INTRODUCTION
The criminal justice system in India beginning with the year of 1978, marched towards new dimension when the Apex Court held in Maneka Gandhi case[1]that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. Provision of free legal aid to a prisoner who is indigent or disabled from securing legal assistance where the ends of justice call for such service is State's responsibility under Art.21 for securing fair trial.[2] Interpretation of Article 21 reached its hight when the doctrine of minimum rationality was also treated as part of Article 21 by the Supreme Court, when S. 303 of the IPC was struck down saying that it violates Art. 21.[3]
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[1] "Maneka Gandhi v. U.O.I., AIR 1978 S C 597.
[2] "Madhav Hayawadanrao Hoskot v. State of Maharashtra", AIR 1978 SC 1548.
[3] Mithu v. State of Punjab, AIR 1983 SC 473.
2
Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.[1] Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. 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. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.[2] Ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.
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[1] "Rajesh Ranjan Yadav v. CBI", AIR 2007 SC 451.
[2] "Zahira Habibullah Sheikh v. State of Gujarat", AIR 2006 SC 1367.
[3] Afzal Khan v. State of Gujarat, [2007] 9 SCC 387.
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3
The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously.[1] Speedy trial is sine-qua-non of Article 21 of the Constitution but, when grave miscarriage of justice, is committed by the Police , the ground of delay of disposal of cases or otherwise would not scuttle the miscarriage of justice. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[2]
Amendments to the Indian Evidence Act, 1872 , so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned.[3]
The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against bar-fetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, etc.
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[1] "R. D. Upadhaya v. State of A.P.", -AIR 2006 SC 1946.
[2] "Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[3] Law Commission of India , 113th Report.
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4
It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. If, the Court is satisfied for reasons to be recorded that in spite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so, bail may be granted. If an application for enlargement on bail is once rejected, is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.[1] Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1]-"Kalyan Chandra Sarkar v. Rajesh Ranjan" AIR 2005 SC 921.
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A mere perusal of Section 151 of the Cr. P.C. makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Abusing authorities may be punished in case of the violation of the statutory provisions of law. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
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[1]"Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 SC 2115.
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In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[1] This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.[2]
In U.S., it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[3] In India several amendments have been incorporated in Cr. P. C., 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution.
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[1]"Moti Lal Saraf v. State of Jammu and Kashmir", AIR 2007 SC 56.
[2] "Bablu v. State of Rajasthan", AIR 2007 S C 697.
[3] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
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The Supreme Court laid down the principle that when fundamental rights are violated a citizen has right and remedy of seeking compensation in addition to file suit for torturous damages. The defence of sovereign is not available to the State. The repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. If the Police report shows that there is prima facie evidence about suspects and some of his relatives being illegally detained in Police Station and subjected possibly to third degree methods, to extract information regarding the whereabouts of accused, such claims may be exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.[1]
It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Criminal Procedure.[2]
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[1] "Sube Singh v. State of Haryana", AIR 2006 SC 1117. [2]- Ibid.
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Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. It should be borne in mind that every arrest and detention does not lead to custodial torture.[1]
In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.[2]
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[1]"Sube Singh v. State of Haryana", AIR 2006 S C 1117.
[2]- Ibid.
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Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226. [1] A trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined as to whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. 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.[2] The Supreme Court has laid down that rule of law means decisions should be made by application of known principles and rules and in general such decisions should be predictable.
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[1] "Sube Singh v. State of Haryana", AIR 2006 S C1117.
[2]"Zahira H. Sheikh v. State of Gujarat", AIR 2006 SC 1367.
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Main purpose of this research is to highlight the dynamic approach of the Supreme Court of India dealing with criminal justice system by giving new dimension , with the aid of Article 21 of the Constitution of India. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large.
Free legal services to a prisoner who is indigent or disabled from securing legal assistance, fundamental right to individual liberty, ''right, just and fair" procedure, Supreme Court is the custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the change in Indian society, the Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. I tried to highlighted these aspects in this research work.
Speedy trial is sine-qua-non of Article 21 of the Constitution. The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried has to be eliminated. The Supreme Court has awarded compensation against the State in case of an established infringement of a fundamental right under Article 21, by the State agency. All these Principles innovated by the Supreme Court are subject matter of this research work.
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A brief Review of the work already done.
Insignificant number of researchers have shared their contribution in the field of analyzing “ role of the Supreme Court, in Criminal Administration of Justice, with reference to article 21 of the Constitution of India.” Considerable work has been undertaken on the study of Criminal Administration of Justice in general , but negligible work is available exclusively on the role of the Supreme Court, in Criminal Administration of Justice, with reference to article 21 of the Constitution of India.
In fact, much work has already been done by the Supreme Court itself, in the number of its judgments, this researchers work is to be analyzed, arranged, and endeavoured to reach its logical end.
I have collected my study material from various law journals A.I.R., SCC, SCC (Cri), Halsbury's "Laws of England", SCR,
Cri LJ, etc. I have obtained primary data from these journals. This whole research work is based on these judgments reported in these journals. Judgment Information System web site and Indian Kanoon web site both have been of the great helpful to me. There are hues books are available on fundamental rights and on the Constitution of India, but I preferred to obtain related primary and secondary data originally from the reported judgments so as to enable me to form an independent opinion on each point involved in the subject.
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Noteworthy contribution in the field of proposed work.
Speedy trial
The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed in our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision , till it consummates into a finality. Speedy trial is sine-qua-non of Article 21 of the Constitution. [1]
Amendments to the Indian Evidence Act, 1872 , so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period of police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. [2]
The Supreme Court has directed that in order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so
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[1]-"Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[2]- Law Commission of India , 113th Report.
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that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality. The appellant further submitted that repeated filing of challans by the respondents without any sanction had caused immense mental, physical and emotional stress and harassment for more than 26 years. The appellant also sought relief on the ground that it was the right of every citizen to seek speedy trial. Continuation of further proceedings against the appellant is contrary to the basic spirit of Article 21 and consequently, the impugned judgment is liable to be set aside. [1]
In U.S., it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[2]
In India several amendments have been incorporated in Code of Criminal Procedure, 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution. Apex Court has held that speedy trial is a fundamental right under Article 21.
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[1] "Moti Lal Saraf v. State of J. and K.", AIR 2007 S C 56.
[2] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
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Almost 58 years ago, the Supreme Court was inaugurated on 28th of January, 1950. On the morning of the inauguration, the First Attorney General for India, Mr. M.C. Setalvad while welcoming the Judges of the Supreme Court said that :--
"We hope and trust that this Court will play a great and singular role and establish itself in the consciousness of the Indian People."
In his response, the first Chief Justice of the Supreme Court of India, Shri Justice Harilal J. Kania said that this Court will declare and interpret the law of the land, and with the tradition of the judiciary in the country, "it would work in no spirit of formal or barren legalism" and that within the limits prescribed, the Supreme Court would be able to make its substantial contribution.
We have a sense of pride and feel satisfied to note that the Supreme Court has endeavoured to act in harmony with the spirit of the times and values and norms it had set for itself with the aid of Article 21 of the Constitution of India, specially in the administration of criminal justice. The Supreme Court has successfully risen to meet the challenges from time to time in the administration of criminal justice system. Once the Supreme Court has sounded the grim warning that the criminal justice system had been subverted, with witnesses being manipulated and trials being hijacked with judges and "handicapped witnesses" have no protection from the prosecution agencies. This is adversely affecting administration of criminal justice system.
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The speedy trial is an integral part of Article 21 of the Constitution. In the instant case, in the last twenty six years, not even a single prosecution witness had been examined. It was urged that for more than one reasons, the prosecution, in the instant case, cannot be permitted to continue. The proceedings taken by the respondents against the appellant were clearly an abuse of process of law. The Apex Court had repeatedly emphasized that the speedy trial is implicit in the spectrum of Article 21 of the Constitution.
Judge has to play an important role in discharging his judicial function to achieve the ends of justice. For this purpose ample discretionary powers have entrusted with every judge. Justice H. R. Khanna once observed that we need persons on the bench who can weigh things in the balance with supreme impartiality, ....whom nothing can sway, neither mob frenzy, nor the views of the powers that be, persons with resolute hearts, whose allegiance is to justice and to nothing else. Timidity of minds will goes together with the office of a judge. Therefore , in the temple of justice[court] there shall always be vindication of law and the triumph of truth.
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Justice Krishna Iyer 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, is concerned in the criminal being condignly and finally punished within a reasonable time.
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[1] "State (N. C. T. of Delhi) v. Navjot Sandhu", AIR 2005 S C 3820 .
[2] [ Babu Singh v. State of UP,], 1978 Cri LJ 651.
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The Apex Court held in the case of Antulay [1]that the right to a speedy trial was a part of fair, just and reasonable procedure implicit in Article 21 of the Constitution. The Apex Court, in this case, observed that each case had to be decided on its own facts. In this case, the Apex Court further observed that it was not advisable and feasible to fix an outer time limit for conclusion of the criminal proceedings. even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by the Supreme Court in Maneka Gandhi case.[2]
Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release.
The Supreme Court reaffirmed that Right to speedy trial is a concept gaining recognition and importance day by day. [3]
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[1]Abdul Rehman Antulay v. R. S. Nayak (1992) 1 SCC 225.
[2]Maneka Gandhi v. Union of India [(1978) 1 SCC 248].
[3] Sheela Barse v. Union of India, [1993]4 SCC 204.
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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. The Apex Court held that 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 Article 21." In a number of cases, the Apex Court on consideration of peculiar facts and circumstance of individual cases had quashed the proceedings.[1]
The Apex Court quashed the proceedings on the ground that any further continuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank is uncalled for, particularly, in view of the complicated nature of the offence charged.[2]
In an another case the Apex Court, quashed the proceedings on the ground of delay in investigation and commencement of trial. The investigation commenced in November 1976 and the case was registered on completion of the investigation in September 1977. Cognizance was taken by the Court in March 1986.[3]
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[1]"Moti Lal Saraf v. State of Jammu and Kashmir" AIR 2007 SC 56 .
[2] Rakesh Saxena v. State through C.B.I. (1986) Supp. SCC 505.
[3] Srinivas Gopal v. Union Territory of Arunachal Pradesh (1988) 4 SCC 36.
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In the case of A. R. Antulay's (case), the Apex Court gave propositions meant to serve as guidelines. The Apex Court held that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. This Court further observed as under:--
"(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
The concerns underlying the right to speedy trial from the point of view of the accused are:-
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal;
and
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(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death,
disappearance or non-availability of witnesses or otherwise.[1]
The Supreme Court also laid down that the question of delay had to be decided by the Court having regard to the totality of circumstances of an individual case. The Court observed that it must be left to the judicious discretion of the court seized of an individual case to find out from the totality of the circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted.
"The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.
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[1] Abdul Rehman Antulay v. R. S. Nayak (1992) 1 SCC 225.
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"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 averted.
The Supreme Court in Hussainara Khatoon (Ist) [1] further observed as under:--
"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 Article 21. The Apex Court held that no general guideline can be fixed by the court and that each case has to be examined on its own facts and circumstances. It is the bounden duty of the court and the prosecution to prevent delay.
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One of the main reasons for the delay in the cases is the adjournment granted by the court on flimsy grounds. Section 309 of Code of Criminal Procedure (Cr. P.C.) deals with the adjournments and power of the court to postpone the hearing.
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[1] "Hussainara Khotoon v. Home Secretary, State of Bihar, Patna" AIR 1979 S C 1360 .
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The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21." [1] The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.
In case of Motilal saraf[1] the Supreme Court observed that not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed.[2] Delaying justice is equal to the denial of justice. Main purpose of this research is to highlight the dynamic approach of the Supreme Court of India dealing with criminal justice system by giving new dimension to the accused, with the aid of Article 21 of the Constitution of India.
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[1] "Hussainara Khotoon v. Home Secretary, State of Bihar, Patna, AIR 1979 S C 1360.
[2] "Moti Lal Saraf v. State of J. and K.", AIR 2007 S C 56.
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The guidelines laid down in A. R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. [1]
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The paramount purpose of speedy trial is to safeguard the innocents from undue punishments but prolonged pendency has created an unmountable barrier in that.
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[1]-"Balbir Singh v. State of Delhi", AIR 2007 SC 2397.
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The doctrine of confirmation by subsequent events.
Time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21. The only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to the Supreme Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the death sentence will not be just and proper. [1]
Pandit. Jawaharlal Nehru, while addressing members of the Punjab High Court on the inauguration of its new building in Chandigarh, on March 19, 1955, said, that “Justice in India should be simple, speedy and cheap.
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[1]-"Gurmeet Singh v. State of U. P, AIR 2005 S C 3611.
