HIDAYATULLAH NATIONAL LAW UNIVERSITY, UPARWARA, NEW RAIPUR

CRIMINAL JUSTICE SYSTEM PROJECT

ON

PROTECTION OF HUMAN RIGHTS AND CRIMINAL JUSTICE SYSTEM IN

INDIA

SUBMITTED TO SUBMITTED BY

MS.PRIYANKA DHAR SHUBHAM BRIJWANI

SEMESTER VII
SECTION B
ROLL. NO. 161
SUBMITTED ON
05/10/2017
 DECLARATION

I, Shubham Brijwani hereby declare that, the project work entitled, Protection of Human
rights and criminal justice sysem submitted to H.N.L.U., Raipur is record of an original
work done by me under the able guidance of Ms. Priyanka Dhar, Faculty Member,
H.N.L.U., Raipur.

Shubham Brijwani

B.A. LLB(H)

Semester VII

Roll no. 161

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ACKNOWLEDGEMENTS

I would like to sincerely thank the Criminal Justice System Teacher Mr .Priyanka Dhar for
giving me this project on the Protection of Human Rights and Criminal Justice System
which has widened my knowledge on the scope and relevance of it in present time. Her
guidance and support has been instrumental in the completion of this project. Thank you
Mam.

Id also like to thank all the authors, writers, columnists and social thinkers whose ideas and
works have been made use of in the completion of this project.

My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.

I also thank my friends for their precious inputs which have been very helpful in the
completion of this project.

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TABLE OF CONTENTS

I) ACKNOWLEDGEMENTS............................................................................................1

II) CHAPTER I................................................................................................................4

INTRODUCTION.................................................................................4
OBJECTIVES......................................................................................5
RESEARCH METHODOLOGY.............................................................5
RESEARCH SCHEME.........................................................................5

III) CHAPTER II: EVOLUTION OF HUMAN

RIGHTS.................................................................................................................6

IV) CHAPTER III:PRESENT SITUATION................................................................9

V) CHAPTER IV:THE PRINCIPAL SECTORS OF HUMAN RIGHTS

ABUSES IN CRIMINAL JUSTICE SYSTEM14

VI) CHAPTER IV ........................................................................................................25

SUGGESTIONS For IMPROVING THE SYSTEM OF CRIMINAL
JUSTICE SYSTEM..............................................................25
CONCLUSION................................................................................27

VII) BIBLIOGRAPHY.....................................................................................................28

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CHAPTER I

INTRODUCTION

Human Rights are those rights which every individual has by virtue of his birth as a human
being. Naturally they are inherent and inalienable. In every walk of life today, the individual
is threatened with the possibility of violation of his human rights not only by other fellow
individuals but also by societal institutions established with the solemn purpose of
safeguarding rights of all.The end of the twentieth century has given a momentum to the
human rights movements in the new millennium. Indeed, human rights have become the
socio-political normative language of the new era.

Human rights are those minimal rights, which every individual must have by virtue of his
being a member of human family, irrespective of any other consideration. They are based on
mankind's demand for a life in which the inherent dignity of human being will receive respect
and consideration. The Universal Declaration of Human Rights clearly states that respect to
human rights and human dignity is "the foundation of freedom, peace and justice in the
world". Indeed, denial of human rights and fundamental freedom is not only an individual
and personal tragedy, but also creates conditions of chaos in the society. The Criminal
JusticeSystem consisting of Police, Judiciary and Correctional Institutions play a major role
in implementing human rights and thereby protect and safeguard the human rights of the
citizens of a country. But, violence in police custody and prisons go against the tenets of
human rights. Despite frequent intervention of the judiciary to control these excesses, such
incidents of human rights violations have been increasing.

The extent to which human rights

are respected and protected within the context of its criminal proceedings is an important
measure of society's civilization. That is a simple proposition which few people are likely to
dispute. But it is one of those statements which leave a number of other questions
unanswered.

What are the human rights which are to be protect within our criminal procedure? And more
importantly, to what extent should the human rights of the suspect and the accused be
protected when other important interests of society are under attack and in possible conflict
with the interest of the accused? These are difficult questions to answer, because there is a
perpetual conflict between the interest of the accused and the fundamental interest of the
society. Over-emphasis on the protection of one interest is bound to have an adverse impact
on the other and, therefore, an even balance has to be struck between the two interests. This
task in a democracy governed by the rule of law is entrusted to the judiciary and it is the
judiciary which has to find a dividing line so as to harmonise the two interests without over-
emphsising one to the detriment of the other.1 This is by no means an easy task. By and large

1
Human Rights Law and Practice [Lord Lester and David Pannick eds., Butterworths, 1999],

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the Supreme Court has, through progressive and humanistic interpretation, enlarged the rights
of the suspect and the accused with a view to protecting the interest of the innocent and
preventing abused or misuse of police powers. Of course, the development of law by the
Supreme Court in this direction has evoked criticism from certain quarters but this criticism is
not based on any empirical research. It proceeds on a pre-conceived notion that any
protection given to a suspect or accused is bound to injure the interest of the society by
encouraging crime and making its detection difficult, if not possible. Unfortunately, in our
country, there is not much of socio-legal or empirical research particularly in the field of
criminology, with the result that our Sires criticism of the law as interpreted and evolved by
the courts is often not founded on factual or sociological data but is based only on certain
ingrained attitudes and misconceptions. It is necessary that mere should be socio-legal
research in various areas of criminal law so as to afford guidance to the courts in their none-
too easv task of laying down the law which would best sub serve the interest of the society,
without sacrificing the interest of the innocent.

