Human Rights Of The Accused-an Indian Perspective

HUMAN RIGHTS OF THE ACCUSED PERSONS – AN INDIAN PERSPECTIVE

Jlan Kupar K. Rymbai Associate BBPM Law Associates [email protected]

The Article is just an overview of the constitutional protections accorded to a person in India in terms of certain criminal procedures with an idea to protect fundamental human rights.

Jlan Kupar Rymbai Associate BBPM Law Associates A-13, First Floor, Nizamuddin East, New Delhi-110 013 [email protected]

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I Introduction:I.1

Human rights are derived from the basis of natural law. It is neither derived from

any social order nor is it conferred upon the individual by the Society. It confines itself to the fact that such Rights are inherent in an individual to enable the individual to sustain himself as a human being. Such rights are independent to the development of society and pre-exists a person‟s participation in the society. Basically, Human Rights includes within its ambit the Right to Equality, Life and Personal Liberty, Freedom of Speech and Expression, Right against Arbitrary Arrest, Freedom of Conscience and Religion and Right for demanding enforcement of such guaranteed human rights.

I.2

Out of the numerous legal safeguards in international and domestic law that are

intended to protect an „Indian Citizens', Fundamental Rights seem to have very little meaning to the citizens of India especially those of the accused persons [pre-trial and under-trial prisoners, even the convicts] as the Indian government has failed to adequately protect the right to life of its citizens. Although the Supreme Court of India has attempted through judicial activism to create standards for the enforcement of international and domestic laws, their actions have not sufficiently trickled down to those to whom it matters most. This activism has resulted in numerous so-called landmark cases. However, violations of the right to life are still prevalent and have permeated the deepest reaches of the country. This apparent apathy to people's rights has resulted in a broad discrepancy between the "laws of the land" and day-to-day practice. It is important to note that:-

 Human rights are indivisible and inalienable. They cannot be taken away except in specific situations. However, the right to liberty can be restricted if a person is found guilty of a crime by a court of law.

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

I.3

Rights of Man, as embodied in the declaration proclaimed at the French

Revolution, during the later part of the Eighteen Century is a symbolic depiction of the aspirations of man to free himself from oppression and tyranny from his fellow men and his innate urge for equality and fraternity amongst homo-sapiens. The Magna Carta of 12151 which introduced the concept of jury trial further provides that2:

“No freeman shall be taken or imprisoned or outlawed or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by legal judgment of his peers or by the law of the land”

I.4

Following this, the Bill of Rights, 1689, evolved and gave birth to the idea of

Parliamentary Democracy against arbitrary power and unbridled authority of King of England and it assured to the people equality before the law. The Habeas Corpus Acts of 1640 and 1679 had attempted to provide legal remedies against arbitrary detention and imprisonment. The measure had come to be accepted as a tool to move the authority seeking immediate release either for unlawful detentions or even lawful incarceration but on appropriate grounds3. The American Declaration of Independence of 1776 and the French Revolution of 1789 – 1793 were influenced and inspired by the earlier crusades for liberty participated by many and galvanized into action by the free thinking leading lights of the preceding centuries.

1

Magna Carta, also called Magna Carta Libertatum (the Great Charter of Freedoms), is an English legal charter, originally issued in the year 1215. It was written in Latin and is known by its Latin name. The usual English translation of Magna Carta is Great Charter 2

Article 39 of the Magna Carta, 1215.

3 Dr.S.Krishnamurthy, “Human Rights and the Indian Police”, [Second Edition 1996, RR Publishers Bangalore 560055], at page 30

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I.5

The English concept which stipulated that “the King can do no wrong” was not

prevalent in the ancient system in India as the ancient system in India did not differentiate in favor of the ruling class. Crimes were degraded according to the gravity but the punishment was not absolutely uniform as the same act done by different persons could be dealt differently depending upon a logical argument which viewed the implications of each such acts. For example, a Brahmin was not expected to commit theft and should he be held guilty of that charge, then he would be imposed a greater fine in a graded scale covering the four Varnas. Female, as a rule were exempted from capital punishment and even in matters of money fines, women were obliged to pay half the fine that could be imposed on a mole for a similar offence.

I.6

Human rights are generally violated by arbitrarily making the innocent persons an

accused of some offence which one has not committed or is in involved due to enmity, or due to victimization. An accused person is supposed to be innocent unless charge of some offence if proved against him. Similarly, in the provision of Articles – 14(2)4 of the international covenants of civil and political rights. Everyone charged with criminal offence shall presume to be innocent until proved guilty according to the law.

