HUMAN RIGHTS AND ADMINISTRATION

OF CRIMINAL JUSTICE
S.N. JAIN

I Introduction

Law often reflects duality—its desire to protect one interest has an ad­
verse impact on some other interest. This functional duality of law is
perhaps illustrated no better than criminal law. The task of criminal
law is to protect the society from criminals but an overemphasis
on such a protection is likely to result in jeopardising the inter­
ests of innocent. In an authoritarian society the former aspect gets
precedence, but in a democratic society like India or the United States with
their traditions of individual liberty and entrenched fundamental rights, a
nice balance has to be drawn between the two interests. This has, however,
not been an easy task. The struggle of the judiciary to find a dividing line
has been tortuous and not straight—'the court sometimes moving head on
with a speed, sometimes treading slowly and sometimes taking a retreat. In
this difficult and delicate job of the judiciary, a comparison of the Ameri­
can experience and the Indian experience is extremely valuable. Both are
governed by the rule of law. Both have certain basic human rights in their
respective constitutions. Both have common law traditions. And in both
the countries authoritarianism is an anathema for the people.

Criminal justice provides a fertile ground for socio-legal research. In

the none too easy task of interpreting the law and to fill in the statutory
gaps, the judiciary quite often has not been on the same wave length as
the police. Factual or sociological data would be of immense value for the
courts to find their path and later to rest the viability of their propositions
by others. Unfortunately in India, except for a few recent studies and
revelations, this area has been barren of study from a socio-legal angle.
Such a study is a desideratum as the way the criminal law is administered
affects human liberty in the most profound way.

II Constitutional Rights of the Accused: An Expanding Field

The specific constitutional rights given to the accused are only few.
They are contained in articles 20, 21 and 22. These rights deal with

(a) Ex-post facto criminal laws.

(b) Double jeopardy.
98 Law and Social Change
(c) Privilege against self-incrim¡nation.
(d) Right of the accused to be informed of the grounds of his arrest
and to consult his lawyer.
(e) Right of the accused to be produced before a magistrate within
24 hours.
( / ) Right of a person not to be deprived of his life or personal liber­
ty except according to "procedure established by law".

Through the process of judicial interpretation the court has given a

number of other rights to the accused. This process began with the deci­
sion of the court in Maneka Gandhi v. India} After the traumatic experien­
ce of national emergency between 1975 and 1977, the Supreme Court of
India has shown great sensitivity in protecting the individual against
executive arbitrariness and unfair laws and procedures. In this regard the
most revolutionary decision was Maneka Gandhi where by introducing
a three-letter word "due" in article 21 of the Constitution, the court
brought about a significant change in our constitutional jurisprudence relating
to fundamental rights. Literally read article 21 only required the support of
law for the executive to deprive a person of his life and personal liberty. It
was not for the court to judge whether the law provided for fair or reason­
able procedure or not. The Supreme Court has specifically examined the
question in one of its earliest judgements2 and held that in the light of the
express words of article 21 (deprivation of personal liberty by "procedure
established by law"), there is no scope for the application of "due process
of law" in relation to personal liberty. Gopalan held the field for almost
three decades when it was upset by Maneka in 1978. Reading of the word
"due" into article 21 has given life to the otherwise lifeless fundamental
rights of personal liberty given to a person by the Constitution.
It is not proposed to overload this paper by discussing all the aforesaid
rights, but only to take up such rights which are controversial and debat­
able and also such rights which are not expressly mentioned but which the
Supreme Court has inferred from article 21 and which have brought about
significant reforms in the criminal justice administration.
We basically discuss the following (i) self-incrimination; (//) bail and
undertrial prisoners; (Hi) legal aid; (/v) bar fetters; (v) prison reform and
(v;) exclusion of illegally obtained evidence.
Ill Privilege against Self-Incrimination
Article 20 of the Indian Constitution provides for the privilege
against self-incrimination. Since the adoption of the privilege by the com-

