Understanding the Constitutional Foundation of the Criminal Justice System: A Comprehensive Analysis
The association of criminal justice system and the constitution is one which
cannot be ignored. Where the constitution plays the role of being the grundnorm
for a country and grants several rights to its citizens, the criminal justice
system plays the role of guardian of those rights by protecting them and
punishing the wrongdoers.[1]The criminal justice system of a country is highly
dependent upon the constitution as it aspires for regular support from it to
maintain law and order in the territory.
The Constitution of India as the basic law of the land served as the legal touchstone for all the future criminal justice laws, on the other. Such a close and integral relationship between the Constitutional guarantees and the constituent laws comprising the CJA has hitherto remained unexplored and ignored, by and large.[2]
Constitution confers wide range of powers on the state officials to preserve the social peace and order and at the same time recognizes and guarantees certain rights and freedoms to the citizens, as well as non-citizens, including accused persons. Fundamental principles such as the presumption of innocence, due process of law, and the right to legal counsel underscore the protection of individual rights and liberties.
Additionally, safeguards against unreasonable search and seizure, the prohibition of cruel and unusual punishment, and the right to a speedy trial further reinforce the commitment to upholding justice. Equally significant is the principle of equal protection under the law, which strives to eliminate discrimination and ensure that all individuals receive impartial treatment regardless of their background.
At different stages of the criminal justice process, a person may encounter conflicts with law enforcement agents. From the moment of their arrest, their freedom of movement is restricted, and both the Constitution and the Criminal Procedure Code include a provision allowing the arrested individual to be presented before a judicial officer. India's criminal law jurisprudence is rich in rights; they apply to almost all aspects of substantive, procedural and evidentiary matters.
Mostly originating from the new Art 21 the Supreme Court found in 1978, these rights have been the basis for invalidating - or limiting - the scope of several statutory provisions. But they are now increasingly being put to a different use. Courts in general, and the Supreme Court in particular, are paying greater attention to the more structural features of the justice system that are responsible for the everyday realisation of these rights.
Particularly, the core principle of equilibrium outlined in clauses (1) and (2) of article 13 of the constitution is pivotal. According to Article 13(1)[3], all existing laws must undergo scrutiny for any inconsistency with the Fundamental Rights, rendering such laws void to the extent of the inconsistency. Similarly, Article 13(2)[4] prohibits the state from enacting laws that infringe upon any fundamental right, with such laws deemed void by virtue of this clause. Hence, the comprehensive range of Fundamental Rights guaranteed in Part III of the Constitution forms the foundation of individual freedoms.
The following Fundamental Rights can be discussed which form the basic foundation of the criminal justice system: Tracing constitutional foundations in criminal justice system the procedural laws primarily derive from the Code of Criminal Procedure , 1973 (CrPC) and the Indian Evidence Act , 1872 (IEA).Until the enactment of the new Code in 1973, the basic procedural law was governed by the 1898 Criminal Procedure Code.
During the two post-constitutional decades of the 1950s and 1960s, the constitutional guarantees began to have an impact on the Criminal Justice Administration (CJA) and its components. This influence became evident during the first phase of criminal law reforms in the late 1960s, which initially focused on the need to align the criminal procedure law with the prevailing liberal and constitutional principles. Consequently, the Code of Criminal Procedure Bill of 1971 was not intended to amend the existing law, but rather aimed to introduce an entirely new procedural law.
The Bill was presented in Parliament with three primary considerations in mind, namely: Emphasis on the speedy disposal of cases, Ensuring due process and Providing equitable treatment to the economically disadvantaged sections of society. These considerations were duly incorporated into the provisions of the Code of Criminal Procedure of 1973, which seeks to facilitate swift, fair, impartial, and non-discriminatory criminal proceedings.
Initially, the framers of the constitution did not intend to introduce the concept of the 'quality' of the legal process in question, those responsible for taking a life or infringing on liberty were subject to less strict scrutiny. The party accused of the violation only needed to demonstrate that they had followed a legally established procedure. However, the interpretation of 'legal procedure' by the Supreme Court in the case of Maneka Gandhi v. union of India[6], following the emergency period, has transformed the issue of the quality of the legal process into a constitutional matter. Now, the process must be both 'fair' and 'just' rather than merely 'any' procedure. Consequently, any instance of 'taking' or 'interference' that is arbitrary, discriminatory, undignified, or dehumanizing would violate Article 21, thus establishing this constitutional provision as the cornerstone or foundation of all actions.
In Francis Coralie Mullin v. The Administrator[7], Justice P N Bhagwati had said that Article 21 'embodies a constitutional value of supreme importance in a democratic society'. Further, Justice Iyer characterised Article 21 as 'the procedural Magna Carta protective of life and liberty'. In Kharak Singh v. State of U.P.[8] supreme court takes into the consideration issue of right to privacy of accused and observed that : the accused has a right to privacy and any encroachment upon it without support of law is violative of article 21 .
In Causa Celebre of Delhi Domestic Working Women's Forum v. Union of India[9] the Supreme Court provided for setting up of a Criminal Injuries Compensation Board (CICB) in a way as to ensure that the ladies who were raped were meant to be compensated for the loss of their dignity. Furthermore, the Supreme Court also took a proactive stance and held the National Commission for Women was not merely a recommending body, but also had the power to enforce its recommendations.
Therefore, through this case it can be construed that the Supreme Court by setting up Compensation Board where dignity which was hampered by unlawful act can be restored by compensation has included within the ambit of Article 21, access to justice.
To sum up, it can be said that access to justice is and will continue to be recognised as a part and parcel of right to life in all civilised societies in the world. The right is so basic and inalienable that no system can possibly neglect its importance, or can afford to deny the same to its citizens.
In fact, much of the early "newness" of Art 21 was explained in the context of criminal justice issues. In MH Hoskot v. State of Maharashtra,[10] the petitioner was convicted of forgery and served out his sentence. He later claimed that he was denied legal aid and therefore was unable to appeal his conviction. Relying on the Maneka Gandhi v. Union of India[11] reasoning, Judge V R Krishna lyer concluded that the right to legal aid was a necessary aspect of the right to life and personal liberty.[12]
Lawyers' services are an "ingredient of fair procedure", he said, and making such services available is 'the State's duty'[13]. This was repeated in Hussainara Khatoon v. Home Secretary[14],Justice P N Bhagwati clarified 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[15] .The immediate facts of the case had to do with under-trial prisoners, some of whom had been detained for periods longer than their possible sentences. In that context, the court also clarified that the right to speedy trial was part of Art 21, and undue delay in clearing the docks amounted to a grave violation.[16]
A more general principle was laid down soon after in Sunil Batra v. Delhi Administration[17] The petitioner was on death row, and had been kept in solitary confinement pursuant to s .30 of the Prison Act ,1894[18]. Rejecting the claim that such 'men ... are so desperate that they will commit more murders if facility offers itself', Judge Krishna Iyer concluded that while "the operation of Articles 14, 19 and 21 may be pared down for a prisoner", they cannot be "puffed out altogether".[19]
He read down the scope of that provision, adding that "if wars are too important to be left to the generals, surely prisoners' rights are too precious to be left to the jailors"[20]. "Freedom behind bars", he noted, is part of India's "constitutional tryst" and rights matter even while prisoners serve their sentences[21].The "new" Art 21 offered almost limitless possibilities to dialogically remake the colonial foundations of India's criminal justice system, and its effects were only just beginning to emerge.
Over time, the humanising effects showed up on an array of criminal justice issues. The expansions fall into three broad categories, and a few important ones will be noted here.
First, at the pre-trial stage, persons have, among others, a right to "access legal counsel immediately on arrest"[22] ,a right against "delayed framing of charges"[23] , "a right against torture or other forms of custodial violence"[24] and a "right to bail under reasonable conditions"[25].
In fact, the Selvi[26] reasoning in rejecting certain investigative techniques relied in large measure on this expanded meaning of Art 21, and in particular on the right to fair trial. Second, during trial, accused persons have, among others, a right to "fair and open trial"[27] a right to"speedy trial"[28]," a right "against delay inpronouncing verdicts"[29]' and a right against handcuffing[30]. And third, at the post-trial stage, convicted persons have a right of appeal[31], a right to defend oneself against enhanced sentences[32] and a right against inhumane and degrading punishment[33] and a right "against delay inexecuting sentences"[34].
All criminal trials are based on the principle that the accused is innocent till proved guilty. The presumption of innocence is a cardinal principle of our legal system and a basic right of the accused person. The presumption must stand and be the guiding principle right from the moment of suspicion, through investigation, throughout the trial process and till the delivery of the verdict.
Criminal procedure is built around the principle of "Innocent Until Proven Guilty" and is designed to protect this right. When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt lies on the prosecution."