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OBJECTIVES

The objectives of this project are:

a) To understand evolution of human rights in India.

b) To study essential ingredients of human right abuses in criminal justice system
c) To provide suggestion for improving of criminal justice system

RESEARCH METHODOLOGY

This project has been made by Doctrinal Research. It is descriptive & analytical in approach.
Books & other references as guided by faculty of Criminal Justice System were helpful for
the completion of this project.

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CHAPTER II

EVOLUTION OF HUMAN RIGHTS IN INDIA

Articles 9 to 12 of Universal Declaration of Human Rights1 and Article 10 of the

International Covenanton Civil and Political Rights2 lays down a basic minimum standard of
treatment to which system of criminal justice of every country must conform. From these
provisions the following conclusions emerge:

1. Everybody who is deprived of his liberty should be treated with humanity, i.e. with respect
forthe inherent dignity of human person. Indian Constitution of Article 21 guarantees right to
life and personal liberty. Supreme Court of India has held repeatedly that 'life' in Article 21
meanslife with human dignity.3

2. No one should be subjected to arbitrary arrest, detention or exile. Article 21 of the

Constitutionof India provides that no person shall be deprived of life and personal liberty
except according to procedure prescribed by law. Since the decision of the Supreme Court in
Maneka Gandhi v.Union of India the procedure under Article 21 must be fair, just and
reasonable and cannot be arbitrary,unfair or unreasonable.

3. Everyone charged with a penal offence has a right to be presumed innocent until proved
guilty in a pubic trial at which he has had all the guarantees necessary for his defence. Indian
criminal jurisprudence is based on this cardinal principle.

4. No one shall be held guilty of any penal offence on account of any act or omission which
did not constitute penal offence at the time, when it was committed. Indian Constitution also
provides that no person shall be convicted of any offence except for violation of law in force
at the time of the commission of the act charged as an offence nor be subjected to a penalty

2
Art. 9: No one shall be subjected to arbitrary arrest, detention or exile. Article 10: Everyone is entitled to full
equality to a fair and pubic hearing by an independent and impartial tribunal, in the determination of his rights
and obligationsand of any criminal charge against him.
3
Art. 11: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
accordingto law in public trial at which he has had all the guarantee necessary for his defense. No one shall be
held guilty ofany penal offence on account of any act or commission which did not constitute a penal offence,
under national orinternational 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

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greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.4

5. No one should be subjected to arbitrary interference with his privacy, family, home or
correspondence. Such a right was recognized by the Supreme Court under Article 21 of the
Constitution in Kharak Singh v. State of U.P.5 and after Maneka Gandhi's case it is firmly
established that procedure must be fair and reasonable which by implication prohibits such
arbitrary interference.

6. Accused person, save in exceptional circumstances, be segregated from those who have
been convicted and be treated separately. Similarly, juvenile persons should be separated
from adults and accorded treatment appropriate to their age and status. In Sunil Batra v. Delhi
Administration,the Supreme Court held that keeping of under trial prisoners, who are
presumed to be innocent, with convicts offends test of reasonableness under Article 19 or
fairness under Article 21. In Sheela Barse v. Union of India, Supreme Court emphasized that
children should not be confined to jails because it has dehumanizing effect and is harmful to
growth and development of children.

The court also ordered that where a complaint is filed or a First Information Report is lodged
against a child below the age of 16 years for an offence punishable with imprisonment of not
more than 7 years the investigation should be completed within 3 months and if investigation
is not completed within 3 months the case against the child should be treated as closed.

7. The aim of Penitentiary system is primarily reformation and rehabilitation of criminals. In

recent years efforts have been made in this direction also. However, still much needs to be
done in this regard.

Thus, Indian Constitution as illustrated by a number of decisions of the Supreme Court

provide for protection of human rights in conformity with the international standards.The
Human Rights Commission Act, 1993 provides for constitution of National and State Human
Rights Commissions to enquire into complaints of violations of human rights and
inefficiency on the part of the Government machinery inpreventing such violations and to

4
Art. 20(1).
5
AIR 1963 SC 1295.

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suggest measures for effective implementation of guarantees provided by the Constitution

and various laws of the country.6

CHAPTER III

PRESENT SITUATION

Our criminal justice is archaic, obsolete and oppressive, as it is comes under heavy criticism
when issues of human rights are raised at national and international forum. When the
criticism comes from our own human rights activists, scholars, writers, media persons, the
chieftains of criminal justice system maintain discreet silence, but when the criticism comes
from international (alien) sources, like Amnesty International, World Watch, etc., there are
strong rebuttals bordering on contemptuous disregard of allegations. The fact of the situation
is that both silence and rebuttals are often unfortunate and uncalled for. The tragedy of the
situation is that two-third of the criminal justice system comprising of policy and prisons
quite often violate human rights and perpetuates human wrongs, and the tiny one-third the
judiciary (largely through apex court) tries to protect and promote human rights. The two
sub-systems blame the apex court and some of its human rights minded judges as bleeding-
heart liberals, impractical idealists, arm-chair theoreticians, etc. The Court on the contrary,
churns out judgments and judgments, which fret at the derelictions of police and prisons. The
result is that our system of criminal justice has a double face; one hurts and the other tries to
heal.
In a crisis that characterizes our criminal justice system, we have, with all good intentions,
created an Ombudsman - the National Human Rights Commission to remedy the situation
and attend to pressing problems of the country's human rights front. Like the apex court, the
Commission too has a crowded agenda, and hence any sense of euphoria is misplaced. There
are two facets of the reality, one is rhetorical and the other is real. The rhetorical part entails:
(i) Enumeration of constitutional guarantees having imprints of human rights.
(ii) Citation of judicial pronouncements making new and innovative holdings on matters
concerning the infringement of human rights; and