1. AIR 1978 SC 597.

2. A.K. Gopalan v. Madras, AIR 1950 SC 27.
 Human Rights and Administration of Criminal Justice 99

mon law world as a principle of criminal jurisprudence, there has been a

perennial debate over two questions—whether it affords any shield to the
individual against state oppression and abuse of authority, and whether
it does not handicap the state in bringing criminals to book and injure the
society's interest in punishing the offenders and to tend to effect justice. The
debate cannot be said to be over yet. However, the fact remains that the
Indian Constitution accepts it as part of the country's jurisprudence. The
International Commission of Jurists regards the privilege as an essential
element of the rule of law.3
The judicial response to privilege has not been happy. Its tendency
had been to dilute it rather than strengthen it. It was so till 1978. In a
number of cases decided by the Indian Supreme Court, the scope and the
applicability of the privilege had been narrowed down. Thus it was held
that the privilege did not apply to administrative investigations and inqui­
ries;* and it applied to police investigations only if the person was formally
accused of ao offence.5 The privilege did not apply to searches and seizu­
res under a search warrant. The privilege certainly comprehended oral
testimony, but it did not extend to documentary evidence (unless the
document was based on the personal knowledge of the accused)8 or such
physical examination of the accused as finger prints, signatures or speci­
men writings.7 A narrow view was even taken of compulsion. There was
no presumption that merely a statement by the accused while in police cus­
tody was involuntary.8 The privilege had been so smothered over
the years in the hands of the courts that one would regard its decent
or even unceremonial burial without much ado. But in 1978 in Nandini
Satpathy v. P. L. Dani,9 the Supreme Court rediscovered and
resurrected it. This decision has given some vitality to the Indian privilege.
While doing so, the Supreme Court of India followed the famous American
case Miranda v. Arizona}0
The basic question in Nandini was whether compulsion was to be pre­
sumed in the case of custodial interrogation by the police. The court held
that it was to be presumed. The court laid down a few propositions to
provide protection to an accused person in police custody. As in Miranda,
the court held that the police ought to permit a lawyer to assist the accused
if he can afford one, but the police need not wait for more than a reasonable

3. Human Rights 27 (1966).

4. For instance, Raja Narayanlal Bansilal v. Mistry, AIR 1961 SC 29;
RC Mehta v. West Bengal, AIR 1970 SO 940.
5. Satish v. Sharma, AIR 1954 SC 300; Mohd Dastagir v. Madras, AIR 1960
SC 756.
6. State of Bombay v. Kathi Kaiu Oghad, AIR 1961 SC 1801.
7. Ibid.
8. Mohd. Dastagir v State of Madras, AIR 1960 SC 756.
9. AIR 1978 SC 1025.
10. 3844. S. 436 (1966).
100 Law and Social Change

time for the advocate's arrival. However, the court was not willing to go
along with the Miranda holding that the state should make a lawyer avail­
able to the accused if he be indigent. The court ignored the warning
contained in Miranda that the "financial ability of the individual has no
relationship to the scope of the rights involved here. The privilege against
self-incrimination secured by the Constitution applies to all individuals."
The second liberal view of the privilege which the court took was
that the police must invariably warn and record the fact "about the right
to silence against self-incrimination; and where the accused is literate, take
his written acknowledgement." But this warning will be a somewhat diffe­
rent kind of warning than in the United States. In the United States the
accused has a right of complete silence, but under the court's holdings in
India, the accused has the right to refuse answers only to incriminating
questions. In other words, the view of the court is that nonincriminatory
questions can be asked and that the accused is bound to answer where
there is no clear tendency to incriminate. The court made a distinction bet­
ween "relevancy" and "crimination". "Relevancy is tendency to make a
fact probable". It is submitted that distinction is without any basis. When
a person is accused of an offence, all "relevant" facts are to be viewed from
the point of criminality and there are no such facts without this element.
The American view is definitely better.
The police have not been happy with the court's ruling they believe
that it will hamper their investigatory powers. The judgment, however,
does not seem to have made any dent in police practices followed in
investigations. A sophisticated police machinery is needed for complying
with the court's rulings which is not present. However, the principles
stated by the court are sound and should be retained because this is one
way to civilize the police in the long run.

