CHAPTER I

INTRODUCTION

1.1 Overview For the first time in India's constitutional history, the Supreme Court accepted, by majority, in the Maneka Gandhi case in 1978 that the right to life and personal liberty was subject to a higher norm based on fairness and reasonableness despite the explicit deletion of the due process clause from the Constitution. The court found that by denying Maneka Gandhi a hearing before impounding her passport, the Passport Authority of India had violated the principles of natural justice. The court articulated the view that the procedure established by law under Article 21 must be fair, just and reasonable.1 In moving from the narrower threshold of `procedure established by law to the more liberal `substantive due process for restraining personal liberty; this decision was the precursor to the creative expansion of rights by the judiciary.2 The court asserted the doctrine of substantive due process as being integral to the chapter on fundamental rights and emanating from a collective understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life). The power the court has to strike down legislation was thus broadened to include critical examination of the substantive due process element in statutes.3 It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.
1 2

<http://www.frontlineonnet.com/fl2905/stories/20120323290507900.htm> accessed on 29 August 2012. <http://indialawyers.wordpress.com/2010/01/27/upholding-personal-liberty-maneka-gandhi-case-1978/> accessed on 20 August 2012. 3 <http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm< accessed on 5 September 2012.

1.2 Research Hypothesis The Maneka Gandhi case is effectively an amendment in the Indian Constitution. 1.3 Research Methodology The research method used in this paper is the doctrinal method. The research has been conducted through the use secondary sources such as newspapers, books and online resources to collect the data. 1.4 Research Plan The first chapter contains an overview of the research paper and the research hypothesis, methodology and plan. The second chapter deals with the history of the due process clause that was brought in by the Maneka Gandhi judgment, which was perhaps its most important contribution. The third chapter deals with personal liberty, Art 19 and the confluence of Arts 14, 19 and 21. Chapter four deals with the twin doctrines: due process and constitutional morality. The fifth chapter deals with the contemporary issue of legal aid, and its importance in todays scenario of criminal justice. The final chapter shall deal with conclusions and suggestions, including criticisms of the judgment.

CHAPTER II

CRIMINAL JUSTICE

2.1 Definition Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers. The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) Adjudication (courts); and (3) Corrections (jails, prisons, probation and parole). In the criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society. 2.2 Policing The first contact an offender has with the criminal justice system is usually with the police (or law enforcement) who investigate the suspected wrongdoing and make an arrest, but if the suspect is dangerous to the whole nation, a national level law enforcement agency is called in. When warranted, law enforcement agencies or police officers are empowered to use force and other forms of legal coercion and means to effect public and social order. The term is most commonly associated with police departments of a state that are authorized to exercise the police 3

power of that state within a defined legal or territorial area of responsibility. The word comes from the Latin politia ("civil administration"), which itself derives from the Ancient Greek , for polis ("city").4 The first police force comparable to the present-day police was established in 1667 under King Louis XIV in France, although modern police usually trace their origins to the 1800 establishment of the Marine Police in London, the Glasgow Police, and the Napoleonic police of Paris.56 Police are primarily concerned with keeping the peace and enforcing criminal law based on their particular mission and jurisdiction. Formed in 1908 the Federal Bureau of Investigation began as an entity which could investigate and enforce specific federal laws as an investigative and "law enforcement agency" in the United States7; this, however, has constituted only a small portion of overall policing activity.8 Policing has included an array of activities in different contexts, but the predominant ones are concerned with order maintenance and the provision of services.9

2.3 Courts The courts serve as the venue where disputes are then settled and justice is administered. With regard to criminal justice, there are a number of critical people in any court setting. These critical people are referred to as the courtroom work group and include both professional and non professional individuals. These include the judge, prosecutor, and the defense attorney. The judge, or magistrate, is a person, elected or appointed, who is knowledgeable in the law, and whose function is to objectively administer the legal proceedings and offer a final decision to dispose of a case. The final determination of guilt or innocence is typically made by a third party, who is supposed to be disinterested. This function may be performed by a judge, a panel of judges, or a jury panel composed of unbiased citizens. This process varies depending on the laws of the specific
4 5

