information of a self-
incriminatory nature is disclosed voluntarily without pressure from another
person.In many legal systems, accused criminals cannot be compelled to
incriminate themselves—they may choose to speak to police or other authorities,
but they cannot be punished for refusing to do so. The precise details of this right
of the accused vary between different countries, and some countries do not
recognize such a right at all.

10
Black's Law Dictionary (5th ed.). 1979. p. 690.
In India, the defendant has the right against self-incrimination, but witnesses are
not given the same right11.

In State of Bombay v. Kathi Kalu12

it was held that the protection is available to a person accused of an offence not
just with respect to the evidence he has to give in a court room or trial but is also
available to him at the previous stage if an accusation has been made against him
which might in the normal course result in his prosecution.

In Nandini Sathpathy v. P L Dani13

V.R Krishna Iyer. J, delivering the judgement of the court held that the prohibitive
sweep of Art 20 (3) goes back to the stage of police interrogation- not commencing
in court only. The ban on self-accusation and the right to silence, while on
investigation or trial under way, goes beyond that case and extends to the accused
in regard to other offences pending or imminent, which may deter him from
voluntary disclosure of incriminatory matter. The phrase compelled testimony has
to be read as evidence procured not merely by physical threats or violence but by
psychic toture, atmospheric pressure, environmental coercion, tiring interrogative
proxility, overbearing and intimidatory methods and the like. However, the legal
penalties that follow for refusal to answer or answer truthfully cannot be
compulsion under Art 20(3).

Followed the position of law in the US after the decision in Miranda case 14, which
extends the right against self-incrimination to police examination and custodial
interrogation and takes in suspects as much as regular accused persons. Held
further that fanciful claims, unreasonable apprehensions, vague possibilities cannot
be the hiding ground for an accused. He is bound to answer where there is no clear
tendency to criminate. The right against self-incrimination is best promoted by
conceding to the accused the right to consult a legal practitioner of his choice

11
http://www.legalserviceindia.com/article/l466-Privilege-Against-Self----Incrimination.html
12
AIR 1961 SC 1808.

13
AIR 1978 SC 1025
14
(1966) 384 US 436
which is guarenteed by Art 22(1). The lawyer’s presence is an assurance of
awareness and observance of the right to self-incrimination.

What is self-incrimination: Answers that would in themselves support a conviction

are confessions, but answers which have a strong tendency to point out the guilt of
the accused are incriminatory.Therfore the right would commence from the time
the person is named in the First Information Report by the police.

In State of Delhi Administration v. Jagjit Singh15,

The question that arose for consideration was whether an approver could be forced
to give evidence . The petitioner and others were accused in connection with
several explosions that killed many people in Delhi. Of the several accused the
petitioner and another, in the course of the investigation turned in favour of the
prosecution and therefore the prosecution made them approvers and they were
granted pardon by the lower court. Subsequently they retracted from their earlier
statements and refused to give evidence. It was held by the Supreme Court that,
once he turned an approver and a pardon is granted to him he ceases to be an
accused and he turns a witness for the prosecution. Therefore, S 306 of the
Criminal Procedure Code requires him to make a full and true disclosure of the
entire circumstances in his knowledge. Therefore he is legally bound to make the
disclosure even if it is incriminatory. Therefore, the argument under 20(3) cannot
be sustained.

In Sharma v. Satish16
It was held that 20(3) is applicable only if the person is being compelled to do a
volitional act. It is applicable only when a compulsory process is issued to him to
produce a document incriminatory, not when a document is seized from him or
recovered from him by a police officer without any volitional act on his part. It was
further held in this case that it is applicable only to statements to be made and not
to any material objects. Thus, a person can be compelled to produce any material

15
AIR 1989 SC 598
16
(1954) SCR 1077
object. Thus, if there is a violation of right under Art 20(3), the court can give
direction for a fresh investigation according to law.