IV Undertrials and Bail

One pathetic aspect of criminal justice administration in India has

been the unduly large number of undertrial prisoners languishing in jails.
On 1st April, 1977, the figures of persons in jail custody in India were as
follows11

Undertrials 1,01,803
Convicts serving jail sentence 83,086

Total 1,84,169

11. Source: Law Commission of India, 78th Report on Congestion of Undertrial

Prisoners in Jails 1 (1979).
 Human Rights and Administration of Criminal Justice 101

Undertrials thus constituted 54.9% of the total jail population. In

1975 the percentage of undertrials was 57.58%. The figures for the year
1981 equally make depressing reading. The number of undertrials who
had been in jail for three years was 1,262, and those in jail for
less than three years was 76,022. During 1981-82, a total of 137
undertrial prisoners died in the various jails in the country.12 As on
June 30, 1981, out of the total jail population of 1,41,761, there were
87,144 undertrials (61.5%). Such a state of affairs is a flagrant violation
of human rights. These undertrial prisoners fall into the following
categories:

1. Those who were denied bail by the courts on account of their

involvement in serious offences.
2. Those who could not furnish bail for one reason or the other.
These undertrials fell in two categories—those who were detained
in jail pending investigations and those who were awaiting trial.
Most of the undertrials fell in these two cateogories.
3. Others. 13

Apart from losing their personal liberty, undertrials suffered from

depressing conditions in jails—overcrowding, shockingly bad living
conditions, and lodging along with convicts.
The plight of undertrials would have remained the same, but for two
developments. The Law Commission of India studied the problem in its
Seventy-Eight Report on Congestion of Undertrial Prisoners in Jails
(February 1979). The matter was brought to the doors of the Supreme
Court by Ms. Kapila Hingorani, a dedicated public interest lawyer.11 In a
series of cases known as Hussainara Khatoon,15 the court examined the
matter and gave various reliefs. In these cases the court was specifically
concerned with the plight of undertrial prisoners detained in the Bihar
jails. The basis for these decisions was provided by the court's decision
in Maneka.
The court was anguished and shocked at the plight of undertrials
detained in the jails of Bihar for periods ranging from 3 to 10 years.
These undertrials fell into the following categories: (i) those who were in
detention for a period more than the maximum period of imprisonment
for which they could be sentenced on conviction; (ii) those who were in
detention for more than half such detention; {Hi) those in whose cases

12. Information given to the Rajya Sabha by the Minister for Home Affairs,
Amrit Bazar Patrika, Calcutta, dated July 22, 1982.
13. See Infra.
14. See Baxi, The Crisis of the Indian Legal System 227-28 (1982).
15. AIR 1979 SC 1360 at 1369, 1377, and 1819. Also Kadra Pahadiya v. Bihar,
AIR 1982 S C U 67.
102 Law and Social Change

the period of limitation for trial was long over under section 468(2) of the
Cr. PC ;(iv) those in whose cases investigations had been going on for
more than six months (see section 167(5) of Cr. PC); (v) women prisoners
who were either victims and needed "protective custody" or who were
needed as witnesses; and (vi) lunatics and persons of unsound mind.
Most of the prisoners falling in the above categories were in the jail
because of their inability to furnish bail.
Having identified the problem the court took upon the task of
providing the correctives. It laid down several new propositions of law
in relation to criminal justice and passed several orders giving relief to
the undertrials. These propositions are discussed here and in other
appropriate places in this paper.
It was inhuman, according to the court, to keep in jail persons accused
of offences for so long without trial. "Speedy trial" was implicit in the
broad sweep and content of article 21 as interpreted by the court in
Maneka. It ordered the release of all those prisoners who were in
detention for more than the maximum period of sentence prescribed for
the offences of which they were accused.
Similarly persons who were in detention in spite of the period of
limitation for trial under section 468(2) being over were released by the
court. As regards prisoners detained in summons cases where investigation
was not completed, the court ordered the compliance of section 167(5) of
Cri. PC (magistrate to order their release unless he was of the view that
continuation of investigation was necessary in the interests of justice).
On the question of norm of "speedy trial" the period, according to
the court, was six months. It directed the High Court to funish the
necessary data so that this norm could be achieved.
The court issued directions that in the case of prisoners who were in
jail for half the period of their maximum sentence, the state should provide
legal aid to them for the purposes of bail.
The court failed to understand how lunatics and persons of unsound
mind "could possibly be kept in the same jail along with other undertrial
prisoners".
Women prisoners who were victims of crime and also detained for
the purposes of giving evidence were directed to be placed in social and
welfare homes and the state was required to set up such homes in
sufficient number.16
Bail: "Bail and not Jail—Empty the Prisons"17 is the title of a paper
submitted by a scholar for a Seminar on Criminal Law organized by the

