Constitutional Safeguard

 – The Constitution is the supreme law of the land and it defines the character of the State. It is living document, an instrument which makes the government system work, all state organs, Legislatures, Judiciary and Executive are bound by it. The Constitution has provided for separation of power between Legislatures, Judiciary and Executive. The Constitution lays down the frame work defining fundamental political principles, establishes the structure, procedures, powers and duties of government institutions and sets out Fundamental Rights, Directive Principles of State Policy and the duties of the citizens. The Constitution stands on highest pedestal to all laws framed within territorial precincts of the country, any law enacted by the ruling government has to be in conformity with the Constitution.

The Constitution manifestly defines the central idea of governance in Welfare State. The core of the Constitution is the conscience of the Constitution. Dispensation of Justice: social, economic and political is the core constitutional value  & Constitution has bestowed divine duty  wedded on Judiciary to protect it. The Constitution ensures both political & economic democracy to its citizens. The Constitution enumerates certain distinct Fundamental Rights to its citizens as a guarantee so that citizens can live their life in peace with dignity in the country. The Indian Constitution contains a chapter on Fundamental Rights (Part-III, Article 12-35) and are constitutional safeguards to the citizens of this country. These rights are fundamental as they are basic to the development of human personality.  

The Fundamental Rights as enshrined in Part-III of the Constitution is an exhaustive list and touches various facets of human existence. Since, the topic in hand is an attempt to draw co-relation between Constitutional safeguards as embedded in Part-III of the Constitution with respect to criminal justice system, hence Article 20, 21 & 22 will only be dealt here with.

Justice has been the foremost goals of every human civilization since time immemorial. Justice is called mother of all virtues and queen of all values. Justice is the main guiding principle of any civilized society. It would be apposite to quote Daniel Webster, “Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together.”

The criminal justice delivery system has been the most important aspect in every democratic society. And its implementation in the most fairest manner is the biggest responsibility & duty of every organ of the Constitution. The Constitutional safeguards vis-a-vis criminal jurisprudential perspective are outlined explicitly in the Constitution.

1. Rights of accused under Article 20. The Constitution ensures that the persons accused of various offences should get sufficient protection. No one can be condemned guilty unless the court of law finds the person to be guilty of the offence. It is also necessary that the person accused of any crime must get adequate opportunity to defend himself. To ensure fair trial in courts, Article 20 has bestowed certain rights to the accused.

Article 20 of the Constitution has three parts:

(i) There cannot be retrospective amendment in criminal law. No law shall declare any action as illegal from a backdate.

(ii) The doctrine of double jeopardy finds its place in Article20(2) of the Constitution. No person can be prosecuted and punished for the same offence more than once.

The Constitution Bench of the Honorable Supreme Court in Mazbool Hussain v. State of Bombay 1983 held that the fundamental right which is guaranteed under Article 20(2) enunciates the Principle of Double Jeopardy i.e. a person must not be put in peril twice for the same offence.     

(iii) The protection against self incrimination is availed on Article 20(3) of the Constitution. No person shall be asked to give evidence against himself. It gives right to an accused person the right not be a witness against himself. The protection under Article 20(3) is available only against the compulsion of accused to give evidence against himself.

2. Right of accused under Article 21:Right to life and personal liberty has been guaranteed in Article 21 of the Constitution. It is one of the most important right guaranteed by the Constitution, without which the Fundamental Rights would become dead end.

No person shall be deprived of his life and personal liberty except according to the  procedure established by law. Right to life & personal liberty has larger connotations. The Honorable Supreme Court in its in-numerable judgments has stated that many other sub-rights emanate from Article 21. The accused person has every right like other citizens of the country except his curtailment of person liberty in conformity with laws. Every accused under Article 21 has following rights:

(i) Right to speedy trial: Through judicial activism, the Honorable Supreme Court has stated that the concept of speedy trial has an inextricable association with liberty. The right to speedy trial was first recognized  in the landmark case ; Hussainara Khatton & others v. State of Bihar 1979. The Apex court in this case held that speedy trial is an integral and essential part of the Fundamental Right to life and liberty enshrined in Article 21 of the Constitution.

The Apex Court said, “No procedure which does not ensure a reasonably quick trial can be recognized 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 criminal justice system in India places human rights and dignity of human life at a much higher footing. An accused is presumed to be innocent till proven guilty. The alleged accused is entitled to fairness and true investigation and fair trial. The emphasis of criminal jurisprudence is both on fairness and speedy trial.

(ii) Right to fair trial: Fair & speedy trial are bedrock of any criminal justice system. In a criminal case, the fair trial is the triangulation of interest of the accused, the victim and the society.