The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome. The presumption of guilt, however, is purely and simply a prediction of outcome. The presumption of innocence is, then, a direction to the authorities to ignore the presumption of guilt in their treatment of the suspect. It tells them, in effect, to close their eyes to what will frequently seem to be factual probabilities. The reasons why it tells them this are among the animating presuppositions of the Due Process Model ... It is enough to note at this point that presumption of guilt is descriptive and factual, the presumption of innocence is normative and legal. (pp. 161-62)[35]
Over time, the pronouncements of the Supreme Court have consistently reaffirmed that the presumption of innocence is a human right[36]. That the accused, however unpleasant and unattractive he or she may be and however deplorable the alleged crime is, must be afforded all the protections required for the realisation of this right .This presumption of innocence must condition his/her treatment and the procedure of the trial throughout.
The Apex Court in P.N. Krishna Lal v. Government of Kerala[37] clarified that the principle of presumption of innocence is entrenched in the Indian Constitution, the Universal Declaration of Human Rights and the Civil and Political Rights Convention, to which India is a member, guarantee fundamental freedom and liberty to an accused person.
The prohibition against ex post facto laws applies only against substantive criminal law. Persons cannot be convicted for acts that were not crimes on the date of their commission, this provision re-iterates the classic Criminal Law Maxim: Nulla poena sine lege and Nulla crimin sine lege, that means there cannot be any crime without an existing law that criminalizes behavior.
An ex-post facto law is seen as 'highly inequitable and unjust' because it does not give fair warning to an individual that his conduct is proscribed, and punishes him for an act that she was otherwise free to do[38].Further, ex-post facto laws can be misused by a State bent on persecuting an individual, since the State could criminalise an action that was lawful when it took place, or remove protective procedural rules in order to overcome a deficiency in legal proof.[39]
Art 20(1) does not create a vested right in any particular procedure[40] Nor does the provision apply to the retrospective operation of legislation that creates civil liabilities including deprivation of business permits, forfeiture of properties or cancellation of administrative orders[41]. Also, the provision only bars additional or higher penalty; substituting a penalty for another, however, is not prohibited by Art 20(1).[42]Similarly, the protection of Art 20(2) applies only after a person has been "prosecuted and punished" for an offence before a court or judicial tribunal.[43]
But when the ingredients of the offences in the previous and subsequent trials are distinct, Art 20(2) has no application. In fact, a subsequent prosecution may emerge out of the same facts and the same complaint, but must engage with distinct ingredients. For example, an offence and a conspiracy to commit that offence, the Supreme Court has concluded, are sufficiently distinct.[44] And as with the "civil liability" exception in Art 20(1), here too administrative actions - non-payment of increments, bar against promotion or dismissal on disciplinary grounds - do not count as "punishments".[45]
In contrast to the relatively narrow reading of Arts 20(1) and 20(2), the Supreme Court has offered more expansive protections under Art 20(3). In Selvi v. State of Karnataka[46]("Selvi"), the petitioner challenged the constitutionality of three investigative mechanisms - polygraph, narco analysis and brain mapping - as violative of the right against self-incrimination. After an exhaustive review of the science underlying these methods, leading US and other foreign decisions and references to relevant provisions of the CrPC and IEA, Chief Justice KG Balakrishnan concluded that the involuntary administration of these procedures violates Art 20(3). The guarantee against self-incrimination, he explained, exists first to ensure "reliability of the statements made by an accused", and second, to "ensure that such statements are made voluntarily".[47] Accused in this context has a non-technical meaning; a formal accusation or chargesheet is not a prerequisite.[48]
But to meaningfully protect the right without unduly impairing investigative efforts, the Chief Justice drew two distinctions: First, he distinguished between evidence that is intended for comparison with facts that are already known, and evidence that leads to the discovery of new facts relevant to an ongoing investigation. Second, he distinguished between "physical" evidence - blood, hair, sweat, semen, handwriting samples, etc - and "testimonial" evidence - including oral or written statements about the specific events, and psychiatric examinations. In keeping with earlier precedents, physical evidence, he concluded, may be compelled,[49] but not testimonial evidence[50].
In particular, he held that the three investigative techniques amounted to testimonial evidence, even though at least two of them (polygraph and brain mapping) involved only "physiological" responses." This is because such methods could produce "communicative" gestures that could lead to new information, and potential charges.[51] Perhaps the decision's importance lies in the fact that it draws attention to the underappreciated relationship between criminal procedure and fundamental rights, and in particular to the connection between investigative techniques and the right to fair trial.
It is also beneficial to the criminal justice system in India because Article 22 of the Indian Constitution establishes procedural requirements that must be adopted and incorporated into any procedure enacted by the legislature. Non-compliance with these procedural requirements may result in the deprivation of personal liberty, which is protected under Article 21 of the Constitution. People who have been arrested under the ordinary law of crimes, as well as those who have been detained under preventive detention laws, have rights under this article.
When someone is arrested for an offence committed under any ordinary law, that person has the right to be informed of the grounds of his or her arrest at the earliest opportunity. to consult and to be represented by a lawyer of his own choice , to be produced before the magistrate within 24 hours and right of no detention beyond twenty-four hours except by order of the magistrate. Further the article provides for safeguards guaranteed to a person arrested under preventive detention laws which include review by advisory board, communication of detention grounds to the detenue and detenue's right of representation.
It is entirely dependent on striking a balance between protecting an individual's personal liberty and ensuring an exhaustive investigation of the crime in order to uphold the concept of justice that a relationship between bail and an individual's personal liberty can be established. In order to uphold the concept of justice, this balance must be struck in order to protect an individual's personal liberty. The right to life of a person who has been granted bail is protected until that person is found guilty by a court of law. When an investigation is not concluded within twenty-four hours, the matter is referred to the magistrate, according to the provisions of Section 57 of the Code of Criminal Procedure.
The magistrate has the power under Section 167(2) of the Court of Criminal Procedure to confine the accused for a total of not more than fifteen days. However, as stated in article 21, the accused's personal liberty must be safeguarded because he is a citizen of the country; hence, the magistrate cannot order the accused to be held for more than 90 days in the case of a serious offence and 60 days in the case of a less serious crime. When this timeframe has elapsed, the offender must be granted bail by the court.
The Supreme Court of India, in the case of D.K. Basu v. State of West Bengal[53], took the issue of police lock-up brutality and death very seriously. It is possible to protect oneself against police abuse by ensuring that public activity is transparent and accountable. The Supreme Court issued recommendations (as precautions) to be observed in all cases of arrest or imprisonment until legislative action is adopted. Custodial violence has been identified as a major source of concern. It is a violation of Article 21, as well as basic human rights, and a blow to the rule of law. It is made worse by the fact that it is performed by people who are supposed to be citizens' guardians, within the four walls of a police station or a jail, with the victim completely defenseless.
Convicts, those awaiting trial, detainees, and other people in custody cannot be denied their precious right guaranteed by article 21 unless and until they follow the legal procedure. A citizen's right to life cannot be put in jeopardy as a result of his arrest. It has also been held that use of any form of torture during interrogation is neither right nor just. The judgment provided for provisions of Inspection memo, police control room, medical examination which have been further turned into provisions of criminal procedure code.
The power to arrest entails serious infringement with the physical liberty of a person, there are several provisions under the Cr. P.C. for guiding it, such as Ss. 41 to 60, S. 151, etc. These provisions not only empower the police but also provide the necessary inbuilt safeguards against abuse of power of arrest.
The guarantee ensures that neither equality before the law shall be denied by the State, nor the State will discriminate between persons in matters of administration of laws. This guarantee prohibits discriminatory criminalization, differential administration of criminal justice and different punishment for the same crime. However, does not prohibit reasonable classification based on intelligible differentia test.
The principle of equality encompasses all areas of India's governance and society. The Constitution is unequivocal that equality is a fundamental mandate by which both state and individual are bound. In one stroke of the pen it removes immoral and iniquitous practices such as untouchability and begar. Through positive discrimination, it makes clear that there is no place for discriminatory societal divisions or practices such as caste, the historic disadvantages of sections such as women, and the vulnerability of minorities and children. It decrees that "we the people" shall be equal in our freedoms, have equality of opportunity and shall, first and foremost, be equal before the law. Furthering this principle and making equality a reality, is part of the judge's mandate. Equality before the law requires that there must be equal access to the law and equal treatment before the law.
The Directive in Article 39-A requires the State to of set the access to justice needs of the resource-less by organizing facilities for free legal aid. The directive for free legal aid has been partly complied by the organization of the National Legal Services regime all over the country in terms the National Legal Services Authorities Act, 1987. As a consequence at the formal level the legal service need of the resource-less are envisaged to be delivered through the National Legal Services Authority at the Central and State level Legal Services Authorities .
In M.H. Hoskot v. State of Maharashtra[55] In this case the court held that right to free legal aid at the cost of the state to the accused who can't afford legal services for reasons of poverty or incommunicado situation is part of fair, just and reasonable procedure under Article 21 of the Constitution.
The court pointed out that-"Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature moulded by Anglo-American models and our judicial process, engineered by kindred legal technology compels the collaboration of lawyer power for steering the wheels of equal justice under the law. A free legal service to the poor and needy is an essential element of any "reasonable, fair and just" procedure. It is not necessary to quote authoritative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied "reasonable, fair and just procedure."
