Rights of Accused in Criminal Justice Administration in India: An Appraisal of Judicial Activism

Precedent
A Publication of Jus Dicere & Co.
Volume 1 Issue 2 Publisher: Parag Agrawal
Rights of Accused in Criminal Justice Administration in
India: An Appraisal of Judicial Activism
Varinder Kumar Kaushik1 & Vidhu Garg2
If men were angels, no government would be necessary. -James Madison
Like in every civilized society, in India a criminal justice system evolved. Socio-economic and
political conditions prevailing during different phases of the history of India influenced its
evolution. Accordingly, the objectives of the criminal justice and methods of its
administration changed from time to time and from one period of history to another. To suit
the changing circumstances the rulers introduced new methods and techniques to enforce
law and administer justice.
Criminal Justice System in India during Ancient Period
In early society the victim had himself (as there was no State or other authority) to punish the
offender through retaliatory and revengeful methods; this was, naturally, governed by chance
and personal passion.3 Even in the advanced Rig-Vedic period there is a mention that
punishment of a thief rested with the very person wronged.4 Gradually, individual revenge
gave way to group revenge as the man could not have grown and survived in complete
isolation and for his very survival and existence it was necessary to live in groups. Group life
necessitated consensus on ideals and the formulation of rules of behaviour to be followed by
its members. These rules defined the appropriate behavior and the action that was to be
taken when members did not obey the rules.5 This code of conduct, which governed the
1
Professor & Head, Punjab School of Law, Punjabi University, Patiala
2
Student, Punjab School of Law, Punjabi University, Patiala
3
Dr. Mrinmaya Choudhuri, Languishing for Justice, 4.
4
Ibid.; Keith, A. Berriedale, The Age of the Rig Veda The Cambridge History of India 87.
5
Id at 4-5.
ISBN: 978-93-5281-177-9 | Copyrights with Jus Dicere & Co.

December, 2017 Page Number - 573
Published in Articles section of www.manupatra.com

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affairs of the people, came to be known as Dharma or law. In course of progress man felt that
it was more convenient to live in society rather than in small groups. Organizations based
upon the principle of blood relationship yielded, to some extent, to larger associations—the
societies.
In the very early period of the Indian civilization great importance was attached to Dharma.
Everyone was acting according to Dharma and there was no necessity of any authority to
compel obedience to the law. The society was free from the evils arising from selfishness and
exploitation by the individual.6 Each member of the society scrupulously respected the rights
of his fellow members and infraction of such rights rarely or never took place.7 The following
verse indicates the existence of such an ideal society.
There was neither kingdom nor the King;
neither punishment nor the guilty to be punished.
People were acting according to Dharma; and thereby protecting one another.8
However, the ideal stateless society did not last long. While the faith in the efficacy and
utility of Dharma, belief in God and the God fearing attitude of people continued to
dominate the society, the actual state of affairs gradually deteriorated. A situation arose
when some persons began to exploit and torment the weaker sections of society for their
selfish ends. Tyranny of the strong over the weak reigned unabated. This situation forced the
law abiding people to search for a remedy. This resulted in the discovery of the institution of
King and establishment of his authority over the society, which came to be known as the
State.9 As the very purpose of establishing the State and' the authority of the King was the
6
M. Rama. Jois, Legal and Constitutional History of India, 575-76.
7
Supra note 1 at 5; Alfred Russel Wallace, The Storey of Civilization (Part I) Our Oriental Heritage 27.
8
Supra note 4 at 576; Mahabharata, Shanti Parva, 59-14 Naiv rajyam na raja-assinnh dando na cha
dandikah; Dharmenaiv parjah sarva rakshanti sma parsparam.
9
Ibid.


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protection of person and property of the people, the King organized a system to enforce the
law and punish those who violated it. This system came to be known as criminal justice
system.
The beginning of a regular system of state judicial administration may be traced to the pre-
Mauryan age. The Mauryan period (c. 326-185 B.C.) fills a gap between two great epochs of
administration of criminal justice in ancient India, namely, that as mentioned in the Dharma
sutra on the one hand and that of Manu's code on the other.10 The few references in
Megasthenes' Indica to the penalties for offences current in Chandragupta's time breathe the
spirit of the penal law of the preceding period.11 From Pillar Edict IV of Ashoka, we learn that
even after his conversion to Buddhism he continued the death penalty for crimes, only
softening its rigour by giving the convicts three days' respite before execution. The system of
justice of the precedin period appears to have been continued by the Mauryas.' The old
division of urban and rural judiciary was continued in Ashoka's reign. The few references in
the records of Mauryas point to the continuance of the state police of the preceding period.
The jail administration of the earlier times appears to have been continued.12
Judicial System in Villages
The criminal justice system of ancient India was so organized that every villager had easy
and convenient access to a judicial forum. In Vedic society the village Saniitis and Sabhas
were two important instruments of Indian polity. The Village Councils, similar to modem
Panchayats, consisted of a board of five or more members to dispense justice to villagers.13
The administration of justice was largely the work of these village assemblies or other
popular or communal bodies. Village headman had the authority to levy fines on offenders.
10
The Gazetter of India 152.
11
Smith, op. cit, 97-98, Megasthenes came to Patliputra during the period of Chandragupta Maurya
about the year 302 B.C. as an ambassador of Seleukos following the peace between Syria and India.
12
Ibid.
13
V.D. Kulshreshtha, Landmarks in India Legal And Constitutional History 6 .