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The Apex Court has also extended the meaning of Articles 14, 19 & 21 of the Constitution of India in case of Jagdish Saran and ors.[1] The Apex Court has expanded the meaning of Article 21 of the Constitution and granted various rights pertaining to personal liberty. A litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon'scase held that it is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.[2] The ideal situation is to have criminal proceedings completed swiftly. But the ideal is far from practical attainment due to a variety of reasons. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceedings. In Seeta Hemchandra Shashittal case[3] the Apex Court made the following observations:--
"This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined in Article 21 of the Constitution.
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The pendency of criminal cases in subordinate courts is around 1.32 crores and the effective strength of judges is 12,177.
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[1] Jagdish Saran and others. v. Union of India (1980) 2 SCC 768.
[2] Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81.
[3] Seeta Hemchandra Shashittal v. State of Maharashtra, [2001] 4 SCC 525.
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Nonetheless the Court has to view it from pragmatic perspectives and the question of delay cannot be considered entirely from an academic angle. In other words, the High Court and this Court, when approached by accused to quash proceedings on the ground of delay, must consider each case on its own facts. Unfortunately the delay has so permeated in our legal system that at all levels tardiness has become the leitmotif. Such a malady has been judicially reprobated and efforts have been made to curtail the delay which has developed as a systemic canker."[1]
An appeal is allowed by the Apex Court where cause of the delay was mostly due to the accused either because they challenged the various orders passed or because they were not present in the Court and hence proceedings could not be continued on many occasions. Causes attributable to the prosecution or even to the Court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings. Apex Court directed the trial Court to proceed with the case and complete the prosecution evidence within six months from the date on which the accused would appear before the trial Court. The accused was instrumental in causing the delay, then so much of the period would be debited from the time-frame fixed by the Court.[2]
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The number of under trials in criminal cases awaiting legal justice in the courts is 1.44 crores. Of these over two lakhs are in prison.
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[1] Seeta Hemchandra Shashittal v. State of Maharashtra, [2001]4 SCC 525.
[2] "State of Bihar v. Baidnath Prasad", AIR 2002 S C 64.
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The doctrine of procedural safeguards.
No person shall be deprived of his life or his personal liberty except according to procedure established by law - declared Article 21 of the Constitution. Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningful. The Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of country in holding the right to speedy trial a manifestation for fair, just and reasonable procedure enshrined in Article 21.
Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial - in short everything commencing with an accusation and expiring with the final verdict - the two being respectively the terminus a quo and terminus ad quem - of the journey which an accused must necessarily undertake once faced with an implication.
================================================================================== On an average, courts are able to dispose off 19 per cent of pending cases every year.
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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. Myriad fact-situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold.[1]
The width of vision cast on Article 21, so as to perceive its broad sweep and content, by seven-Judge Bench of the Apex Court in Mrs. Maneka Gandhi [2] , inspired a declaration of law, made on February 12, 1979 in Hussainara Khatoon and Ors. (1) v. Home Secretary, [3] that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty, except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just", and therefrom flows, without doubt, the right to speedy trial.
___________________________________________________________________________
[1]-"P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
[2]-Maneka Gandhi v. Union of India and Anr., (1978) 1 SCC 248.
[3]- Hussainara Khatoon and Ors. (1) v. Home Secretary, State of Bihar (1980) 1 SCC 81.
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The doctrine of reasonableness and non-arbitrariness.
The Court said - "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 Article 21". Many accused persons tormented by unduly lengthy trial in any forum whatsoever were enabled, by Hussainara Khatoon (I)[1] statement of law, in successfully maintaining petitions of quashing of charges, criminal proceedings and/or conviction, on making out a case of violation of Article 21 of the Constitution. Right to speedy trial and fair procedure has passed through several milestones on the path of constitutional jurisprudence. In Maneka Gandhi[2], the Apex Court held that fundamental rights guaranteed by Part III required to be read as components of one integral whole and not as separate channels. The reasonableness of law and procedure, to withstand the test of Articles 21, 19 and 14, must be right and just and fair and not arbitrary, fanciful or oppressive, meaning thereby that speedy trial must be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21.
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The accumulation of vacancies in the benches =140 against the approved strength of 668 judges in high courts.
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[1] Hussainara Khatoon and Ors.(1) v. Home Secretary, State of Bihar (1980) 1 SCC 81.
[2] Maneka Gandhi v. Union of India and Anr., (1978) 1 SCC 248.
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Several cases marking the trend and development of law applying Maneka Gandhi and Hussainara Khatoon (I) principles to myriad situations came up for the consideration of the Apex Court by a Constitution Bench in (A.R. Antulay). [1] The proponents of right to speedy trial strongly urged before this Court for taking one step forward in the direction and prescribing time limits beyond which no criminal proceeding should be allowed to go on, advocating that unless this was done, Maneka Gandhi and Hussainara Khatoon (I) exposition of Article 21 would remain a mere illusion and a platitude.
Invoking of the constitutional jurisdiction of this Court so as to judicially forge two termini and lay down periods of limitation applicable like a mathematical formula, beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one something less than other fundamental rights guaranteed by the Constitution. The right to speedy trial flowing from Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance of the proceeding will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the Court should extend the same principle to major offences as well. It was also urged that a period of 10 years calculated from the date of registration of crime should be placed as an outer limit wherein shall be counted the time taken by the investigation.
30
The Constitution Bench, in A.R. Antulay's case,the Supreme Court, formulated certain propositions, 11 in number, meant to serve as guidelines. Suffice it to state that in the opinion of the Constitution Bench that:--
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial;
(iii) who is responsible for the delay and what factors have contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on - what is called the systemic delays must be kept in view,
(iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his advantage. Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
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[1] Abdul Rehman Antulay and ors. v. R.S. Nayak and Ors. [1992] 1 SCC 225.
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Where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case.
It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that nor fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
The speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask - speedy means, how speedy? How long a delay is too long?
32
The Supreme Court has rightly observed that “We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular courts, means of communication and several other circumstances have to be kept in mind". It is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. Apart from Article 21of the Constitution, courts in India have been cognizance of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders".
The Apex Court held that for two reasons we hold such bars of limitation uncalled for and impermissible: first, because it tantamount to impermissible legislation - an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy.[1] Hence, the Apex Court has not found it appropriate not to fix any particular time limit to decide cases.
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Accumulation of vacancies in subordinate courts is 2000 against 15000 sanctioned posts As on January 2005.
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By way of Judicial reforms and e-governance, aim of speedy justice may be achieved.
Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.
Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973.The dictum in A.R. Antulay's case is correct and still holds the field. The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial.[1]
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[1]- "P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
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The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I)[1], Raj Deo Sharma Case (I) [2]and Raj Deo Sharma (II) [3] and it could not have been so prescribed or drawn and are not good law. At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. The Apex court observed that It is the constitutional obligation of the State to dispense speedily justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21. [4]
[1]-Common Cause v. Union of India, AIR 1996 SC 1619.
[2]-Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281.
[3]-Raj Deo Sharma v. State of Bihar, AIR 1999 SC 3524.
[4]-"P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
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It is the constitutional obligation of the State to dispense speedily justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system.[1]
In case of “I. R. Coelho” the Apex Court held that-- “Article 21 is the heart of the Constitution.”[2]
Where an offence is punishable with imprisonment up to seven years, mere fact that investigation of offences consumed a period of four years, cannot be a ground to quash criminal proceedings pending against appellants. The Supreme Court has also keep in mind social ordering hence denied to quash criminal proceedings pending against appellants. Court has to maintain balance between social ordering and personal liberty.
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Now “Plea- Bargaining” has been introduced as one of the important tools for importing speed justice. Lok Adalats have also become effective tools in compromising cases.
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[1] "P. Ramachandra Rao v. State of Karnataka",AIR 2002 SC 1856.
[2] “I. R. Coelho v. State of T. N.” , [2007]2 SCC 1.
[3] "Seeta Hemchandra Shashittal v. State of Maharashtra", AIR 2001 SC 1246 .
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This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined in Article 21 of the Constitution. Nonetheless the Apex Court is of the view that the question of delay cannot be considered entirely from an academic angle. The Court must consider each case on its own facts. Unfortunately the delay has so permeated in our legal system that at all levels tardiness has become the leitmotif. Such a malady has been judicially reprobated and efforts have been made to curtail the delay which has developed as a systemic canker. For the first time the Code of Criminal Procedure provided periods for completing investigation in regard to offences punishable with sentences up to imprisonment not exceeding three years. Provisions have been incorporated in Chapter 36 of the Code imposing a legal bar on the Court to take cognizance of such offences after the lapse of the period of limitation fixed in respect of different categories of offences the punishment of which does not exceed the aforesaid limit. However, the offences relating to corruption were among those excluded from the purview of such periods of limitation.
Section 258, and 309 contemplates speedy trial.
Trial courts must frame charges timely so as to begin trials without delay. After recording evidence for the prosecution courts must have to got examine the accused without further delay.
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Total pending cases in the Supreme Court were 30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore.
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The Supreme Court has considered the facts and observed that we have to analysis this case to find out whether the delay involved in the investigation have impaired the fundamental rights of the appellants which is enshrined in Article 21 of the Constitution. Viewing the investigation in this case from a realistic angle it has spread over to a period of four years i.e. from June, 1986 to July, 1990. The Assistant Commissioner of Police attached to the ACB who has sworn to an affidavit before the High Court in answer to the averment contained in the writ petition, has stated that the case involved voluminous records as well as a large number of properties which are situated at various places and that hundreds of documents regarding shares, debentures, fixed deposits and receipts pertaining to hundreds of companies were also to be scrutinized. According to him such a heavy work turned out to be a time consuming job........The offence alleged against the appellant is punishable with imprisonment up to seven years. These aspects were highlighted by us for the purpose of satisfying ourselves that criminal proceedings pending against the appellants cannot be quashed on the mere ground that the investigation consumed a period of four years.[1]
Unreasonably long delay in investigation and trial violates right of speedy trial under Art. 21 of the Constitution, but court should look at the matter with a realistic and practical approach having regard to the each case. Court held that period of 2 years taken by Govt. is not unreasonably long so as to violet Art. 21.
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[1]- "Seeta Hemchandra Shashittal v. State of Maharashtra", AIR 2001 SC 1246.
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Speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. [1]
Some causes of delaying justice.
a) Inadequate number of judges in the country is one of the major reasons for delaying justice. It is for the Governments to increase the strength of judges and courts vacancies are not being filled up timely. At present the country's 21 High Courts have a combined strength of 725 judges; but there are 128 vacancies. The High courts are handling an overwhelming 34,00,000 cases and the shortage of judges is only delaying the decision of cases. In India there are only 10 - 12 judges per 10 lacks of people, while in U.S.A., there are 60 - 70 judges per 10 lacks of people, and 40 - 50 judges in U.K.
( b) Another reason is the incompetence and inefficiency of judges and advocates. Good quality of judgments also prevents multiplicity of unnecessary litigations.
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[1]- "Akhtari Bi v. State of M. P.", AIR 2001 S C 1528.
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(c) Adjournment by the lawyers is another reason behind delay. Some lawyers take adjournment unnecessarily to harass opposite parties and to extract money from clients. Some of them cause delay by continuing meaningless argument day after day. In Government cases, adjournment are freely sought to file affidavit because the offices of the Advocate General, the Attorney General and Solicitors General to the Central and State Governments are inadequately staffed and equipped. However, the habit of taking adjournment by lawyers day after day, poses a serious threat to the entire judiciary, which is losing faith in the justice delivery system.
(d) Hasty and incomplete amendment of laws is another reason behind delay. It kills valuable time of courts. Recent amendments in, C. P. C. and Cr. P. C. with a view to speedy justice is appreciable. But legislators are not paying due attention towards amendments and new legislations. Good crop of bad legislations is also a breeding ground for multiplicity of unnecessary litigations.
(e) Absence of Accused & non compliance of process by Police , Absence of Accused, Incomplete Details of Accused's & Wittiness in Charge Sheet, Huge pendency in courts, Frequent strike by Advocates, Lack of Infrastructure in courts, Insufficient staff, Holidays & Leaves, are some causes behind delaying criminal justice.
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(f) Absence of work culture in the courts is another reason behind the delaying justice. Judge wants to do work, but lack of infrastructure, non co operation of lawyers, lack of adequate staff affecting work causing delay in dispensation of justice.
Suggestions for speedy justice
It is unfortunate that even from the existing strength of the High Courts and subordinate courts huge vacancies for the post of judges are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the Constitution to fill up the vacancies, it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Appeal being a statutory right, the trial Court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.
Government has to place special emphasis on professionalism in investigation and prosecution as well protection to citizens.
Computerization of courts, providing infrastructure and staff,
filling up vacancies of the judges at all level are necessary for proper administration of justice delivery system.
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Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. If an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.
