This article has been written by Harshita Varshney from Aligarh Muslim University. This article aims to analyze the changing contour of accused & victims and the challenges thereof.
Table of Contents
Introduction
In India, the situation is drastically changing since we have gained our independence from the British Colonial Rule. The nation has become from nothing to something and the laws which have somewhat helped us in reaching to something were originally drafted under the British rule and by the Britishers which are no doubt is a piece of art such as Indian Contract Act, 1872, Indian Evidence Act, 1872, Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 but looking at present these legislations and other legislations which deals with the administration of criminal justice system need a bit of dusting because the current scenario is changing. The efficacy of the criminal justice system requires the protection of rights of both the accused and victim. Also, there is a need of constant scrutiny so that the power shall not be misused otherwise the principle of rule of law will collapse and the only thing which will remain is jungle law where only the strongest can survive and the weakest will die. Also, this is not the principle on which our constitution is structured upon and the goal of criminal law is not to finish the criminal but to create a crime-free society.
An overview of the Indian criminal justice system
India has adopted its criminal justice system from the model of Britishers. In India, an adversarial legal system is followed. The working of the Indian criminal justice system depends on the four pillars and these four pillars are police, prosecution, judiciary and the correctional institutions. For the fair and quick results, these four pillars have to work effectively by coordinating each other. The two main criminal laws of India are Indian Penal Code, 1860 which defines the offence and provides its punishment and the other is Code of Criminal Procedure, 1973 which prescribes the procedure for investigation, prosecution and a criminal trial. The centre has the power to make laws and reform criminal laws under the Seventh Schedule of the Indian Constitution.
Evolution of rights of an accused
The word ‘accused’ is nowhere defined neither in Indian Penal Code nor in the Criminal Procedure Code and not even in the Constitution. However, the continuous usage of the word ‘accused’ in the Codes can be used to derive its meaning and according to it, the meaning is when a person is charged with any crime or offence, he is said to be an accused of a crime. The trial in a criminal justice system always revolves around an accused. So, to improve his disadvantageous positions various rights are provided to an accused.
This provision of providing rights to an accused has arisen from the Human Rights Movement. There is an old principle according to which it is presumed the accused is guilty of an offence. Due to which numerous inhuman tortures were inflicted on the accused for the confession or to discover the truth. However, this principle is reversed in modern India. Now, the innocence of an accused is presumed until he is found guilty in a trial beyond any doubt. This principle is considered as the cardinal doctrine of criminal law. Now, almost every country has conferred various rights on the accused for their protection. The history of these rights can be traced in India back from the ancient time. The rights of an accused have evolved under the ancient period, the medieval period and the colonial period and now in Modern India, the rights of an accused have taken a new shape.
Laws related to the rights of an accused
The cardinal doctrine of our criminal legal system is that the innocence of an accused is presumed until he is found guilty in a trial beyond any reasonable doubts. This leads to the protection of the rights of an accused. But, in India, the criminal law defines an offence and provides punishment for it. It has not specifically provided any rights for an accused. Though, the Constitution of India and some provisions of the Code of Criminal Procedure, 1973 confers some procedural rights on an accused, which are to be followed in a trial. But there is not any law which specifically protects the interests of an accused. The rights of an accused can be dealt under three stages of a trial:
- Rights before trial
- Rights during trial
Rights before trial
These are the following rights which an accused claims before the beginning of his trial in any criminal court.
Right to know the grounds of Arrest
Article 21 and Article 22 are complementary to each other. According to Article 21, some people can be deprived of their personal liberty only through a procedure established by law. To implement “Rule of Law” completely and for the benefits of the larger part of society, it is necessary to restrain the liberties of some people but it should not be based on whims and fancies. These restraints must be based on sound grounds. To ensure this, the Indian Constitution has conferred many fundamental rights related to arrest and detention under Article 22. This provision ensures the protection of people from illegal arrests and detention.