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There were several village committees, including a justice committee, appointed by people's
vote.14 Village Council dealt with simple civil and criminal cases. Other criminal cases were
presented before the central court Or the courts in towns and district headquarters presided
over by the government officers under the Royal authority to administer justice.15
Examination of Witnesses and Perjury
It was prescribed that the examination of witnesses should not be delayed. A serious defect,
namely, miscarriage of justice, would result owing to delay in examination of witnesses.16
Witnesses were under legal compulsion to give evidence before the court. Failure to appear
before the court entailed heavy penalty. Failure to give evidence amounted to giving false
evidence.17 Peijury, i.e. the act of giving false evidence, was considered a serious offence and
punishment was prescribed for it.18 The entire wealth of a person, who cited false witnesses
out of greed, would be confiscated by the King, and in addition he would be externed.19 The
party whose witnesses deposed against him could examine further and better witnesses to
prove his case as well as to prove that the witnesses examined earlier were guilty of perjury.20
Peoples Participation in Crime Prevention
Failure of duty towards society was taken very seriously. Any person who fails to render
assistance according to his ability in the prevention of crime would be banished with his
goods and chattel.21 Any owner of a house failing to help another at the time of outbreak of
14
Supra note 4 at 676 – 78; King Parantaka, Annual Reports of Archaeological Survey of India 1904-5,
131).
15
Id. at. 6-7.
16
Supra note 11 at 544.
17
Id at 542.
18
Id at 385-86.
19
Id at 388.
20
Id at 550.
21
Id at 380.


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fire was liable to be fined.22 Double punishment was prescribed for those who failed to give
assistance to one calling for help though they happened to be on the spot or who ran away
after being approached for help.23
Criminal Justice System in India during Mughal Period
During the Muslim rule in India, Islamic law or Shara was followed by all the Sultans and
Mughal Emperors. Muslim criminal law as applied in India, was supposed to have been
defined once for all in the Quran as revealed to the Arabian Prophet and his traditional
sayings (hadis).24
The Muslims followed the principle of equality for men and they had no faith in the graded
or sanctified inequality of caste system. Muslim religion places every man on an equal
footing before God, overriding distinctions of class, nationality, race and colour. However,
this concept of equality was applicable only to the Muslims. Under the Muslim law, non-
Muslims did not enjoy all the rights and privileges which the Muslims did. They were not
treated as equal to Muslims in law and were called "zimmis". Their evidence was
inadmissible in the courts against the Muslims. They had to pay an additional tax called
'jizya' and as regards other normal taxes also they had to pay at double the rate than what a
Muslim paid.25
A special feature of the Muslim law was that the Muslim criminal jurisprudence treated
criminal law as a branch of private law rather than of public law. The principle governing the
law was more in the nature of providing relief to the person injured in civil matters rather
than to impose penalty for the offence committed. It was for the private persons to move the
22
Ibid.
23
Id at 381.
24
Supra note 1 at 61.
25


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State machinery against such offences and the State would not suo-moto take cognizance of
the same.26
Judicial System in Villages
During the Muslim rule in India village continued to be the smallest administrative unit of
the government. Each paragnah consisted of a group of villages. For each group of villages
there was a village Panchayat, a body of five leading men, elected by the villagers. The head
of Panchayat was known as Sarpanch.27
Crimes and Criminal Procedure
Contrary to the practice under Hindu law, all crimes were not considered injuries to the State
under the Islamic penal law. The offences were classified under three heads, namely, (i)
crimes against God, (ii) crimes against the State, and (iii) crimes against private individuals.
Crimes against God and the State were treated as offences against public morals. Other
crimes were treated as offences against the individuals; it was for the private persons to move
the State machinery against such offences and the State would not suo-moto take cognizance
of the same. While an offence like murder, which under modem law is treated as the most
heinous crime, was considered as an offence against individual but drinking wine was
considered a very serious offence against society).28
Punishments
The punishments for various offences were classified into four broad categories, viz (a) kisa,
i.e. retaliation which meant in principle, life for life and limb for limb; (b) diya meant
bloodmoney being awarded to the victim or his heirs; (c) hadd inflicted on persons who
26
Supra note 4 at 12-13.
27
28
Dalbir Bharti, The Constitution and Criminal Justice Administration, 34-35 (APH Publishing
Corporation, New Delhi 2002)