When witnesses are present in Court for examination the advocate concerned has a duty to see that their examination is conducted. Witnesses who come to the Court, on being called by the Court, do so as they have no other option, and such witnesses are also responsible citizens who have other work to attend for eking out livelihood. They cannot be treated as less respectables to be told to come again and again just to suit the convenience of the advocate concerned. If the advocate has any unavoidable inconvenience it is his duty to make other arrangements for examining the witnesses who is present in Court.
Seeking adjournments for postponing the examination of witnesses who are present in Court even without making other arrangements for examining such witnesses is a dereliction of advocates duty to the Court as that would cause much harassment and hardship to the witnesses. Such dereliction if repeated would amount to misconduct of the advocate concerned.
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Legal profession must be purified from the abuses of the Court procedures. Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Bar Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored.
In a case of Corruption the FIR was sought to be quashed mainly on the ground that despite expiry of over 12 years, the respondent-State had not granted the sanction which amounted to the violation of his right of life and liberty as enshrined in Article 21 of the Constitution of India. The petition, filed by the appellant, was dismissed by the Supreme Court holding that the order impugned on the ground that mere delay in granting the sanction has not prejudiced the appellant in any manner particularly when he is already on anticipatory bail.[1]
In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society.
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[1]-"Mahendra Lal Das v. State of Bihar", AIR 2001 SC 2989 .
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As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a lever to pressurise and harass the accused as is alleged to have been done to the appellant in this case. Such delay should be avoided by monitoring each case by superior authorities.
The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of Code of Criminal Procedure. Such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. [1]
The inordinate, unexplained and negligent delay in pronouncing the judgment is stated to be contrary to the maxim "Actus Curiae Neminem Gravabit", that an act of the Court shall prejudice none. The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the judiciary, we have decided to consider this aspect and to give appropriate directions.
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[1]- "Anil Rai v. State of Bihar", AIR 2001 S C 3173.
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The judgments must be pronounced in time and time should be prescribed for pronouncement of judgment. It has been held time and again that justice should not only be done but should also appear to have been done. Similarly whereas justice delayed is justice denied, justice withheld is even worst than that. Once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgment, no excuse can be found to further delay for adjudication of the rights of the parties, particularly when it affects any of their rights conferred by the Constitution under Part- III. Unreasonable delay in delivery of a judgment unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. Justice, must not only be done but must\ manifestly appear to be done."
The Supreme Court in various cases [1] has in unambiguous terms, held that "the right of speedy trial to be part of Article 21 of the Constitution of India". For the High Courts, no period for pronouncement of judgment is contemplated either under the Civil Procedure Code or the Criminal Procedure Code, but as the pronouncement of the judgment is a part of justice dispensation system, it has to be without delay.
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[1]-Hussainara Khatoon v. Home Secretary, State of Bihar, ( 1980) 1 SCC 81, Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98, A. R. Antulay v. R. S. Nayak, (1992) 1 SCC 225, Kartar Singh v. State of Punjab, (1994) 3 SCC 569, Raj Deo Sharma v. State of Bihar, ( 1998) 7 SCC 507, Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604 and Akhtari Bi v. State of M.P., (2001) 4 SCC 355.
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In a country like ours where people consider the judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, sometime genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the Rule of Law. For the fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted justice.
In conference of Chief Ministers and Chief Justices of High Courts, held at New Delhi, on 8th April, 2007, the Prime Minister remarked the most important issue is that of “Pendency” and backlog of cases in courts. It is a matter of concern that there are huge arrears of more than 2.5 crores of cases in courts. Over 2/3rd of these are criminal cases. Unless the rate of disposal improves, the backlog would keep mounting. An important factor causing pendency is number of vacancies that presently remain unfilled in the subordinate judiciary. Courts can consider more than one shift. Fast Track Courts are another answer to speedy justice and eliminating pendency of huge cases. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, plea bargaining procedure must be utilised as a better option for quick disposal of cases. In fact, the untiring service of fear and flavorless Indian judiciary is doing commendable job under odd circumstances.
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Some of the remedies that can ensure speedy justice
Cutting down the number of adjournments, reducing the time for arguments, keeping a check on review petitions/ frivolous petitions, stopping lawyers extending cases and so on.
Punishments should be very stringent and the implementing authorities should be tough so that crime comes down automatically.
Lawyers should encourage out of court settlements/Compromise.
In case a lawyer looses a certain number of cases, his license should be suspended for sometime so that lawyers refrain from taking up frivolous cases.
Government officials should be made personally liable for lapses so that cases against the government are reduced.
While the problem of delay looks daunting, it can be dealt with, by having more fast track courts, making judicial services more attractive thereby attracting good lawyers and filling up all vacancies at various courts. We should also not resort to extra-ordinary speed of cases by whatever means. While justice delayed is justice denied, similarly, ‘justice hurried is justice buried’. Therefore, sufficient, reasonable and due hearing of every cases with consideration of its circumstances is the necessary requirement of natural justice and balance of convenience.
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An Indian court Chandigarh has delivered a guilty verdict within ten days of murder charges being framed, a record speed for delivering justice in a nation known for prolonged judicial delays. A district court in northern India found Sunil Kumar guilty of brutally killing his wife, Kiran on February 17 after just three hearings. Kumar was convicted on the basis of the statement of his eight-year-old son, who said he saw his father hitting his mother with a rod. The case drew front-page attention in national newspapers because the Indian judicial system is notoriously slow and cases go on for years; decades in worst cases.
Take, for instance, the cinema hall tragedy in the national capital over a decade ago. In 1997, the famous Uphaar Cinema in a posh south Delhi neighbourhood caught fire broke due to a short circuit leaving 59 people dead and 103 injured. It took 10 years before a trial court pronounced judgment, convicting 12 people, including the owners of the theater, millionaire brothers Sushil and Gopal Ansal, for negligence, causing death and not ensuring safety of the theater. The long delays in dispensing justice have seriously eroded the faith of the public in the country's legal system. Many say that only fools approach courts as the only beneficiaries are the lawyers.
The Asian Legal Resource Centre (ALRC), a non-governmental organisation, in a written statement to the National Human Rights Commission, said: “A decade of waiting is not much time in deciding a case in India. It is equally applicable to civil and criminal trials.”
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According to former Law Minister HR Bharadwaj, the Supreme Court has approximately 48,800 pending cases while the High Courts across the country have a backlog of nearly 3.9 million cases. " Supreme Court lawyer and leading civil rights activist Prashant Bhushan said. "This country only lives under the illusion that there is a judicial system."
Law Minister, H. R. Bharadwaj attributed 29 reasons for the huge backlog of cases, including long-winded judgments, un-punctual judges and vacancies. "We are grappling with the problem of pendency. I have no power to tell a judge to write a short judgment or this or that," he said, adding, "A judge and his judicial conviction determines a judgment. I can't whisper in his ear. A judge is left to function on his own."
With pressure mounting for speedy justice, the government has initiated various steps, including setting up of fast-track courts; evening courts, 'Lok Adalats', or courts set up by legal services committees to amicably settle cases between two parties, and conciliation and mediation centers. While these measures have helped to some extent in the speedy disposal of justice, they have still not made a dent on the huge backlog of cases because of thousands of new cases being filed every day. In that background, the Chandigarh judge has indeed set a record. It is a ray of hope for thousands of victims and a warning for those who exploit the loopholes in criminal justice system," a local criminal lawyer NK Nanda, was quoted as saying in The Times of India. But more such speedy judgments are needed if people's faith in the country's judicial system is to be restored.
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Where has Article 21’s guarantee of speedy justice gone?
The slow paced judicial system has become a matter of serious national concern. We are today seeing justice in slow motion. The tragedy of the system is that the slow process itself punishes all those who come in contact with it – the winner as well as the loser.
The Supreme court through its pronouncements have endeavoured for speedy justice, and specially in criminal cases the case should be decided as early as possible, in some states, the honb’le high courts seeks the figures of cases in which charge sheet was sent to court and the trial has not commenced within 6 months, but just see the reality i guess it takes at least 6 months to frame charges against the accused, and then go on years together for the trial, by then either witness die or turn hostile, we becomes helpless due o mounting pendency.
Of course there is need for speedy trial of the cases. But casting liability on the Judges only is not a good approach towards the solution. The judge is the only person who generally does not make any delay. But he can't help to change the mindset of others. If the concern authorities make some rules and discipline for all others, the problem will definitely be vanished.
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In Delhi and in some other States evening courts are functioning for cheque bounce cases and Summary cases and officers are assigned duties for this in rotation to work from 5 to 7 p. m.
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The Supreme Court has held in Raghubir Singh's case [1] that speedy trial is one of the dimensions of fundamental right to life and liberty under article 21.
Delay Leads To Mental Anguish: In hussainara khatoon v. State of Bihar which formed the basis of the concept of the Speedy Trial, it was held that where under trial 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.
In the case P. Ram Chandra Rao v. State of Karnataka , the court overruled decision of Raj Deo Sharma and common cause and held that no time bound direction for completing a trial can be issued by a High Court. (III) Article 21 Of The Constitution. Though there are no specific provisions for speedy trial, by judicial interpretation, the Supreme Court has held article 21 of the constitution confers the right on the accused. Cases relating to corruption are to be dealt with swiftly, promptly and without delay.
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The doctrine of procedural safeguards.
The negative image of the police in the mind of the ordinary citizen is due to the high incidence of arbitrary arrests and custodial abuse – even for minor offences. More often than not, it is poorer people who are more likely to be arrested, detained and mistreated – even in the course of routine investigations. Independent studies indicate that up to 60% of arrests made in our country are needless since the detained persons do not prove to be useful for the purpose of investigation or trial. Such a state of affairs exists even though the D.K. Basu judgment laid down clear guidelines to regulate powers of arrest and detention. [1]
However, undue delays in investigations, framing of charges and the conduct of trials is another problem where the blame is to be shared by the judiciary. These delays of course contribute to an increase in the population of ‘under-trials’ who face additional risks arising out of contact with hardened criminals, while in custody.
The Supreme Court has also passed some orders laying down the conditions under which a Station House Officer (S.H.O.) has an obligation to file a FIR and conduct a prompt investigation.[2]
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[1] D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
[2] Prakash Singh v. Union of India, [2006]3 SCC (Cri.) 417.
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52
Custodial death, Custodial violence/ Compensation
The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.[1]
Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation.
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[1]-"Sadashio Mundaji Bhalerao v. State of Maharashtra", AIR 2007S C 1028.
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53
Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.[1]
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Custodial torture often figures in the news these days. It is a serious violation of human dignity which can destroy the personality of any individual. Torture ruins the victim both physically and mentally. They remain in a state of perpetual fear and
horror whenever they remember their custodial agony.
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[1] "Sube Singh v. State of Haryana", AIR 2006 SC 1117.
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54
"Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available...... Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.......... The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case....., often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."[1]
Custodial violence, perhaps one of the worst crimes in a civilized society, is a matter of concern for many reasons. Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the executive should not only be derived from law but also that they should be limited by law.
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[1] State of M. P. v. Shyamsunder Trivedi - 1995 (4) SCC 262.
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55
Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, Government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.
The quality of a nation’s civilization can be largely measured by the methods it uses in enforcing criminal law. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurrences. Following steps, if taken, may prove to be effective preventive measures :--
a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.
b) The functioning of lower level Police Officers should be continuously monitored by their superiors to prevent custodial violence and adherence to lawful methods of investigation.
56
c) Compliance with the eleven requirements enumerated in D. K. Basu [1], should be ensured in all cases of arrest and detention.
d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.
e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.
f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.
The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc. Relief is granted by ordering an inquiry by the CBI and ensuring that the Police Officers named are prosecuted. [2] "D. K. Basu” [1] and "Sube Singh[2]cases are the landmark judgments of the Supreme Court of India.
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[1]-"D. K. Basu v. State of W.B.", AIR 1997 S C 610.
[2] "Sube Singh v. State of Haryana", AIR 2006 S C 1117.
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57
Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.[1]
The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at time even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. Tortures in police custody, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The law of arrests is one of balancing individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other.
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[1]- "Munshi Singh Gautam v. State of M. P.", AIR 2005 SC 402.
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58
The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading; towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve.
Though Sections 330 and 331 of the Indian Penal Code, 1860 make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are.
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Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished.
The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed.[1]
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[1]- "Munshi Singh Gautam v. State of M. P.", AIR 2005 SC 402.
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Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.[2]
Establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the Courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society.
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[2]"Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble", AIR 2003 SC 4567.
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Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law into themselves.
Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with. But at the same time there seems to be disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the Courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in hand is unique case in the sense that complainant filed a complaint alleging custodial torture while the accused alleged false implication because of oblique motives.