RIGHT TO SPEEDY TRIAL

The right to be tried without undue delay has been expressly recognized by
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

“The constitutional guarantee of speedy trial is an important safeguard to prevent

undue and oppressive incarceration prior to trial; to minimize concern
accompanying public accusation and to limit the possibilities that long delays will
impair the ability of an accused to defend himself”

The right to a speedy trial is first mentioned in that landmark document of English
law, the Magna Carta. The constitutional philosophy propounded as right to speedy
trial has though grown in age by almost two and a half decades, the goal sought to
be achieved is yet a far-off peak. It a concept which deals with speedy disposal of
cases to make the judiciary more effective and to impart justice as fast as possible.
Article 21 declares that “ no person shall be deprived of his life or personal liberty
except according to the procedure laid by law.” Justice Krishna Iyer while dealing
with the bail petition in Babu Singh v. State of UP17, remarked, "Our justice
system even in grave cases, suffers from slow motion syndrome which is lethal to

'fair trial' whatever the ultimate decision. Speedy justice is a component of social
justice since the community, as a whole, is concerned in the criminal being
condignly and finally punished within a reasonable time and the innocent being
absolved from the inordinate ordeal of criminal proceedings." In Sheela Barse v.
Union of India18 court reaffirmed that speedy trial to be fundamental right. Right
to speedy trial is a concept gaining recognition and importance day by day. There
are 3 pillars of social restraint and order in India (1) legislature (2) executive (3)
judiciary .Legislature is an authority which makes the law & Executive takes into
consideration effective implementation of the legislations while judiciary
implements it in practical life. The question is whether is anyone is really serious
and concerned about these problems? With the rapid growth in technological ,
industrial field and population, workload has increased on the judiciary system
which calls for effective and rapid disposal of ever increasing cases but the
effectiveness of the court is hampered badly.

In Hussainara Khatoon v. State of Bihar19 which formed the basis of the concept
of the Speedy Trial, it was held that where undertrial prisoners have been in jail for
duration longer than prescribed, if convicted, their detention in jail is totally
unjustified and in violation to fundamental rights under article 21. Inordinate
delays violates article 21 of the constitution: for more than 11 yrs the trial is
pending without any progress for no faults of the accused-petitioner. Expeditious
rights is a basic right to everybody and cannot be trampled upon unless any of the
parties can be accused of the delay. Delay in trial unnecessarily confers a right
upon the accused to apply for bail. Under sec. 482 read with 483, Cr. P.C lays that
every possible measure to be taken to dispose off the case within 6months from
today. No adjournments to be granted until n unless circumstances are beyond the
control of judiciary. It is the responsibility of the judiciary to keep a check on

17
(1978) 1 SCC 579
18
(1986) 3 SCC
19
(1980) 1 SCC 98
under trial prisoners and bring them to trial. Overcrowded courts, inadequate
resources, fiscal deficiency cannot be the reasons for deprivation of a person. In
cases relating corruption, judiciary should deal with it swiftly and dispose the case
as fast as possible

Fundamental rights are not teasing illusions but are meant to be enforced
effectively. On a no. of matters cases were adjourned or delayed but now the court
has a right to quash the case or the proceedings to meet ends of justice.

In the case Katar Singh v. State of Punjab20 it was declared that right to speedy
trial is an essential part of fundamental right to life and liberty. In the case Abdul
Rahman Antulay v. R.S. Nayak21 , the bench declared certain aspects and
guidelines regarding the speedy trial and quashing of cases should depend upon
nature of the case.

Hence it can be concluded that: Right to speedy trial is right of the accused and it
encompasses all the stages, namely investigation, inquiry, trial, appeal, revision
and retrial.

At the same time it cannot be denied that cases are delayed in the interest of the
defendant. Its rightly said that “delay is known as a defence tactic”. To effectively
implement this right of speedy trial the approach to be adopted by the judiciary
should be a practical one instead of a pedantic one.

Moreover, we cannot give effect to ‘demand rule’ as justice cant de denied or

delayed on the grounds that the litigants did not ask for speedy trials. Hence, the
court has to apply various balance tests and recognize whether the right has been
infringed or not. It is not advisable to fix a period of trial because it will confine
and restrict the judiciary and there will be a burden of swift disposal of cases which
may deteriorate the quality of justice. The right to a speedy trial has been known,
on occasion, to work to the disadvantage of the defendant -- as when sufficient
time is not allowed for preparation of an adequate defense -- and the higher courts
have found it necessary to keep a close eye on this.