Article 22(1) confers right on a citizen that he should be informed of the grounds of his arrest. It is like a direction to the detaining authorities to specify the grounds of arrest to the person arrested. This will give an opportunity to the arrested person for preparing his defence and apply for his bail. In Re Madhu Limaye (1969), Madhu Limaye, a Member of the Lok Sabha, and his several companions were arrested from a railway station without specifying the grounds of the arrest. On the same date, he approached the Supreme Court under Article 32 of the Indian Constitution.
He contended that a writ of Habeas Corpus should be issued to set free their liberty. The court was convinced that the officers didn’t comply with the provisions of Article 22(1) of the Constitution. The court held that as per Article 22(1), it is the duty of the police officer to inform the arrested person, the grounds of his arrest. It is not necessary to specify the full details but sufficient details should be provided. The court can decide whether the specified information was sufficient or not and on the basis of it, can decide the legality of the arrest.
As per Section 50(1) of CrPC, the police officer or other person arresting any person, is duty-bound to communicate the particulars of the offence for which the arrest of any person is made. Simply, a person who is going to be arrested has a right to know the grounds of arrest from the police officer or any other person who has the authority to do so.
This provision provides an opportunity for an arrested person to clear the misunderstanding if there is any. This section also paves a way for an arrested person to approach the court for his bail.
As per Section 55 of the CrPC, if a police officer has appointed his subordinate to arrest any person without a warrant, then such subordinate officer is duty-bound to inform the arrested person about the order given to him, describing the cause of such arrest.
Section 75 of the Code imposes a duty on the police officer, implementing an arrest order, to define the substance of an arrest order to the person arrested or show him the order if it is required. If the substance of the order is not communicated then the arrest would be illegal.
Right to be produced before the Magistrate
The provisions of the CrPC have provided that the arrested person has the right to be produced before the magistrate or any judicial officer without making any unnecessary delay. It is immaterial whether the arrest was made with a warrant or without a warrant. Such right of an arrested person is covered under Section 56 and Section 76 of the code.
According to Section 56 of the CrPC, when the police officer arrests a person without a warrant then he has to send the arrested person before the Magistrate having competent jurisdiction or before the in-charge of the police officer without making any unnecessary delay.
As per Section 76 of the code, the police officer or any other person executing the warrant has to produce the arrested person before the court before which he is required by law to produce such person. It is also provided that the delay should not exceed the time of twenty-four hours and this excludes the time needed for the movement of arrested persons from the place of arrest to the magistrate’s court.
Article 22(2) confers a fundamental right, according to which the arrested person shall be produced before the nearest magistrate within the twenty-four hours of his arrest, excluding the time needed for the journey from the place of arrest to the magistrate’s court. It also laid down that no such arrest should be made beyond the period of twenty-four hours and without the authority of the magistrate. However, this time of twenty-four hours can be exceeded in judicial custody only. In the case of Gunupati K. Reddy v. Nafisul Hasan & State of U.P. (1952), one Sri Mistry was arrested in Bombay on March 11, 1952, and he was taken to Lucknow for producing him before the Speaker of the Uttar Pradesh Legislative Assembly for answering the charge of breach of privilege. He was not produced before the Magistrate within the twenty-four hours of his arrest and was kept in the detention by exceeding the twenty-four hours. Sri Mistri approached the Supreme Court by filing an application under Article 32 of the constitution pleading for issuing the writ of habeas corpus to set free his liberty. The court relied on the facts of the case and held that Sri Mistri wasn’t produced before the Magistrate within the 24 hours of his arrest which shows there is a clear violation of Article 22(2) and held that Mr Mistri is entitled to his release.
Right to be released on bail
Section 50(2) of the CrPC confers a right on accused. According to it, when the police officer arrests a person without warrant and for the charges of bailable offence, the police officer should inform the arrested person that he is entitled to be released on bail by submitting sureties on his behalf.