62
It is a case where it is really difficult to separate the grain from the chaff. If really there was merciless beatings with such brutal force that a hockey stick broke and the beating was given for more than one hour, the result would not have been 16 simple injuries with no fractures or internal rupture. There is another vital factor which corrodes complainant' plea. If the condition of the accused was so severe that he was not able to even stand on 15-10-1983 morning as claimed, it is not explained as to how the Magistrate who granted bail did not notice the condition or how even no grievance was made by the deceased before him. There is a requirement under Section 54 of the Code which deals with a right of an arrested person to bring to the notice of the Court about torture or assault. The provision provides for an explanation of an arrested person by medical practitioner at the request of the arrested person and it is a right conferred on the arrested person. [1]
Custodial violence, perhaps one of the worst crimes in a civilized society, is a matter of concern for many reasons. Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the executive should not only be derived from law but also that they should be limited by law. It is further aggravated by the fact that persons who are supposed to be protectors of citizens, themselves commit violations of human rights.
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[1]- "Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, AIR 2003 S C 4567.
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63
Though justice is depicted to be blind, as popularly said it is only a veil not to see who is the party before it while enforcing law and administrating justice and not to ignore or turn the mind/attention of the Court from the cause or lis before it, in disregard of its duty to prevent injustice being done. When an ordinary citizen makes a grievance against the mighty
administration, any indifference, inaction or slumber will tend to
paralyse by such inaction or lethargic action of the Courts and erode in stages the faith, ultimately destroying the justice itself.
Doing justice is the paramount consideration and that duty cannot be abdicated or diverted by manipulative red herrings. The Apex Court consider this to be a fit case for exercise of its special jurisdiction under Art. 142 of the Constitution. The Apex Court directed the State Government to pay compensation of Rs. 1,00,000/- to the mother and the children of the deceased. We are not granting any compensation to the widow because she appears to have remarried. A sum of Rs. 25,000/- be given to the mother and balance to the children. The amounts are to be paid kept in fixed deposit, and only the interest shall be allowed to be drawn by the mother and the children. If the children are minors, the fixed deposit shall be made in their names through a proper legal guardian till they attain majority. This amount of compensation shall not preclude the affected person(s) from bringing a suit to recover appropriate damages from the State Government and its erring officials if such a remedy is available in law. [1]
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[1] "Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, AIR 2003 SC 4567.
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The Supreme Court had noticed that in many cases the arrested persons are not aware of the right, and on account of ignorance are unable to exercise that right even though they have been tortured or mal-treated by the police in lock up, a direction was given to the Magistrates requiring them to inform the arrested persons about this right in case he has any complaint of any torture or maltreatment in police custody. This apparently was not done by the deceased and it is a serious flaw to the complainant version. It is not the case of the complainant that such a grievance was made and the Magistrate did not take note of it. [1]
The Supreme Court directed to the State of Orissa to pay a sum of Rs. 1,50,000/- as compensation to the appellant, who was the mother of the deceased, who was the victim of a custodial death. "adverting to the grant of relief to the heirs of a victim of a custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in Private Law indeed is available to the aggrieved party. [2]
The Supreme Court innovated principle that to undo the wrong done and give judicial redress for legal injury to the victim is a compulsion on judicial conscience.
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[1]- Sheela Barse v. State of Maharashtra, 1983 (2) SCC 96.
[2]- Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 .
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65
The Supreme Court has held in para 33 of the judgment[1] that the primary source of the Public Law proceedings stems from the prerogative writs and the Courts have, therefore, to evolve 'new tools' to give relief in Public Law by moulding it according to the situation with a view to preserve and protect the Rule of Law. The Supreme Court held that it is appropriate, in the circumstances, to order the State of Uttar Pradesh to pay to the petitioners compensation for the death of Rishipal in the sum of Rupees five lakhs within three months. The sum shall be invested by the petitioners and the income thereof shall be so distributed that at least half is utilised for the benefit of Rishipal's children during the period of their minority. This direction to pay compensation shall be without prejudice to the rights of the legal representatives of Rishipal to claim compensation in private law proceedings.[1]
The Supreme Court has crystallised the judicial right to compensation, in cases of custodial violence which was later reaffirmed in D.K. Basu’s[2] case. In that case the apex Court had observed that since compensation was being directed by the courts to be paid by the State, the reservation to clause 9(5) of International Covenant on Civil and Political Rights (ICCPR) by the Government of India had lost its relevance. !n fact, the sentencing policy of the judiciary in torture-related cases against erring officials in India has become very strict.
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[1]-"Ajab Singh v. State of U.P., AIR 2000 S C 3421.
[2] "D. K. Basu v. State of W.B.", AIR 1997 S C 610.
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Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be jealously and scrupulously protected. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenu and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by laws.[1]
For an established breach of fundamental rights, compensation can now be awarded in the exercise of public law jurisdiction by the Supreme Court and High Courts in addition to private legal remedy for tortuous action and punishment to the wrongdoer under criminal law. To undo the wrong done and give judicial redress for legal injury to the victim is a compulsion on judicial conscience.
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[1]-"D. K. Basu v. State of W.B.", AIR 1997 S C 610.
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"It is axiomatice that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. The Apex Court clarified that the award of this compensation, will not affect any other liability of the respondents or any other persons flowing from the custodial death of petitioner's son Suman Behera. The Supreme Court directed that the State of Orissa would take the necessary further action in this behalf, to ascertain and fix the responsibility of the individuals responsible for the custodial death of Suman Behera, and also take all available appropriate actions against each of them, including their prosecution for the offence committed thereby." [1]
While making an award for compensatory damages in proceedings other than through private law remedies, it is not the harm suffered by an individual which is an issue, it is the quality of conduct committed by the delinquent upon which attention must be focused. The delinquent should pay a sum which marks the society’s condemnation of his behaviour and which is of sufficient significance to punish it effectively.
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[1]-Neelabati Bahera v. State of Orissa, (1993) 2 SCC 746.
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The doctrine of State immunity.
The award of compensation in proceedings under Articles 32 or 226 is a remedy available in public law. The Supreme Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of Court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was awarded. Award of monetary compensation for custodial death lifting the State immunity from the purview of public law. It is therefore, settled law that in public law claim for compensation is a remedy available under Articles 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law. [1]
Award of exemplary and punitive damages can be made only to provide recompense to the party for conduct which requires condemnation by the courts. These are not aimed at compensating the victim or his heirs but to punish the delinquent for his high-handed disregard of the victims’ rights.
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[1]- Rudul Sah v. State of Bihar, 1983(3) SCR 508.
69
A letter dated 14-9-1988 sent to the Supreme Court by Smt. Nilabati Behera was treated as a Writ Petition under Art. 32 of the Constitution for determining the claim of compensation made therein consequent upon the death of petitioner's son Suman Behera, aged about 22 years, in police custody. The said Suman Behera was taken from his home in police custody on 1-12-1987 by respondent No.6, Sarat Chandra Barik, A.S.I. Police of Jaraikela Police, in Orissa, in connection with the investigation of an offence of theft. On 2-12-1987, the petitioner came to know that the dead body of her son was found on the railway track near a bridge at some distance from the Jaraikela railway station.
There were multiple injuries on the body of Suman Behera when it was found and obviously his death was unnatural, caused by those injuries. It is alleged that it is a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted to him while he was in police custody; and thereafter his dead body was thrown on the railway track. The prayer made in the petition is for award of compensation to the petitioner, the mother of Suman Behera, for contravention of the fundamental right to life guaranteed under Art. 21 of the Constitution. Indeed, no amount of compensation can revive a physical frame battered and shattered by torture but it would be some solace to the victim or his heirs if the courts express the society’s intolerable behaviour of the tormentor and award compensation as a recompense. The State should be made liable to pay the compensation initially with its right to recover it from the delinquent so that the victims or their heirs are not left to the mercy of the tormentor to recover the amount of compensation.
70
The learned District Judge reached the conclusion that it is a case of custodial death and Suman Behera died as a result of the injuries inflicted to him while he was in police custody. The Supreme Court reached the same conclusion on a reappraisal of the evidence adduced at the inquiry taking into account the circumstances. The learned Additional Solicitor General urged that it is not a case of custodial death but of death of Suman Behera caused by injuries sustained by him in a train accident, after he had managed to escape from police custody by chewing off the rope with which he had been tied for being detained at the Police Outpost. instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort, the Apex Court thought it proper in the present case, on the finding reached, that it is a clear case for award of compensation to the petitioner for the custodial death of her son. Art. 32, which itself is a fundamental right, imposes a constitutional obligation on the Supreme Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enables the award of monetary compensation in appropriate cases.[1]
Indeed, no amount of compensation can revive a physical frame battered and shattered by torture but it would be some solace to the victim or his heirs if the courts express the society’s intolerable behaviour of the tormentor and award compensation as a recompense.
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[1]-Neelabati Bahera v. State of Orissa, (1993) 2 SCC 746.
71
Where a girl was in Police Custody and a writ petition for Habeas Corpus was filed in the Supreme Court. It was held by the Supreme Court that at the time the petition was moved, the girl was in Police custody. She has since been released. But, we are afraid, this cannot be the end of the matter. The writ petition shall continue as one for qualified habeas corpus for examining the legality of the detention for determining whether the petitioner is entitled to be compensated for the illegal detention as a public law remedy for violation of her fundamental rights under Article 21 of the Constitution, quite apart from criminal or civil liability which may be pursued in the ordinary course.[1]
The writ petition alleged that in the State of Manipur, two persons with some persons were just seized from a hut and taken away to a long distance by the Police and were shot there. It was directed by the Supreme Court that In such cases award of compensation is a remedy available in public law based on strict liability for contravention of fundamental rights. Rupees one lakh be given as compensation to the families of each of the deceased. The same be paid by Government of Manipur. The petitioners shall be entitled to the costs of writ petition.
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[1] Arvinder Singh Bagga Vs. State of UP and Others,
(1995) Supp (3) SCC 716.
[2] People’s Union for Civil Liberties Vs. Union of Indian and
Another, (1997) 3 SCC 433.
72
The State should be made liable to pay the compensation initially with its right to recover it from the delinquent so that the victims or their heirs are not left to the mercy of the tormentor to recover the amount of compensation awarded by the courts. Though illegal detention and custodial torture were recognized as violations of the fundamental rights of life and liberty guaranteed under Article 21, only the following reliefs were being granted in writ petitions under Article 32 or 226 :----
a) direction to set at liberty the person detained, if the complaint was one of illegal detention.
b) direction to the concerned Government to hold an inquiry and take action against the officers responsible for the violation.
c) If the inquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation.
Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades.[1]The State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. [2]
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[1]-"Sube Singh v. State of Haryana", AIR 2006 S C 1117.
[2]- Rudul Sah v. State of Bihar [1983 (4) SCC 141.
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Compensation
The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. "[1] Let us hope that in coming years, custodial crimes would decline until altogether eliminated. If human dignity survives, the future has hope. In D. K. Basu case, [2] the Apex Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. The Apex Court held that:--
"Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society.
[1] Nilabati Behera v. State of Orissa , [1993 (2) SCC 746]. [2] D. K. Basu v. State of West Bengal [1997]1 SCC 416.
74
The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh's case more than two decades back seems to have fallen to deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in number of cases by the Supreme Court seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody. [1] Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues.
[1] Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and Ors. (1995 (3) SCC 600), Inder Singh v. State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision in D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) .
75
The obligations of the State in the Indian Constitution to protect and help victims of violation of human rights can be culled from Article 21. Article 21 has been construed widely by the Supreme Court. Directive principles of the State Policy contained in Part IV of the Constitution, to the extent of directing the State to help citizens to maintain and safeguard their life with human dignity, have been read into Article 21.
Victims who suffer by crime or abuse of power are deprived of the normal quality of enjoyment of life and sometimes face threat to their well being and safety. All victims have a right to seek help and protection from the State as their fundamental right included in Article 21 which guarantees to every person protection of his “life and personal liberty”.
The Universal Declaration of Human Rights, as the basic document adopted by the United Nations Organisation in 1948, recognises right of every individual to all human freedoms and a life with dignity. It is therefore the moral and legal obligation of the State not only to refrain from interference with these freedoms but it is also its duty to facilitate the individual to realise such freedoms by lawful means. The Supreme Court pressed into service Article 9(5) of ICCPR which provides for right to compensation for victims of unlawful arrest or detention.
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[1] Nilabati Behera v. State of Orissa 1993 SCC (Cri) 527.
76
Doctrine of private defence.
The main reason for its partial failure is overemphasis in court proceedings on the right of the defence of the accused, being his constitutional right under Articles 20, 21 and 22 of the Constitution. Right to private defence is also an importante legal right of an accused and covered under right to fair trial.
A child of nine years died because of being battered by a police officer. The Supreme Court again held that the state is liable to pay compensation in case of police atrocities and accordingly it directed the government to pay Rs. 75,000 as compensation to the mother of victim, and it shall not be affected any other remedy available for tort. [1]
Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed.[2]
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[1] Saheli v. Commissioner of police, Delhi, AIR 1990 SC 513.