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committed offences against God; (d) tazeer, i.e. punishment for the cases not falling under
hadd and kisa. The punishment which fell in this category consisted of imprisonment,
corporal punishments and exile or any other humiliating treatment.29 The type and quantum
of penalty to be imposed was entirely within the discretion of the Judge. In criminal cases, a
great deal of discretion was allowed to them and they took a variety of factors into account in
awarding punishment.30 Punishments prescribed were very cruel. Mutilation of the body was
one of the type of punishment which resulted in great suffering and gradual death.31
A special feature of the punishments was that of diya i.e. bloodmoney. This applied to cases
of certain offences including those falling under kisa. Bloodmoney was awarded to the victim
or the heirs of the victim in a fixed scale. In the cases falling under kisa also the person
entitled to inflict injury on the wrong doer could forego his right by accepting diya. If one of
the heirs accepted kisa and gave pardon, the other, heirs had, no other alternative than to
accept - their share of bloodmoney. According to a fatwa delivered in march 1791, one man
named Mongol Das murdered his wife and one of her heirs gave pardon and therefore no
death sentence could be inflicted at the instance of other heirs and they had no alternative
but to receive diya. Another special feature of the Muslim criminal law was that the death
sentence was required to be executed by the heirs of the deceased.32
Criminal Justice System in India during British Period
Codification of Laws
The Draft Penal Code, which was drafted and submitted to the Governor-General in 1837,
was revised and enacted into law in 1860 by Indian Legislature.33The Indian Penal Code
29
Supra note 4 at 10.
30
31
32
Ibid.
33


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based on English principles wholly superseded the Mohammedan criminal law. A general
Code of Criminal Procedure followed in 1861 and the process of superseding native by
European law, so far as criminal justice is concerned, was completed by the enactment of
Evidence Act of 1872.34 The British by codification and by introducing the English principles
of equity, justice and good conscience, made significant improvement in the preceding
criminal laws.
The British after assuming power in India found the then prevailing criminal justice
administration defective decided to bring about drastic changes in it. Lord Cornwallis made
detailed studies of the existing conditions of the criminal justice administration. He
introduced many reforms to revamp the whole system. Lord Hastings took special interest in
reorganizing the police force to deal with the criminals and maintain law and order in the
country. Lord Bentinck created the post of District and Sessions Judge and abolished the
practice of sati. In 1843, Sir Charles Napier introduced a police system on the lines of Royal
Irish Constabulary. He created the post of Inspector-General of Police to supervise the police
in the whole province. Subsequently, the Indian Police Act of 1861 was enacted on the
recommendations of a Commission which studied the police needs of the Government. They
codified the existing laws; established the High Courts and Prisons Laws.
Thus, the British introduced reforms wherever necessary. They adopted new principles by
modifying the existing laws wherever required and made new laws where they felt it was a
must. The institutions of police, magistracy, judiciary and jails developed during the British
period still continue without significant changes in their structure and functioning.
However, the British rulers also, while restructuring the criminal justice system, did not fully
implement the concept of equality. The reforms introduced by them treated all Indians and
non-British Europeans equally but the British always enjoyed special privileges. It was only
34


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with the Constitution of India coming into being that the right to equality before law was
fully recognized and incorporated in the Constitution as a Fundamental Right.
Judicial Activism and its Impact on Criminal Justice System
When law enforcing agencies submit complaint against an accused before a Court of law,
prayer is made for trial on the basis of materials which prima facie suggest that the accused
may have committed the crime with which he is charged.35 The accused is still fortified with
the presumption of innocence which has to be dislodged by leading evidence in Court. Thus,
Judiciary constitutes the highest authority in the scheme of Administration of Criminal
Justice and it alone decides the guilt or innocence of the accused. After Maneka Gandhi's
case Supreme Court has interpreted article 21 to include a wide variety of positive and
negative rights.
Implementation of Rule of Law
The obligation of judiciary for the implementation of the Rule of Law begins from the stage
of detection of the crime itself. The next stage is investigation, and then the prosecution of
the offender and thereafter only comes the Court when the trial takes place. Therefore, the
period from the time of detection of crime till conclusion of the trial, is all covered within the
ambit of implementation of Rule of Law. Every agency which is involved at any stage of this
process must, therefore, partake its responsibility of performing actively so as to provide
active implementation of Rule of Law, without which there cannot be a functioning
democracy.
Almost global concept in Criminal Jurisprudence is the problem arising out of delay which is
very prone to defeat justice. In many cases, the criminals became discharged from their cases
and find some time and extra energy to commit further crimes but there can hardly be one
35
The Code of Criminal Procedure, 1973, S.173.