6
Tukaram v. State of Maharashtra, AIR 1979 SC 185 which led to amendments of Criminal Procedure Code,
1973, Indian Penal Code, 1860 and Evidence Act, 1972.

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(iii) Reiteration of the provisions of substantial and procedural laws likewise, the reality part
entails:
(a) Toleration of human rights violations;
(b) Cover-up exercise to counter criticism, and
(c) Emboldened attitude of human rights violators and the utter helplessness of the victims.

Let us look at the reality little more closely. There are umpteen numbers of reports on chilling
human rights abuses of pre-emergency era and emergency era, which have emanated from
indigenous sources. The reports mainly focus on torture, including rape and deaths in
custody. The reports criticize practices that are blatantly unconstitutional. The country
confronts an embarrassing situation, both within and outside, because human rights abuses
have become commonplace and a sense of hopelessness marks our thought and reaction.
Justice Krishna Iyer describes our human rights record as "testing illusion and promise of
unreality". The Supreme Court, the sentinel of human rights, has been able to bring out only
cosmetic changes since its directives to police, prisons and other institutions and more
honoured in breach than in observance. For indigent and illiterate victims of human rights
abuses the Writ Courts are too remote and too expensive to be of any avail. The rights now
granted by the courts are of illusory in absence of implementation and enforcement. Justice
Krishna Iyer wrote more an anger than in "Rights, however, solemnly proclaimed and
entrenched in great instruments are but printed futility unless a puissant judiciary armed with
legal authority. Remedial process and jurisdiction, operational and pragmatic, transforms the
jurisprudence of human rights into public law of enforceable justice. Human rights regime
leaves a wide gap between normative claims and implementation capabilities. The result is
that large-scale breaches of civil and political rights as well as economic, social and cultural
rights mark the scenario.

CHAPTER IV

THE PRINCIPAL SECTOR OF HUMAN RIGHTS ABUSES IN THE

CRIMINAL JUSTICE SYSTEM

Man is the most accomplished of all creatures of our universe. He is so immeasurably

admirable in his faculties of thought, action and reason that Shakespeare declares him, as 'the

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beauty of the world'. It is perhaps due to this celebrated glory of man that human community,
right from the early days of civilization, has consistently held certain basic values which are
inviolable under any circumstance. These basic values of life and personal liberty have come
to be termed differently as civil liberties and human rights. History is replete with instances
of successful and relentless struggles whenever persons in authority whose primary duty is
considered the protection of human rights infringed upon these basic rights of human beings.
These persons in authority often form the core of the criminal justice system in a country,
unmistakably composed of the Police, Judiciary and Correctional Services. It is often upon
them that the responsibility of protection of these basic human rights rests and when they end
up violating these basic rights they are in violation of the benchmark of human rights - the
Universal Declaration of Human Rights (UDHR), 1948. In what follows, the author shall
discuss how these protectors of human rights in the criminal justice system, namely the
police, the judiciary and the correctional services, violate the provisions of the UDHR, and
these are the key sectors of human rights violation in this country, also the rate of crime is
exponentially increasing so that there are many loopholes in the criminal justice system
which should be taken into account.

The principal sector of Human Rights Abuses in the criminal justice system of our country
could be categorized into following categories:-

CRIME

Crimes have increased and also their variety. The increase in crime is because of the
combined contribution of socio-politico-economic factors. Some reasons, which can be said,
are increase in population, increase in the unemployment and denial of opportunities to a
certain section of people.

Organized crimes have increased. Organized gangs have such control on finances, weapons
and communication; such crimes have emerged as a serious challenge not only to the police
but also to the existence of civilized society itself. In general, organized crime corrodes the
social, economic and political fabric of the society. The extent of terror, which the organized
gangs inflict on the society, is alarming. These gangs are also responsible for large-scale
corruption in social and economic institutions. This could go to any extent in ruthless pursuit
of its criminal activates and profit motive like starting a misinformation war through the
media against the victim. The threat potential of organized crime is thus pervasive. The

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worrying factor is that there is a linkage between organized criminals and terrorists. Terrorists
from across the border utilize the resources of organized gangs for their benefit. This is
posing a threat to the national security itself.