16. On December 31,1981, there were 4070 women offenders in jails. As against
this, there were only six correctional institutions with a capacity of 975. The situation
is hardly better with regard to protective homes for women. See Kumkum Chadha,
The Indian Jail 59-60 (1983).
17. By S.D. Balsara, 22 //£/341 (1980).
 Human Rights and Administration of Criminal Justice 103

Indian Law Institute held at Dharwar in December 1978. Reference to

this title is an apt beginning for the subject of bail.
As mentioned by the International Commission of Jurists, there are
four grounds for keeping an accused person in jail:

(a) In the case »f a very grave offence;

(b) If the accused is likely to interfere with witnesses or impede the
course of justice;
(c) If the accused is likely to commit the same or other offences;
(d) If the accused may fail to appear for trial.18

Denial of bail and keeping the accused in jail for trial operates
harshly on the person involved. Firstly, detention before conviction has
a punitive content. Secondly, it disrupts family life and it may be
economically disastrous for the family. Thirdly, it has been observed/1*

The chances of acquittal definitely become remoter in the case of a

person detained while facing trial. The Home Office Report
(Table 6, Page 9) of England shows that in 1956, of those com­
mitted for trial about 9.5 per cent were acquitted, of which 8
per cent were on bail and 1.5 per cent were in custody. While this
type of research is constantly made in foreign countries, it is
unfortunate that bail is a neglected subject of criminology in India
as no worthwhile research seems to have been made. Michael
Zander in his excellent article on bail mentions that the possibility
that the chances of acquittal may be less for those in custody than
for those on bail is confirmed by results both in the United States
and Canada.

Fourthly, "studies conducted in England suggest that there is a higher

ratio of pleas of guilty among the undertrial prisoners than those who are
on bail. Similar studies should be made in India, so that the effect of
indiscriminate detention can be brought home to our courts of law. It is
only the gloom of detention that must be compelling many to plead
guilty to put an end to the agony."20
The system of bail is closely related to the problem of undertrials.
It raises two questions—the question of liberal and strict approach in
granting bail. In both these matters there have been significant
developments.

18. The Rule of Law and Human Rights 29 (1966).

19. Balsara, supra note 17 at 343.
20. Id at 343.
104 Law and Social Change

In Hussainara,21 the court characterizing the bail system as it

operates in the country, pleaded for liberal rules in the matter. It regarded
the monetary security for bail as archaic. The court stated:

It is high time that our Parliament realises that risk of monetary

loss is not the only deterrent against fleeing from justice, but there
are also other factors which act as equal deterrents against fleeing.
Ours is a socialist republic with social justice as the signature
tune of our Constitution and Parliament would do well to
consider whether it would not be more consonant with the ethos
of our Constitution that instead of risk of financial loss, other
relevant considerations such as family ties, roots in the community,
job security, membership of stable organizations, etc., should be
the determinative factors in grant of bail and the accused should
in appropriate cases be released on his personal bond without
monetary obligation.210

It was held that even under the existing law, an accused person ought
to be released on personal bond without sureties if the court is satisfied
that the accused has roots in the community and is not likely to abscond.
To determine the question of "roots in the community", the following
factors were relevant: (a) length of residence in the community; (6) employ­
ment status, history and finance condition; (c) family ties; (d) reputation and
character; (e) prior criminal record; (/) the risk of nonappearance, taking
into account the nature of the offence and the probability of conviction.
Further, the court laid down in determining the amount of personal
bond, the nature of charge alone was not the only factor, the other factors
relevant are the financing position of the accused and the probability of
his absconding. The court ordered the release of a number of prisoners
who were in jail for a number of years on their personal bond without
monetary obligation (as an exceptional measure in view of these persons
rolling in jail without trial).
The Law Commission of India is also in favour of liberalizing the
bail rules. It has favoured (a) making offences punishable up to three
years' imprisonment as bailable, unless the nature of the offence is such
that it requires a different approach; (b) giving discretion to the courts to
release a person on bail on personal bond in the case of bailable offence,
if within a month he is not able to produce sureties; and (c) not keeping
the amount of bailable amount at an excessive amount.22
The liberalising tendency in freeing an arrested person on bail is
elearly reflected in the provisions for anticipatory bail in section 438 of the

21. AIR 1979 SC 1360.

21° Id. at 1363.
22. Supra note 11 at 17-23. Also National Police Commission, Third Report 32(1980).
 Human Rights and Administration of Criminal Justice 105