Douglas Harper, police", Online Etymology Dictionary. Alastair Dinsmor, "Glasgow Police Pioneers", The Scotia News 2003. 6 "History", Marine Support Unit, Metropolitan Police. 7 THE FBI: A Centennial History, 1908-2008, Washington, D.C. 2009, p. 138. 8 Samuel Walker, A CRITICAL HISTORY OF POLICE REFORM: THE EMERGENCE OF PROFESSIONALISM, 1997, p. 143. 9 Mark Neocleous, FABRICATING SOCIAL ORDER: A CRITICAL HISTORY OF POLICE POWER, 2004, pp. 9394.

jurisdiction. In some places the panel (be it judges or a jury) is required to issue a unanimous decision, while in others only a majority vote is required. In America, this process depends on the state, level of court, and even agreements between the prosecuting and defending parties. Some nations do not use juries at all, or rely on theological or military authorities to issue verdicts.

Some cases can be disposed of without the need for a trial. In fact, the vast majority are. If the accused confesses his or her guilt, a shorter process may be employed and a judgment may be rendered more quickly. Some nations, such as America, allow plea bargaining in which the accused pleads guilty, nolo contendere or not guilty, and may accept a diversion program or reduced punishment, where the prosecution's case is weak or in exchange for the cooperation of the accused against other people. This reduced sentence is sometimes a reward for sparing the state the expense of a formal trial. Many nations do not permit the use of plea bargaining, believing that it coerces innocent people to plead guilty in an attempt to avoid a harsh punishment.

The entire trial process, whatever the country, is fraught with problems and subject to criticism. Bias and discrimination form an ever-present threat to an objective decision. Any prejudice on the part of the lawyers, the judge, or jury members threatens to destroy the court's credibility. Some people argue that the often Byzantine rules governing courtroom conduct and processes restrict a layman's ability to participate, essentially reducing the legal process to a battle between the lawyers. In this case, the criticism is that the decision is based less on sound justice and more on the lawyer's eloquence and charisma. This is a particular problem when the lawyer performs in a substandard manner. The jury process is another area of frequent criticism, as there are few mechanisms to guard against poor judgment or incompetence on the part of the layman jurors. Judges themselves are very subject to bias subject to things as ordinary as the length of time since their last break. Offenders are then turned over to the correctional authorities, from the court system after the accused has been found guilty. Like all other aspects of criminal justice, the administration of punishment has taken many different forms throughout history. Early on, when civilizations

lacked the resources necessary to construct and maintain prisons, exile and execution were the primary forms of punishment. Historically shame punishments and exile have also been used as forms of censure. The most publicly visible form of punishment in the modern era is the prison. Prisons may serve as detention centres for prisoners after trial. For containment of the accused, jails are used. Early prisons were used primarily to sequester criminals and little thought was given to living conditions within their walls. In America, the Quaker movement is commonly credited with establishing the idea that prisons should be used to reform criminals.

CHAPTER III

ESSENCE OF DUE PROCESS W.R.T MANEKA GANDHI CASE

3.1 Role of Constituent Assembly The members of the Constituent Assembly feared that the adoption of the American doctrine would lead to a flood of litigation after the inauguration of the new Constitution. They assumed that the doctrine might come in the way of beneficial social legislation. Therefore, the Constituent Assembly deleted the phrase due process of law from the draft text and substituted it with procedure established by law in Article 21. The draft article read: No person shall be deprived of his life, or liberty, without the due process of law, nor shall any person be denied the equal treatment of the laws within the territories of the Union. Article 21 reads: No person shall be deprived of his life or personal liberty except according to procedure established by law. 3.2 Keshavananda Bharati case The debate on the doctrine of due process returned to judicial circles during the hearing of Kesavananda Bharati v State of Kerala & Ors.10 which evolved the basic structure theory. H.M. Seervai, counsel for the respondents, argued before the court that the basic structure doctrine required courts to find a nebulous spirit of the Constitution, a position ominously close to the due process clause of the American Constitution, which the framers of India's Constitution had expressly deleted. He suggested that the Constitution-makers had discarded the concept of due process in order to have something certain and so substituted it with procedure established by law. The petitioners in that case had argued that the Constitution had an unamendable or entrenched basic structure. Accepting this argument, the majority judges in the Kesavananda case rejected
10

AIR 1973 SC 1461.