Police

Policing in a democratic society is seen as upholding the dignity of the individual by

safeguarding the constitutional and legal rights. Democracy gets threatened when the police
cease to respect the legal and constitutional rights of the citizens and persistently disregard
the due process of law. It is a known fact that a common complainant of crime is rudely
received in the police stations and is treated with discourtesy, indifference and indignity. The
use of third degree methods, torture, to be precise, is an accepted practice of the police
methodology of interrogating the accused. While being widely recognized as a violation of
fundamental rights, and whilst being forbidden under the law, the torture is pervasive and
routine in our police stations. The main reason why police malpractices of the olden days
persist and are practiced, is that the system protects them from being punished for their
human rights infringements. The victims of police perversions are almost always are the
disadvantaged sections of society who are incapable of legitimate self-defence.

In the garb of combating criminality, the police take law into their hands and trample upon
the basic human rights of the crime-suspects. The abominable records of police deviance is
reflected in the encounter deaths, and the rapes and deaths in the police custody. These no
doubt, are the cruellest forms of human rights violations. Ironically, a sharp rise in such forms
of abuses and excesses by police take place with sickening regularity despite the India's
ratification in June 1997, the International Convention against Torture and other forms of
cruel, inhuman and degrading treatment and punishment. Nothing is more revolting that the
betrayal of the custodial trust by the guardians of law.

The basic cause of the malaise is rooted in the Police Act of 1861, which has all the
manifestations of a repressive colonial force. There has been often organized effort to change
the police culture; it still has some awesome powers, which are misused. To cut a long story
short, our police have become so impervious to judicial inquiries and court structures that it
continues to behave in a recalcitrant manner and refuses to follow the human rights mandate.

Justice A N Mulla had once commented, " I say it with all sense of responsibility that there is
not a single lawless group in the whole country whose record of crime is anywhere near the

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record of that organized unit which is known as the Indian Police Force." Indeed the police
force has gained much negative publicity for its lawlessness. Today, custodial deaths, rapes
and tortures have drawn the attention of the media and the legislature. Efforts are being made
to restrict the occurrence of such unfortunate incidents. The Human Rights Commissions are
playing a great role in this aspect and they have partially succeeded in containing the
violations of civil liberties by the state agencies like the police.

In my opinion the non-registration of cases by the police constitutes one of the most serious
forms of violation of human rights. According to the National Police Commission (1978), the
most important factor responsible for non-registration of complaints is the anxiety of the
political executive in the state governments to keep the recorded crime figures low so that
they can claim before the public and the State Legislature that crime has been well-controlled
and is going down because of the efficiency of the police administration under their charge.
This type of a statistical approach of the political executive is largely responsible for
understating the crime figures in states. Again it is noticed that subordinate officers try to
avoid registration of cases by pointing out that the offence occurred in the jurisdiction of
another police station. As a result, a complainant has to run from pillar to post to locate the
particular police station and get the case registered. Under S. 154 Cr P C, the officer-in-
charge of a police station has to register a case and draw up an FIR as soon as a complaint of
cognizable offence is laid at the police station. There is no scope for non-registration of cases
under the pretext of jurisdictional controversy.

This certainly is a violation of Articles 7 and 8 of UDHR as they speak about the equality of
all before the law and everyone's right to an effective remedy by competent tribunals for
violation of their fundamental rights.

The National Police Commission in its third report referring to the quality of arrests in India
mentioned power to arrest by the police in India as one of the chief sources of corruption in
the police. The report suggested that by and large, nearly 60 percent of the arrests were either
unnecessary or unjustified and such unjustified police action accounted for 43.2 percent of
the expenditure of the jails. Article 3 of the UDHR says, " Everyone has a right to life, liberty
and the security of person." Article 9 too says, " No one shall be subjected to arbitrary arrest,
detention or exile." The police blatantly violate both these provisions.

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The Supreme Court in Joginder Kumar v. State of U.P. explained the powers of the police
to arrest an accused. It laid down that no arrest can be made because it is lawful for the police
officer to do so. The existence of power to arrest is one thing. The justification for exercise of
it is quite another. The police officer must be able to justify the arrest apart from the power to
do so. Arrest and detention in the police lock-up of a person can bring upon incalculable
harm to the reputation and self-esteem of a person, sometimes even ending in suicides by
such victims. It would be prudent for a police officer that no arrest is made without a
reasonable satisfaction is reached after some investigation as to the genuineness and
bonafides of a complaint. Denying a person of his liberty is a serious matter. Highlighting the
imperatives of necessity principle, the Third Report of National Police Commission has
suggested:
"An arrest during the investigation of a cognizable case may be considered justified in one or
other of the following circumstances:

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

It would be desirable to insist through departmental instructions that a police officer

making an arrest should also record in the case diary the reasons for making the arrest,
thereby clarifying his conformity to the specified guidelines."

The right to be informed of the grounds of arrest is a precious right of the accused. It
enables him to approach the court for bail or in appropriate circumstances for the writ of
habeas corpus or make the expeditious arrangements for his defense. Hence, a duty is cast
upon a police officer, arresting a person without warrant, to forthwith communicate to
him full particulars of the offence and other grounds for such arrest. In bailable offences
police officer is required to inform a person arrested that he is entitled to be released on

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bail. If this is not accomplished then the police officer is in violation of Article 9, which
envisages that "arbitrary arrests" are not made.

The Apex Court has further laid down the procedure for arrest in D K Basu v. State of
WB
The right to be brought before a Magistrate within a period of not more than twenty-four
hours of arrest has been created with a view:
1. To prevent arrest and detention for the purposes of attracting confession or a means of
compelling people to give information.
2. To prevent police stations being used as though they were prisons-a purpose for which
they are unsuitable.
3. To afford an early recourse to a judicial officer independent of police on all questions
of bail and discharge.