Cr. PC The soundness of this provision was recognized by the Supreme

Court in Balchand v. Madhya Pradesh13 in the following terms:

The Legislature in enshrining the salutary provision in Section 43S

of the Code which applies only to nonbailable offences was to see
that the liberty of the subject is not put in jeopardy on frivolous
grounds at the instance of unscrupulous or irresponsible persons or
officers... 24

Taking an overall view of the matter, the correct approach is that in

the matter of granting bail to an accused a liberal approach is to be
supported, and bail should only be refused in the four situations mentioned
earlier. Where the court is refusing bail, it should be obligatory on its
part to state the reasons thereof.26
The court's rulings in Hussainara have met with an encouraging
response from the central government. It has agreed to the various
suggestions of the court. 26
It is odd that on the one hand a liberal policy regarding bail is being
followed, but on the other to combat certain social evils, like dowry, a
wrong use of bail provisions is being made by the magistracy (in connivance
with the police) to deny bail in dowry death cases where the death of
the victim occurred due to suicide.27 The husband and/or in-laws are
arrested in such cases for the offence of abetment of suicide under section
306 of Cr. PC By no stretch of imagination, can the accused may be said
to be guilty of abetment when the suicide was due to the mental state of
the victim on account of maltreatment by her husband and/or relations for
not bringing enough dowry. Everyone knows that at the trial, the charge
of abetment will not stand but detaining a person or persons in the peni­
tentiary for sometime (by denying him bail), satisfied the conscience of
the society that such a person did receive some punishment. This may be
true, but it is nothing but perverting the law.
The Power of Arrest: It is basically the arrest of a person that gives
rise to the problem of undertrial prisoners and the necessity of bail. It is
essential to ensure that the power of arrest is exercised by the police in a
fair manner. The record of the police in this matter has, however, not
been good.

23. AIR 1977 SC 366.

24. Id. at 376.
25. While pleading for liberal approach in bail, it is not to be understood that bail
is to be granted irrespective of the consequences to the community. To ensure the
latter, the 1980 amendment of the Cr. PC provides for a few serious situations in s. 437
where bail is to be refused.
26. See the statement of the Minister of Home Affairs in Rajya Sabha on July 19,
1982, 123 Rajya Sabha Report 219.
27. See Patriot dated 31.5.1983 at p. 10.
106 Law and Social Change
The power of arrest with the police is a formidable power and it has
given rise to a great deal of abuse. The National Police Commission
is of the view that this has been a great source of corruption and malprac­
tices amongst the police. Though the power of arrest is discretionary
while investigating a case by the police, yet "several police officers make
it appear that an arrest is mandatory". The commission states:

the fear of police essentially stems from the fear of an arrest by

the police in some connection or other. It is generally known that
false criminal cases are sometimes engineered merely for the sake
of making arrests to humiliate and embarrass some specified
enemies of the complainant, in league with the police for corrupt
reasons.**

The Commission concedes the "present police practice of making

arrests indiscriminately in the course of investigations". A strong plea has
to be made that the police should arrest a person only when it is
absolutely essential. It has rightly been stated by a scholar that
"authorising arrest by police in respect of all cognizable offences and
requiring the police to apprehend all persons whom they are legally
authorised to apprehend seem to make the law of arrest over-reach its
objective".2· The National Police Commission supports the idea of
laying down guidelines for the police to arrest a person in cognizable
offences. It recommends that an arrest during investigation of a cognizable
case may be considered justified in the following circumstances:

(z) The case involves a grave offence like murder, dacoity, robbery,
rape, etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror
stricken victims.
(») The accused is likely to abscond and evade the processes of
law.
(Hi) The accused is given to violent behaviour and is likely to commit
further offences unless his movements are brought under
restraint.
(;v) The accused is a habitual offender and unless kept in custody,
he is likely to commit similar offences again.