Seervai's argument equating the due process doctrine with the basic structure theory. In Due Process of law, Abhinav Chandrachud analyses the Kesavananda judgment to understand this debate. He suggests that the basic structure test was strikingly similar to the federal due process cases in the United States where judges looked to the fundamental values of civilised society in applying federal constitutional standards against the States. He then takes Justice H.R. Khanna's dissent in the habeas corpus case11, decided during the Emergency in 1975, wherein the majority judges excluded procedural due process from their constitutional analysis. Justice Khanna substantively read procedural due process as judicial access into his constitutional analysis. Important Consequences of Maneka Gandhi case: Vice of denial can be cured by assurance on behalf of the State that such opportunity will be given to the complainant Protection is to be afforded even against the appearance of prejudice or bias Rules of natural justice apply as much to administrative action which entails civil consequences as to quasi-judicial and judicial functions Natural justice restriction likely only if likely to paralyse the administrative process and defeat the urgency of the measure

11

Additional District Magistrate of Jabalpur v. Shiv Kant Shukla AIR 1976 SC 1207.

CHAPTER IV

PERSONAL LIBERTY: ARTICLE 19

4.1 Pre-Maneka Gandhi: Old Position The concept of personal liberty first came up for consideration of the Supreme Court in A.K. Gopalans case. In this case, the Petitioner had been detained under Preventive Detention Act, 1950. The petitioner challenged the validity of his detention on the ground that it was violative of his Right to freedom of movement under Art. 19(1)(d), which is the very essence of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the words personal liberty include the freedom of movement also and therefore the Preventive Detention Act, 1950 must also satisfy the requirements of Art. 19(5). It was further argued that Art. 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights while Art. 21 provided procedural rights. It was also argued that the words procedure established by law actually meant due process of law from the American Constitution which includes principles of natural justice and the impugned law does not satisfy that requirement. Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to the phrase personal liberty by Dicey, held that the phrase personal liberty in Art. 21 meant nothing more than the liberty of the physical body, that is, freedom from arrest and detention without the authority of law. According to majority, the term liberty was wider in meaning and scope than personal liberty. Hence, while liberty could be said to include Art. 19 within its ambit, personal liberty had the same meaning as given to the expression liberty of the person under English law. Hence, the majority took the view that Art. 19 and Art. 21 deal with different aspects of liberty. The Court further interpreted the term law as State made law and rejected the plea that the term law in Art. 21 meant jus naturale or principles of natural justice. It is pertinent to mention here that in A.K. Gopalans case, the attention of the Supreme Court was drawn to the legislative history of Art. 21, which showed why the expression due process

of law was replaced by procedure established by law. However, it is unfortunate that the legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the substance of due process was reintroduced, was not brought to the attention of the Supreme Court. But this restrictive interpretation of the expression personal liberty has not been followed by the Supreme Court in its later decisions. Like for example, in Kharak Singhs case, it was held that personal liberty was not only limited to bodily restraint but was used as compendious term including within itself all the varieties of rights which go to make up the personal liberty of man other than those dealt within Art. 19(1). 4.2 Post-Maneka Gandhi: New Dimension In Maneka Gandhis case, the meaning and content of the words personal liberty again came up for the consideration of the Supreme Court. In this case, the petitioners passport had been impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Here, the Supreme Court not only overruled A.K. Gopalans case but also widened the scope of words personal liberty considerably. Bhagwati, J. observed: The expression personal liberty in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19. With respect to the relationship between Art 19 and Art. 21, the Court held that Art. 21 is controlled by Art 19, i.e., it must satisfy the requirement of Art 19. The Court observed: The law must therefore now be settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by Article 21 such a law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenges of that Article.