A police officer often ends up violating this requirement and hence is in violation of
Article 10, which says, "Everyone is entitled in full equality to a fair and public hearing
by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him."

A custodial death is perhaps one of the worst crimes in a civilized society governed by the
rule of law. Custodial death as a result of police atrocities is the extreme form of police
cruelty and as such is a blatant violation of human rights. Article 5 of UDHR states, "No
one shall be subjected to torture or to cruel, in human treatment or punishment."

Khatri v. State of Bihar, shocked the entire nation. This case depicts the extent to which
police can go in committing atrocities on persons under its custody. In this case the
Supreme Court considered the question of granting compensation to the victims of police
atrocities and answered it in the affirmative that if it were not so Article 21 of the
Constitution would be reduced to a nullity, "a mere rope of sand." From Rudul Sah v.
State of Bihar to PUDR v. State of Bihar the apex court has brought about
revolutionary breakthrough in the "human rights jurisprudence" by evolving the principle
that compensation is to be paid to victims of police atrocities.

In SAHELI v. Commr. of Police, Delhi a child of nine years died because of being

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battered by a police officer. The Supreme Court again held that the state is liable to pay
compensation in case of police atrocities and accordingly it directed the government to
pay Rs. 75,000 as compensation to the mother of victim.

Nilabati Behera v. State of Orissa is yet another case of custodial death where the
deceased was taken in police custody and next day his body was found on railway track
with multiple injuries. The Supreme Court reiterated that in case of violation of
fundamental rights by state instrumentalities or servants, court can direct the state to pay
compensation to victim or his/her heir or legal representative. The principle of 'sovereign
immunity' shall be inapplicable in such cases. Having regard to the age and income of the
deceased, the state was directed in this case to pay Rs. 1,50,000 as compensation to the
deceased's mother.

In Criminal Justice Administration police through their restrictive and their coercive
authority arrests, interrogates, searches, seizes and detains people prior to trial. All these
actions affect individual's liberty and when done arbitrarily, individual's dignity. India
follows the accusatorial model of criminal justice, which is different from the inquisitorial
model. Accusatorial model presumes the accused to be innocent until proved guilty. Even
after the acceptance of the human rights principles in India, police are blamed to have
failed to accept the fact they are accountable to the people for the human rights violations.
There is no substantial change in police behaviour even after almost six decades of
independence.

Courts & Judiciary

Courts have limitations. It is only when a matter is placed before them that courts can take
interest and monitor investigation. The court has a jurisdiction only upon what is presented
by the police as evidence.

The Criminal Judicial System in the common law tradition is based on the twin principals of
penal policy, the presumption of innocence and the requirement that the criminal charge
needs to be proved beyond reasonable doubt. The golden rule of criminal law was that ten
guilty may go free but not even one innocent person should suffer.

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The Criminal Judicial System depends principally on the trustworthiness of its witnesses. In
oral evidence the witnesses continue to be the plank on which prosecution rests. The quality
of human material and the trustworthiness of witnesses have increasingly come under stress.
Witnesses are primed or intimidated and a large number of acquittals take place on account of
witness turning hostile and failing to support the prosecution case of the trial. There is need to
improve the quality of forensic expertise and make it truly a system for promotion of justice.

Another weakness is the prosecution. The Prosecutor should be appointed on merit; which
often does not happen. Competent prosecutors who are again politically neutral should be
appointed. The prosecution has the obligation of fair disclosure which means the prosecution
should place before the court all factors even including that which is in favour of the accused.
It has to place the truth in the court. Let the court come to a judgment. Neither padding nor
embellishments should be done with the facts.

Judiciary

One of the most neglected aspects of criminal justice system is the delay caused in the
disposal of the cases and detention of the poor accused pending trial. Procrastination of trials
may sometimes result in injustice because of a duly prolonged process much of the material
evidence may perish as when witness may die or when situations are altered.

Long incarceration without trial is not only violative of the Constitution, but is also against
India's commitment to the UDHR. Article 3 of the declaration reads, "Everyone has a right to
life, liberty and security of a person." Article 5 provides, "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment." Article 8 envisages, "Everyone
has a right to an effective remedy by the competent national tribunal for acts violating the
fundamental rights granted to him by the constitution or by the law." Article 9 says, "No one
shall be subjected to arbitrary arrest, detention or exile." Article 10 declares, "Everyone is
entitled in full equality to fair and public hearing by an independent and impartial tribunal, in
the determination of his rights and obligations and of any criminal charge against him."
Article 11(1) stipulates, "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 defense."

Thus the letter of law recognizes the right of an accused to speedy trial, but the problem is
how to make it a reality. Mere passing of a law is not enough. Justice Krishna Iyer while

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dealing with the bail petition in Babu Singh v. State of UP , remarked, "Our justice system
even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial' whatever
the ultimate decision. Speedy justice is a component of social justice since the community, as
a whole, is concerned in the criminal being condignly and finally punished within a
reasonable time and the innocent being absolved from the inordinate ordeal of criminal
proceedings." Justice Bhagwati in Hussainara Khatoon v. Home Secy, State of Bihar declared
that the right to speedy trial is an essential part of fundamental right to life and liberty
enshrined in Article 21 of the Constitution. In Sheela Barse v. Union of India court
reaffirmed that "the right to speedy trial is a fundamental right implicit in Article 21 of the
Constitution" and observed "the consequence of violation of fundamental right to speedy trial
would mean that the prosecution itself would be liable to be quashed on the ground that it is
in breach of the fundamental right."