28. Third Report, supra note 22 at 31; Fourth Report, id. at 7.

29. R.V. Kelkar, "Law of Arrest: Problems and Incongruities," 22 JILI 314, 316
(1980). Also D.C. Pandey,-Search for an Action Against Illegal Arrest", ibid, at 328.
30. Third Report at 31.
 Human Rights and Administration of Criminal Justice 107

V Legal Aid

There is no explicit constitutional right to demand legal aid by an

accused person. Article 22 only provides for the right to consult a lawyer
by an arrested person and to be defended by him. Even the Constitution
Forty-Second Amendment enacted in 1976 merely contents itself by
adding article 39A in the chapter on Directive Principles of State Policy
directing the state to provide "free legal aid". This is merely a directive
and does not in any way give a legal right to the accused to secure free
legal aid.
This constitutional gap, however, has been filled up by the court hold­
ing free legal aid as an essential requisite of the "due procedure" for
depriving a person of his personal liberty. In M.H. Hoskot v. State of
Maharashtra,81 emphasising this aspect, the Supreme Court held that a
prisoner who has been sentenced by a court but entitled to appeal against
the verdict can claim the right to counsel to argue his appeal, and if he
was not able to afford the counsel, being indigent, it was the duty of the
state to provide him with legal aid. In such a case, the court is to assign
a counsel to the accused and the state has to pay resonable sum that the
court may fix as remuneration.
In Hussainara, the principle providing legal aid was reiterated and the
court held that legal aid was to be provided to undertrials for the purposes
of bail and also to defend them at the time of trial.82

VI Prison Justice

Shockingly poor and scandalous conditions prevail in the Indian

jails and the maltreatment meted out to prisoners has attracted, in the
recent years, the attention of the judiciary, the government and journalists.
A team of journalists have pithily described the conditions of Indian jails
as under:

Once again several scandalous events have shown that many jails
in this country continue to be a byword for human degradation
and debasement on the one hand and dens of corruption, callous­
ness and cruelty on the other. Numerous and repeated attempts
at reform have failed even to make a dent in the harsh and dehu­
manising situation, leave alone bringing about a thorough reform
of the prison system.
So much so that an experienced observer of the prison scene
has been constrained to remark that a "jail subculture" has grown

31. AIR 1978 SC 1548.

32. Also Kadra Pahadiya v. Bihar, AIR 1982 SC 1167.
108 Law and Social Change

in India which sanctifies barbaric treatment of inmates, including

torture, forced labour, sexual perversion, starvation diet and large
scale aggrandisement and exploitation by petty jail officials pro­
tected by powerful mentors.33

Another journalist paints the same picture about the Delhi Tihar Jail (the
main jail in the capital of the country):

The sprawling complex of the Tihar Central Jail lurks like a

squatting beast on the fringes of New Delhi's western reaches.
Like all big jails in poor, overpopulated countries, Tihar too bears
the distressing marks of repression, avarice, lust and the age-old
attitude of men to his fellow-humans. The convict and the under-
trial both share the common denominators of woefully insufficient
and inedible food, hard labour, corrupt warders and contaminated
water. Added to that are overcrowded cells, an infected hospital,
sugarless tea, andflexiblerules.34

The Supreme Court has spoken in the same vein about the same jail:

. . . t h e Tihar prison is an arena of tension, trauma, tantrums

and crimes of violence, vulgarity and corruption. And to cap it
all, there occurs the contamination of pre-trial accused with habi­
tuáis and "injurious prisoners of international gang." The crow­
ning piece is that the jail officials themselves are allegedly in league
with the criminals in the cells. That is, there is a large network of
criminals, officials and non officials in the house of correction: drug
racket, alcoholism, smuggling, violence, theft, unconstitutional
punishment by way of solitary confinement and transfers to other
jails are not uncommon.35

Hitherto prisons were not treated as correctional treatment centres but

merely as detention cells. The committee has emphasised the need for
correctional treatment services in the prisons.
The government's response to prison reform has been merely confined
to paper, appointing a committee or commission to suggest reforms in
prisons. Since 1950 not fewer than 23 such committees have been appoint­
ed to suggest reforms in jail administration. In 1977, the Tek Chand Com-
mittee produced a voluminous report. And now there is another report
by the Jail Reforms Committee (Mulla Committee). But nothing concrete