10

Thus a law depriving a person of personal liberty has not only to stand the test of Article 21 but it must stand the test of Art 19 and Art 14 of the Constitution.12 The historical judgment of the Supreme Court in Maneka Gandhi is a culmination of the process of synthesis of Arts. 14, 19 and 21 for impregnating the procedure established by law with the notions of reasonableness and fairness.13 It became a trendsetter for further evolution of nicer components of processual safeguards. In this case, there was involved the constitutionality of an executive order and relevant provisions of the Passport Act impounding the passport of the petitioner without giving any opportunity of hearing. 4.3 Facts The main issues before the court in this case were as follows: Whether right to go abroad is a part of right to personal liberty under Article 21. Whether the Passport Act prescribes a procedure as required by Article 21 before depriving a person from the right guaranteed under the said Article. Whether section 10(3) (c) of the Passport Act is violative of Article 14, 19(1) (a) and 21 of the constitution. Whether the impugned order of the regional passport officer is in contravention of the principles of natural justice. It was argued, firstly, that the Passport Act, 1967 conferred undefined power of impounding, and hence was violative of Art 14; secondly, that since the petitioners freedom of speech and occupation was incidentally deprived because of impounding of her passport, such deprival should conform to the requirements of Art. 19, and thirdly, that procedure established by law under Art. 21 should provide reasonable opportunity of hearing and should not be arbitrary. The special constitutional bench of seven judges by 6:1 partly upheld the contentions and held that the procedure under Art. 21 should be just, fair and reasonable in view of the interaction of Arts.

12

<http://legalservicesindia.com/article/article/maneka-gandhi%E2%80%99s-case-and-personal-liberty-717-1.html> accessed 2 September 2012. 13 P Ishwara Bhatt, FUNDAMENTAL RIGHTS, Eastern Law House, p. 127.

11

14 and 19, and 21, and impounding of passport in the interest of the public could be done only reasonably and should be followed, if not preceded, by reasonable opportunity of being heard. The Supreme Court in this case reiterated the proposition that the fundamental rights under the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, a fundamental right is not an island in itself. The expression personal liberty in Article 21 was interpreted broadly to engulf a variety of rights within itself.14 However, until the decision in Maneka Gandhi, the court had stuck to the view it first took in A.K. Gopalan v. State of Madras15 that article 21, which stated that "No person shall be deprived of his life or personal liberty except according to the procedure established by law," meant that as long as there was a law made by the legislature taking away a person's liberty, such law could never be challenged as being violative of fundamental rights.

14

<http://www.detectiveupdate.com/advocate/a-new-begining-of-the-right-to-life-and-liberty-maneka-gandhi-case/> accessed on 1 September 2012. 15 1950 SCR 88.

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CHAPTER V

RIGHT TO FAIR TRIAL

6.1 Derivations of Content of the Right to Fair Trial The right to a fair trial is a norm of international human rights law and also adopted by many countries in their procedural law. It is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. The concept of fair trial is based on the basic principles of natural justice. Although the form and practice of the principles of natural justice may vary from system to system on the basis of prevailing conditions of the society concerned. The formal account of the concept of fair trial has been accepted as human rights jurisprudence in the Universal Declaration of Human Rights, 1948 (hereinafter as UDHR). The major features of fair criminal trial are preserved in Article 10 and 11 of the UDHR. Article 14 of the International Covenant on Civil and Political Rights (hereinafter as ICCPR) reaffirmed the objects of UDHR and provides that Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The standards against which a trial is to be assessed in terms of fairness are numerous, complex, and constantly evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But they may also be found in documents which, though not formally binding, can be taken to express the direction in which the law is evolving. As far as Indian legal system is concerned, the international promise of fair trial is very much reflected in its constitutional scheme as well as its procedural law. Indian judiciary has also highlighted the pivotal role of fair trial in catena of cases. In Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors16 the Supreme Court of India observed the evolving horizons of

16

AIR 2004 SC 3467.

13

fair trial and stated that the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adopted to new and changing circumstances and exigencies of the situations, peculiar at times and related to the nature of crime, person involved, directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice. 6.2 The Features of the Indian Criminal Justice System are: Adversary trial system Presumption of innocence Independent, impartial and competent judges Venue of trial and public hearing Knowledge of accusation Trial in presence of accused Evidence taken in presence of accused Expeditious trial Prohibition on double jeopardy Cross-examine prosecution witnesses Aid of counsel

A large number of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. The Supreme Court in Hussainara Khatoon (Ist)17 further observed as under:

17

Hussainara Khatoon v. Home Secretary, State of Bihar, Patna AIR 1979 S C 1360.