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way traffic. Side by side, we find, in reality, that many undertrial prisoners are foced to
languish in jail custody from year to year. As per the settled principle of Criminal
Jurisprudence, a man, however grave his commission of the alleged offence may be, should
be presumed to be innocent unless his guilt is established by cogent evidence in a Court of
competent jurisdiction, may even in the Apex Court. Accordingly, the accused persons can
demand speedy disposal of cases as guaranteed under article 21 of the Constitution.36
Causes of delay in disposal of cases : The obvious causes of delay in disposal of the criminal
cases are not very far to seek. The cases are : (1) frquent adjournment petitions, (2) lengthy
cross-examinations without any useful purpose, (3) lengthy arguments which, on many
occasions, sound much like an empty vessel without much substance, (4) the inadequacy of
staff (5) the non-co-operation of the police, (6) the absence of judges, (7) the absence of
competent judges. Poor suffer due to technicality and procedure while the rich is able to buy
the legal time by illegal-tactics.37
The Hon'ble Supreme Court in Kadra Pehadiya v. State of Bihar,38 observed quite pertinently
'It is a shame upon adjudicatory system which keeps man in jail for years without a trial'. In
State of Maharashtra v. Champalal Punjaji Shah,39 the Supreme Court referred to the
Constitution of U.S.A., and European Convention of Human Rights and observed that the
legitimate demand of undertrial prisoners for speedy disposal of cases could hardly be
brushed aside.
The Full Bench of Patna High Court, in Medheswardhari Singh v. State of Bihar,40 laid down
the following guidelines :- (1) that the right to a speedy trial extends to all criminal
36
Prabhat Kumar Basumallik, Speedy Trial, Cr LJ 63 (1993).
37
World Bank, World Development Report 2000-2001-Attacking Poverty, 103 (Oxford University Press,
New York, 2001).
38
Kadra Pehadiya v. State of Bihar AIR 1981 SC 939.
39
State of Maharashtra v. Champalal Punjaji Shah AIR 1981 SC 1675.
40
Medheswardhari Singh v. State of Bihar AIR 1986 Pat 324.


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prosecutions for all offences generally; (2) it applies to both trial and investigation as per the
Code of Criminal Procedure, 1973; (3) it extends to all criminal proceedings inclusive of the
stage of trial and appellate stage; (4) Delay of 7 years or more in trial and investigation other
than capital punishment violates article 21 of the Constitution.
The Supreme Court, feeling the pulse of unertrial prisoners, in Srinivas V. Union Territory of
Arunachal Pradesh,41 quashed the criminal proceeding because the criminal proceeding arose
out of negligence on a part of a driver of a motor vehicle to drive the vehicle and accordingly
he was charged under section 279 read with section 304A/338, IPC. But the criminal
proceeding did not end in course of 9 years for the alleged commission of offence, which was
not as grave as the offence of dacoity or murder or rape.
The Calcutta High Court in M.K. Ghosh v. State of West Bengal,42 observed that the sword of
Democles should not hang over the head of accused persons for an indefinite period and that
fifteen years elapsed from the date of occurrence. The said case did not end in finally and
accordingly the Hon'ble High Court at Calcutta though it fit to quash the proceeding in view
of the Constitutional right of the accused under article 21 of the Constitution for speedy trial.
Similar fate engulfed another case, namely Ranjit Kumar Pal v. State,43 in as much as the
criminal proceeding remained pending for disposal for 20 years.
The same principle has been reiterated by the Apex Court in Sheela Barse v. State of
Maharashtra;44 Raghubir Singh v. State of Bihar,45 Srinivas Pal v. Union Territory of
Arunachal Pradesh;46 A.R. Antulay v. R.S. Nayak;47 Santosh De v. Archana Guha;48 Union of
41
Srinivas V. Union Territory of Arunachal Pradesh AIR 1988 SC 1729.
42
M.K. Ghosh v. State of West Bengal 1990 Cr LJ 26.
43
Ranjit Kumar Pal v. State 1990 Cr LJ 643 (Cal).
44
Sheela Barse v. State of Maharashtra AIR 1983 SC 378.
45
Raghubir Singh v. State of Bihar AIR 1987 SC 149.
46
Srinivas Pal v. Union Territory of Arunachal Pradesh AIR 1988 SC 1729.
47
A.R. Antulay v. R.S. Nayak AIR 1992 SC 1701.
48
Santosh De v. Archana Guha AIR 1994 SC 1229.


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India v. Ashok Kumar Mitra;49 State of Maharashtra v. Manubhai Paragaji Vashi;50 Common
Cause v. Union of India;51 Mansukhlal Vithalldas Chowhan v. State of Gujarat;52 and Common
Cause, A Registered Society v. Union of India.53
Justice Delayed is Justice Denied
In most of the aforementioned judgments the Supreme Court has followed the principle that
justice delayed is justice denied which is squarely applicable to the Criminal Justice System.
However, it cannot be said that this liberal and novel approach is the newfound activism of
the Court. In fact way back in 1980, in the famous cases of Nimeon Sangma v. Home
Secretary, Govt. of Meghalaya,54 Hussainara Khatoon (I to VI) v. Home Secretary, State of
Bihar,55 and Mantoo Muzumdar v. State of Bihar,56 the Supreme Court declared that
considerable delay in investigation of criminal cases, prolonged detention of under trials
awaiting trial and judicial custody of an undertrial beyond the period of the maximum
imprisonment possible on conviction for the offence, violate the personal liberty of
undertrial prisoners under article 21. In Nimeon Sangma Justice Krishna Iyer observed :
"considerable delay in investigation by the police in utter disregard of the fact that a citizen
has been deprived of his freedom on the ground that he is accused of an offence, verges on
the wholesale breach of Human Rights guaranteed under the Constitution especially under
article 21.... criminal justice breaks down at a point when expeditious trial is not attempted
while the affected parties are languishing in jail."57
49
Union of India v. Ashok Kumar Mitra AIR 1995 SC 1976.
50
State of Maharashtra v. Manubhai Paragaji Vashi AIR 1996 SC 1.
51
Common Cause v. Union of India (1996) 6 SCC 530.
52
Mansukhlal Vithalldas Chowhan v. State of Gujarat AIR 1997 SC 3400.
53
Common Cause, A Registered Society v. Union of India (1996) 6 SCC 530.
54
Nimeon Sangma v. Home Secretary, Govt. of Meghalaya AIR 1979 SC 1518.
55
Hussainara Khatoon (I to VI) v. Home Secretary, State of Bihar AIR 1979 SC 1360.
56
Mantoo Muzumdar v. State of Bihar AIR 1980 SC 847.
57
Nimeon Sangma v. Home Secretary, Govt. of Meghalya, (1980) 1 SCC 700 (701).