33. Life Behind Bar, Times of India, dated May 23,24 and 25, 1983.
34. Kumkum Chadha, The Indian Jail 9-10 (1983).
35. AIR 1980 SC 1576, 1586.
 Human Rights and Administration of Criminal Justice 109

or significant has taken place as a result of these committees. The govern­

ment alibi has been the lack of funds.36
It was, however, left to the judiciary to humanise the prison admini­
stration to some extent. This the Supreme Court did in the two Sunil
Batra31 cases and Prem Shankar v. Delhi Administration.™ The court started
with the premise that fundamental rights given to the people did not end
at the gates of a jail. Any punitive, outrageous, scandalising or cruel
punishment inflicted by the authorities on a prisoner under arrest would
be violative of articles 14, 19, and 21 of the Constitution. These basic
rights were not negotiable.
The court brought about reform in prison administration in three
matters: (a) handcuffing and bar fetters: (b) solitary confinement: (c)
punishing a prisoner by the jail authorities.
The court regarded bar fetters as a cruel treatment given to a prisoner.
It is humiliating, vulgar, and inflicts physical and mental pain on the pri­
soner. Bar fetters are unreasonable except when they are to be put on
the prisoner to prevent him from escaping or when he is otherwise dange­
rous and desperate so as to harm others.
There may be handcuffing or chaining a prisoner either within the
precincts of the jail by way of punishment or it may be done while the
prisoner is taken from the jail to the court and back. The court conde­
mned the chaining of prisoners in both situations.
In Sunil Batra I it was held that the punishment of putting bar
fetters on a prisoner could only be done by the jail authorities subject
to certain important procedural safeguards. Some of the safeguards pres­
cribed by the court were: (a) it is absolutely necessary to put fetters; (b)
reasons must be recorded; (c) the basic condition of dangerousness must
be well-grounded: (d) natural justice must be observed; (<?) the fetters must
be removed at the earliest opportunity; (/) there should be a daily review
of the absolute need for the fetters; and finally (g) if the fetters are con­
tinued beyond a day, it shall be illegal unless an outside agency like the
district magistrate or session judge directs its continuance.
The question of putting bar fetters on a prisoner while being taken out
of the jail was considered by the court in Prem Shanker. It was held that
handcuffing the prisoner in a routine manner was invalid. A prisoner could
be handcuffed only if there was a clear and present danger of the prisoner
escaping from the police. There should be clear proof that the prisoner
would escape if he was not chained. Where handcuffing becomes neces­
sary, the escorting officer must record the reasons for doing so. Further,

36. See Times of India, dated 25.5.1983.

37. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675: Sunil Batra v. Delhi
Administration, AIR 1980 SC 1579.
38. AIR 1980 SC 1535.
 110 Law and Social Change

the officer must show the reasons so recorded to the judge before whom
the prisoner is taken and get his approval. "The clear and present danger
of escaping and breaking out of the police control is the determinant. And
for this there must be clear material not glib assumption, record of reasons
and judicial oversight and summary hearing and direction by the court
where the victim is produced." 59
Similarly, it was held in Sunil Batra II where any punishment
is to be imposed on a prisoner like putting him into a solitary cell or to
hard labour or denying him the necessary amenities for his misconduct,
this can only be done by following certain procedural safeguards. The
safeguards are to be on the lines as laid down in Sunil Batra I in
relation to bar fetters, i.e. "a hearing at some stages, a review by a
superior, and early judicial consideration". 40
Solitary confinement can be given to a prisoner who has been sentenc­
ed to death or to other prisoners by the jail authorities by way of punish­
ment. Solitary confinement is a human perversity and is to be avoided as
far as possible. As regards solitary confinement by way of punishment,
the safeguards mentioned in the preceding paragraph are to be observed.
A person serving a death sentence is to be given the same condition of pri­
son life as other prisoners except in two particulars. During cellular con­
finement (the period of dusk to dawn) condemned prisoners are to be
excluded from others. Secondly, such prisoners shall be subject to 24 hours
watch by guards. Except for those two restrictions, they are not to be denied
any of the community amenities like games, newspapers, books, moving
around (except between dusk and dawn), and meeting prisoners and visi­
tors, subject to reasonable regulation of prison management.
Finally, the court laid down another important proposition in
Sunil Batra I that legal aid is to be given to prisoners to seek justice
from the authorities and even, if need be, to challenge the decision in the
court, where the prisoner is too poor to afford a lawyer.