Article 21 of the Indian Constitution has also defined the right to bail to an accused. In the case of Babu Singh v. State of U.P. (1978), the Supreme Court held that refusing an accused of releasing him on bail without reasonable cause would be a violation of his fundamental right enshrined under Article 21. This would be the deprivation of his personal liberty and according to Article 21, the personal liberty of an individual can only be deprived by the procedure established by law which means on reasonable grounds and not on whims and fancies.
Rights during the trial
The following are the rights which an accused can claim while a trial is going on:
Right to get a fair trial
When a judge addresses a criminal trial in a judicious manner by following the principles of the prevailing criminal justice system it is said to be a fair trial. To conduct a fair trial procedure laid down by the criminal procedural code should be followed. A fair trial promotes the triangular interests i.e. the interests of an accused, a victim and the society. The concept of a fair trial can be traced in Article 21 of the Indian constitution. The right to get a fair trial is derived from Article 21.
The fair trial is the heart of the Indian criminal justice system and the same has been held in the case of Rattiram v. State of Madhya Pradesh (2012). If a trial would not be a fair trial and not free from biases then public belief will get shattered from the judiciary.
The leading case concerning this matter is Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors (2004), commonly known as the Best bakery case. The facts of the case are: a business concern named Best Bakery at Vadodara was destroyed by a mob of a large number of people. In this incident, 14 persons were killed. This incident was directed to take revenge of 56 persons who were burnt in the Sabarmati Express. Zahira was the main eye witness of the incident. During the trial, the eye witness changed his statement and the biased trial was conducted due to which the accused were acquitted by the trial court. Later, Zahira approached the National Human Rights Commission (NHRC) that the politicians had constantly threatened her for not giving her statement against the accused persons. NHRC moved to the Supreme Court under Article 32 of the Indian Constitution and contended for a fresh trial.
The court held that the primary aim of a trial is to deliver justice and for this fair trial should be conducted. The court also held that the denial of a fair trial is as much injustice to the accused as is to the victim and the society. The court in the case of Mohd. Hussain @ Julfikar Ali vs The State (Govt. Of Nct) Delhi (2012) observed that every person has the right to get a fair trial under Article 21 of the Indian Constitution. Thus, no person can be denied to get a fair trial by any court as it will undermine the right to life and personal liberty.
Right to consult a lawyer
According to Section 40D of the code, an arrested person has a right to meet an advocate of his choice during the interrogation made by the police. However, an arrested person doesn’t have a right to meet an advocate throughout the process of interrogation.
Section 303 of the code also confers a right on an accused of an offence before a criminal court or against whom criminal proceedings are going on under the code. He has a right to choose any lawyer to defend his case.
Article 22(1) also confers a similar right as a fundamental right on an accused. According to it, no person shall be refused with his right to consult a legal practitioner of his choice and to be defended by a lawyer of his choice.
Right to get free legal aid
Section 304 of the CrPC laid down the provisions where free legal services are provided in certain cases at the expense of the State. According to Section 304(1), when an accused in his trial is not represented by a pleader or when the court is satisfied that the accused is not in a position to arrange a pleader, then the court should assign a pleader for the defence of an accused at the cost of the State.
Under the Indian constitution, there are two provisions in which this right is dealt with. Article 21 confers a right on accused to get legal aid at the cost of the State. This imposes a duty on the Magistrate and other judicial officers to check whether an accused is in the position to arrange a lawyer for defending his case. If he is not in a position to do so then the judicial authorities should provide legal aid to the accused at the cost of the state. The court in the case of M.H. Hoskot v. State of Maharashtra (1979), held that a person’s liberty can only be deprived by a procedure established by law. This procedure must be a fair one. The right to get free legal aid from the state is implicit in this fair procedure i.e. this right is implicit under Article 21 of the Indian Constitution.
In the case of Hussain Arra Khatoon v. Home Secretary, Bihar (1979), the Supreme Court held that if an accused is not in a position to appoint a legal practitioner due to poverty or any other reason then it is his fundamental right to demand free legal service from the state.