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Delay in pronouncing the judgment: Even delay in pronouncing the judgment has been
reprimanded by the Supreme Court. In Anil Rai v. State of Bihar,58 the Court observed that
unexplained long interval between conclusion of arguments and delivery of judgment shakes
the confidence of the people in the judicial system and affects rights of the parties under
article 21.
Right to Bail on Prolonged Delay: the Apex Court in Akhtari Bi v. State of Mdahya Pradesh,59
held that to have 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. The Supreme
Court in Kuluttumottil Razak v. State of Kerala,60 while rejecting the request on behalf of the
appellant to adjourn the matter on account of strike of the advocate observed that delay in
disposing of the matter, wherein the appellant is in jail, would be a violation of article 21 of
the Constitution and accordingly the Apex Court proceeded with the hearing of the appeal
after appointing an advocate as an amicus curiae to argue for the appellant.
Right to Fair Trial
In the lankmark Judgment of Maneka Gandhi the Supreme Court has emphatically declared
that the 'procedure', in accordance with which the life or personal liberty of a person can be
deprived by the State, must be just, fair and reasonable, thereby incorporating the American
doctrine of due process under article 21 of the Constitution. Consequently as regards the trial
of criminal cases, the Supreme Court has after 1980s in a number of cases recognised the
right of undertrial prisoners to a fair trial as a fundamental right under article 21.61
58
Anil Rai v. State of Bihar AIR 2001 SC 3173.
59 Anil Rai v. State of Bihar AIR 2001 SC 1528.
60 Kuluttumottil Razak v. State of Kerala 2000 SCC (Cri) 829.
61 Dr. G.B. Reddy, Judicial Activism in India, 186.


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In State of Punjab v. Sarwan Singh,62 the Supreme Court held that article 21 embodies a fair
trial in it. The Supreme Court reiterated the principle that the 'procedure established by law'
embodies in itself the public and open trial. A special Bench of 9-Judges in Naresh Sridhar
Mirajkar v. State of Maharashtra,63 had occasion to make some very important observations
as to why trial must be open. It was stated by Gajendragadkar, C.J. speaking for the majority,
that public trial in open Court is essential for the healthy, objective and fair administration
of justice, because a trial held, subject to the public scrutiny and gaze, naturally acts as a
check against judicial caprice or vagaries and serves as a powerful instrument for creating
confidence of the public in the fairness objectivity and impartiality of the administration of
justice.64.
Other Aspects of Fair Trial
In Santosh v. Archana Guha,65 the Supreme Court held that delayed trial defeats the right of
an accused to speedy and fair trial implicit under article 21. In Joginder Kumar v. State of
Uttar Pradesh,66 the Supreme Court declared that the right of an arrestee to have someone
informed about his arrest and the right to consult privately with lawyers are inherent in
articles 21 & 22. In the instant case, the Court has issued number of directions for effective
enforcement of fundamental rights guaranteed under articles 21 & 22. In commissioner of
Police, Delhi v. Registrar, Delhi High Court,67 the Supreme Court reiterated the assurance of
fair trial is the first imperative of the dispensation of justice. In the instant case, the Court
directed the police to provide adequate safety to an accused person, as it is his fundamental
right under article 21.
62 State of Punjab v. Sarwan Singh AIR 1981 SC 1054.

63 Naresh Sridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1.
64 Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
65 Santosh v. Archana Guha AIR 1994 SC 1229.
66 Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349.
67
Commissioner of Police, Delhi v. Registrar, Delhi High Court AIR 1997 SC 95.