20
1994 SCC Cr. 899
21
(1992) 1 SCC 225
 RIGHT TO FAIR TRAIL AND FAIR HEARING

Every person has the right to a fair trial both in civil and in criminal cases, and the
effective protection of all human rights very much depends on the practical
availability at all times of access to competent, independent and impartial courts of
law which can, and will, administer justice fairly. Add to this the professions of
prosecutors and lawyers, each of whom, in his or her own field of competence, is
instrumental in making the right to a fair trial a reality, and we have the legal pillar
of a democratic society respectful of the rule of law.

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 equalbefore 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

The right to a fair trial has been defined in numerous regional and international
human rights instruments. It is one of the most extensive human rights and all
international human rights instruments enshrine it in more than one article. The
right to a fair trial is one of the most litigated human rights and substantial case law
has been established on the interpretation of this human right. Despite variations in
wording and placement of the various fair trial rights, international human rights
instrument define the right to a fair trial in broadly the same terms.22 The aim of the
right is to ensure the proper administration of justice. As a minimum the right to
fair trial includes the following fair trial rights in the right to be heard by a
competent, independent and impartial tribunal

 the right to a public hearing

22
Alfredsson, Gudmundur; Eide, Asbjorn (1999). The Universal Declaration of Human Rights: a common standard
of achievement. Martinus Nijhoff Publishers. p. 225. 
 the right to be heard within a reasonable time
 the right to counsel
 the right to interpretation
States may limit the right to a fair trial or derogate from the fair trial rights only
under circumstances specified in the human rights instruments.23
The right to a fair trial in the United States
In the United States the right to a fair trial is sometimes illusory. For example, the
United States Supreme Court said in Town of Newton v. Rumery 24 that a
prosecutor may threaten a person that he will take or withhold an official act and
prosecute that person for crime (putting that person's life, liberty, or property in
jeopardy) if that person does not sign a piece of paper agreeing to transfer (as in
dispose of) his right to peacefully petition the Courts for a redress of grievances. A
claim for damages in tort is considered to be achose in action, which is a form of
property that is protected by the due process clause of the United States
Constitution. So the accused person disposing of their right to peacefully petition
the Courts is a payment of property that may go to private individuals to influence
an official act. There is no notation on any government books or records of the
transfer of property, the accused did not receive a trial, did not waive their rights to
a trial, nor admit to the facts charged in the dismissed indictment. There is no
hearing in the criminal courts to determine the voluntariness of this transfer of
property, nor is the accused entitled to an appeal.

Indian Law

• The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. (art.14 Constitution)

• For a trial to be fair, it must be an open court trial (s.327 CPC)

• An accused shall be informed that he is entitled to have his case tried by

another court. However, he has no right to select or determine by which other court
the case is to be tried (s.191 CPC)

23
Doebbler, Curtis (2006). Introduction to International Human Rights Law. CD Publishing. p. 108
24
Town of Newton v. Rumery, 480 U.S. 386 (1987)
There are various facets to the right to a fair trial. The Hon’ble Supreme Court in
the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat 25 has held that, “
the principle of fair trial now informs and energizes many areas of the law. It is
reflected in numerous rules and practices.... fair trial obviously would mean a trial
before an impartial Judge, a fair prosecutor and 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.” Most of these
safeguards to ensure a fair trial are contained under the Code of Criminal
Procedure, 1973 which contains and defines the procedure which has to be
followed in criminal cases

Ramchandra Nivrutti Mulak vs. The State of Maharashtra

A right to a fair trial includes the right for legal assistance. This is part of the right
to life enshrined under Article 21 of the Constitution of India

Maneka Gandhi Vs. Union of India (UOI) and Anr26 The Supreme Court has laid
down that personal liberty cannot be cutout or cut down without fair legal
procedure.

25
( 2004) 4 SCC 158
26
AIR 1978 SC 597
RIGHT TO LEGAL AID

Legal Aid implies giving free legal services to the poor and needy who cannot
afford the services of a lawyer for the conduct of a case or a legal proceeding in
any court, tribunal or before an authority. One need not be a litigant to seek aid by
means of legal aid. Legal aid is available to anybody on the road. Justice Blackmun
in Jackson v. Bishop27 says that; "The concept of seeking justice cannot be
equated with the value of dollars. Money plays no role in seeking justice."