An important reason for reluctance of the public to cooperate with the criminal justice system
is the fact that their attendance in court entails a lot of inconvenience and harassment. In
Bhim Singh v. State of J&K the Supreme Court deprecated the manner of passing remand
order by the Judicial Magistrate without physical production of the accused person. The
arrested accused has a right to medical examination during his detention in custody. In Sheela
Barse's Case , the Supreme Court has made it obligatory on the part of the magistrate to
enquire from the arrested person whether he has any complaint of torture or maltreatment in
police custody and to inform him that he has a right to be medically examined.

Right to privacy has been recognized as both a fundamental right and a right guaranteed
under the UDHR. Article 12 of UDHR reads, "No one shall be subjected to arbitrary
interference with his privacy everyone has a right to the protection of the law against such
interference or attacks." The Supreme Court has accepted it as a fundamental right for the
first time in Kharak Singh's case where UP Police regulation authorizing surveillance by way
of domiciliary visit and secret picketing were declared ultra-vires the Constitution. In Raja
Gopala's case the apex court has observed that a citizen has a right to safeguard the privacy of
his own, his family, marriage procreation, motherhood, child-bearing and education among
other matters, because right to privacy implicit in the right to life and liberty guaranteed to
the citizen of this country under Article 21 of the Constitution. The privacy of a rape victim is
violated during a criminal case. Taking advantage of the lacunae in legal procedure the

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shrewd defense lawyer will invariably encroach upon the privacy of the prosecutrix. It is time
we ponder over this problem faced by the victims of rape during court trial and make in-
camera trial mandatory for all rape cases. To protect the privacy of the rape-victims, it is
desirable that the identity of the victims must not be published in any manner by any agency
at any time.

To fulfill the constitutional obligations, the apex court must evolve a policy of giving
mandatory instructions to the lower judiciary to abide by the principles enshrined in UDHR
namely the right to speedy trial, right to fair trial and the right of defense.

Prisons & Correctional Services

Prisons, like police, are no less no less guilty of human rights violations. The reality can be
gauged only by visiting prisons. Instances of prison injustice abound and the penal regime
has not changed much despite two-dozen reports on prison reform, including the Mulla
Committee report. The report's introductory chapter beings with following observation:

"Prison administration in India has been off and on a subject of criticism in the press,
parliament and judiciary. Overcrowding in prisons, prolonged detention of under trail
prisoners, unsatisfactory living conditions, lack of treatment programmes and allegations of
indifferent and even in human approach of prison staff have repeatedly attracted the attention
of the over the years."

The unfortunate part of the story is that breaches of human right persist.

"It is a crying shame on the judicial system which permits incarceration of men and women
for long period of time. We are shouting from housetops about the protection and
enforcement of human rights. We are talking passionately and eloquently about the
maintenance and preservation of basic freedoms. But are we not denying right to these
nameless persons who are languishing is jails for years for offences which perhaps they might
ultimately be found not to have committed

If the conditions in prisons are violative of human rights, the conditions in custodial/
correctional institutions for women and children are equally bad. The fact of the matter is that
imprisoned women the children in these so-called correctional institutions are often subject to

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intolerable treatment and specific forms of torture impermissible in the country's human
rights agenda, justice Krishna Iyer is right when he says, "these institutions and not inmates
are the criminals". The situation could be summed up in one sentence: the human rights
violations in custodial and correctional institutions (the kinds of which we have are not stray
phenomena, but widespread and deep-rooted in the system.)

The criminologists maintain that Indian jails have grown onto new crime factories, producing
hardened criminals. The horrifying stories of prison management hardly need any
documentation.

In Prem Shankar Shukla v. Delhi Administration the Supreme Court gave a number of
directions with a view to reforming and humanizing the jail administration. Unfortunately, for
a variety of reasons, the directions of the Supreme Court are not being followed properly in
most of the jails in the country. Similarly, in the case of Sheela Barse the Court dealt with the
question of treatment of women in police lock-ups and gave detailed directions for improving
conditions in the lock-ups and providing adequate protection of the arrested persons and
particularly to women kept in the lock-ups. Describing the conditions of police lock-ups,
Justice A N Mulla Committee on Jail Reforms has pointed out, " most of these lock-ups have
insufficient accommodation and are without even such basic facilities as lavatories, light,
water and ventilation. Sanitary conditions in these lock-ups are also utterly unsatisfactory.
The very first encounter of a person with the criminal justice system thus invokes in him a
reaction of abhorrence for and distrust in the criminal justice system. Conditions of police
lock-ups need to be urgently improved." He has further added that, "the conditions of living
in sub jails are worse than in many bigger jails mainly because the buildings are old,
improvised and badly maintained. There is acute paucity of funds and facilities; and the
management is left to the care of ill-paid, low level staff with remote or indifferent
supervision. There are no adequate arrangements for preparing food for the prisoners within
the sub-jail premises and sub-standard cooked food is supplied through contract system."