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Right to Free Legal Aid
In M.H. Hoskot V/s State of Maharashtra,68 the Supreme Court applied the ruling of Maneka
Gandhi's Case.69 The court held that 'a single right to appeal' on facts, where the conviction is
fraught with long loss of liberty, is basic to civilized jurisprudence. One component of fair
procedure is natural justice.
Regarding the right to free legal aid, Krishna Iyer, J., declared, "This is the State's duty and
not Government's charity." If a prisoner is unable to exercise his constitutional and statutory
right of appeal including special leave to appeal for want of legal assistance, there is implicit
in the court under Article 142, read with Articles 21 and 39-A of the Constitution, the power
to assign counsel to the prisoner provided he does not object to the lawyer named by the
court. Equally, is the implication that the state which sets the law in motion must pay the
lawyer an amount fixed by the court.
In State of Maharashtra V/s Manubhai Pragaji Vashi,70 the court has considerably widened
the scope of the right to free legal aid. The court held that in order to provide "the free legal
aid" it is necessary to have well trained lawyers in the country. This is only possible if there
are adequate number of law colleges with necessary infrastructure, good teachers and staff.
Since the Government is unable to establish adequate number of law colleges, it is the duty of
the Government to permit establishments of duly recognized private law colleges and afford
them grants-in-aid on similar lines on which it is given to Government recognized law
colleges. This would facilitate these colleges to function effectively and in a meaningful
manner and turn out sufficient number of well-trained or properly equipped law graduates in
all branches year after year. This will in turn enable the state and other authorities to provide
68
M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548.
69
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
70
State of Maharashtra v. Manubhai Pragaji Vashi (1995) 5 SCC 730 .


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free legal aid and ensure that opportunities for securing justice are not denied to any citizen
on account of disability.
In Suk Das V/s Union Territory of Arunachal Pradesh,71 the court has held that failure to
provide free legal aid to an accused at the state cost, unless refused by the accused, would
vitiate the trial. He need not apply for the same. Free legal aid at the state cost is a
fundamental right of a person accused of an offence and this right is implicit in the
requirement of reasonable, fair and just procedure prescribed by Article 21. The right cannot
be denied to him on the ground that he has failed to apply for it. The Magistrate is under an
obligation to inform the accused or this right and inquire that he wishes to be represented on
the state's cost, unless he refused to take advantage of it.
Article 21 and Prisoners
The credit for humanising the prison atmosphere of the country goes to Justice Krishma Iyer
if any one individual can be named in this regard. Justice Iyer has by very eloquent, forceful
and convincing reasons brought home to one and all that prisoners do not become non-
persons in so far as Article 21 is concerned. Many dehumanising aspects of prison-life have
been taken care of by the deeply humane Judge.
Before we advert to the judgements of Justice Krishna Iyer, beginning from Charles Sobhraj
running through Sunit Batra, it may be stated that the first judgement of the apex Court in
which-Article 21 was brought to the aid of a prisoner State of Maharashtra V. Prabhakar,72 in
which it was held by the Constitution Bench that as there was no prohibition in the
concerned condition of the Detention Order, the State infringed upon the personal liberty of
the detenue by prohibiting him from writing a book. A three judge Bench also dealt with
fundamental rights of Prisoners in Jail in D. Bhuvan Mohan Patnaik V. State of Andhra
71
Suk Das v. Union Territory of Arunachal Pradesh (1986) 25 SCC 401.
72
State of Maharashtra v. Prabhakar AIR 1966 SC 424.


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Pradesh,73 in paragraph 10 of which after referring to Kharak Singh V. State of U.P.,74
wherein it was opined that the word 'Life' in Article 21 means something more than animal
existence, the Bench stated that no person, not even a Prisoner, can be deprived of his life or
personal liberty except according to the Procedure established bylaw. In that case, the Court
was concerned with the segregation of Nexalite Prisoners in a 'quarantine' and the inhuman
treatment meted out to them as if they were the inmates of a "fascist concentration camp".
The Court emphasised that though the Government possesses the Constitutional right to
initiate laws, it cannot, by taking into its own hands, resort to oppressive measures to curb
the political beliefs of its opponents. But then, it was opined that whatever the nature and
extent of the prisoners' fundamental right of life and personal liberty, they have no
fundamental freedom to escape from lawful custody because of which they cannot complain
of the installation of the high volt live wire mechanism on the jail walls to prevent escape of
prisoners, with which they are likely to come in contact only if they attempt to escape.
In Charles Sobhraj V. Superintendent of Central Jail75, the Court was seized with the
complaint of incarceratory torture and it opened in paragraph 5 that through Articles 14, 19
(1) (d) and 21 "(C)onstitutional Karuna is injected into incarceratory strategy to produce
prison justice" and where a prison practice or internal instruction places harsh restrictions
on jail life breaching guaranteed rights, the Court directly comes in. It was then observed in
Paragraph 8:
" Every Prison sentence is a conditional deprivation of life and liberty, with civilised norms
built in and unlimited trauma interdicted. In this sense, judicial policing of prison practices
is implied in the sentencing power."
73
D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh AIR 1974 SC 2092.
74
Kharak Singh v. State of U.P AIR 1963 SC 1295.
75
Charles Sobhraj v. Superintendent of Central Jail AIR 1963 SC 1514.