Article 39A of the Constitution of India provides that State shall secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and
shall in particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disability. Articles 14 and 22(1) also
make it obligatory for the State to ensure equality before law and a legal system
which promotes justice on a basis of equal opportunity to all. Legal aid strives to
ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice
is made available to the poor, downtrodden and weaker sections of the society.
Sec. 304, Criminal Procedure Code: The Constitutional duty to provide legal aid
arises from the time the accused is produced before the Magistrate for the first time
and continues whenever he is produced for remand.

Since 1952, the Govt. of India also started addressing to the question of legal aid
for the poor in various conferences of Law Ministers and Law Commissions. In
1960, some guidelines were drawn by the Govt. for legal aid schemes. In different
states legal aid schemes were floated through Legal Aid Boards, Societies and Law
Departments. In 1980, a Committee at the national level was constituted to oversee
and supervise legal aid programmes throughout the country under the
Chairmanship of Hon. Mr. Justice P.N. Bhagwati then a Judge of the Supreme
Court of India. This Committee came to be known as CILAS (Committee for

27
PC-AR-0005. Docket / Court, 66-C-64 ( E.D. Ark. ) 
Implementing Legal Aid Schemes) and started monitoring legal aid activities
throughout the country. The introduction of Lok Adalats added a new chapter to
the justice dispensation system of this country and succeeded in providing a
supplementary forum to the litigants for conciliatory settlement of their disputes. In
1987 Legal Services Authorities Act was enacted to give a statutory base to legal
aid programmes throughout the country on a uniform pattern. This Act was finally
enforced on 9th of November 1995 after certain amendments were introduced
therein by the Amendment Act of 1994.

The linkage between Article 21 and the right to free legal aid was forged in the
decision in Hussainara Khatoon v. State of Bihar28 where the court was appalled
at the plight of thousands of undertrials languishing in the jails in Bihar for years
on end without ever being represented by a lawyer. The court declared that "there
can 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 Article 21." The court pointed out that Article 39-A
emphasised that free legal service was an inalienable element of ‘reasonable, fair
and just’ procedure and that the right to free legal services was implicit in the
guarantee of Article 21. In his inimitable style Justice Bhagwati declared:

"Legal aid is really nothing else but equal justice in action. Legal aid is in fact the
delivery system of social justice. If free legal services are not provided to such an
accused, the trial itself may run the risk of being vitiated as contravening Article 21
and we have no doubt that every State Government would try to avoid such a
possible eventuality".

Further Justice Bhagwati held that: "it’s the constitutional right of every accused
person who is unable to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado situation, to have free legal
services provided to him by the State and the State is under a constitutional
mandate to provide a free lawyer to such accused person if the needs of justice so
require. If free legal services are not provided to such an accused, the trial itself

28
AIR 1979 SC 1377
may run the risk of being vitiated as contravening Article 21 and it is hoped that
every State Government would try to avoid such a possible eventuality."

In Khatri & Ors. (II) v. State of Bihar & Ors29. Right to free legal aid, just, fail
and reasonable procedures is a fundamental right (Khatoon’s Case). It is
elementary that the jeopardy to his personal liberty arises as soon as the person is
arrested and is produced before a magistrate for it is at this stage that he gets the
1st opportunity to apply for bail and obtain his release as also to resist remain to
police or jail custody. This is the stage at which and accused person needs
competent legal advice and representation. No procedure can be said to be just, fair
and reasonable which denies legal advice representation to the accused at this
stage. Thus, state is under a constitutional obligation to provide free to aid to the
accused not only at the stage of .... Every individual of the society are entitled as a
matter of prerogative.

In Suk Das v. Union Territory of Arunachal Pradesh 30 and said "It may
therefore now be taken as settled law that free 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 this fundamental right is implicit in the
requirement of reasonable, fair and just procedure prescribed by Article 21." This
part of the narration would be incomplete without referring to the other astute
architect of human rights jurisprudence.

Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra31 , he declared: If a

prisoner sentenced to imprisonment is virtually unable to exercise his
constitutional and statutory right of appeal inclusive of special leave to appeal (to
the Supreme Court) for want of legal assistance, there is implicit in the Court under
Article 142 read with Articles 21 and 39-A of the Constitution, power to assign
counsel for such imprisoned individual ‘for doing complete justice

29
1981) 1 SCC 635

30
1986 2 SCC 401

31
 AIR 1978 SC. 1548
In Indira Gandhi v. Raj Narain32 the Court said:"Rule Of Law is basic structure
of constitution of India. Every individual is guaranteed the its give to him under the
constitution. No one so condemn unheard. Equality of justice. There ought to be a
violation to the fundamental right or prerogatives, or privileges, only then remedy
go to Court of Law. But also at the stage when he first is produced before the
magistrate. In absence of legal aid, trial is vitiated."

In Centre for Legal Research & Anr. v. State of Kerala 33 , Chief Justice
Bhagwati took a step further and laid down norms or guide-lines laid down for
State to follow in giving support and cooperation to voluntary organizations and
social action groups in operating legal aid programmers and organizing legal aid
camps and lok adalats or niti melas.

While delivering the judgment Bhagwati, C.J., stated that the writ petition raised a
question as to whether voluntary organizations or social action groups engaged in
the legal aid programmed should be supported by the State Government and if so
to what extent and under what conditions.

"There can be no doubt that if the legal aid programme is to succeed it must
involve public participation. The State Government undoubtedly has an obligation
under Article 39-A of the Constitution which embodies a directive principle of
State policy to set up a comprehensive and effective legal aid programme in order
to ensure that the operation of the legal system promotes justice on the basis of
equality. But we have no doubt that despite the sense of social commitment which
animates many of our officers in the Administration, no legal aid programme can
succeed in reaching the people if its operations remains confined in the hands of
the Administration. It is absolutely essential that people should be involved in the
legal aid programme because the legal aid programme is not charity or bounty but
it is a social entitlement of the people and those in need of legal assistance cannot
be looked upon as mere beneficiaries of the legal aid programme but they should
be regarded as participants in it. If we want to secure people's participation and
involvement in the legal aid programme, we think the best way of securing it is to
operate through voluntary organizations and social action groups. These

32
1975 AIR 865
33
AIR 1986 SC 1322
organizations are working amongst the deprived and vulnerable sections of the
community at the grass-root level and they know what are the problems and
difficulties encountered by these neglected sections of Indian humanity. It is now
acknowledged throughout the country that the legal aid programme which is
needed for the purpose of reaching social justice to the people cannot afford to
remain confined to the traditional or litigation oriented legal aid programme but it
must, taking into account the socio-economic conditions prevailing in the country,
adopt a more dynamic posture and take within its sweep what we may call strategic
legal aid programme camps, encouragement of public interest litigation and
holding of lok adalats or niti melas for bringing about settlements of disputes
whether pending in courts or outside. The assistance of voluntary agencies and
social action groups must therefore be taken by the State for the purpose of
operating the legal aid programme in its widest and most comprehensive sense, and
this is an obligation which flows directly from Article 39-A of the Constitution. It
is also necessary to lay down norms which should guide the State in lending its
encouragement and support to voluntary organizations and social action groups in
operating legal aid programmes and organizing legal aid camps and lok adalats or
niti melas. We are of the view that the following norms should provide sufficient
guidance to the State in this behalf and we would direct that the State Government
shall, in compliance with its obligations under Article 39-A of the Constitution
extend its cooperation and support to the following categories of voluntary
organizations and social action groups in running the legal aid programme and
organizing legal aid camps and lok adalats or niti melas."
 CONCLUSION

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 ismention below VI.2 Clauses (1) and (2) of Article 22 34
regarding “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
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 Article14 and Article
19(1). Some provisions of the Constitution and Statutory Law have to be, if not

34
(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.
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.

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 one 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
 BIBLIOGRAPHY

1. Baxi Upendra, Right to be Human, 1987

2. Gupta V.K , Prospectives on Human Rights, 1996
3. Bulletins on IHL and Refugee Law published by the Indian Centre for
Humanitarian Law.
4. S.K. Kapoor, Human Rights, 2009