The presence of a large number of under-trial and unconnected prisoners has continued to be
a scandal for long. A mention of the state of under-trials and the victims of procrastination in
trials is inescapable. The Mulla Committee again observed that the presence of an excessive
number of under-trial, remand and other unconvicted prisoners has created, and not wrongly,
an increasing public and professional concern about the non-observance of human rights, as
guaranteed in the UDHR, in these institutions. The plight of Dhananjoy Chatterjee (the

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infamous person guilty of raping and murdering a 14-year old) who languished in Alipore Jail
awaiting his execution for 14 years because of the sheer amount of time taken in litigation is
a case in point.

Justice Krishna Iyer is right when he says, " these institutions and not the inmates are
criminals." The situation could be summed up in one sentence: the human rights violations in
custodial and correctional institutions (the kinds of which we have), are not stray phenomena,
but widespread and deep-rooted in the system.

State

State, the so-called protector of human rights in the country appears to be the biggest violator.
The coercive processes of the State machinery corrode the foundations of human rights.
Increasing concentration of power the hand of the executive has become alarming. We are
witnessing the might and the dominance of the State tn its myriad forms. Many human rights
activists and civil liberty organizations have condemned the Central and State Government
for their deplorable disregard of fundamental freedoms and human dignity. The despotic
proclivity of the authorities has rendered the State as an oppressor of the poor. The worst part
is that State terrorism is taken as an answer for private terrorism. While the terrorism of the
extremists is reprehensible, loathsome and condemnable, State terrorism, army vices and
police excesses deserver to be repress the protestors, dissenters and the rebels who arise voice
against State violence is a real danger to democracy. We witness everyday the terrifying
presence of State violence to attain one single aim: to subjugate people and constantly seek
legitimacy of its totally immoral and illegal acts. Many innocent lives are lost through police
and army adventures in Assam, Andhra Pradesh, Jammu and Kashmir and in other states is a
question that needs 'he answer from the authorities. The hard fact in regard to human right
violations by the State organs, i.e., police, militan and paramilitary forces is that human
rights for them is rhetorical and not a real issue: Neither the issue appears on the agenda of
various parties, nor State wants to expand its time and recourses to stop human right
violations by its agents and official organs.7

Others

7
The Challenge of Law Reforms

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In between the violators and the victims of human rights abuses; we have a set of committed
human rights activists, civil liberty organizations, media persons and academics. These
people react when brazen and bizarre incidents of human rights violations occur. 8They make
speeches; write articles and books, and present papers in seminar and conferences. The
impact of these crying angles is precious little, with no lasting dent on the situation. There are
also the spokespersons in the Government, the window-dressers, who issue denials, play with
plagiarized phrases: coin excuses or use strategically chosen words to preserve the status quo.
When pushed to wall , they make promise to look into the incident, or at best order
magisterial inquiries, which take long time to materialize and complete. After months and
years the reports are submitted, which again are looked into to examine and finalize action to
be taken. Since, in the meanwhile the hue and cry subsides; the reports are consigned to
office archives. The exercise is repeated again when any other scandalous incident of human
rights violation takes place. And the game goes on. The only ray of hope in the dark clouds of
distress and disappointment is the institution of judiciary, i.e., Supreme Court.

CHAPTER V

THE SUGGESTIONS FOR IMPROVING THE SYSTEM OF

CRIMINAL JUSTICE

Scientific Investigation

Now-a-days it is not an easy task to get-witnesses in criminal cases, particularly where the
criminal is a notorious one. It is no secret that criminals can harm witnesses, who appear
against them. Thus a person withfirst hand knowledge of the facts of a crime would like to
keep himself away and avoid being dragged to a court of law for giving evidence. Besides
this, crimes are often committed secredy in a well-planned manner so that there may not be
any direct evidence against the offender. Under these circumstances, it is imperative to have
strong and intelligent investigating agency capable of using modern tools. Various
techniques, such as physical examination of the accused, medical examination of the victim,
comparison of finger prints, foot prints, photographs and writing, use of tape records,
forensic ballistics, wiretapping and other means of electronic surveillance, lie detectors and

8 th
France Child Sex Case Collapses, 4 December 2005, World News Service

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truth serums are used. The investigator must be equipped with the necessary apparatus and
technical knowledge to use these means. The probative value of scientific evidence will
depend upon the cogency of reasons on which it is based,and competency of the expert to
form reliable opinion.The probative value will be less if opinions of two experts on the same
matter are different.Similarly, where opinion of an expert is in conflict with other evidence it
is not necessary that expert opinion should prevail. In case of conflict the court must closely
examine the evidence before, acting upon it.

The evidence obtained by scientific investigation may also be excluded on grounds, of

violation of the provisions of the Evidence Act or restrictions prescribed by the Constitution.
There was some controversy with regard to whether evidence of signatures, finger prints, etc.
should be excluded for violation of Article20(3) of the Constitution. The Supreme Court held
that in Article 20(3) "to be witness" means to impart knowledge about relevant facts by an
oral or written statement made or given in the court or otherwise, but giving of thumb
impression or impression of foot, palm or finger or specimen writing or signature or showing
parts of the body by way of identification are not included in the expression "to be a witness"
in Article20(3). Court thus upheld the validity of Section 73 of the Evidence Act. It also
upheld the validity of Section 27 of the Act, which permits evidence of facts' discovered in
consequence of information received from a person accused of an offence, in the custody of a
police officer, even if such information amounts to confession.