The other constitutional provision is Article 39A. This provision imposes a duty on the State to provide free legal aid for the better operation of the legal system which promotes justice. And for this purpose, the state has a duty to make legislation or schemes or any other way to ensure that no citizen is denied justice due to economic reasons or other problems. The main objective of this article is to promote justice on the basis of equal opportunity.
Right to keep silence
This right hasn’t been recognized specifically under any law. However, Article 20(3) provides this as a fundamental right. Article 20(3) provides protection against self-incrimination. This right is based on the legal maxim “nemo tenetur prodere accussare seipsum”, which means no man is bound to accuse himself. To seek protection under Article 20(3), it must be shown that an accused is asked to give witness against him. The Supreme Court held in the case of Nandini Sathpathy v. P.L.Dani (1978), that denial by an accused to answer those questions which can be used against himself is protected under Article 20(3) of the Indian Constitution.
Also, Section 161(2) of CrPC provides that an accused can deny answering those questions which will expose him to a criminal charge or any penalty.
Right to be examined by a medical practitioner
Section 54 of CrPC deals with this right and it lays down the examination of an arrested person by a medical practitioner on the request made by the arrested person. According to this section, an arrested person can make a request to the magistrate for his medical examination, if his examination will afford such evidence which will disprove the commission of any offence by him, The magistrate can direct for the medical examination of the arrested person by a professional examiner, if such a request by an arrested person is not for delaying the trial or for defeating the ends of justice.
Background of the rights of the victims
The Indian criminal justice system is punitive in nature. Every trial in a court more or less revolves around the accused and the interests of the victims are mostly ignored. After some social and political changes, the need for safeguarding the interests of the victims was felt in India. The adoption by the General Assembly of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereafter UN Declaration) in 1985, which is considered as Magna Carta for the victims, has played an important role in defining the rights of victims in India. With the help of the UN declaration it can be said that the four important components of victim rights are:
- Access to justice and fair treatment;
- Restitution;
- Compensation;
- Assistance.
Until the 1970s, the victims had no specific rights under the criminal justice system. After the commission of a crime, the state has the duty to prosecute and punish the offender as to maintain the law and order in the society, by treating the victims as mere witnesses in a trial.
Though still there are no specific laws in India which will safeguard the interests of the victims. The only way through their interests is protected by the affirmative judgement rendered by the Supreme Court.
Victim compensation
Ancient societies never differentiated between the civil and criminal law due to which the whole justice was based on the principle to make good to the victim. But certain developments have drawn a line between the civil and criminal law. Due to these developments, the victim’s right to get compensation has been incorporated in the Civil suit and in the criminal suit, the state takes the responsibility to punish the offender by treating the victims as mere witnesses.
However, the provision of victim compensation in Indian criminal law can be traced back from the colonial period under Section 545 of the Code of Criminal Procedure of 1898. According to sub-clause (1)(b) of this section, the court may issue directions to pay compensation for any loss caused by an offence, when the court is of the opinion that the substantial compensation is rightful. The victim may recover such compensation in a civil court. The Law Commission submitted its 41st report in 1969 and made a suggestion for Section 545 that due to the word substantial the cases of nominal charges are avoided. The Government of India introduced the Code of Criminal Procedure Bill, 1970 which substituted Section 545 with Section 357. An analysis of Section 357 provides that the court may order for compensation to the victim or any person who is affected by the offence. And it is immaterial whether such offence is punishable with a fine or not. According to sub-section 2 of this section, if an order to pay compensation has been passed and an appeal has been made against it then the compensation should be paid only after the decision of the appeal.
Affirmative moves by judiciary for victims rights
Though the rights of a victim have not been defined by any particular statute the Indian judiciary has given many positive judgements which have to safeguard the interests of the victims. The courts have started to accept the plea of the victims and awarding them compensation by analyzing their petition. There is a shift in the approach of the judiciary which emphasised more on the rights of the victim.
In the case of R. Gandhi v. Union of India (1989), a PIL was filed by the Tamil Nadu’s lawyer association for seeking compensation for the loss caused to the Sikh community, by the violent activities after the assassination of Indira Gandhi. The Madras High Court directed to pay compensation to the victims of Coimbatore.