[2] "Munshi Singh Gautam v. State of M. P.", AIR 2005 SC 402.
77
Arrest
Mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. But without reasonable ground no one should be arrested.
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[1]-AIR 2005 SUPREME COURT 2115 "Ahmed Noormohmed Bhatii v. State of Gujarat".
78
Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered...."[2]
Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1] "Ahmed Noormohmed Bhatii v. State of Gujarat" AIR 2005 S C 2115.
[2] Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
79
The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India.
The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
80
In D.K. Basu case[1] the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
-------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
81
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
82
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.[1]
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[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
83
Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1)
and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. It is the requirement of law that it should try to promote both peace of the society and personal liberty to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.
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[1]"Munshi Singh Gautam v. State of M. P.", AIR 2005 S C 402.
84
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
Lord Denning observed that :--
"A man's liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds."[1]
The above observation has been quoted with approval by a Constitution Bench decision of the Supreme Court in Maneka Gandhi case.[2] This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen.
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[1] Ghani vs. Jones (1970) 1 Q.B. 693 (709).
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597 .
85
Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States.
In case where the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the Benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The Supreme Court in “State of Haryana and Ors. v. Dinesh Kumar's case[1] held that the said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest.
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Maharashtra Chief Minister Vilasrao Deshmukh said that the decision to arrest Maharashtra Navnirman Sena (MNS) chief Raj Thackeray was not a sudden decision and that nobody was above the law. Oct., 21, 2008.
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[1] State of Haryana v. Dinesh Kumar, AIR 2008 S C 1083.
[2] Roshan Beevi's case, 1984 Cri LJ 134 (Mad) (FB).(Overruled) 86
In order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Halsbury's "Laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99. Meaning of arrest.- Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion."
The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by the Supreme Court in State of Uttar Pradesh vs. Deomen's case wherein it was inter alia observed as follows:-
"Section 46, Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police. -------------------------------------------------------------------------------
[1]Halsbury's "Laws of England"; [ Vol.11 of the 4th Edition ].
[2]State of Uttar Pradesh vs. Deomen, (AIR 1960 SC 1125).
87
When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also the Supreme Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately.
The decision of the Supreme Court in Niranjan Singh's case
held that Custody, in the context of S. 439, means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.[1]
In Delhi, total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the % of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89%, in A. P. it is 36.59%.[2]
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[1]Niranjan Singh vs. Prabhakar (AIR 1980 SC 785).
[2] The Law Commission of India, 177th report on “Arrest”.
88
Large number of arrests are being made under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant.
Under Article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses (1) and (2) of Art. 22 afford protection in the matter of arrest and detention in certain cases. Clauses (4), (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they deal with life and personal liberty. The intention was to make Art. 22 self-contained in respect of laws on the subject of preventive detention. If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in Art. 22 about the precise scope of the limitation subject to which such a law could be made.Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty.[1]
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[1] "Kavalappara Kottarathil Kochuni v. State of Madras",AIR 1960 SC 1080.
89
Person whose control is taken over by law, whether by an officer with coercive power or on voluntary surrender before Court , is amounts to in custody , as regards to criminal proceedings, for the purpose S.46 and S.439,of Criminal P.C. (2 of 1974).[1] Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [2]
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. "Rudul Sah case was followed in Bhim Singh [3] and Peoples' Union for Democratic Rights.[4] The increasing powers of the police and the absence of systems of accountability necessitate constant monitoring of torture, executions, disappearances, and indiscriminate firing and mass arrests as means of intimidating non-violent movements. -------------------------------------------------------------------------------
[1] "State of Haryana v. Dinesh Kumar", AIR 2008 S C 1083.
[2] "Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 S C 3820.
[3] Bhim Singh v. State of J and K [1985] (4) SCC 677.
[4] P.U.D.R. v. Police Commissioner, Delhi, [1993]2 SCC 746.
90
Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Human dignity is a dear value of our Constitution not to be bartered away for the mere apprehensions entertained by jail officials. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person, including a foreigner.
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[1]-"Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
91
Personal liberty
It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law.[1]
In U.S., it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[2] Such rights are discussed in the International Covenant on Civil and Political Rights (ICCPR) as well. There are three provisions which cover rights of the arrestees, namely Articles 9, 10 and 11. [3]
Our Constitution has guaranteed every citizen of India certain rights and safeguards which the State should uphold for every citizen of the sovereign India. Article 21 of the Constitution which reads:--
“ No person should be deprived of his life or personal liberty except according to procedure established by law.” -------------------------------------------------------------------------------
[1] Kalyan Chand Sarkar v. Rajesh Ranjan, AIR 2005 SC 921.
[2] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
[3] See http://www.unhchr.ch/html/menu3/b/a_ccpr.htm .
92
In India several amendments have been incorporated in Cr. P. C., 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution. Personal liberty is a constitutional guarantee. However, Art. 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Art. 21 since the same is authorised by law. Guarantee conferred on person/accused under Art. 21 would not entitle aggrieved person to make successive bail applications on similar ground already rejected by Courts earlier including Apex Court.
Art. 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. The human life has its charm with personal liberty and there is no reason why the life should not be enjoyed along with all permissible pleasures, and equal protection of law by the State.
In the Bhagalpur Blinding case, the Apex Court, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed.
93
"If life or personal liberty is violated otherwise than in accordance with such procedure, why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.?" The question was expanded in Bhagalpur Blinding case Khatri (IV) thus:--
"If an officer of the State acting in his official capacity threatens to deprive of personal liberty, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation.[1]
The unnecessary incarceration of undertrials in jails is another disturbing feature of our criminal judicial system. The decisions of the Supreme Court and High Courts and the reports of the National Police Commission say that a majority of the inmates of jail are undertrials. Many of them languish in jails because they are not able to either move for bail or to furnish the bail prescribed by the court, because of poverty. Some undertrials have been kept in jails for periods longer than the maximum period for which they could have been sentenced had they been found guilty of the offence with which they were charged.
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[1]-[Khatri (II) v. State of Bihar - 1981 (1) SCC 627].
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Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. [1]
Though Article 21 is worded in negative terms, it is well-established now that it has both a negative and an affirmative dimension. A Constitution Bench of the Supreme Court examined the content of the expression ‘personal liberty’ in Article 21.[2]
a broader meaning to the word “life” in the fifth and fourteenth amendments to the US constitution, which correspond inter
alia to Article 21 of our Constitution.
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[1] "Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
[2] Kharak Singh v. State of U.P., 1964 1 SCR 332.
95
Article 21 is not confined to citizens alone. In view of the clear mandate of Article 21 that no person shall be deprived of his life or personal liberty except according to procedure established by law, there has to be a fair procedure for expulsion of foreigners. Right to life enshrined in Article 21 of the Constitution as interpreted in its wide sweep by the constitutional Courts of the country and the cases pertaining to the personal liberty of persons were heard in a very wide perspective centering around Article 21 of the Constitution. Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled by repeated pronouncements of the Apex Court as also the High Courts that right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. Indian Judicial opinion has been uniform in recognizing right to live in freedom from illegal torture as a fundamental right protected by Article 21 of the Constitution.
Apex Court has expanded the meaning of Article 21 of the Constitution and granted various rights pertaining to personal liberty. The Apex Court has granted equal protection of law while dealing with cases relating to personal liberty of the accused guaranteed by the Article 21 of the Constitution. Upon the aforesaid conclusion arrived at by the Apex Court of the land, further detention of non-appealing accused, by virtue of judgment rendered by the High Court upholding his conviction, being without any authority of law, infringes upon right to personal liberty guaranteed to the citizen as enshrined under Article 21.
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The Supreme Court has observed that in our view, in cases, akin to the present one, where there is either a flagrant violation of mandatory provision of any statute or any provision of the Constitution, it is not that this Court has a discretion to exercise its suo-motu power but a duty is enjoined upon it to exercise the same by setting right the illegality in the judgment of the High Court as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allowing the illegality to be perpetuated. In view of the foregoing discussion, The Apex Court held that accused Balwinder Singh alias Binder is also entitled to be extended the same benefit which was granted in favour of the appellant, by exercising its suo-motu power.[1]
The effect of Maneka Gandhi is to import the concept of ‘due process of law’ from the American Constitution into our jurisprudence. Be that as it may, the fact remains that procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful, oppressive and that a procedure which does not satisfy the said test would be violative of Article 21. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.” [2]
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[1] "Pawan Kumar v. State of Haryana", -AIR 2003 S C 2987.
[2] Maneka Gandhi v. Union of India (1978)1 SCC 24.
97
Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty was an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence.[1]
An order under Section 438 is a device to secure the personal liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. [2]
The question is, whether any remedy is available to a person who has been subjected to an unjustified or unlawful arrest?
The answer is: Theoretically yes, but practically none.
-------------------------------------------------------------------------------
[1] "Shakila Abdul Gafar Khan v. V. R. Dhoble", AIR2003 SC 4567.
[2]"Naresh Kumar Yadav v. Ravindra Kumar", AIR 2008 S C 218.
98
Preventive justice requires an action to be taken to prevent apprehended objectionable activities. [1] But at the same time, a person's greatest of human freedoms, i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. Fundamental right guaranteed under Article 21 of Constitution of India,inter alia, provides that none shall be deprived of his life without due process of law. [2]
The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised Countries. In our Constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.[3]
===============================================
The victims were invariably poor. Several of them hauled in on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly large number of cases they were all accused of petty offences .
-------------------------------------------------------------------------------
[1]-"Union of India v. Paul Manickam",AIR 2003 S C 4622.
[2]- Rex v. Hallidey (1917 AC 260).
[3] "Roy V. D. v. State of Kerala"AIR 2001 S C 137.
99
Article 21 of the Constitution which declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The paramount object of Article 21 is to prevent the encroachment of the right of a person with respect to his life and liberty, save in accordance with the procedure established by law and in conformity with the provisions thereof. Personal liberty envisaged under this Article21 means freedom from physical restraint of a person by incarceration or otherwise.[1]
Constitution the Bench of the Supreme Court observed that--
"Having regard to the importance of the safeguard of a representation under Article 22(5) for protection of the right to personal liberty guaranteed under Article 21 of the Constitution, this Court has repeatedly emphasised the need for expeditious consideration of the representation submitted by a detenu and has insisted that the representation must be disposed with a sense of urgency without avoidable delay. The appropriate Government would not be justified in postponing the consideration of the representation while the matter is pending consideration before the Advisory Board.”[2]
The Supreme Court has clearly held that: Even convicts, prisoners and under trials have right under Article 21, and only such restrictions can be imposed as permitted by Law. The majority of people are denied of their rights.
-------------------------------------------------------------------------------
[1]-"J.K. Ltd., M/s. v. Bharti Matha Mishra", AIR 2001 S C 649.
[2] Mossa Husein Sanghar v. State of Gujarat, AIR 1994 SC 1479.
100
The object of Article 21 is to prevent encroachment upon personal liberty by the Executive save in accordance with law, and in conformity with the provisions thereof. It is, therefore, imperative that before person is deprived of his life or personal liberty, the procedure established by law must strictly be followed and must not be departed from, to the disadvantage of the person affected. In each case where a person complains of the deprivation of his life or personal liberty, the court, in exercise of its constitutional power of judicial review, has to decide whether there is a law authorising such deprivation and whether in the given case, the procedure prescribed by such law is reasonable, fair and just, and not arbitrary, whimsical and fanciful.
On account of liberal interpretation of the words 'life' and 'liberty' in Article 21, the said Article has now come to be invoked almost as a residuary right, even to an extent which the founding fathers of the Constitution never dreamt of. In a country like ours, if an accused is alleged to have deceived millions of countrymen, who have invested their entire life's saving in such fictitious and frivolous companies promoted by the accused and when thousands of cases are pending against an accused in different parts of the country, can an accused at all complain of infraction of Article 21, on the ground that he is not being able to be released out of jail custody in view of different production warrants by the Court and the production of accused in Court, in cases where he is involved is a procedure established by law and consequently, the accused cannot be permitted to make a complain of infraction of his rights under Article 21.
101
It would be a misplaced sympathy of the Court on such white-collared accused persons whose acts of commission and omission has ruined a vast majority of poor citizens of this country. Though we agree that in a given case, Court may be justified in directing release of the accused, taking a stock of the entire situation in the case. [1]
Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. [2]
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society.
-------------------------------------------------------------------------------
[1] "Narinderjit Singh Sahni v. Union of India", AIR 2001 SUPREME COURT 3810.
[2] "Inder Mohan Goswami v. State of Uttaranchal", AIR 2008 SUPREME COURT 251.
102
Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any strait-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.
103
Protection of life
In the light of Article 21 of the Constitution of India, several amendments have been incorporated in Cr. P. C., 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution.
Presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles.[1]
In a criminal trial where a person is prosecuted and punished for commission of a crime and may thus be deprived of his life or liberty, it is not enough that he is prosecuted in accordance with the procedure prescribed by law but the procedure should be such which is just, fair and reasonable. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. In our Constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.[2]
-------------------------------------------------------------------------------
[1] Narendra Singh and another v. State of M.P., (2004) 10 SCC 699.
[2] "Roy V. D. v. State of Kerala"AIR 2001 S C 137.
104
The principle of just, reasonable, and fair can have no application in the matter of identification of a foreigner and his deportation, he is not being deprived of his life or personal liberty. The deportation proceedings are not proceedings for prosecution where a man may be convicted or sentenced. The Foreigners Act and the Foreigners (Tribunals) Order, 1964 are applicable to whole of India and even to the State of Assam for identification of foreigners who have entered Assam between 1st January, 1966 and 24th March, 1971 in view of the language used in Section 6-A of Citizenship Act. It is, therefore, not open to Union of India or State of Assam or for that matter anyone to contend that the procedure prescribed in the aforesaid enactment is not just, fair and reasonable and thus violative of Article 21 of the Constitution. The Apex Court held that the procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision.[1]
Art. 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living.
Constitution of India-Article 21 is the sole repository of rights to life and liberty against the State. [2]
-------------------------------------------------------------------------------
[1] "Sarbananda Sonowal v. Union of India", AIR 2005 SC 2920.
[2] A.D.M. Jabalpur v. Shivakant Shukla, [1976]2 SCC 521.
105
The human life has its charm with personal liberty and there is no reason why the life should not be enjoyed along with all permissible pleasures, and equal protection of law by the State. Articles 21 and 22(1) of the Constitution, enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [1]
The privilege against the self-incrimination was expressly protected by the V amendment of the U.S. Constitution. It provides, as Article 20(3) of Indian Constitution provides, that no person . . . . . . "shall be compelled in any criminal case to be a witness against himself". Such privilege lies at the heart of the concept of a fair procedure and such norm is now recognized to be an international standard. The V amendment also guarantees a right akin to Article 21 of our Constitution by enjoining that no person shall be deprived of life, liberty or property without due process of law.
Right to privacy is an essential component of the right to life but is not absolute and may be restricted for prevention of crime, disorder or protection of rights and freedom of others.[2]
-------------------------------------------------------------------------------
[1]-"Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 SUPREME COURT 3820.
[2] 'X' v. Hospital 'Z', [1998] 8 SCC 296. (para 28).
106
Article 21 of the constitution of India declares that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The heading of the said Article is “Protection of life and personal liberty”. Article 20 contains three guarantees, namely:--
(a) not to be convicted of an offence which was not in force or punishable at the time of the commission of the offence,
(b) not to be prosecuted or punished for the same offence more than once and
(c)not to be compelled to be a witness against himself. These are all the rights guaranteed to a person accused of an offence. Clause (1) of Article 22 declares that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice”. Clause (2) of Article 22 is indeed more fundamental. It says “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”. This is expansion of the protection of life guaranteed under Article 21 of the Constitution.
107
Another notable safeguard to the accused is to be found in the VI amendment which inter alia provides that in a criminal prosecution, the accused shall have the assistance of counsel for his defence. The safeguard is substantially similar to Article 22(1) of the Indian Constitution. It is in the context of exposition of these constitutional provisions that the U.S. Supreme Court handed down the significant ruling in Miranda. The core principles underscored in Miranda have withstood the judicial scrutiny in the subsequent rulings, though the strait-jacketed warning procedures and the effect of technical non-compliance of Miranda procedures evoked critical comments and set a process of debate.
Prior to Miranda ruling, confessions were only required to meet the 'voluntariness' test. In the post Miranda era, police have to prove that they read specific Miranda warnings and obtained an 'intelligent waiver'. The proposition laid down in the majority opinion in Miranda case was that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination". To ensure that the exercise of the right will be scrupulously honoured, the Court laid down:--
"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a Court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
108
Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him". [1]
Protection of life and liberty under article 21 covers the right against solitary confinement [2], the right against bar fetters [3], the right against handcuffing [4], the right against delayed execution [5]the right against custodial violence [6], the right against public hanging [7], right to legal aid [8], right to speedy trial [9], right to consult lawyer [10], right to personal liberty[11]
-------------------------------------------------------------------------------[1]"State (N.C.T. of Delhi) v. Navjot Sandhu"-AIR 2005 SC 3820.
[2] Sunil Batra v. Delhi Administration, [1978]4 SCC 494.
[3] Charls Sobraj v. Supdt. Central Jail, New Delhi,AIR 1978 SC 1514.
[4] Prem Shankar Shukla v. Delhi Admn., AIR 1980 SC 1535.
[5] Vatheeswaran, T.V. vs. State of T.N., AIR 1983 SC 361.
[6] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
[7] Attorney General of India v. Lachma Devi, AIR 1986 SC 467.
[8] M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.
[9] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
[10] Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
[11] Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248.
109
In case of Maneka Gandhi, the Supreme Court has observed that Article 21 reads as under-
"Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law".It, is evident that Article 21, though so framed as to appear as a shield operating negatively against executive encroachment over something covered by that shield, is the legal recognition of both the protection or the shield as well as of what it protects which lies beneath that shield.[1]
The object of Article 21 is to prevent encroachment upon personal liberty by executive save in accordance with law, and in conformity with the provisions thereof. Article 21 was attracted only in cases of deprivation in the sense of total loss and that, accordingly it has no application in case of a restriction upon the right to move freely, which came under Article 19(1)(d][2].
Victims have protection from the State under Article 21 which guarantees to every person protection of his life and personal liberty. The protection of the Article 21 extends to all persons not merely citizens but it include even persons under imprisonment.
-------------------------------------------------------------------------------[1] Maneka Gandhi v. Union of India and another, (1978) 1 SCC
248.
[2] A. K. Gopalan v. State of Madras, AIR 1950 SC 27.
110
Procedure Established By Law.
5-Judge Bench of the Supreme Court in Satwant Singh Sawhney case, [1] held as under :--
"31 : For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right."[1]
The Supreme Court in Maneka Gandhi case[2] it has held that :-- "..Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. After emergency the Supreme Court in Maneka Ganghi case nailed some of the prevailing heresies about Article 21.
-----------------------------------------------------------------------------[1] Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer, (1967) 3 SCR 525.
[2] Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248.
111
Prior to the enactment of the Passport Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case [1] was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law. Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure.........."
The underlying object of the writ of habeas corpus has been succinctly explained by Dua, J., in the following words :--
"The writ of habeas corpus is a prerogative writ by which, the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law, the person is entitled to his liberty.
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[1] Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer, (1967) 3 SCR 525.
112
The order of release in the case of a person suspected of or charged with the commission of an offence does not per se amount to his acquittal or discharge and the authorities are not, by virtue of the release only on habeas corpus, deprived of the power to arrest and keep him in custody in accordance with law for this writ is not designed to interrupt the ordinary administration of criminal law".[1]
The doctrine of principle of natural justice.
Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that 'procedure established by law' means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi case[2] The Supreme Court held that the procedure contemplated by Article 21 must answer the test of reasonableness. Procedure prescribed by such law must be just, fair and not arbitrary, fanciful, or oppressive.[3]
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[1] Sapmawia v. Deputy Commissioner, Aijal, (1971) 1 SCR 690.
[2] Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248.
[3] Yadav D. K. v. JMA Industries Ltd., [1993]2 UJSC 348.
113
The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence.[2] "Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and community.
To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by 'law'. The last four words of Art. 21 are the life of that human right."[2]
Right to life include right to live with human dignity.[3] Procedure should not be arbitrary, fanciful, and oppressive. Right to equality is a fundamental right and equality is antithetic to arbitrariness[4]
-----------------------------------------------------------------------
[1] "M. Nagaraj v. Union of India", AIR 2007 S C 71.
[2] Babu Singh and Ors vs. State of U. P. AIR 1978 SC 527.
[3] Francis Coralie v. Union Territory of Delhi, [1981]1 SCC 608.
[4] E. P. Royappa v. State of T. N., AIR 1974 SC 555.
114
Doctrine of parity and right to equality.
In Maneka Gandhi v. Union Of India, a Constitution Bench of the Supreme Court went into the meaning of the expression “procedure established by law” in Article 21. The Court held that the procedure established by law does not mean any procedure but a procedure which is reasonable, just and fair. In fact Article 19 and Article 14 were both read into Article 21 for this purpose. The following dicta from the said decision bears reproduction:--
“the law must therefore now be taken to be well-settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that Article…. Now, if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesis it must also be liable to be tested with reference to Article 14 [right to equality/ parity]…. There can be no doubt that it (Article 14) is a founding faith of the Constitution.
In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch.
115
The doctrine of reasonableness and fairness.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”
The above principles enunciated with respect to fundamental rights in Article 19 are equally applicable under Article 21 inasmuch as it is now declared in case of (Maneka Gandhi) that a law within the meaning of Article 21 has to be a reasonable and non-discriminatory law tested on the touchstones of Articles 19 and 14. Indeed, the liberty guaranteed by Article 21 is more valuable and precious than the freedoms guaranteed by Article 19.
A fair and effective administration of justice is the cornerstone of a free society and an essential component in public confidence in the institutions of a government. In the Indian context, fairness in administration of justice is envisaged inter alia in Article 21 of the Constitution that mandates that the trial of a citizen be in accordance with the procedure established by law.
116
Doctrine of onus of proof.
The presumption of innocence is a fundamental principle of our criminal justice system. The system of burden of proof is in fact relevant to support the presumption of innocence. A person is presumed to be innocent, until proved to be guilty. Protection of the innocent is as much the duty of the society. The protection of the innocent is the very basis of the Constitutional Articles 20 and 21; that is why the innocent is entitled to the highest normative consideration. Procedure should be accountable, transparent and capable of achieving fairness to the individual.
The supreme court of India had taken a well considered decision in ordering a retrial of the Best Bakery case in Maharashtra as Gujarat was not found conducive to a fair trial.
Supreme Court on sounded the grim warning that the criminal justice system had been subverted, with witnesses being manipulated trials being hijacked with judges and remaining "handicapped witnesses". Making the chilling observation, which to many only confirmed the widely held perception of the erosion of the system.
A five-judge Constitution Bench, in B.R. Kapur’ case, quashing Ms. Jayalalithaa's appointment as Chief Minister - said ``when a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo sentence.''
-------------------------------------------------------------------------------
B.R. Kapur v. State of T. N. [2001]7 SCC 231.
117
The Right to die.
A person can be deprived of his life and personal liberty if, two conditions are satisfied:--
(a) There must be a law;
(b) There must be a procedure established by law. The procedure must be just, fair and reasonable.
Suicide and Mercy killing (euthanasia) are controversial subjects, not only because there are many different moral dilemmas associated with it, but also in what constitutes it definition. At the extreme ends of disagreement, euthanasia also known as physician aid dying or physician assisted suicide. After the detailed study of various states legislations and the detailed study of cases, still the matter is a question of debate that, whether euthanasia is a suicide or dignified end of life? 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 man and some of them have raised to the status of distinct fundamental rights and given additional protection under Art 19 [six freedoms].The court further gave a new dimension to Article 21. It held that the right “to live” is not merely confined to physical existence but it includes within its ambit the right to live with human dignity.
-------------------------------------------------------------------------------
[1] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
118
Article 21 of the constitution provides not only for protection against arbitrary deprivation of life but also for a positive life which enables the individuality to live a life with human dignity. While suicide is committed on the whims and fancies of the individual, mercy killing states a reasonable ground for one’s decision to rise above the everyday or survive in life. Thus suicide is very much a distinct concept from euthanasia.
The Supreme Court has held that “the right to live” with dignity cannot be construed to include with its ambit the right to terminate natural life,at least before commencement of the natural process of certain death. It has been held that “right to life” does not include right to die as a part of Art.21. Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life which Article 21 of the Indian Constitution provides for protection of life and not for its extinction. [1] Indian Penal code makes it punishable an attempt to commit suicide, by virtue of S.309. At this juncture it is necessary to examine whether S.309 of the IPC is constitutionally valid. Supreme Court has examined this crucial question and upheld its constitutional validity. The Supreme Court held in the case of Gian Kaur [1] that Article 21 speaks of right to life. But the court made it clear that according to Article 21, a person has a right to live a dignified life which also include right to die with dignity, means a natural death. In other wards “right to life” guaranteed by Article 21 does not include “the right to die”.
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[1] Gian Kaur Vs. State of Punjab AIR 1996 SC 946.