In the trial of every person accused of an offence, the authorities shall under Art.39A of the Constitution ensure that the accused is represented and Under S.304. Cr. P.C. appoint a pleader, and offer free legal aid to an accused who is not in a position to engage a pleader himself/herself.
Art. 22(1) : Ensure that the accused is given the right of free choice of his/her pleader.
Ss.303, 304 Cr.P.C ensure that the accused is informed of his/her right to free legal aid at the cost of the State, where he/she on account of his/her indingency is not able to afford one.
Similarly, the State High Courts possess similar powers within their jurisdiction to issue directions, orders, or writs for enforcing the rights specified in Part III or for any other purpose under Article 226. Both Article 32 and Article 226 grant individuals the right to seek remedies through appropriate legal proceedings in the constitutional courts.
The Constitution of India gives the Supreme Court the jurisdiction to hear appeals in criminal cases. Article 132 provides for the appellant jurisdiction from the High Courts in certain cases. It states that 'An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of this Constitution'
Article 134 deals with appellate jurisdiction of the Supreme Court in criminal cases. Enlargement of Jurisdiction Article 134(2) further provides that the 'Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law'.
In pursuance of this power, the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was promulgated.
Accountability of the constitutional power-holders
The year 2014 can be remembered for the two landmark Supreme Court rulings, namely, Lalita Kumari[56], Arnesh Kumar[57] that go in to contribute to enhancing the accountability of power-holders in different ways. In Lalita Kumari, the five-Judge Supreme Court decision of Chief Justice Sathasivam has spelled out three categorical reasons for ruling that Section 154 CrPC creates a mandatory obligation on the part of the police to register an FIR in all the cases of cognizable offences where a clear and unambiguous information is given to the police.
The issue of accountability was spelt in these precise words:
"Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented." (Para 94)[58]
By ruling this way the Supreme Court put to rest a controversy that had divided even the Supreme Court right from State of Haryana v Bhajan Lall to Lalita Kumari v. State of U.P.[59] (2012 three Judge Bench) into two lines of authorities on the point. Perhaps after the Nirbhaya gang rape incident, highlighting an all-round failure of the police, the Court was no more inclined to give a long rope to the police, in criminal justice matters.
Close on the heels of Lalita Kumari was the Arnesh Kumar case that spread the net of accountability beyond Police to Magistracy as well. The Supreme Court two-Judge Bench decision relates to power of arrest, yet another controversial issue that had remained unresolved even after several Commission Reports and Supreme Court rulings.
The Arnesh Kumar's decision by Justice Chandramauli Prasad (Justice, PC. Ghose concurring) related to arrest in respect to a dowry and matrimonial cruelty case, but the Court consciously laid down a law for the arrest in respect to all the offences punishable with less than seven years' imprisonment as per the amended Section 41(1)(b) of the Code. The Court ruled, "Our endeavour in this judgment is to ensure that the police officers do not arrest the accused unnecessarily and Magistrates do not authorize the detention casually or mechanically."
The accountability of the concerned criminal justice agencies is comprehensively built into the Eight Guidelines that end up with sanctions for non-compliance. Thus, Arnesh Kumar's ruling has been able to explode the myth of absolute supremacy of the police during use investigation stage built by the colonial procedural law and sanctified by the Privy Council in King Emperor v. Khwaza Nazir Ahmad [60] in 1943.
The above discussion is reflective of an upbeat judicial mood that aimed to steer the criminal procedure law to a new direction of accountability and egalitarianism.
Fair trial elements under pressure
A fair trial is a cornerstone of a just legal system, and a well-conducted investigation is pivotal in laying the groundwork for such a trial. It sets the stage for presenting evidence in a court of law and ensures that the legal process respects the rights and dignity of all parties involved. During the investigative phase, concerened police authorities collect evidence to establish the facts of a case, identify suspects, and build a foundation for legal proceedings.
"In State of Gujarat v. Kishanbhai[61] the apex court had to point out the lapses on the part of the prosecution. Vital witnesses were either not produced or were not cross-examined. The medical report of the accused was not placed on record. No DNA profiling of the blood samples was done. The court lamented the fact that justice could not be done because of the failure of the investigation."[62]
The failure of investigating and prosecuting agencies can have profound consequences, placing both the fair trial process and the constitutional foundation of criminal law under considerable strain. When these essential components of the criminal justice system falter, the repercussions permeate various aspects of legal proceedings, potentially compromising the entire framework.
Firstly, a lack of diligence in investigations may result in weak or unfounded charges, eroding the foundational presumption of innocence. Incomplete or inadequate investigations can lead to due process violations, denying individuals the right to a fair and impartial trial. The consequences extend to the quality of evidence presented, with the potential for unreliable or tainted information that undermines the credibility of legal proceedings.
Ineffectual prosecution further exacerbates the problem, as weak legal representation may fail to present a compelling case. The failure to disclose exonerating evidence exacerbates the risk of wrongful convictions, with innocent individuals potentially facing unjust consequences.[63]
The judiciary, in response to poorly conducted investigations, may subject cases to heightened scrutiny, casting doubt on the legitimacy of the legal process. This erosion of confidence extends beyond the courtroom, impacting public trust in the criminal justice system and compromising its overall legitimacy.
Moreover, the failure of investigating and prosecuting agencies to meet their responsibilities can contribute to systemic weaknesses within the criminal justice apparatus. Identifying and addressing these structural issues become imperative to restore the integrity of the system.
In essence, the consequences of investigative and prosecutorial failures extend far beyond individual cases. They challenge the very principles upon which the criminal justice system is built—undermining the rule of law, eroding public trust, and posing a risk to the constitutional foundations of criminal law. Remedying these challenges requires a comprehensive commitment to reform, encompassing improved training, resource allocation, oversight mechanisms, and a dedication to upholding the principles that underpin a fair and just legal system.
Even in respect to trials for offences relating to terrorism, the courts have required compliance with the fair trial, elements that's includes free hearing, right to counsel and unbiased, adjudication by a competent authority. However, the growing menace of sexual predators against women and children have been met with extreme responses, which are at times bizarre. For example, the Disha rape incident had led the AP Government to enact a AP Disha Bill, 2019 that mandated completion of investigation in respect to "heinous offences" within seven working days (the Bill has been temporarily withdrawn in view of the queries by the Centre) or the unusual expedition shown in disposing trials in rape cases by a few lower courts.
The matter of expedition in trial and award of death sentence came before the Supreme Court in Arokhilal v. State of M.P[64]., related to rape and murder of a nine-year-old girl in which the investigation, trial and sentencing was completed in just 12 days. The trial before the Sessions Court was completed in five consecutive days of hearing. Commenting specifically on virtues of an expedition, the court had said that :
Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic, elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed.[65]
Thus, Anokhilal decision has come at the right time, before greater damage to the system of criminal justice could be imparted on populist pressure.
Encounter Killings
Encounter killings represent a serious breach of constitutional and basic criminal law principles. These incidents involve law enforcement officers resorting to lethal force without proper legal proceedings, often justifying their actions as self-defense or a necessity of time .
Encounter killings directly violate the constitutional right to life, as individuals are intentionally deprived of their lives without the due process afforded by the legal system. The foundational principle of due process, ensuring fair treatment and legal proceedings, is circumvented in encounter killings, denying individuals the opportunity to defend themselves before being deprived of life, liberty, or property. Encounter killings assume guilt without affording suspects the presumption of innocence, a fundamental tenet of criminal law that underscores the right to be considered innocent until proven guilty . Encounter killings often involve the use of disproportionate force, contradicting the principle that law enforcement should respond with force commensurate to the threat posed.
Tampering with evidence to justify lethal force compromises the integrity of the investigative process, hindering the pursuit of justice and truth. Encounter killings, especially if marked by brutality, may breach international human rights standards that prohibit torture and cruel, inhuman, or degrading treatment. By being arbitrary and extrajudicial, encounter killings infringe upon civil liberties, particularly the freedom from arbitrary arrest and detention. These incidents undermine the rule of law by allowing law enforcement to act as judge, jury, and executioner, eroding accountability and transparency in the legal system and diminishing public trust.
Encounter Killings violate the fundamental rights of criminals as every person has a right to life and liberty which can only be deprived following the procedure established by law under Article-21 of the Constitution. This right extends to all persons without exception, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under Article-14.
Also, an accused person has a fundamental right to have an advocate of his choice for defence under Article-22 which is also a statutory right under Section-303 CrPC. However, in fake encounters, the police assume the role of the judiciary without giving a proper chance to the accused to be heard at an appropriate judicial forum, hence violating the principle of Audi alteram partem. So, it is the responsibility of the police to follow the constitutional principles and uphold the Right to Life of every individual whether an innocent law-abiding citizen or a dreaded criminal.