Precedent
It was, however, stated in paragraph 12 that the Court would be reluctant to intervene in day-
to-day operation of the penal system, but undue harshness and avoidable tantrums, under the
guise of discipline and security, give no immunity from Court writs. The reason was stated to
be that Prisoners retained all rights enjoyed by free citizens except those lost necessarily as
incident of confinement and the rights enjoyed by Prisoners under Articles 14, 19 and 21,
though limited, are not static and will rise to human heights when challenging situations
arise.
The aforesaid situation did arise in Sunil Batra v. Delhi Administration,76 wherein the
learned judge in his concurring judgement unfolded and meticulously examined the
provisions of prison justice and the role of judicial power Constitutional sentinels in the
context of escalating torture by the menials of the State in the virgin area of jurisprudence,
which was the cause of "explicative length of the judgment". The question for determination
in Sunil Batra was as to when a Prisoner can be put under bar fetters and confined in a
solitary confinement. It was opined that liberty to move, mix, mingle, talk and share
company with co-prisoners, if substantially curtailed, would be violative of Article 21 in as
much as the curtailment has no backing of law. It was pointed out that the word 'Law' in
Article 21 has been interpreted in Maneka Gandhi's Case77 to mean that it must be right, just
and fair and not arbitrary, fanciful or oppressive (paragraph 228).
The following stimulating, meaningful and pregnant thoughts finding place in paragraph 207
deserve notice in this regard:
"Prison laws, now in bad shape, need rehabilitation, prison staff, soaked in the Raj past, need
reorientation; prison house and practices, a hangover of the die-hard retributive ethos,
reconstruction; prisoners, those noiseless, voiceless human heaps, cry for therapeutic
technology; and prison justice, after long jurisprudential gestation, must now be reborn
76
Sunil Batra V. Delhi Administration AIR 1978 SC 1675.
77
AIR 1978 SC 597.


Precedent
through judicial midwifery, if need be. No longer can the Constitution be curtained off from
the incarcerated community since pervasive social justice is a fighting faith with Indian
humanity. I hopefully, alert the nation and, for once, leave follow-up action to the
Administration with the note that stone walls and iron bars do not ensure people's progress
and revolutionary history teaches that these Bastillers are brittle before human upsurges and
many tenents or iron cells are sensitive harbingers of Tomorrow– many a Socrates, Sri
Aurobindo, Tilak, Thoreau, Bhagat Singh, Gandhi! So it is that there is urgency for bridging
the human gap between prison praxis and prison justice; in one sense, it is a battle of tenses
and in another, an imperative of social justice".
Solitary Confinement and Some Other Aspects
The question of solitary confinement came up for consideration by the Supreme Court in
Kishore Singh V. State of Rajsthan,78 in which it was stated by justice Krishna lyer that
solitary confinement has to be resorted to only in the "rarest of rare cases" for security
reasons to make it in consonance with Article 21 of the Constitution.
The thread was picked up by Justice Krishna Iyer himself in Prem Shankar V. Delhi
Administration,79 in which by relying on Sunil Batra's Case it was proclaimed that
handcuffing is prima facie inhuman and, therefore, no reasonable, is over-harsh and at the
first flush arbitrary. To inflict 'irons' was said to be resort to zoological strategies repugnant
to Article 21.
Kishore Singh80 is also in the same vein stating that this can be done only in the "rarest of
rare cases" for security reasons. Kadra Pahadiya V. State of Bihar,81 states that under-trial
prisoners too cannot be kept in leg-irons.
78
Kishore Singh v. State of Rajsthan AIR 1981 SC 625.
79
Prem Shankar v. Delhi Administration AIR 1980 SC 1535.
80
Kishore Singh v. State of Rajsthan AIR 1981 SC 625.


Precedent
Hussainara's Cases also brought some relief to the prisoners. In one of the cases,82 it was held
that detention of persons beyond the period longer than what they could have been
sentenced – if convicted would be illegal and violative of Article 21. The same view was
expressed in Veena Sethi V. State of Bihar.83 In Francis Coralie V. Union Territory of Delhi,84
the permission to have only one interview in a month with the members of the family or the
legal advisor of the detainee was held to be violative, inter alia, of Article 21.
Detention of an insane after his declaration as sane without taking steps to release him was
held violative of Article 21 in Veena Sethi.85 This was also the view expressed in Sant Veer V.
State of Bihar.86
Compensation
Apart from praying for release if under detention, violation of Article 21 has visited the
violator with award of suitable amount as compensation. The path-setting decision in this
regard is that of Rudal Shah V. State of Bihar,87 in which Chandrachud, C.J. observed in
Paragraph 10 that "one of the telling ways in which violation of Article 21 can reasonably be
prevented is to award compensation when it is violated." The Learned Chief Justice stated
that "one way for securing due compliance. With the mandate of Article 21 is to mulct its
violators in the payment of monetary compensation". and being of this view order for
payment of a total sum of Rs.35000/- because the petitioner was released more than 14 years
after he was acquitted, because of which his confinement became illegal. It was, however,
stated that the compensation awarded in such a case is really to be taken as a "Palliative",
81
Kadra Pahadiya v. State of Bihar AIR 1981 SC 939.
82
AIR 1979 SC 1369.
83
Veena Sethi v. State of Bihar AIR 1983 SC 339.
84
Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746.
85
Veena Sethi v. State of Bihar AIR 1983 SC 339.
86
Sant Veer v. State of Bihar AIR 1982 SC 1470.
87
Rudal Shah v. State of Bihar AIR 1983 SC 1086.