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119
The Supreme Court has been very sensitive and alive to the protection of the life and liberty of a person. It has, through judicial activism forged new tools and devised new remedies for the purpose of vindicating the most precious of the precious right to life and personal liberty. Right to life and liberty is a fundamental right and fundamental right cannot be waived by a person. [1] The Constitution vests in the court the ultimate responsibility for determining whether a restriction upon a fundamental right is in the interests of the public and the court must not shirk this solemn duty cast on it by the constitution.[2]
State directed to pay Rs. 10,000/- to detenu illegally confined for three days, other remedies also open.[3]
Article 21 is based on one of the famous clauses of Magna Carta which runs thus:-
“No man shall be taken, imprisoned, or destroyed save …. by law of the land.”
Constitutionality of imposing death sentence was challenged before the Supreme Court. The Supreme Court held that if the entire procedure for criminal trial under Cr. P.C. for arriving at a sentence of death is valid then imposition of death sentence in accordance with the procedure established by law cannot be said to be unconstitutional.[4]
-------------------------------------------------------------------------------
[1] Olga Tellis v. B.M.C., [1985]3 SCC 545.
[2] Quareshi Hanif, Mohd. v. State of Bihar, 1959 SCR 629.
[3] T. C. Pathak v. State of U. P., [1995] 6 SCC 357.
[4] Jagmohan Singh v. State of U.P., AIR 1973 SC947.
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Proposed Methodology During the tenure of Research Work.
Sources of data.-- This research needed both documentary and primary sources. I have collected data for this research from the following:--
1. Constitution of India ( Article 21).
2. Criminal Procedure Code, 1973.
3. Case laws, as shown in the list of rulings.
4. Various web sites shown in this research work.
Documentary, primary and secondary sources have been used in this research work. I have completed this research work by adopting the following methods:-
[a] Doctrinal or Traditional Research :
Doctrinal research means a research that has been carried out on a legal proposition or proposition by way of analyzing case law, arranging, ordering and systematizing legal propositions and study of Supreme Court cases which created law and provided new tools and techniques by applying the reasoning power. I have analyzed case laws rendered by the Supreme Court up to 2008 and arranging them in an ordering position and systematizing the legal prepositions in the light of the said judgments.
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This has been achieved by the original sources of law , the case laws decided by the Supreme Court which are binding precedents on all courts in the country. More than 100 leading judgments decided by the Supreme Court are the primary data source and base of this research. This study is mainly based on propositions and law laid down in these judgments. The sources of data for this research are the judgments of the Supreme Court reported in various journals and the Judgment Information System web site of the Supreme Court.
[b] Non-Doctrinal or empirical Research
The empirical or non- doctrinal research is carried on by collecting information by first hand study of the subject. It is an experimental type of research. I have attempted to investigate effect or impact of the functioning of law and legal institutions in the society. For this purpose some questions were posed before the judges on the web site of “ Judges Corner '' and “ Friend Judges of M.P.” The outcome of these questions and answers are given at appropriate places in this research work.
[c] Theoretical Research : It is known as pure, fundamental or basic research. This research involves developing and testing theories in the legal field like right to speedy trial, right against illegal arrest, right to compensation in case of custodial tortures or deaths, rights of arrestees, right to consult lawyer, right to free legal aid, right to life and liberty, right to live, right to fair trial etc. I have tried to cover all these theories expounded by the Supreme Court in various cases in the light of Article 21.
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[d] Applied Research : In applied research the aim is to solve the problems in case in hand and to reach at the logical end. In Common Cause case[1] and Raj Deo Sharma case[2] the Supreme Court had fixed the time limits to complete evidence in a fixed period, otherwise trial court should go ahead by pronouncing judgment and decide cases. The Supreme Court in Antulay's case[3]and in P. Ramachandra Rao case [4] logically reached to the conclusion that it was not advisable and feasible to fix an outer time limit for conclusion of the criminal proceedings. The Supreme Court by experience found that practically it is not possible to fix an outer time limit for conclusion of the criminal proceedings.
I have tried to find out in this research work how the Supreme Court in various cases by way of applied method solved particular problem in a case before it. In number of cases the Supreme Court has quashed criminal proceedings on the ground of inordinate delay on the part of the prosecution agencies. The Supreme Court has refused to quash criminal proceedings where it was noticed that delay has been caused on the part of the accused.
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[1] Common Cause, A registered Society v. Union of India, AIR 1996 SC 1619.
[2] Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281.
[3] Abdul Rehman Antulay v. R. S. Nayak, (1992) 1 SCC 225.
[4] "P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
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Due to huge pendency of cases two shifts of court working was suggested. In reply to the following question by the judges on the web site namely “Judges Corner ”:--
Do you support court working in 2 shifts for reducing the pendency of cases?
65% Judges did not support the view of 2 shifts working for reducing the pendency of cases, and suggested it is not practicable.
Advocates have also opposed on the ground that it is not possible for them to work in two shifts. Litigants have fundamental right to be defended by legal professional of their own choice and advocates of their own choice will not be available in two shifts.
It is significant to note that in Delhi, Gujarat and in Tamilnadu, two shifts of Courts have been started functioning for trial of petty offences, and cases relating to N. I. Act., and M.A.C.T. No body can deny that adequate courts and infrastructure and sufficient staff is quite necessary for achieving norms of speedy justice. Delaying justice is equal to the denial of justice. 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. But there should be separate staff, Judges and lawyers for the second shift, otherwise it would be injustice to those who are part of the justice delivery system.
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Replying to the following question-
How to achieve the ends of speedy justice ?
One of the judges replied that “well, in my opinion every judge has his own style of disposal of the case and we ant have hard and fast parameters in disposing speedy justice and what is speedy justice, how is it possible when we don't have adequate courts and infrastructure and not sufficient staff and time, when we have to dedicate a sizable time to miscellaneous work like bail and remand and bail bond and hearing of new cases, how can we expect that we will do speedy justice, only we can do is that we should not linger on the case from our side, and do our work with utmost dedication and pass the judgment on time we should concentrate on quality not quantity. we should do wholesome justice rather than speedy justice.”
[e] Action Research :
Action research is similar to applied or practical research. On judges corner a question was posed that:
What should be done when lawyers are on strike and the witness has come?
45% Judges voted in favour of recording examination in chief during the course of lawyers' strike. It shows that the Judges are not interested in adjournment of cases. They wants to act during the course of lawyers' strike.
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[e] Evaluation Research :
I have systematically collected judgments of the Supreme Court in relation to the criminal administration of justice with reference to the Article 21 of the Constitution of India and analyzed doctrines propounded in these judgments.
Out come of this research work.
As we have already noted that “Article 21 is the heart of the Constitution of India ” It is also recognized as the heart of the fundamental rights. The Supreme Court has expanded the meaning of Article 21 of the Constitution and granted various rights pertaining to personal liberty.
Article 21 of the Constitution of India proclaims that no one shall be deprived of his life and liberty except in accordance with the procedure prescribed by law. Ours is the country governed by rule of law, hence the Supreme Court has ruled that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. personal liberty cannot be taken away except in accordance with the procedure established by law. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law.
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Provision of free legal aid to a prisoner who is indigent or disabled from securing legal assistance where the ends of justice call for such service is State's responsibility under Art.21 for securing fair trial. The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried has to be eliminated.
Interpretation of Article 21 reached its hight when the doctrine of minimum rationality was also treated as part of Article 21 by the Supreme Court, when S. 303 of the IPC was struck down saying that it violates Art. 21.
Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. Therefore, the Supreme Court has ruled that ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.
Speedy trial is sine-qua-non of Article 21 of the Constitution. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed in our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision , till it consummates into a finality.
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It is well settled that the right to speedy trial in all criminal persecutions 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 persecutions 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, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.
Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial. Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, appellant's constitutional right recognised under Article 21 of the Constitution stands violated. therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of Special Judge, Latur, deserve to be quashed on this short ground alone. [1]
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[1] "Pankaj Kumar v. State of Maharashtra", AIR 2008 SUPREME COURT 3077.
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The Apex court observed that It is the constitutional obligation of the State to dispense speedily justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21. This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined in Article 21 of the Constitution. Unreasonably long delay in investigation and trial violates right of speedy trial under Art. 21 of the Constitution, but court should look at the matter with a realistic and practical approach having regard to the each case.
The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of Code of Criminal Procedure. The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of Code of Criminal Procedure.
The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against bar-fetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, and right to life and personal liberty etc.
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Section 151 of the Cr. P.C. only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India, unless a person is arrested maliciously.
The Supreme Court has expanded the meaning of Article 21 of the Constitution and granted various rights pertaining to personal liberty. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21.
If any person is arrested maliciously, the defence of sovereign is not available to the State. But, the repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21.
It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226.
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Main purpose of this research is to highlight the dynamic approach of the Supreme Court of India dealing with criminal justice system by giving new dimension , with the aid of Article 21 of the Constitution of India. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large.
The Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. I tried to highlighted these aspects in this research work.
We have a sense of pride and feel satisfied to note that the Supreme Court has endeavoured to act in harmony with the spirit of the times and values and norms it had set for itself with the aid of Article 21 of the Constitution of India, specially in the administration of criminal justice. The Supreme Court never shied away from its responsibility of upholding the right to life and personal liberty of a person.
The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established.
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Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively.
Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be jealously and scrupulously protected.
Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen.
It is axiomatice that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.
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The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades. Monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. Custodial violence is a matter of concern.
Custodial torture is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. The obligations of the State in the Indian Constitution to protect and help victims of violation of human rights can be culled from Article 21.
In Francic Coralie Mullin's[1] case the Supreme Court further extended the reach of Article 21 of the Constitution of India. The Supreme Court said that the right to life enshrined in Article 21 cannot be restricted to mere animal existence.
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[1] Francic Coralie Mullin v. Union Territory of Delhi, AIR 1980 SC 746.
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The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India provides guaranty of life and personal liberty to every person. The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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On April 24, 1989, A. Subair, the appellant demanded an amount of Rs. 25/- for delivery of the driving licence in book form. Manaf (complaint)was not prepared to pay the money and he made oral complaint to K. Krishna Pillai, Deputy Superintendent working in the Vigilance Unit, Thiruvanathapuram. A. Subair was trapped red handed accepting bribe and prosecuted for the offence under Section 7 and Section 13(1) (d) read with Section 13(2) of the P. C. Act, 1988. The appellant, A. Subair, in appeal before the Supreme court, by special leave, suffered conviction under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (`the Act') by the court of Special Judge, Thiruvanathapuram. The Special Judge sentenced him to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 100/- with default stipulation under Section 7 and rigorous imprisonment for a period of one year and to pay fine of Rs. 250/- with default stipulation for the offence under Section 13(1) (d) read with Section 13(2) of the Act, 1988. His conviction and sentence has not been interfered with by the High Court of Kerala. After a long period of 20 year the Supreme Court allowed the appeal of the appellant holding that case is not made out against him beyond reasonable doubt. This is one example suffice to say that how people of our country suffering from the slow dispensation of justice.[1] This is due to lack of judges population and non filing up vacancies of the courts in India. -------------------------------------------------------------------------------
[1] CRIMINAL APPEAL NO. 639 OF 2004, before the Supreme court, in case of A. Subair V. State of Kerala , decided on May 26, 2009.
Link-- http://www.judis.nic.in/supremecourt/helddis3.aspx
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In case of Malik Mazhar [1] the non-filling of vacancies for long not only results in the avoidable litigation but also results in creeping of frustration in the candidates. Further, non-filling of vacancies for long time, deprives the people of the services of the Judicial Officers. This is one of the reasons of huge pendency of cases in the courts. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational.[1] Thus now the Supreme Court is taking steps for filling up vacancies timely. This has been delayed, but this the right direction to keep up public faith in the justice delivery system. Previously the Supreme Court has laid down law that speedy justice is a fundamental right under Art.21 and now this is a practical implementation of the said right.
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[1] Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors. , 2006(4 ) SCALE 1.
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It is evident from this research that the Supreme Court has contributed valuable and very imported fruitful rulings not only in the field of administration of criminal justice, but also zealously protected right to life and personal liberty of individuals. The Supreme Court has provided very liberal interpretation in expanding scope of life and personal liberty under Article 21 of the constitution. The Supreme Court has evolved compensatory jurisdiction Keeping in view international conventions and issued for protecting fundamental rights of life and personal liberty. The Supreme court has innovated new tools and techniques for protecting human rights coupled with life and personal liberty, by giving protection against illegal arrest, custodial torture etc.
The Supreme Court has filled gaps of the legislations by pronouncing rulings which are law of the land under Article 141 of the constitution of India. There are many hurdles in the way of speedy justice. At the time when Criminal procedure code was made they can't even think about Video conferencing. Still we are unable to think that the man would have power to go anywhere within no time (with the speed of thoughts). We have wasted a lot of time for the nonappearance of accused from the jail. Video conferencing may save a lot of time and energy of the court as well government machinery engaged for producing accused from jail to court and court to jail again.
There must be some changes in advocates act also to make them liable for their workings once they accept brief of the accused.