In a 2010 article in Indian Express[66], the present National Security Advisor, Ajit Kumar Doval, had defended fake encounters (while defending the Sohrabuddin (fake encounter of Sohrabuddin Sheikh that took place in 2005 in Gujrat.) episode on the ground that the law of the land had repeatedly found itself helpless in dealing with individuals bent on bleeding the country. Doval, therefore, agreed with the view that the rule of law is a means to an end and not an end in itself, and invoked the jurisprudential principles of salus populi est suprema lex (the people's welfare is the supreme law) and salus res publica est suprema lex (the safety of the nation is supreme law). He wrote,
"Even the Supreme Court of India, in the case of D.K.Basu v. State of West Bengal (1997) accepted the validity of these two principles and characterised them as not only important and relevant, but lying at the heart of the doctrine that welfare of an individual must yield to that of the community."
The NHRC's 2011 manual for human rights supported Doval's view, by citing it. It is debatable, however, whether it marks a shift in NHRC's approach to encounter deaths.
These encounter deaths raise many a question like what if those killed are innocents? What if it leads to abuse of power? What if these killings remove proof of some other influential people involved? To combat this growing trend, these killings need to be independently investigated free from police or political interference to fix culpability on the police officers and end the prevalent culture of impunity. Police reforms are also needed to sensitise them to function within four corners of the constitutional responsibility and the Rule of Law prevails above all.
Furthermore, the Supreme Court's and the NHRC's guidelines must be strictly adhered to and followed up by judicial authorities. In a broader perspective, there is a need for a complete overhaul of the criminal justice system to rebuild its lost credibility and fast track procedure. And lastly, the media should avoid labelling extrajudicial killings as heroic acts as it shakes the faith of people in our criminal justice system.
Conclusion
The principles of equality, liberty, and dignity of the individual were the cornerstone while creating the Constitution, as evidenced by the preceding study of constitutional provisions. Justice was a primary issue for the framers. They included various provisions in the Constitution for criminal justice and its administration. While acknowledging people's rights, the commitments of public security, unity, and integrity were always taken into account. In certain instances, the Constitution enables the State, which includes the police and the judiciary, to place reasonable restrictions on some of the people's Fundamental Rights in order to maintain order, decency, morality, and so on.
As a result, the Constitution has necessary measures for the administration of criminal justice in a fair and impartial manner. "India's criminal law jurisprudence is rich in rights; they apply to almost all aspects of substantive, procedural and evidentiary matters. Mostly originating from the new Art 21 the Supreme Court found in 1978, these rights have been the basis for invalidating - or limiting - th
Courts in general, and the Supreme Court in particular, are paying greater attention to the more structural features of the justice system that are responsible for the everyday realisation of these rights. Over the years, Parliament has by and large internalised many of the doctrines, and followed the court's lead in revising statutory provisions. But the record on the structural aspects is less promising; the legislative branch has shown little appetite for incorporating the proposed changes. As such, the future of India's criminal justice system in large measure will depend on the ability of the legislative and judicial branches to dialogically remedy its structural inadequacies.
However, in order to achieve the intended effects, the laws must be rigorously followed, not simply the text of the law. The constitutional foundation of criminal law serves as a bedrock for ensuring that every state agency operates within its allocated competencies. At its core, this constitutional framework establishes a system of checks and balances, delineating the powers and responsibilities of each branch of government.
Through the principle of separation of powers, the constitution sets clear boundaries, preventing any single state agency, especially those involved in criminal law enforcement, from overstepping its designated authority. This legal foundation provides a structured framework within which state agencies must function. It defines the limits of government authority, specifying the procedures and constraints that must be followed in the pursuit of justice.
The constitution acts as a shield against arbitrary actions by state agencies, offering procedural safeguards and due process protections to individuals ensnared in the criminal justice system.[68] the constitutional foundation of criminal law establishes a framework that not only assigns competencies to state agencies but also safeguards against potential abuses. It embodies the principles of justice, fairness, and the rule of law, fostering a legal system where the actions of every state agency align with constitutional provisions, thereby ensuring a just and accountable criminal justice process. In contemporary times, the constitutional foundation of criminal law is facing mounting pressure, primarily due to the failure of investigating and prosecuting agencies coupled with the concerning phenomenon of encounter killings.
The failure of these agencies to fulfill their crucial roles in the criminal justice system undermines the bedrock principles of fairness, due process, and equal protection under the law. Inadequate investigations contribute to weakened cases, leading to potential miscarriages of justice, erosion of the presumption of innocence, and violations of constitutional rights. Moreover, encounter killings, characterized by extrajudicial use of force by law enforcement, pose a direct challenge to the constitutional guarantee of the right to life and due process. These incidents bypass the legal framework, acting as a stark illustration of the breakdown in adherence to established procedures and protections.
The combination of investigative lapses and encounter killings not only erodes public trust in the criminal justice system but also jeopardizes the constitutional promise of justice and accountability. Addressing these issues requires a comprehensive commitment to legal reforms, enhanced oversight, and a reinvigorated dedication to upholding the principles enshrined in the constitution, thereby ensuring the resilience and integrity of the constitutional foundation of criminal law.
End-Notes:
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The Constitution of India as the basic law of the land served as the legal touchstone for all the future criminal justice laws, on the other. Such a close and integral relationship between the Constitutional guarantees and the constituent laws comprising the CJA has hitherto remained unexplored and ignored, by and large.[2]
Constitution confers wide range of powers on the state officials to preserve the social peace and order and at the same time recognizes and guarantees certain rights and freedoms to the citizens, as well as non-citizens, including accused persons. Fundamental principles such as the presumption of innocence, due process of law, and the right to legal counsel underscore the protection of individual rights and liberties.
Additionally, safeguards against unreasonable search and seizure, the prohibition of cruel and unusual punishment, and the right to a speedy trial further reinforce the commitment to upholding justice. Equally significant is the principle of equal protection under the law, which strives to eliminate discrimination and ensure that all individuals receive impartial treatment regardless of their background.
At different stages of the criminal justice process, a person may encounter conflicts with law enforcement agents. From the moment of their arrest, their freedom of movement is restricted, and both the Constitution and the Criminal Procedure Code include a provision allowing the arrested individual to be presented before a judicial officer. India's criminal law jurisprudence is rich in rights; they apply to almost all aspects of substantive, procedural and evidentiary matters.
Mostly originating from the new Art 21 the Supreme Court found in 1978, these rights have been the basis for invalidating - or limiting - the scope of several statutory provisions. But they are now increasingly being put to a different use. Courts in general, and the Supreme Court in particular, are paying greater attention to the more structural features of the justice system that are responsible for the everyday realisation of these rights.
What Provisions forms the 'Constitutional Foundations'?
The Constitution of India, serving as the fundamental law of the country, grants a comprehensive set of authorities to state officials to uphold social peace and order. Simultaneously, it acknowledges and secures certain rights and freedoms for citizens and even non-citizens, including those who are accused of crimes. This balance of seemingly conflicting interests is reflected in various measures, such as Article 372, which allows for the adaptation of existing criminal and civil liability laws, empowering the state and its officials to criminalize behaviors and subject suspects to established procedures for determining guilt and administering punishments. Despite the extensive powers held by the state, the Fundamental Rights enshrined in Part-III act as a counterbalance.Particularly, the core principle of equilibrium outlined in clauses (1) and (2) of article 13 of the constitution is pivotal. According to Article 13(1)[3], all existing laws must undergo scrutiny for any inconsistency with the Fundamental Rights, rendering such laws void to the extent of the inconsistency. Similarly, Article 13(2)[4] prohibits the state from enacting laws that infringe upon any fundamental right, with such laws deemed void by virtue of this clause. Hence, the comprehensive range of Fundamental Rights guaranteed in Part III of the Constitution forms the foundation of individual freedoms.
The following Fundamental Rights can be discussed which form the basic foundation of the criminal justice system: Tracing constitutional foundations in criminal justice system the procedural laws primarily derive from the Code of Criminal Procedure , 1973 (CrPC) and the Indian Evidence Act , 1872 (IEA).Until the enactment of the new Code in 1973, the basic procedural law was governed by the 1898 Criminal Procedure Code.
During the two post-constitutional decades of the 1950s and 1960s, the constitutional guarantees began to have an impact on the Criminal Justice Administration (CJA) and its components. This influence became evident during the first phase of criminal law reforms in the late 1960s, which initially focused on the need to align the criminal procedure law with the prevailing liberal and constitutional principles. Consequently, the Code of Criminal Procedure Bill of 1971 was not intended to amend the existing law, but rather aimed to introduce an entirely new procedural law.
The Bill was presented in Parliament with three primary considerations in mind, namely: Emphasis on the speedy disposal of cases, Ensuring due process and Providing equitable treatment to the economically disadvantaged sections of society. These considerations were duly incorporated into the provisions of the Code of Criminal Procedure of 1973, which seeks to facilitate swift, fair, impartial, and non-discriminatory criminal proceedings.