14

"No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The Apex Court held that no general guideline can be fixed by the court and that each case has to be examined on its own facts and circumstances. It is the bounden duty of the court and the prosecution to prevent delay. One of the main reasons for the delay in the cases is the adjournment granted by the court on flimsy grounds. Section 309 of Code of Criminal Procedure (CrPC) deals with the adjournments and power of the court to postpone the hearing. 6.3 Criminal Justice and Maneka Gandhi case The criminal justice system in India beginning with the year of 1978, marched towards new dimension when the Apex Court held in Maneka Gandhi case18 that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''just, fair and reasonable" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. Provision of free legal aid to a prisoner who is indigent or disabled from securing legal assistance where the ends of justice call for such service is State's responsibility under Art 21 for securing fair trial.19 Interpretation of Article 21 reached its height when the doctrine of minimum rationality was also treated as part of Article 21 by the Supreme Court, when s. 303 of the IPC was struck down saying that it violates Art. 21.20 The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously. 21 Speedy trial is sine-qua-non of Article 21 of the Constitution but, when grave miscarriage of justice, is committed by the Police, the ground of delay of disposal of cases or otherwise would not scuttle
18 19

Maneka Gandhi v. Union of India AIR 1978 SC 597. Madhav Hayawadanrao Hoskot v. State of Maharashtra AIR 1978 SC 1548. 20 Mithu v. State of Punjab AIR 1983 SC 473. 21 R. D. Upadhyaya v. State of A.P. AIR 2006 SC 1946.

15

the miscarriage of justice. Similarly, the accused themselves would be liable to be blamed for the delay, if any.22 Amendments to the Indian Evidence Act, 1872, so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned.23 The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against barfetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, etc. 6.4 Fair Trial and Personal Liberty It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. If, the Court is satisfied for reasons to be recorded that in spite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so, bail may be granted. If an application for enlargement on bail is once rejected, is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.24 Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American
22 23

Lallan Chaudhary v. State of Bihar AIR 2006 SC 3376. Law Commission of India, 113th Report. 24 Kalyan Chandra Sarkar v. Rajesh Ranjan AIR 2005 SC 921.

16

Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. 6.5 Prisoners and Indian Criminal Law A mere perusal of Section 151 of the CrPC makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.25

Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Abusing authorities may be punished in case of the violation of the statutory provisions of law. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.26 This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.27

25 26

Ahmed Noormohmed Bhatti v. State of Gujarat AIR 2005 SC 2115. Moti Lal Saraf v. State of Jammu and Kashmir AIR 2007 SC 56. 27 Bablu v. State of Rajasthan AIR 2007 S C 697.

17

In US, it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.28 In India several amendments have been incorporated in CrPC, 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution. 6.6 Remedies granted by Judiciary The Supreme Court laid down the principle that when fundamental rights are violated a citizen has right and remedy of seeking compensation in addition to file suit for torturous damages. The defence of sovereign is not available to the State. The repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. If the Police report shows that there is prima facie evidence about suspects and some of his relatives being illegally detained in Police Station and subjected possibly to third degree methods, to extract information regarding the whereabouts of accused, such claims may be exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.29 It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Criminal Procedure.30

28 29

Smith v. Hooey (1969) 393 US 374. Sube Singh v. State of Haryana AIR 2006 SC 1117. 30 ibid

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Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. It should be borne in mind that every arrest and detention does not lead to custodial torture.31 In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.32 dynamic approach of the Supreme Court of India dealing with criminal justice system by giving new dimension , with the aid of Article 21 of the Constitution of India. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large. Free legal services to a prisoner who is indigent or disabled from securing legal assistance, fundamental right to individual liberty, ''right, just and fair" procedure, Supreme Court is the custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the change in Indian society, the Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. I tried to highlight these aspects in this research work.

31 32

ibid ibid

19

Speedy trial is sine-qua-non of Article 21 of the Constitution. The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried has to be eliminated. The Supreme Court has awarded compensation against the State in case of an established infringement of a fundamental right under Article 21, by the State agency. All these Principles innovated by the Supreme Court are subject matter of this research work.