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The Apex Court in Vakil Prasad Singh' case[1] has held that -- We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. Consequently, the appeal is allowed and the proceedings pending against the appellant in Special Case No. 29 of 1987 are quashed, by the Supreme Court.
The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice--to the individual involved and society affected.
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[1] VAKIL PRASAD SINGH v. STATE OF BIHAR, [CRIMINAL APPEAL NO. 138 OF 2009, decided on JANUARY 23, 2009.]..Link..http://www.judis.nic.in/supremecourt/ ------------------------------------------------------------------------------------------------------------
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If a person is allowed to end his life as Art 21 speaks for a dignified life. But the court made it clear that according to Art 21, a person has a right to live a dignified life which also include right to die with dignity. But here, to die means a natural death. In other wards “right to life” guarantees by Article 21 of the constitution does not include “the right to die”.
The creativity of the Indian judicial system has been at its best whenever it was called to interpret article 21, except perhaps during the short interregnum of the emergency rule. Today, article 21 stands out as the beacon light for all freedom lovers promising the development of more rights when needed and ensuring a minimum degree of fairness in all legal proceedings.
The Supreme Court played the role of a crusader of people’s liberty and introduced ‘reasonableness, fairness and justness" in the procedure under "procedure established by law". Reasonableness under article 21 widened its scope and provided impetus to bring in fairness in number of fields. Wide dimension given to this right now covers various aspects which the framers of the constitution might or might not visualized e.g. right to : privacy, travel abroad, livelihood, prisoners, health, timely medical aid, free legal aid, speedy trial, live in healthy environment, shelter, education, affirmative action and compensation for violation of right to life and personal liberty.
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Issuance of warrants.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.
Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law.
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Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when - :
a) it is reasonable to believe that the person will not voluntarily appear in court; or
b) the police authorities are unable to find the person to serve him with a summon; or
c) it is considered that the person could harm someone if not placed into custody immediately.
Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. -------------------------------------------------------------------------------------------
141
Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. Inherent powers u/S. 482 Criminal P.C. exists for advancement of justice , therefore, injustice by abuse of process of Court can be prevented by exercising inherent powers.[1]
"Right to life" is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. [2]
Because of absence of the provision for anticipatory bail in U.P., thousands of writ petitions and Section 482, Cr. P. C. applications are being filed in the Allahabad High Court praying for stay of the petitioners arrest and/or quashing the FIR. This is unnecessarily increasing the work load of the High Court and adding to the arrears, apart from the hardship to the public, and overcrowding in jails. The right to liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with.[3]
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[1] "Inder Mohan Goswami v. State of Uttaranchal", AIR 2008 SUPREME COURT 251.
[2] Mohini Jain v. State of Karnataka, [(1992) 3 SCC 666] .
[3] "Som Mittal v. Govt. of Karnataka", AIR 2008 S C 1126.
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There is no provision for anticipatory bail in U.P., thousands of writ petitions and Section 482, Cr. P. C. applications are being filed in the Allahabad High Court praying for stay of the petitioners arrest and/or quashing the FIR. The right to liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with.
A question arose for consideration before the Supreme Court – Whether Divine Retreat Centre is not a person contemplated by Article 21 of the Constitution?
The Court did not express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. It was held that, the Director of the appellant institution has been impleaded as a party respondent in the criminal petition and the whole of the allegations in the anonymous petition are levelled against the appellant and in such a situation it was imperative for the High Court to put the appellant on notice before passing the impugned order. It was also held that so long as the inherent power of S. 482 is in the Statute Book, exercise of such power is not impermissible but it must be exercised sparingly in the rarest of rare cases, the sole aim of which is to secure the ends of justice. [1]
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[1] "Divine Retreat Centre v. State of Kerala", AIR 2008 SUPREME COURT 1614.
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No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.[1]
When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the N. I. Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure.
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[1] "Jyoti Prakash Rai v. State of Bihar", AIR 2008 SUPREME COURT 1696.
[2] "T. Nagappa v. Y. R. Muralidhar", AIR 2008 S C 2010.
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An accused has a fundamental right in terms of Article 21 of the Constitution of India to be proceeded against only in accordance with law. The law which would apply in India subject of course to the provisions of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure is that the offence must be committed within the territory of India. If admittedly, the offence has not been committed within the territorial limits of India, the provisions of the Indian Penal Code as also the Code of Criminal Procedure would not apply. [1]
Final judgment of Supreme Court cannot be assailed in writ petition. In the present petition filed by Shaukat Hussain Guru under Article 32 of the Constitution of India, prayers are made for a writ of habeas corpus requiring the petitioner to be brought before the court and to release him after recording a finding that his continued detention is in violation of his fundamental right guaranteed by Article 21 of the Constitution. [2]
Article 12 of the Universal Declaration of Human Rights provides for the Right to a Fair Trail. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must also be examined keeping in view the ordinary law of the land.
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[1] "Fatma Bibi Ahmed Patel v. State of Gujarat", AIR 2008 SUPREME COURT 2392.
[2] "Shaukat Hussain Guru v. State (NCT) Delhi", AIR 2008 SUPREME COURT 2419. -----------------------------------------------------------------------------------------
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Chances of the false implication cannot be ruled out altogether and particularly in a case one when those who have been named in First Information Report and said to have taken a leading role in the matter have been acquitted, the correctness whereof is not in any question. The Supreme Court observed that “We do not know how a different standard can be applied in case of others. I am, therefore, unable to subscribe to the view that in a case of this nature, the norms of appreciation of evidence should be applied differently.”[1] If an accused has a right of fair trial, his case must also be examined keeping in view the ordinary law of the land.
Without adequate legal assistance the personal liberty of the detenu guaranteed by Article 21 of the Constitution could be jeopardized and rendered meaningless. The request by a detenu for legal assistance would have to be considered on its own merits in each individual case. However, since in the said case, the detenu had not applied to the Advisory Board, it was held that it could not be said that the detenu had been wrongly denied the assistance of counsel.[2]. In Smt. Kavita's case (supra) Court held that even if the detenu had no right to appear through a legal practitioner in the proceedings before the Advisory Board he was entitled to make a representation for the services of a lawyer.
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[1] "Harendra Sarkar v. State of Assam", AIR 2008 SUPREME COURT 2467.
[2] Smt. Kavita vs. State of Maharashtra and Ors. [1981 (3) SCC 558).
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It is, therefore, well settled that the right to speedy trial in all criminal persecutions 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 persecutions 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, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.
The Supreme Court quashed proceedings observing that appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12th May, 1987 for the offences allegedly committed in the year 1981, the charge-sheet was submitted in Court on 22nd February, 1991.[1]
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[1] "Pankaj Kumar v. State of Maharashtra", AIR 2008 S C 3077.
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Conclusion
Article 21 of the Constitution of India guaranteed protection of life and personal liberty saying that no person shall be deprived of his life or personal liberty except according procedure established by law. As a result of the liberal interpretation of the word 'life' and 'liberty' under Article 21, the Supreme Court has widely expanded the scope of criminal jurisprudence. The procedure established by law contemplated by Article 21 must answer the test of reasonableness. Article 21 is of great importance because it enshrines the fundamental right to individual liberty. Liberty is the most precious of all the human rights. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the victim and society at large.
Speedy trial is sine-qua-non of Article 21 of the Constitution. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed in our Constitution. The Apex Court held that no general guideline can be fixed for outer limits of deciding cases by the courts as each case has to be examined on its own facts and circumstances.
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The right to speedy trial begins with the actual restraint imposed by arrest and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision , till it consummates into a finality. Undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. 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. The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.
Delaying justice is equal to the denial of justice. “Justice in India should be simple, speedy and cheap.” The ideal situation is to have criminal proceedings completed swiftly. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceedings. Right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial. Accumulation of vacancies in subordinate courts is 2000 against 15000 sanctioned posts As on January 2005. By way of Judicial reforms and implementing e-governance in all level of courts, the aim of speedy justice may be achieved. Now “Plea- Bargaining” has been introduced as one of the important tools for importing speed justice. Lok Adalats have also become effective tools in compromising cases.
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Major causes for delaying justice are:--
(a) Inadequate number of judges in the country is one of the major reasons for delaying justice.(b) Another reason is the incompetence and inefficiency of judges and advocates. There should not be any reservation of seats in the judiciary. Good quality of judgments also prevents multiplicity of unnecessary litigations. (c) Adjournment by the lawyers, (d) Hasty and incomplete amendment of laws, (e) Absence of work culture amongst lawyers in the courts, Judge wants to do work but lack of infrastructure, non co operation of lawyers, lack of adequate staff are the main reasons affecting work and causing delay in dispensation of justice. (f) The inordinate, unexplained and negligent delay in pronouncing the judgments by judges is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. For the fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted justice.
Courts can consider more than one shift. Fast Track Courts are another answer to speedy justice and eliminating pendency of huge cases. Secondly, plea bargaining procedure must be utilised as a better option for quick disposal of cases.
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Suggestions for eliminating delay.
Delay in deciding cases can be eliminated by filling up all vacancies at various courts. Cutting down the number of adjournments, reducing the time for arguments, keeping a check on review petitions/ frivolous petitions, and lawyers should encourage out of court settlements/Compromise. Government officials should be made personally liable for lapses so that cases against the government are reduced. Evening courts, 'Lok Adalats', or courts set up by legal services committees to amicably settle cases between two parties, and conciliation and mediation centers are also useful tools to be adapted in clearing up pending cases. Effecting timely service of the summons and warrants is necessary for quick decision of the cases. Study reveals that the judge is the only person who generally does not want to make delay. But he can't help to change the mindset of others. If the concern authorities make some rules and discipline for all others, the problem will definitely be vanished.
Custodial violence, perhaps one of the worst crimes in a civilized society, is a matter of concern for many reasons. Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the executive should not only be derived from law but also that they should be limited by law. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226.
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The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the victim's rights. Only a few cases of custodial torture come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished.
If an officer of the State acting in his official capacity threatens to deprive of personal liberty, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. The Supreme Court pressed into service Article 9(5) of ICCPR which provides for right to compensation for victims of unlawful arrest or detention.
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The precious right to liberty guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law.
The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried has to be eliminated. Free legal services to a prisoner who is indigent or disabled from securing legal assistance, is a fundamental right to individual liberty, and ''right, just and fair" procedure.
Doctrine of false in uno, false in omnibus.
The Supreme Court held that an act is not criminal unless it is committed with criminal intention. [1] It has also been held that the principle of “ False in uno, false in omnibus” is not applicable in India. [2] But Ignorance of law is no excuse. [3] The burden of proof lies on the prosecution. [4] All these principles laid down by the Supreme Court keeping in view the principle of Fair trial. Presumption of innocence is a human right. [5]
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[1] State of Maharastra v. M. H. George, AIR 1965 SC 722.
[2] Nisar Ali v. State of U.P., AIR 1957 SC 366.
[3] Basheshwar Nath v. Commissioners of Income Tax, AIR 1959 SC 149.
[4] Dahyabhai Chhaganbhai v. State of Gujarat, AIR 1964 SC 1563.
[5] Narendra Singh and another v. State of M.P., (2004) 10 SCC 699.
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The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Art. 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, the Supreme Court has cautioned courts at the first and second instance to refrain from issuing non-bailable warrants.
The doctrine of reasonableness and non-arbitrariness, the doctrine of prejudice and unfairness, the doctrine of reasonableness and fairness, the doctrine of binding precedents, the doctrine of procedural safeguards, the doctrine of principle of natural justice, doctrine of unreasonableness, the doctrine of confirmation by subsequent events, doctrine of parity, doctrine of onus of proof, the doctrine of proportionality in awarding punishment, the doctrine of reasonable construction, the doctrine of prejudice, etc. the doctrine of the right of private defence, have also been tested by the Supreme Court with reference to Article 21 of the Constitution and given new dimension to the criminal justice system.
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It is a result of innovative interpretation of the Supreme Court that the right to life and personal liberty is now held to include right to legal aid, speedy trial, fair trial, privacy, consult lawyer, compensation under public law, human dignity, and right against bar-fetters, against custodial violence, against delayed execution, against solitary confinement, etc. It has also been held by the Supreme court that doctrine of falsus in uno falsus in omnibus does not apply in India, and the doctrine of State immunity is also not applicable in case of violation of fundamental rights. All these principles are duly tested on the touchstone of the universal law and changing society and found to be true in this research work.
To sum up we can say that the creativity of the Indian judicial system and particularly of the Supreme Court has been at its best whenever it was called to interpret article 21, except perhaps during the short interregnum of the emergency rule. Reasonableness under article 21 widened its scope and provided impetus to bring in fairness in number of fields. Today, article 21 stands out as the beacon light for all freedom lovers promising the development of more rights when needed and in this research work all these aspects attended by the Supreme Court has been discussed and systematically analyzed.