Right to life and personal liberty:
Article 21 of the constitution states that: "No person shall be deprived of his life or personal liberty except according to procedure established by law".[5]- Right to life and personal liberty
- Protection in respect of conviction for offences
- Rights against indiscriminate arrest and lack of legal defence
- Right to Equality
- Entitlement to Equal Justice and Free Legal Aid
- Constitutional Right to Judicial Remedies
Initially, the framers of the constitution did not intend to introduce the concept of the 'quality' of the legal process in question, those responsible for taking a life or infringing on liberty were subject to less strict scrutiny. The party accused of the violation only needed to demonstrate that they had followed a legally established procedure. However, the interpretation of 'legal procedure' by the Supreme Court in the case of Maneka Gandhi v. union of India[6], following the emergency period, has transformed the issue of the quality of the legal process into a constitutional matter. Now, the process must be both 'fair' and 'just' rather than merely 'any' procedure. Consequently, any instance of 'taking' or 'interference' that is arbitrary, discriminatory, undignified, or dehumanizing would violate Article 21, thus establishing this constitutional provision as the cornerstone or foundation of all actions.
In Francis Coralie Mullin v. The Administrator[7], Justice P N Bhagwati had said that Article 21 'embodies a constitutional value of supreme importance in a democratic society'. Further, Justice Iyer characterised Article 21 as 'the procedural Magna Carta protective of life and liberty'. In Kharak Singh v. State of U.P.[8] supreme court takes into the consideration issue of right to privacy of accused and observed that : the accused has a right to privacy and any encroachment upon it without support of law is violative of article 21 .
In Causa Celebre of Delhi Domestic Working Women's Forum v. Union of India[9] the Supreme Court provided for setting up of a Criminal Injuries Compensation Board (CICB) in a way as to ensure that the ladies who were raped were meant to be compensated for the loss of their dignity. Furthermore, the Supreme Court also took a proactive stance and held the National Commission for Women was not merely a recommending body, but also had the power to enforce its recommendations.
Therefore, through this case it can be construed that the Supreme Court by setting up Compensation Board where dignity which was hampered by unlawful act can be restored by compensation has included within the ambit of Article 21, access to justice.
To sum up, it can be said that access to justice is and will continue to be recognised as a part and parcel of right to life in all civilised societies in the world. The right is so basic and inalienable that no system can possibly neglect its importance, or can afford to deny the same to its citizens.
In fact, much of the early "newness" of Art 21 was explained in the context of criminal justice issues. In MH Hoskot v. State of Maharashtra,[10] the petitioner was convicted of forgery and served out his sentence. He later claimed that he was denied legal aid and therefore was unable to appeal his conviction. Relying on the Maneka Gandhi v. Union of India[11] reasoning, Judge V R Krishna lyer concluded that the right to legal aid was a necessary aspect of the right to life and personal liberty.[12]
Lawyers' services are an "ingredient of fair procedure", he said, and making such services available is 'the State's duty'[13]. This was repeated in Hussainara Khatoon v. Home Secretary[14],Justice P N Bhagwati clarified 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[15] .The immediate facts of the case had to do with under-trial prisoners, some of whom had been detained for periods longer than their possible sentences. In that context, the court also clarified that the right to speedy trial was part of Art 21, and undue delay in clearing the docks amounted to a grave violation.[16]
A more general principle was laid down soon after in Sunil Batra v. Delhi Administration[17] The petitioner was on death row, and had been kept in solitary confinement pursuant to s .30 of the Prison Act ,1894[18]. Rejecting the claim that such 'men ... are so desperate that they will commit more murders if facility offers itself', Judge Krishna Iyer concluded that while "the operation of Articles 14, 19 and 21 may be pared down for a prisoner", they cannot be "puffed out altogether".[19]
He read down the scope of that provision, adding that "if wars are too important to be left to the generals, surely prisoners' rights are too precious to be left to the jailors"[20]. "Freedom behind bars", he noted, is part of India's "constitutional tryst" and rights matter even while prisoners serve their sentences[21].The "new" Art 21 offered almost limitless possibilities to dialogically remake the colonial foundations of India's criminal justice system, and its effects were only just beginning to emerge.
Over time, the humanising effects showed up on an array of criminal justice issues. The expansions fall into three broad categories, and a few important ones will be noted here.
First, at the pre-trial stage, persons have, among others, a right to "access legal counsel immediately on arrest"[22] ,a right against "delayed framing of charges"[23] , "a right against torture or other forms of custodial violence"[24] and a "right to bail under reasonable conditions"[25].
In fact, the Selvi[26] reasoning in rejecting certain investigative techniques relied in large measure on this expanded meaning of Art 21, and in particular on the right to fair trial. Second, during trial, accused persons have, among others, a right to "fair and open trial"[27] a right to"speedy trial"[28]," a right "against delay inpronouncing verdicts"[29]' and a right against handcuffing[30]. And third, at the post-trial stage, convicted persons have a right of appeal[31], a right to defend oneself against enhanced sentences[32] and a right against inhumane and degrading punishment[33] and a right "against delay inexecuting sentences"[34].
All criminal trials are based on the principle that the accused is innocent till proved guilty. The presumption of innocence is a cardinal principle of our legal system and a basic right of the accused person. The presumption must stand and be the guiding principle right from the moment of suspicion, through investigation, throughout the trial process and till the delivery of the verdict.
Criminal procedure is built around the principle of "Innocent Until Proven Guilty" and is designed to protect this right. When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt lies on the prosecution."
Professor Packer provides a unique formulation of "Presumption of Innocence":
Professor Packer distinguishes it from the presumption of guilt or any such notion because it means arriving at a finding of guilt by an authority legally competent to make such adjudication. He puts it succinctly, as:The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome. The presumption of guilt, however, is purely and simply a prediction of outcome. The presumption of innocence is, then, a direction to the authorities to ignore the presumption of guilt in their treatment of the suspect. It tells them, in effect, to close their eyes to what will frequently seem to be factual probabilities. The reasons why it tells them this are among the animating presuppositions of the Due Process Model ... It is enough to note at this point that presumption of guilt is descriptive and factual, the presumption of innocence is normative and legal. (pp. 161-62)[35]
Over time, the pronouncements of the Supreme Court have consistently reaffirmed that the presumption of innocence is a human right[36]. That the accused, however unpleasant and unattractive he or she may be and however deplorable the alleged crime is, must be afforded all the protections required for the realisation of this right .This presumption of innocence must condition his/her treatment and the procedure of the trial throughout.
The Apex Court in P.N. Krishna Lal v. Government of Kerala[37] clarified that the principle of presumption of innocence is entrenched in the Indian Constitution, the Universal Declaration of Human Rights and the Civil and Political Rights Convention, to which India is a member, guarantee fundamental freedom and liberty to an accused person.
Protection in respect of conviction for offences
The adversarial justice system grants extensive authority to the prosecution to charge individuals with criminal offenses and subject them to various procedures within the criminal justice system, including arrest, accusation of crimes, and trial, among others.The prohibition against ex post facto laws applies only against substantive criminal law. Persons cannot be convicted for acts that were not crimes on the date of their commission, this provision re-iterates the classic Criminal Law Maxim: Nulla poena sine lege and Nulla crimin sine lege, that means there cannot be any crime without an existing law that criminalizes behavior.
An ex-post facto law is seen as 'highly inequitable and unjust' because it does not give fair warning to an individual that his conduct is proscribed, and punishes him for an act that she was otherwise free to do[38].Further, ex-post facto laws can be misused by a State bent on persecuting an individual, since the State could criminalise an action that was lawful when it took place, or remove protective procedural rules in order to overcome a deficiency in legal proof.[39]
Art 20(1) does not create a vested right in any particular procedure[40] Nor does the provision apply to the retrospective operation of legislation that creates civil liabilities including deprivation of business permits, forfeiture of properties or cancellation of administrative orders[41]. Also, the provision only bars additional or higher penalty; substituting a penalty for another, however, is not prohibited by Art 20(1).[42]Similarly, the protection of Art 20(2) applies only after a person has been "prosecuted and punished" for an offence before a court or judicial tribunal.[43]
But when the ingredients of the offences in the previous and subsequent trials are distinct, Art 20(2) has no application. In fact, a subsequent prosecution may emerge out of the same facts and the same complaint, but must engage with distinct ingredients. For example, an offence and a conspiracy to commit that offence, the Supreme Court has concluded, are sufficiently distinct.[44] And as with the "civil liability" exception in Art 20(1), here too administrative actions - non-payment of increments, bar against promotion or dismissal on disciplinary grounds - do not count as "punishments".[45]
In contrast to the relatively narrow reading of Arts 20(1) and 20(2), the Supreme Court has offered more expansive protections under Art 20(3). In Selvi v. State of Karnataka[46]("Selvi"), the petitioner challenged the constitutionality of three investigative mechanisms - polygraph, narco analysis and brain mapping - as violative of the right against self-incrimination. After an exhaustive review of the science underlying these methods, leading US and other foreign decisions and references to relevant provisions of the CrPC and IEA, Chief Justice KG Balakrishnan concluded that the involuntary administration of these procedures violates Art 20(3). The guarantee against self-incrimination, he explained, exists first to ensure "reliability of the statements made by an accused", and second, to "ensure that such statements are made voluntarily".[47] Accused in this context has a non-technical meaning; a formal accusation or chargesheet is not a prerequisite.[48]
But to meaningfully protect the right without unduly impairing investigative efforts, the Chief Justice drew two distinctions: First, he distinguished between evidence that is intended for comparison with facts that are already known, and evidence that leads to the discovery of new facts relevant to an ongoing investigation. Second, he distinguished between "physical" evidence - blood, hair, sweat, semen, handwriting samples, etc - and "testimonial" evidence - including oral or written statements about the specific events, and psychiatric examinations. In keeping with earlier precedents, physical evidence, he concluded, may be compelled,[49] but not testimonial evidence[50].