Right to get a fair trial is the very heart of the criminal justice system and it is not solely a right for an accused. The same has been held in the case of Rattiram v. State of MP (2012). The court held that right to get a fair trial is not an exclusive right of an accused, this right is also conferred on a victim. With the development made in Indian criminal jurisprudence, the emphasis on victimology has also increased.
In Mangal Singh v. Kishan Singh (2009), the Supreme Court held that due to delay in the trial all the benefits can not be given and injustice to the victim. The delay in a trial adversely affects the society and both parties of the case. In many cases, many sufferings are caused to the victim and the victim might suffer more than the accused.
The court has also recognized the rape victim’s right to live with dignity and on the refusal of such right compensation should be paid to the victim. In the case of Delhi Domestic Working Women’s Forum v. Union of India (1995), six domestic workers were raped by the seven army personnel in a running train. The court held that Article 21 of the Indian constitution confers the right to live with dignity and this right of rape victims are breached. It is the duty of the state to protect such rights and if the State fails to do so then they are liable to pay compensation to the victim. The court also held that compensation should be awarded without any delay and even without waiting for the court to convict the accused. The court also involved the National Commission for Women in the case and asked to develop a procedure for allocating the compensation in such cases. This judgement of the case led to the insertion of Section 357A in the Criminal Procedure Code, 1973 for setting up a Victim Compensation Scheme by the State Government on the advice of the Central Government.
Accused as the new victim
Things are certainly changing in India and due to the growth of social media, the matter is being taken up for adjudication to social media and not the real courtroom and this is very unethical and against the rule of law which shall not be allowed to happen. This also has influenced the police which is now involved in extrajudicial killings because of which the accused or just the suspect in a crime is being a victim.
Recently, we have witnessed such a situation in the 2019 Hyderabad Rape case. In this case a girl named Disha, name was changed to protect her identity was allegedly raped by the 4 men named as Mohammad Arif, Jolly Shiva, Jolly Naveen Kumar and Chenna Keshavulu were the prime suspect after the commission of crime the accused were arrested by the police and were kept in detention even their video came out in social media where they were seen helpless and without any legal aid and they were not even presented before the magistrate and on 27 November 2019 all the four accused were taken to the scene where the crime was committed for recreation of the crime so that investigation can be completed but then it was alleged by the police that all the four accused started to run in order to escape so because of that police shooted all four of them which in no way looks acceptable the policeman could have also shooted on their legs what was the necessity to shoot them and kill them and also no information was not released as to on what part of body those accused were shot because no inquiry was carried on to investigate that whether the death caused by police was justified or not even because if it is not then it is straight away violation of the rights of the accused of fair trial and amounts extra judicial killing which has now become a sort of fashion in indian policing.
Challenges faced by the Indian criminal justice system
The major drawback faced by Indian criminal justice system is a delay in the trials. This led to a plethora of cases pending before the courts. There is not any specific law which describes the rights of the accused and the victim separately. The Indian criminal justice system works on the principle that the accused is innocent until he is proved guilty. And the delay in trial takes more time to convict the accused due to which the victim suffers more than the accused. Since long, the victims have been left at the mercy of the State. They don’t have any defined rights due to which many have lost their faith in Indian judiciary.
The corruption in the judicial system has badly affected the society. Though the government has taken many steps to control the illegal acts of officials, all these steps lack in implementation.
Conclusion
India followed an adversarial judicial system and it has adopted its criminal justice system from the British model. The two main criminal laws of India are Indian Penal Code, 1860 which defines the offence and provides its punishment and the other is Code of Criminal Procedure, 1973 which prescribes the procedure for investigation, prosecution and a criminal trial. Both these main criminal laws have not defined the rights of the accused and victims. Due to which our judicial system is facing many legal challenges like delay in the trial, lack of compensation and violation of fundamental rights. However, there are continuous efforts from the government to enact laws for the protection of rights of the victim and the accused.
References
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