VII Admissibility of Illegally Obtained Evidence

A controversial area in criminal justice is the admissibility of illegally

obtained evidence. The traditional common law approach has been that
such an evidence is admissible as the method of collection adopted by the
authorities does not affect its reliability or relevance. In India the over­
whelming judicial view is that illegally obtained evidence is admissible
except where some prejudice is caused to the accused. Further, such an
evidence is to be viewed with care and caution.41

39. AIR 1980 SC 1544.

40. AIR 1980 SC 1594.
41. See S N. Jain, "Admissibility of Illegally Obtained Evidence", 22 JILT 322
(1981).
 Human Rights and Administration of Criminal Justice 111

The judicial approach in the United States is different as the cases

Weeks v. United States 42 and Mapp v. Ohio*3 show.
Since the adoption of the exclusionary rule in the United States, a con­
troversy has been going on whether it is a sound rule. Some of the safe­
guards suggested, in place of the exclusionary rule, for ensuring compli­
ance of the law by the functionary of the state are: (1) Criminal sanctions
against law enforcement officers if they violate federal or state criminals:
(2) civil suits against transgressing officers brought in state or federal courts
by parties who allege that their rights have been violated: (3) departmental
assurance that proper procedures be used by officers and departmental dis­
cipline against offending officers.4* In May 1971, the American Law Insti­
tute recommended that the present exclusionary rules in the United States
be modified. "Instead of automatically suppressing evidence when there
is a violation, as is now required under the present exclusionary rule, the
trial judge can admit the evidence (1) if the trial judge finds that the
violation was less than flagrant; and (2) that excluding the evidence would
deter police from similar invasions of privacy in the future, (3) unless the
defendant could prove that the police violation of the constitutional or
legal rights of the defendant was 'wilful'.45
Even in the United Kingdom there are adverse comments on the Eng­
lish inclusionary rule. It has been stated by a legal scholar

But even if Mapp v. Ohio excludes too much of the English rule it
is too inclusive. As Professor John Rear suggested {The Times, 7
August, 1977) rather than the discretion to exclude being used
'•very exceptionally" it should be exercised in all cases except
where the unlawfulness of the seizure was technical and/or the
offence disclosed by the seizure was really serious. The notion
that lip service to fundamental principles permits their rejection
in practice should be firmly rejected.4*

In India, there are additional reasons why the exclusionary rule should
be followed. The basis of the exclusionary rule is that other available safe­
guards are not enough to deter officials from taking recourse to illegal
means in obtaining evidence, In India, either because of the lack of vigil­
ance on the part of the individual or because of psychological feeling of
not annoying the officials or the department with whom his case is pend­
ing, or because of the lack of cooperation from other institutional agen-

42. 232 US 383 (1944).

43. 367 US 643 (1961).
44. Gardner and Manían, Principles and Cases of the Law of Arrest, Search and
Seizure 84-85 (1974).
45. Id. at 85.
46. Warwick McKean, "Searches and Sandwiches", 37 Camb. LJ 200, 202(1978).
112 Law and Social Change

cies, these traditional safeguards do not seem to be of any utility, and

therefore, there seems to be necessity of adopting the American exclusio­
nary rule. Or in any case instead of holding that illegally obtained evidence
could be used by the government or police, it may be left to the discre­
tion of the courts whether to permit the use of such evidence by the
department or not, and the courts may exercise their discretion on the lines
suggested by the American Law Institute. This would act as a retraint on
the department committing illegalities during search and seizure and at
the same time the court may decide about the admissibility of evidence
collected through illegal means in individual cases on the facts and circum­
stances of each case.

VIII Conclusion

Some of the decisions of the Supreme Court are a reaction to certain

sociological realities which came to light as a result of the efforts of some
journalists and a few public spirited lawyers. Some of the facts revealed
speak of a none too happy state of affairs in the administration of crimi­
nal justice. Added to what has been said earlier is another sociological
fact about the police functioning—the use of third degree. The findings of
an investigation made by a journalist speak about the use of police torture
in Delhi where there are at least four interrogation chambers. They are
situated in the historic Red Fort, the Kingsway Camp Central Reserve
Police hostel, the Directorate of Revenue Intelligence complex and the
basement of the police headquarters at Indraprastha Estate. 47 The case of
Sheela Barse v. Maharashtra" shows that even women are not immune
from custodial violence.48
The court's approach in humanising criminal justice administration
has met with sharp reaction from the point of the police. The judgments
have been delivered and the time is now ripe to have a dialogue amongst
the police, the judges, the lawyers, and the academics. Such a meeting will
indeed be fruitful to solve the tangle.

47. Kumkum Chadha, The Indian Jail 2-i (1983).

48. A I R . 1983 S.C. 378.