In particular, he held that the three investigative techniques amounted to testimonial evidence, even though at least two of them (polygraph and brain mapping) involved only "physiological" responses." This is because such methods could produce "communicative" gestures that could lead to new information, and potential charges.[51] Perhaps the decision's importance lies in the fact that it draws attention to the underappreciated relationship between criminal procedure and fundamental rights, and in particular to the connection between investigative techniques and the right to fair trial.
Rights against indiscriminate arrest and lack of legal defence
Since every arrest involves interference with the personal liberty, but the constitution makers preferred to create a separate provision for arrest and the conditions under which it can be effected legally by enacting a distinct provision Article 22. Clauses (1) and (2) of this Article expressly lay down three vital limitations on the powers of the state to arrest, namely , First, that every arrestee who is detained in custody shall be communicated the grounds of his arrest, second, no arrestee shall be denied the right to consult and be defended by a lawyer of his choice, and third, the person in custody must be produced before a Magistrate within 24 hours of arrest/ coming into custody. The foundational provision relating to rights against indiscriminate arrest laid down in 1950 has undergone significant legislative and judicial transformations and the present arrest law is infused with much greater civil liberty orientation. [52]It is also beneficial to the criminal justice system in India because Article 22 of the Indian Constitution establishes procedural requirements that must be adopted and incorporated into any procedure enacted by the legislature. Non-compliance with these procedural requirements may result in the deprivation of personal liberty, which is protected under Article 21 of the Constitution. People who have been arrested under the ordinary law of crimes, as well as those who have been detained under preventive detention laws, have rights under this article.
When someone is arrested for an offence committed under any ordinary law, that person has the right to be informed of the grounds of his or her arrest at the earliest opportunity. to consult and to be represented by a lawyer of his own choice , to be produced before the magistrate within 24 hours and right of no detention beyond twenty-four hours except by order of the magistrate. Further the article provides for safeguards guaranteed to a person arrested under preventive detention laws which include review by advisory board, communication of detention grounds to the detenue and detenue's right of representation.
It is entirely dependent on striking a balance between protecting an individual's personal liberty and ensuring an exhaustive investigation of the crime in order to uphold the concept of justice that a relationship between bail and an individual's personal liberty can be established. In order to uphold the concept of justice, this balance must be struck in order to protect an individual's personal liberty. The right to life of a person who has been granted bail is protected until that person is found guilty by a court of law. When an investigation is not concluded within twenty-four hours, the matter is referred to the magistrate, according to the provisions of Section 57 of the Code of Criminal Procedure.
The magistrate has the power under Section 167(2) of the Court of Criminal Procedure to confine the accused for a total of not more than fifteen days. However, as stated in article 21, the accused's personal liberty must be safeguarded because he is a citizen of the country; hence, the magistrate cannot order the accused to be held for more than 90 days in the case of a serious offence and 60 days in the case of a less serious crime. When this timeframe has elapsed, the offender must be granted bail by the court.
The Supreme Court of India, in the case of D.K. Basu v. State of West Bengal[53], took the issue of police lock-up brutality and death very seriously. It is possible to protect oneself against police abuse by ensuring that public activity is transparent and accountable. The Supreme Court issued recommendations (as precautions) to be observed in all cases of arrest or imprisonment until legislative action is adopted. Custodial violence has been identified as a major source of concern. It is a violation of Article 21, as well as basic human rights, and a blow to the rule of law. It is made worse by the fact that it is performed by people who are supposed to be citizens' guardians, within the four walls of a police station or a jail, with the victim completely defenseless.
Convicts, those awaiting trial, detainees, and other people in custody cannot be denied their precious right guaranteed by article 21 unless and until they follow the legal procedure. A citizen's right to life cannot be put in jeopardy as a result of his arrest. It has also been held that use of any form of torture during interrogation is neither right nor just. The judgment provided for provisions of Inspection memo, police control room, medical examination which have been further turned into provisions of criminal procedure code.
The power to arrest entails serious infringement with the physical liberty of a person, there are several provisions under the Cr. P.C. for guiding it, such as Ss. 41 to 60, S. 151, etc. These provisions not only empower the police but also provide the necessary inbuilt safeguards against abuse of power of arrest.
Right to Equality
A fair and just criminal justice administration shall ensure that the powers to criminalize and the procedures of criminalization are evenly exercised, without any kind of discrimination. This basic principle of egalitarian order assumes much greater significance in a society like ours that suffers from multiple kinds of inequalities. The Constitution begins the Fundamental Rights discourse with Article 14 on "Equality before Law" that reads: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".The guarantee ensures that neither equality before the law shall be denied by the State, nor the State will discriminate between persons in matters of administration of laws. This guarantee prohibits discriminatory criminalization, differential administration of criminal justice and different punishment for the same crime. However, does not prohibit reasonable classification based on intelligible differentia test.
The principle of equality encompasses all areas of India's governance and society. The Constitution is unequivocal that equality is a fundamental mandate by which both state and individual are bound. In one stroke of the pen it removes immoral and iniquitous practices such as untouchability and begar. Through positive discrimination, it makes clear that there is no place for discriminatory societal divisions or practices such as caste, the historic disadvantages of sections such as women, and the vulnerability of minorities and children. It decrees that "we the people" shall be equal in our freedoms, have equality of opportunity and shall, first and foremost, be equal before the law. Furthering this principle and making equality a reality, is part of the judge's mandate. Equality before the law requires that there must be equal access to the law and equal treatment before the law.
Entitlement to Equal Justice and Free Legal Aid
A raw deal from the legal system the 42nd Constitutional (Amendment) 1976 incorporated 39A[54]t that: directs the State to ensure that the operation of the legal system promotes justice by providing equality of opportunity to all the persons to have equal access to justice. Such equal access is denied when there are limited justice forums, or the claimants of justice are located in far- away places like the hills, forests and desert areas, or are totally resource less and completely lack awareness.The Directive in Article 39-A requires the State to of set the access to justice needs of the resource-less by organizing facilities for free legal aid. The directive for free legal aid has been partly complied by the organization of the National Legal Services regime all over the country in terms the National Legal Services Authorities Act, 1987. As a consequence at the formal level the legal service need of the resource-less are envisaged to be delivered through the National Legal Services Authority at the Central and State level Legal Services Authorities .
In M.H. Hoskot v. State of Maharashtra[55] In this case the court held that right to free legal aid at the cost of the state to the accused who can't afford legal services for reasons of poverty or incommunicado situation is part of fair, just and reasonable procedure under Article 21 of the Constitution.
The court pointed out that-"Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature moulded by Anglo-American models and our judicial process, engineered by kindred legal technology compels the collaboration of lawyer power for steering the wheels of equal justice under the law. A free legal service to the poor and needy is an essential element of any "reasonable, fair and just" procedure. It is not necessary to quote authoritative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied "reasonable, fair and just procedure."
In the trial of every person accused of an offence, the authorities shall under Art.39A of the Constitution ensure that the accused is represented and Under S.304. Cr. P.C. appoint a pleader, and offer free legal aid to an accused who is not in a position to engage a pleader himself/herself.
Art. 22(1) : Ensure that the accused is given the right of free choice of his/her pleader.
Ss.303, 304 Cr.P.C ensure that the accused is informed of his/her right to free legal aid at the cost of the State, where he/she on account of his/her indingency is not able to afford one.
Constitutional Right to Judicial Remedies
A distinctive characteristic of the Fundamental Rights is their enforceability by the higher judicial bodies, including the Supreme Court and the High Courts. Article 32(1) explicitly guarantees the right to approach the Supreme Court through proper legal procedures for the enforcement of the rights outlined in this section. This right to constitutional remedies can be exercised by the Supreme Court through the issuance of directions, orders, or writs, and this right cannot be suspended unless stipulated by the Constitution itself.Similarly, the State High Courts possess similar powers within their jurisdiction to issue directions, orders, or writs for enforcing the rights specified in Part III or for any other purpose under Article 226. Both Article 32 and Article 226 grant individuals the right to seek remedies through appropriate legal proceedings in the constitutional courts.
The Constitution of India gives the Supreme Court the jurisdiction to hear appeals in criminal cases. Article 132 provides for the appellant jurisdiction from the High Courts in certain cases. It states that 'An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of this Constitution'
Article 134 deals with appellate jurisdiction of the Supreme Court in criminal cases. Enlargement of Jurisdiction Article 134(2) further provides that the 'Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law'.