Precedent
because a victim of the present kind cannot be left penniless until the end of his suit, the
many appeals and the execution proceedings which would take place if the concerned person
were to approach the Court by filing compensation suit, which proceeds leisurely. A
compensation awarded by a writ Court in such a case does not also prevent the person
concerned from bringing a suit to recover appropriate damages (paragraph 12).
Bhim Singh V. State of J&K88 was the next case in which, for mischievous and malicious
detention, compensation of Rs.50,000/- was awarded; may be, because Bhim was an M.L.A.
and he was prevented, because of the detention, from attending an impending Assembly
Session.
In People's Union for Democratic Rights V. State of Bihar,89 a sum of Rs.20,000/- was
awarded to the person who had succumbed to the injuries sustained in Police firing. Of
course, this was ordered with a view to rehabilitate the dependents of the deceased in which
case the State itself comes forward to give compensation, which sum ordinarily is Rs.20,000/-
Payment by the State
In a case where violation of Article 21 results due to action by a public officer, compensation
is being awarded against the State because of its vicarious liability for the tortuous acts of its
employees. This was specifically stated in Saheli, a Women's Resources Centre V.
Commissioner of Police, Delhi,90 and a sum of Rs.75,000/- was awarded. In that case, a child
had died due to Police torture.
In Nilabati Bahera V. State of Orissa,91 a sum of Rs.15 lakhs was awarded to a mother whose
son had died during Police Custody. The high compensation was described as "exemplary
damages". The Court also observed that forging of "new tools" had become necessary for
88
Bhim Singh v. State of J&K AIR 1986 SC 494.
89
People's Union for Democratic Rights v. State of Bihar AIR 1987 SC 355.
90
People's Union for Democratic Rights v. State of Bihar AIR 1990 SC 513.
91
Nilabati Bahera v. State of Orissa 1993-2, SCC. 746.


Precedent
doing complete justice and for enforcing fundamental rights guaranteed by the Constitution
and it was stated that when awarding of monetary compensation is the only practicable mode
of redress available for their contravention by the State or its servants, resort to remedy in
Public law by taking recourse to Articles 32 and 226 should be permitted.
Conclusion
There is imminent need to bring in changes in Criminal Justice Administration so that State
should recognize that its primary duty is not to punish, but to socialize and reform the
wrongdoer and above all it should be clearly understood that socialization is not identical
with punishment, for it comprises prevention, education, care and rehabilitation within the
framework of social defence. In working towards this goal, the respect for human values
must be ensured and we must conceive ourselves that we cannot honestly insist on
irreproachable conduct if we do not use methods in conformity with the principle of our
civilization. It is also most important that criminal laws should ensure that Human Rights
are respected by seeing that the law is strictly adhered to. The Principles of liberty and
legality, which are results of historical development of present day society, should be
considered inviolable.92
Need For Judicial Training Academies
In many States of U.S.A. there are regular training schools for newly recruited judicial
officers. Even the International Association of Judges in their International Congresses at
Rome in 1958 and in Nice in 1972 seriously concerned themselves with the question of the
initial and in-service training of judges in extra-legal subjects like Criminology, Applied
Psychology, Sociology etc. Thus in the Rome Congress it was, inter alia, resolved to achieve
the following results.
92
Prof. R. Deb, Rights of the accused under the Law, Cr LJ 17 (1981).


Precedent
1. "Improvement of University education in the modern branches of learning indispensable
for the judicial function.
2. Creation of Centres, for training, research and study dealing with the formation of Judges
by a unified method.
3. This training should include extra-legal knowledge in economics, sociology, psychology,
criminology and should promote studies and discussions of cases, thereby involving
experimental and practical stages".
There is imminent need to change our education system, so that a person may understand
the meaning of living in the society, failing which we would be heading towards a disaster,
where man would become absolutely self centred, not respecting the personality of others.
This requires that the system of education should also have teachings in respect of human
values, which must include even Human Rights jurisprudence.
It may be mentioned that we may have the best of the criminal procedure or the Criminal
law, it will not be effective unless the implementation machinery, at all levels including
general public, police and the Courts are honest in implementing the spirit and the letter of
law. For this problem there needs to be strictness right from the top and all the citizens in
India should have self-restraint to be honest in spite of all the economic difficulties.
Presumption of Guilt Theory
Presumption of guilt theory should be invoked for those state actors who are associated with
Criminal Justice delivery system and they abuse the process of law to implicate innocent
persons in false cases.
Punishment for Making and Abetting False Accusations


Precedent
Criminal Law should be amended to insert same Punishment for those people who make
and/or abet willful false accusations or charges against innocent persons for offences being
provided for the offences for which innocent persons are accused or charged.
Establishment of Village and Word Councils
There is a need to establish councils at Village level in villages and ward level in the cities to
deal with petty offences to lessen the burden of Courts and imparting speedy justice.
Besides this, it is duty of every individual also to observe the concept of Human Rights and
particularly of those, who belong to higher strata of the society.


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A Publication of Jus Dicere & Co.

Volume 1 Issue 2 Publisher: Parag Agrawal