I.7

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

production before the court and judicial trial if any against him to be launched. 1. A police officer may arrest an accused person without warrant in certain circumstance mention in Section - 41 of the code of criminal procedure 1973, herein referred to as the code in this part – (a) he has been concerned in any cognizable offence where a reasonable complaint has been made against him, or some credible information has been received against him or a reasonable suspicious exist against him

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

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(b) Who has some implement of house breaking in his possession without lawful excuse (c) Who has been proclaimed as an offender under the code or (d) In whose possession some suspected stolen property is found (e) Who obstruct a police officer from his duty or who has escape or attempts to escape from lawful custody (f) Who is suspected to be deserter from armed forces (g) Who. If released convicts breaks any condition of his release or requisition for whose arrest has been made from some other police station. I.8

Art -11 of the Universal Declaration of Human Rights, 1948 declares that – (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

I.9.

India has the adversary or accusatorial model of criminal justice administration

which is different from the inquisitorial model followed elsewhere in the world. Both the system originates and developed at the time and during a period when the concept of victim justice system, crimino-victim justice system or equal justice to crimino-doers and BBPM LAW ASSOCIATES

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victim were not thought of. Both accusatorial and inquisitorial were established with an aim of administering justice to the criminals only. In the accusatorial system, the accused in a crime is presume innocent and every charge against the accused has to be proved by the investigating agency. A person becomes an accused only when a confession is received from the suspect. It may be remembered here that several courts in India including the Supreme Court have been reminding the police time and again that they cannot and should not resort to third degree method during the investigating of the case

I.10

Coming to the American Constitution, from colonial times until the present,

Americans have believed in an old English saying: “It is better for 99 guilty persons to go free than for one innocent person to be punished.” In the United States, a person accused of a crime is presumed guilty until proven innocent. The burden of proving the suspect guilty is upon the government prosecutors.

I.11

If we are to go by the principle of human rights then all kinds of arrest, be it with

or without warrant, would amount to violation of human rights as arrest is physical restraint of a person which involves deprivation of human dignity and of personal liberty and so also in case of imprisonment which is unreasonable restriction. But human being cannot live alone but live as a society and thereby bound by certain rules and regulations. The fact of living in a society renders it indispensable that each should be bound to observe a certain lines of conduct towards one another. When any part of the conduct affects prejudicially the interests of others violation is said to have occurred and as such we need certain rules and regulations to control such conduct, act or action which can affect the interests of another. Therefore, we have binding rules, regulations and laws, but these entire have its own limits and have to be exercised without arbitrariness and unlawfulness by the power holders without violating the rights and interests of the power addressees. These laws, rules and regulations giving certain rights and protection to the accused and at the same time limits the power of the State and of the enforcement agencies has to be studied very carefully. BBPM LAW ASSOCIATES

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I.12

The main concern is on the constitutional rights as well as the international

covenant of the accused regarding freedom from arbitrary and unlawful arrest, detention and torture, right to be informed of grounds of arrest and right to counsel, right to be presumed innocent until proved guilty, right not to be subjected to retrospective punishments (ex post facto), right against double jeopardy, right to bail, right to fair trial and also rights for preserving human dignity and self-pride.

II.

Right to fair Trail and Fair Hearing:

II.1

Articles 10 of the UDHR declares that everyone entitle in full equality to a fair and

public hearing by an independent and impartial tribunal, in the determination of his legal rights and obligation and of any criminal charges against him. Articles 14(1) of the international covenants on civil and political rights provide that all people shall be equal before the court and tribunals. In the determination of any criminal charges against him or of his right and obligation in a suit at law everyone shall be entitle to fair and public hearing by a competent, independent and impartial tribunal established by law. This right to fair trial will embrace the following guaranteed rights of accused:

III. III.1

Right To Be Presumed Innocent Until Proved Guilty:The presumption of innocence has been accepted as a central safeguard

against the exercise of arbitrary power by public authorities. It means the prosecution has the ultimate burden of establishing guilt. If, at the conclusion of the case, there is any reasonable doubt on any element of the offence charged, an accused person must be acquitted. In India, a system of adversarial form of adjudication is followed which is also known as „accusatorial system‟ in case of criminal procedure and the underlying principle of this system is “presumption of innocent until-proved-guilty”. The legal ethics of our criminal justice system is “let thousand of criminal’s be let out, but a single innocent should not be punished”.