In pursuance of this power, the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was promulgated.
Constitutional Foundations Of Criminal Law Under Pressure
When the constitutional foundations of criminal law are under pressure, it signals challenges or threats to the principles and structures outlined in a nation's constitution that pertain to the legal system and criminal justice. Such pressures can have significant implications for the rule of law, individual rights, and the overall functioning of the criminal justice system.Accountability of the constitutional power-holders
The year 2014 can be remembered for the two landmark Supreme Court rulings, namely, Lalita Kumari[56], Arnesh Kumar[57] that go in to contribute to enhancing the accountability of power-holders in different ways. In Lalita Kumari, the five-Judge Supreme Court decision of Chief Justice Sathasivam has spelled out three categorical reasons for ruling that Section 154 CrPC creates a mandatory obligation on the part of the police to register an FIR in all the cases of cognizable offences where a clear and unambiguous information is given to the police.
The issue of accountability was spelt in these precise words:
"Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented." (Para 94)[58]
By ruling this way the Supreme Court put to rest a controversy that had divided even the Supreme Court right from State of Haryana v Bhajan Lall to Lalita Kumari v. State of U.P.[59] (2012 three Judge Bench) into two lines of authorities on the point. Perhaps after the Nirbhaya gang rape incident, highlighting an all-round failure of the police, the Court was no more inclined to give a long rope to the police, in criminal justice matters.
Close on the heels of Lalita Kumari was the Arnesh Kumar case that spread the net of accountability beyond Police to Magistracy as well. The Supreme Court two-Judge Bench decision relates to power of arrest, yet another controversial issue that had remained unresolved even after several Commission Reports and Supreme Court rulings.
The Arnesh Kumar's decision by Justice Chandramauli Prasad (Justice, PC. Ghose concurring) related to arrest in respect to a dowry and matrimonial cruelty case, but the Court consciously laid down a law for the arrest in respect to all the offences punishable with less than seven years' imprisonment as per the amended Section 41(1)(b) of the Code. The Court ruled, "Our endeavour in this judgment is to ensure that the police officers do not arrest the accused unnecessarily and Magistrates do not authorize the detention casually or mechanically."
The accountability of the concerned criminal justice agencies is comprehensively built into the Eight Guidelines that end up with sanctions for non-compliance. Thus, Arnesh Kumar's ruling has been able to explode the myth of absolute supremacy of the police during use investigation stage built by the colonial procedural law and sanctified by the Privy Council in King Emperor v. Khwaza Nazir Ahmad [60] in 1943.
The above discussion is reflective of an upbeat judicial mood that aimed to steer the criminal procedure law to a new direction of accountability and egalitarianism.
Fair trial elements under pressure
A fair trial is a cornerstone of a just legal system, and a well-conducted investigation is pivotal in laying the groundwork for such a trial. It sets the stage for presenting evidence in a court of law and ensures that the legal process respects the rights and dignity of all parties involved. During the investigative phase, concerened police authorities collect evidence to establish the facts of a case, identify suspects, and build a foundation for legal proceedings.
"In State of Gujarat v. Kishanbhai[61] the apex court had to point out the lapses on the part of the prosecution. Vital witnesses were either not produced or were not cross-examined. The medical report of the accused was not placed on record. No DNA profiling of the blood samples was done. The court lamented the fact that justice could not be done because of the failure of the investigation."[62]
The failure of investigating and prosecuting agencies can have profound consequences, placing both the fair trial process and the constitutional foundation of criminal law under considerable strain. When these essential components of the criminal justice system falter, the repercussions permeate various aspects of legal proceedings, potentially compromising the entire framework.
Firstly, a lack of diligence in investigations may result in weak or unfounded charges, eroding the foundational presumption of innocence. Incomplete or inadequate investigations can lead to due process violations, denying individuals the right to a fair and impartial trial. The consequences extend to the quality of evidence presented, with the potential for unreliable or tainted information that undermines the credibility of legal proceedings.
Ineffectual prosecution further exacerbates the problem, as weak legal representation may fail to present a compelling case. The failure to disclose exonerating evidence exacerbates the risk of wrongful convictions, with innocent individuals potentially facing unjust consequences.[63]
The judiciary, in response to poorly conducted investigations, may subject cases to heightened scrutiny, casting doubt on the legitimacy of the legal process. This erosion of confidence extends beyond the courtroom, impacting public trust in the criminal justice system and compromising its overall legitimacy.
Moreover, the failure of investigating and prosecuting agencies to meet their responsibilities can contribute to systemic weaknesses within the criminal justice apparatus. Identifying and addressing these structural issues become imperative to restore the integrity of the system.
In essence, the consequences of investigative and prosecutorial failures extend far beyond individual cases. They challenge the very principles upon which the criminal justice system is built—undermining the rule of law, eroding public trust, and posing a risk to the constitutional foundations of criminal law. Remedying these challenges requires a comprehensive commitment to reform, encompassing improved training, resource allocation, oversight mechanisms, and a dedication to upholding the principles that underpin a fair and just legal system.
Even in respect to trials for offences relating to terrorism, the courts have required compliance with the fair trial, elements that's includes free hearing, right to counsel and unbiased, adjudication by a competent authority. However, the growing menace of sexual predators against women and children have been met with extreme responses, which are at times bizarre. For example, the Disha rape incident had led the AP Government to enact a AP Disha Bill, 2019 that mandated completion of investigation in respect to "heinous offences" within seven working days (the Bill has been temporarily withdrawn in view of the queries by the Centre) or the unusual expedition shown in disposing trials in rape cases by a few lower courts.
The matter of expedition in trial and award of death sentence came before the Supreme Court in Arokhilal v. State of M.P[64]., related to rape and murder of a nine-year-old girl in which the investigation, trial and sentencing was completed in just 12 days. The trial before the Sessions Court was completed in five consecutive days of hearing. Commenting specifically on virtues of an expedition, the court had said that :
Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic, elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed.[65]
Thus, Anokhilal decision has come at the right time, before greater damage to the system of criminal justice could be imparted on populist pressure.
Encounter Killings
Encounter killings represent a serious breach of constitutional and basic criminal law principles. These incidents involve law enforcement officers resorting to lethal force without proper legal proceedings, often justifying their actions as self-defense or a necessity of time .
Encounter killings directly violate the constitutional right to life, as individuals are intentionally deprived of their lives without the due process afforded by the legal system. The foundational principle of due process, ensuring fair treatment and legal proceedings, is circumvented in encounter killings, denying individuals the opportunity to defend themselves before being deprived of life, liberty, or property. Encounter killings assume guilt without affording suspects the presumption of innocence, a fundamental tenet of criminal law that underscores the right to be considered innocent until proven guilty . Encounter killings often involve the use of disproportionate force, contradicting the principle that law enforcement should respond with force commensurate to the threat posed.
Tampering with evidence to justify lethal force compromises the integrity of the investigative process, hindering the pursuit of justice and truth. Encounter killings, especially if marked by brutality, may breach international human rights standards that prohibit torture and cruel, inhuman, or degrading treatment. By being arbitrary and extrajudicial, encounter killings infringe upon civil liberties, particularly the freedom from arbitrary arrest and detention. These incidents undermine the rule of law by allowing law enforcement to act as judge, jury, and executioner, eroding accountability and transparency in the legal system and diminishing public trust.
Encounter Killings violate the fundamental rights of criminals as every person has a right to life and liberty which can only be deprived following the procedure established by law under Article-21 of the Constitution. This right extends to all persons without exception, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under Article-14.
Also, an accused person has a fundamental right to have an advocate of his choice for defence under Article-22 which is also a statutory right under Section-303 CrPC. However, in fake encounters, the police assume the role of the judiciary without giving a proper chance to the accused to be heard at an appropriate judicial forum, hence violating the principle of Audi alteram partem. So, it is the responsibility of the police to follow the constitutional principles and uphold the Right to Life of every individual whether an innocent law-abiding citizen or a dreaded criminal.
In a 2010 article in Indian Express[66], the present National Security Advisor, Ajit Kumar Doval, had defended fake encounters (while defending the Sohrabuddin (fake encounter of Sohrabuddin Sheikh that took place in 2005 in Gujrat.) episode on the ground that the law of the land had repeatedly found itself helpless in dealing with individuals bent on bleeding the country. Doval, therefore, agreed with the view that the rule of law is a means to an end and not an end in itself, and invoked the jurisprudential principles of salus populi est suprema lex (the people's welfare is the supreme law) and salus res publica est suprema lex (the safety of the nation is supreme law). He wrote,
"Even the Supreme Court of India, in the case of D.K.Basu v. State of West Bengal (1997) accepted the validity of these two principles and characterised them as not only important and relevant, but lying at the heart of the doctrine that welfare of an individual must yield to that of the community."