In Mohd. Hussain v. Govt. of  NCT of Delhi 2012, a three Judge Bench of the Apex Court observed, “Speedy justice & fair trial to a person accused of a crime are integral part of Article 21, these are imperatives of the dispensation of justice.”

The Apex Court in Maneka Gandhi v. Union of India 1978 stated that principle of natural justice, audi alterarm partem must be followed. The accused must be  given reasonable opportunity to prove his innocence.

Indian criminal jurisprudence recognizes presumption of innocence as a human right.

(iii) Right to legal aid: The right to legal aid is constitutionally enshrined in Article21,22 and Article 39(A) of  the Constitution.. Right to legal aid in criminal proceedings is absolute and a trial and conviction which the accused is not represented by a lawyer vitiates the constitutional principles and liable to be set aside. The proposition has been held in Khatri v. State of Bihar 1981.

Article39-A stipulates that the state shall provide free legal aid by a suitable legislation or schemes to ensure that opportunities for securing justice are not denied  to any citizen by reason of economic or other disabilities.

In Hussainara Khatoon and others v. State of Bihar 1979, the Apex Court observed that it is a constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under constitutional duty to provide a lawyer to such person if the need of justice so require. “

(iv) Liberty & grant of bail: Personal freedom is the most prized thing for any person. Article 21 bestows right to personal freedom to an individual. life with out liberty is eyes without vision. If the liberty of the individual is curtailed it shackles the conscience of the man. Bail by all possibility must be granted to the accused under the provisions of Section 437 & 438 of CrPC by the court. Bail applications must not be decided in mechanical manner but  be given due thoughtful consideration by the court  vis-s-vis weighing the nature of offence as alleged for.

Justice V.R. Krishna Iyer often referred as Lord Denning of India, observed  in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. that, “the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedures established by law. The last four words of Article 21 are the life of that human being.”

Enlargement of bail or grant of bail has an association with individual liberty.

3. Right of accused under Article 22: As per Article 22, a person who is arrested for whatever reason gets three independent rights:

(i) Right to be told or informed the reasons for the arrest as soon as arrest is made.

(ii) Right to be produced before a Magistrate within 24 hours and

(iii) the right to be defended by an advocate of his choice.

The Honourable Supreme Court said that an arrest cannot be made simply because it is lawful for a police office to do so. Arrest and detention in police lock up can cause incalculable harm to the reputation and self esteem of a person. The arrest should not be made in a routine manner on mere allegation that a person has committed an offence.

In the landmark judgment in Joginder Kumar v. State of UP 1994, the Apex Court has laid down following guidelines governing arrest of a person:

(a) Arrest are not to be made in a routine manner. The officer making arrest must be able to justify its necessasity on the basis of some preliminary investigation.

(b) An arrested person should be allowed to inform a friend or relative about the arrest and where he is being held. The arresting officer must inform the arrested person when he is brought to the police station and is required to make an entry in the diary as to whom the information was given.

(c) It is the duty of the Magistrate before whom the arrested person is provided to satisfy himself that the above requirements have been complied with.

In DK Basu v. State of West Bengal 1997, the Apex Court held that law does not permit the use of third degree methods or torture on an accused person. Actions of the State must be right, just and fair. Torture of accused person for extracting any kind of confession would neither be right nor just nor fair.

In Prem Shankar Sukla v. Delhi Administration 1980, the Apex Court observed that using handcuffs and fetters(chains) on prisoners violates the guarantee of basic human dignity, which is part of our constitution culture. The draconian practice vitiates the test of Article 14, 19 and 21.

Article 22 is designed to give protection against the act of the Executive or order of non-judicial authorities and applies to a person who has been accused of a crime or of offence of criminal or quasi criminal nature or some act prejudicial to the State or public interest.

The right of the accused to be produced before the nearest Magistrate within a period of 24 hours, enables the arrested person to get a speedy trial.  

It can be manifestly concluded that there is close link between constitutional safeguards and criminal justice system. Justice must not only be done but it must be seen to be done at lightning speed. The Constitution has given biggest responsibility to Judiciary to safeguard constitutional principles be it civil or criminal justice system. It cannot be lost sight of that ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. The judiciary has to see that innocent person is not made to suffer on account of  un founded, baseless and malicious allegations. Human beings being at the epitome of the infinite process of the divine design in this universe, the term life as embedded in Article 21 must be protected  at any cost by the Judiciary be it for the persons who have been alleged for commission of crime. Law must have a human face. At the end only ultimate justice prevail which is the conscience of the Constitution. The justice system must have compassionate outcome.