With regard to admissibility of illegally obtained evidence the Supreme Court held in State of
Maharashtra v. Natwarlal Damodardas Sonf " that assuming that the search was illegal, it
did not affect the validity of thes seizure and its admissibility in evidence. At the most the
court may be inclined to examine carefully the evidence relating to the seizure. Similar views
have been expressed by the Supreme Court in other cases. As to admitting evidence obtained
by modern technology also the attitude of the Supreme Court has been positive though rightly
suspicious. For instance, it has welcomed evidence of superimposed photographs mechanical
devices of reproduction of oral evidence, etc. But while accepting the evidence of tape-record
the Court pointed out that the evidence must be received with caution. The court must be
satisfied beyond reasonable doubt that there has been no tampering.Responsible Police
The police, the Government and the society each have a role to plav in improving the law
enforcement situation and in developing a human rights-friendlv police in the country. A lot

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can be accomplished to change public perceptions and to improve the standards of policing if
the leadership in the police organizations fully committed to reform. After all, every
profession has the primary responsibility to discipline its members and maintain a code of
ethical behaviour by internal mechanisms bv peer groups in the organization.
Organizational behaviour is largely the outcome of training and continuing education. Police
training isarchaic in content and methods. The emphasis is still more on muscle than on mind.
Human Rights, if at ail,form an insignificant module in the training program and there is
hardly anything on human rights in the training of constables who form 85% of the force.
Respect for human rights is not rewarded. If the leadership itself is doubtful about the
imperatives of human rights in policing and if they disregard its importance in the training of
subordinate officers, what is the point in expecting change in the behaviour of the ordinary
subinspectors and constables.
All sections of society, and more particularly the media, can help improve the status and
efficiency of the police force. At least, they can afford not to disparage the police without
rhyme or reason. If they can extend co-operation in law enforcement, there is bound to be a
welcome response from the other side, which eventually will result in greater social defence
and better law and order situation. People and Police ought not to maintain an adversarial
relationship as it harms both. There are black sheep in every organization; it is in isolating
them and in cultivating the talented that right thinking sections of the communitv, the media
and the NGOs have a significant role to play. In such a partnership lies the guarantee of
human protection, the security of life and property and a credible system of criminal justice
in the country.
Speedy Process
Though speedy trial has been recognized as fundamental right because it is requirement of
fair procedure under Article 21, yet the delay in administration of criminal justice is a
common affair. Delay is both at the stage of investigation and prosecution as well as in trial.
There is necessity of prescribing some time limit for each process as Supreme Court has done
in Sheela Barse v. Union of lndicr\ Of course, time limit should not be unreasonable or rigid
because justice delayed is justice denied so also justice buried is justice hurried. A balance
between the two extremes is advisable.
Uniform Policy by the Government
To prevent human rights violations, it is suggested that an official declaration of uniform
policy by the governments that violations of Human Rights of accused by law enforcement be
formulated. Governments should also enact strict law to punish the perpetrators of human
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rights violations. Governments should also take prompt corrective action in case of human
rights violations.
Protection Mechanism should be strong
Mechanism for protecting human right of accused at the International, national and regional
levels must be strengthened, States should not shield themselves from International Scrutiny
on the issue of human rights. Every state must constitute an effective agency for
investigations and inquiring into and redressing violations of human rights. Governments
should ratify the international human rights treaties protecting the
human rights and fundamental freedoms of accused. States should provide an effective
framework of remedies for the redressal of human rights violations. Investigating
agencies,prosecuting agencies, judiciary and legal profession should make efforts to prevent
the human rights violations of accused by giving him proper and appropriate legal aid.
Role of Non-Governmental Organization
States should recognize the world of non-governmental organizations in the promotion of
human rights and humanitarian activities at international, national and regional levels. States
should provide assistance to Non-Governmental Organization and other members involved in
the field of human rights.

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CONCLUSION

The challenge before India is to develop human rights in its domestic caminal administration
by upgrading its law-enforcement machinery, and on the other hand not to be swayed away at
the cost of social developmentand nation's unity.
The establishment of National Human
Rights Commission can contribute if, instead of becoming a face-saving device against
international criticism of human rights conditions, it dedicates itself sincerely to the detection
of human rights violations in crime control activity and activates itself towards corrective and
remedial steps. A reconciliation lies in improving the domestic culture of human rights which
in turn will replenish our image in the international platform also.
Thus it can be concluded that in order to protect human rights and fundamental freedoms of
accused,we must generate an awareness for human rights in people's mind, otherwise, the
concept of human right will zigzag one step forward, and two steps back.

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BIBLIOGRAPHY

Statutes:
1. The Constitution of India
2. Human Rights Act 1993.
3. Indian Police Act 1861
4. .Code of Criminal Procedure, 1973

Bibilography

1. http://www.beyondintractability.org/essay/human_rights_protect%20
2. https://www.equalityhumanrights.com/...human-rights/how-are-your-rights-protected
3. https://www.bc.edu/content/dam/files/schools/law/lawreviews/
4. nhrc.nic.in/ignou/EUnit2/Unit_2.pd
5. https://lawyerslaw.org/the-protection-of-human-rights-act-1993

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