The NHRC's 2011 manual for human rights supported Doval's view, by citing it. It is debatable, however, whether it marks a shift in NHRC's approach to encounter deaths.
These encounter deaths raise many a question like what if those killed are innocents? What if it leads to abuse of power? What if these killings remove proof of some other influential people involved? To combat this growing trend, these killings need to be independently investigated free from police or political interference to fix culpability on the police officers and end the prevalent culture of impunity. Police reforms are also needed to sensitise them to function within four corners of the constitutional responsibility and the Rule of Law prevails above all.
Furthermore, the Supreme Court's and the NHRC's guidelines must be strictly adhered to and followed up by judicial authorities. In a broader perspective, there is a need for a complete overhaul of the criminal justice system to rebuild its lost credibility and fast track procedure. And lastly, the media should avoid labelling extrajudicial killings as heroic acts as it shakes the faith of people in our criminal justice system.
Conclusion
The principles of equality, liberty, and dignity of the individual were the cornerstone while creating the Constitution, as evidenced by the preceding study of constitutional provisions. Justice was a primary issue for the framers. They included various provisions in the Constitution for criminal justice and its administration. While acknowledging people's rights, the commitments of public security, unity, and integrity were always taken into account. In certain instances, the Constitution enables the State, which includes the police and the judiciary, to place reasonable restrictions on some of the people's Fundamental Rights in order to maintain order, decency, morality, and so on.
As a result, the Constitution has necessary measures for the administration of criminal justice in a fair and impartial manner. "India's criminal law jurisprudence is rich in rights; they apply to almost all aspects of substantive, procedural and evidentiary matters. Mostly originating from the new Art 21 the Supreme Court found in 1978, these rights have been the basis for invalidating - or limiting - th
- Right to life and personal liberty
- Protection in respect of conviction for offences
- Rights against indiscriminate arrest and lack of legal defence
- Right to Equality
- Entitlement to Equal Justice and Free Legal Aid
- Constitutional Right to Judicial Remedies
Courts in general, and the Supreme Court in particular, are paying greater attention to the more structural features of the justice system that are responsible for the everyday realisation of these rights. Over the years, Parliament has by and large internalised many of the doctrines, and followed the court's lead in revising statutory provisions. But the record on the structural aspects is less promising; the legislative branch has shown little appetite for incorporating the proposed changes. As such, the future of India's criminal justice system in large measure will depend on the ability of the legislative and judicial branches to dialogically remedy its structural inadequacies.
However, in order to achieve the intended effects, the laws must be rigorously followed, not simply the text of the law. The constitutional foundation of criminal law serves as a bedrock for ensuring that every state agency operates within its allocated competencies. At its core, this constitutional framework establishes a system of checks and balances, delineating the powers and responsibilities of each branch of government.
Through the principle of separation of powers, the constitution sets clear boundaries, preventing any single state agency, especially those involved in criminal law enforcement, from overstepping its designated authority. This legal foundation provides a structured framework within which state agencies must function. It defines the limits of government authority, specifying the procedures and constraints that must be followed in the pursuit of justice.
The constitution acts as a shield against arbitrary actions by state agencies, offering procedural safeguards and due process protections to individuals ensnared in the criminal justice system.[68] the constitutional foundation of criminal law establishes a framework that not only assigns competencies to state agencies but also safeguards against potential abuses. It embodies the principles of justice, fairness, and the rule of law, fostering a legal system where the actions of every state agency align with constitutional provisions, thereby ensuring a just and accountable criminal justice process. In contemporary times, the constitutional foundation of criminal law is facing mounting pressure, primarily due to the failure of investigating and prosecuting agencies coupled with the concerning phenomenon of encounter killings.
The failure of these agencies to fulfill their crucial roles in the criminal justice system undermines the bedrock principles of fairness, due process, and equal protection under the law. Inadequate investigations contribute to weakened cases, leading to potential miscarriages of justice, erosion of the presumption of innocence, and violations of constitutional rights. Moreover, encounter killings, characterized by extrajudicial use of force by law enforcement, pose a direct challenge to the constitutional guarantee of the right to life and due process. These incidents bypass the legal framework, acting as a stark illustration of the breakdown in adherence to established procedures and protections.
The combination of investigative lapses and encounter killings not only erodes public trust in the criminal justice system but also jeopardizes the constitutional promise of justice and accountability. Addressing these issues requires a comprehensive commitment to legal reforms, enhanced oversight, and a reinvigorated dedication to upholding the principles enshrined in the constitution, thereby ensuring the resilience and integrity of the constitutional foundation of criminal law.
End-Notes:
- Shubankar Dam "Constitutional Rights and Criminals Wrongs" 25 Singapore academy of law journal (2013).
- B.B. Pande "expanding horizons of criminal procedure law" 2 SCC journal (2021).
- Laws inconsistent with or in derogation of the fundamental rights:(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- Laws inconsistent with or in derogation of the fundamental rights:(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- The Constitution of India ,1950 ,art. 21
- AIR 1978 SC 579.
- AIR 1981 SC 746.
- AIR 1963 SC 1295.
- AIR 1995 1 SC 14.
- AIR 1978 SC 1548.
- AIR 1978 SC 597.
- M H Hoskot v. State of Maharashtra AIR 1978 SC 1548 [at 25]
- M H Hoskot v. State of Maharashtra AIR 1978 SC 1548 at [26].
- AIR 1979 SC 1369.
- Hussainara Khatoon v. Home Secretary AIR 1979 SC 1369 at [7].
- Hussainara Khatoon v. Home Secretary AIR 1979 SC 1369 at [9].
- AIR 1978 SC 1675.
- Act no. IX of 1894.
- Sunil Batra v. Delhi Administration AIR 1978 SC 1675 at [57].
- Sunil Batra v. Delhi Administration AIR 1978 SC 1675 at [22].
- Sunil Batra v. Delhi Administration AIR 1978 SC 1675 at [225]
- DK Basu v. State of W B (1997) 1 SCC 416.
- Bal Krishna Pandey v. State of UP (2003) 12 SCC 186.
- State of MP v. Shyam Sunder Trivedi (1995) 4 SCC 262.
- Narinderjit Sahni v. Union of India AIR 2001 SC 3810; Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1369.
- Selvi v. State of Karnataka (2010) 7 SCC 263.
- Kehar Singh v. Delhi Administration AIR 1988 SC 1883.
- Kadra Pahadiya v. State of Bihar AIR 1982 SC 1167.
- Anil Rai v. State of Bihar (2001) 7 SCC 318
- Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535.
- Hussanara khatoon v. Home secretary AIR 1979 90 1369.
- Thippeswamy v. State of Karnataka AIR 1983 SC 747.
- Javed Ahmed v. State of Maharashtra AIR 1985 SC 231.
- Ibid.
- B.B. Pande "expanding horizons of criminal procedure law" 2 SCC journal 6 (2021).
- Narendra Singh v. State of Madhya Pradesh, (2004) CrLJ (2842), para. 31
- 1995 Supp(2) SCC 187, para. 23.
- Rao Shiv Bahadur Singh v. Vindhya Pradesh AIR 1953 SC 394.
- Ibid.(para32).
- Union of India v. Sukumar Pyne AIR 1966 SC 1206.
- Shiv Dutt v. Union of India AIR 1984 SC 1194.
- Rattan Lal v. State of Punjab AIR 1965 SC 444.
- Maqbool Hussain v. State of Bombay AIR 1953 SC 325.
- Leo Roy v. Superintendent Jail AIR 1958 SC 119.
- Collector v. S Rajagopalan (2000) 9 SCC 145.
- AIR 2010 SC 1974.
- Selvi v. State of Karnataka AIR 2010 SC 1974 at [91].
- Selvi v. State of Karnataka AIR 2010 SC 1974 at [109].
- M P Sharma v. Satish Chandra AIR 1954 SC 300
- State of Bombay v. Kathi Kalu AIR 1961 SC 1808
- Selvi v. State of Karnataka AIR 2010 SC 1974 at [165].
- Aparna Chandra and Mrinal Satish, Criminal Law and the Constitution (2015), available at SSRN: ssrn.com/abstract=3156121, (last visited on December 26,2023).
- AIR 1997 SC 610.
- The Constitution of India , 1950 , art.39A.
- AIR 1978 SC 1548.
- AIR 2014 SC 187.
- AIR 2014 SC 2756.
- AIR 2014 SC 187.
- AIR 1992. SC 604.
- AIR 1945 PC 18
- (2014) 5 SCC 108.
- Jyoti Dogra Sood , "Criminal law" , L Annual Survey Indian Law 417-451( Indian Law Institute , New Delhi , 2014).
- Supra note 61.
- AIR 2020 SC 232.
- Ibid.
- Ajit Kumar Doval "Complicated encounters" The Indian Express (August 4, 2010 ) available at :Complicated encounters | The Indian Express .
- Abhinav Sekhri, The Constitution and Criminal Justice, (2022), available at SSRN: ssrn.com/abstract=4122125 or dx.doi.org/10.2139/ssrn.4122125.
- Ibid.
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