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CHAPTER VI

LEGAL AID

In Maneka Gandhi v Union of India33 it was held that the right of an indigent person to be provided with a lawyer at states expenses is an essential ingredient of article 21, for no procedure can be just and fair which does not make available legal services to an accused person who is too poor to pay for a lawyer. In this context a difference is to be noted as between article 21 of the Constitution and section 304 of the Code. Article 21 as interpreted by the Supreme Court in Khatri v State of Bihar34 the mandatory obligation to provide free legal aid arise in every criminal case against an indigent accused, whether the trial is before a Magistrate or Sessions Judge. Under section 304 of the Code, the imperative duty arises only if the trial is before the Sessions Court, while in the cases before the Magistrate, the duty would arise only if the State Government issues a notification to that effect. If we take literal meaning of section 304, no conviction by a Magistrate can be quashed for failure to provide free legal assistance to the indigent person. But the M.P. High Court took the other way and set aside a conviction by a Magistrate made upon evidence taken without offering legal representation to the accused.35 In this way the court tried to remove the anomaly which is created by the Legislature. Further, article 39-A was also inserted in the Constitution as per Constitution (42nd Amendment) Act, 1976, which requires that the state should pass suitable legislations for promoting and providing free legal aid. It must also be emphasized that free legal service is an unalienable element of reasonable, fair and just procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. To fulfil this constitutional mandate the Parliament enacted Legal Services Authorities Act, 1987.

33 34

AIR 1978 SC 597. AIR 1981 SC 928. 35 Nekram v. State of M.P. (1988) Cr LJ 1010 (MP).

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Section 12 of the said Act provides legal services to the persons specified in it. Let it not forgotten that if law is not only to speak justice but also deliver justice, legal aid is absolute imperative. Legal aid is really nothing else but equal justice in action. It is in fact the delivery system of social justice. In Suk Das & Ors. v Union Territory of Arunachal Pradesh36, the court strengthen the need for legal aid and held that free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the accused under article 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity. 37 While in the habeas corpus case (1976) the court's majority (four of the five senior-most judges) refused to go against the framers of the Constitution, in the Maneka Gandhi case the court was willing to discard the constraints of original intent of the Constitution-makers. Thus, Abhinav Chandrachud says, procedural due process became a part of Indian constitutional law.38

36 37

AIR 1986 SC 991. Abhinav Chandrachud, DUE PROCESS OF LAW, Eastern Book Company 2011. 38 <http://www.frontlineonnet.com/fl2905/stories/20120323290507900.htm> accessed on 29 August 2012.

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CONCLUSION

In this paper we have seen that the case of Maneka Gandhi changed the landscape of criminal justice by strengthening the right to personal liberty and introducing the concepts of just, fair and reasonable, which is a very strong requirement that all laws had to satisfy. Criminal law is always the subject of much debate specially with regard to rights of accused, prisoners and the abuse of law against them. Criminal prosecution and accusations make a person vulnerable and in such a condition, such persons need the law to take a side that wont unjustly hurt them. The constitutional guarantee of right to life as provided by Art 21 was made to take on a new face by this case, and in that sense, the hypothesis that the Maneka Gandhi case was effectively an amendment is proved to be correct. Due process is essentially a jurisprudential question; legality is not an element, while fairness and procedural integrity are imperative. The Indian legal situation is very interesting currently due to new laws like Right to Education and Corporate Social Responsibility. The courts, while in some cases showing reluctance, are embracing the pro-people approach that significantly distinct such laws from others. Their importance in a young country like ours is being valued over and above the earlier pedantic perspective of the judiciary. While initiating the discussion on the developments in the Indian legal system, the Union Home Minister P. Chidambaram said, the investigation has moved to technology based evidence, new forensic tools are used by other countries and that we also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report

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was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments. However, a lot of such ambitious endeavours dont come to fruition due to apathy and procedural obstacles in many occasions. The need of the hour is another change, as was provided by the Maneka Gandhi case at that time, to shake the people out of their mistrust of the legal processes and bring to light our constitutional values that will never change and always be attuned to the needs of the people.

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