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III.2

This right of the accused is the most important and basic component of a fair

trial. The presumption of innocence, among others, means that the burden of proof in a criminal trial lays on the prosecution and that the accused has the benefit of the doubt. No guilt can be presumed until the charge had been proved beyond reasonable doubt. It implies that an accused has a right to be treated in accordance with this principle and as such all public authorities have a duty not to prejudice the outcome of a trial. The fact that the accused has committed an act which fulfills the description of a criminal offence does not mean that the court can terminate the proceeding or the trial, otherwise it would amount to violation of the right to be presumed innocent until proved guilty. The purpose of the presumption of innocence is to minimize the risk that innocent person may be convicted and imprisoned.

IV.

Right To Speedy Trial:-

IV.1

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

the above discussed international documents and conventions except the UDHR. “Delay defeat equity” is a maxim of the law of equity, justice delayed is justice denied is the well known principles of criminology. The American constitution clearly state that in its sixth amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense”

V.

Right Of A Person to be produced before the Magistrate:-

V.1

Every accused have the right to produce before a magistrate within twenty

four hours of his arrest. Articles 9(3) ICCPR provides that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized BBPM LAW ASSOCIATES

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by law to exercise judicial power and shall be entitle to trial within a reasonable time. In consonance with Section 565 CrPC provide for a person not to be detained more than twenty four hours. It lays down that no police office shall detain a person in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable and such period shall not, in absence of a special order of magistrate under Section 167, exceed twenty four hours exclusively of the time necessary for the journey from the place of arrest to the magistrate office.

VI. VI.1

Conclusion /Suggestion:Persons accused of any offence are always looked down and treated as criminal

even before they are proved guilty which is against the principle of criminal jurisprudence. They are denied of their basic rights as a human being and are treated as animal and subjected to all kinds of torture by the police and that amounts not only to violation of the Constitutional and Statutory provisions but also a grave violation of human rights of the accused. Some recommendation under the Indian constitution is mention below

VI.2

Clauses (1) and (2) of Article 226regarding “pre-trial detention” with order of the

Magistrate have to be struck down as it is unconstitutional and against the guarantees of Article 19(1) and it is violation of human rights to detain a person before he is proved guilty of the offence for which he is being charged. The word “excluding” (the time necessary for the journey from the place of arrest to the court of the Magistrate) in Article 22(2) should be replaced by the word “including” as the word “excluding” gives

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A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. 6

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

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leeway for the police to rob the accused of their rights and it renders the clause ineffective

VI.3

An accused person could be, before arresting him, called to present himself before

the Court at first, on failing which arrest can be carried out but in such a manner so as not to harm his or her dignity.

VI.4

The law providing for rights of accused must first be clear and certain and free

from ambiguity and it must be a valid law and should answer the requirements of Article 14 and Article 19(1). Some provisions of the Constitution and Statutory Law have to be, if not struck down wholly, amended in order to curb the misuse of powers by the power holders and violation of human rights of an individual generally and of the accused particularly.

VI.5

Though the international documents, charter and conventions have recognized

and guaranteed certain rights and protection to the accused the future does not seem to be very bright and hopeful as far as the pre-trial, under-trial and convict persons are concerned. The stipulation of the rights in the international documents or conventions alone is not enough. They themselves cannot serve any useful purpose unless the rights and protections set forth in their provisions are implemented by the member states. At present, there is a wide gap between the promise and performance because of the absence of effective international implementation machinery so far as penal processes are concerned. Efforts made in the past at international level to protect the human rights of the accused have not been very promising. This may be due to different ideas of concept of sovereignty and of human rights itself. As long as the States would continue to differ on the basic concept of national sovereignty and of human rights, the implementation of the provisions of the international documents and conventions is unlikely to be successful.

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VI.6

An effective procedure for the protection of human rights in general and of the

accused in particular is needed which would mean substantial change in the distribution of power between member states and the United Nations, and within member states between active decision makers and the individual human beings. It would further mean that the member states should agree themselves for the curtailment of national sovereignty to some extent. If the states are at all serious for the protection and promotional of human rights, it is quite essential to provide remedy at international level. There are frequent complaints regarding inhuman treatment given to the prisoners in jail. They are deprived of the best medical facilities and treatment and a large number of prisoners are suffering from diseases. There is dispute regarding fair, adequate and equitable wages to the prisoners, the under-trial prisoners are not produced before the court. There is an immediate need to review the international human rights law as far as the rights of accused are concerned.

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