17 Right to Fair Trial under the Constitution of India (Part 2)

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. Article 20 of the Constitution of India

   1. Presumption of Innocence
   2. Right to a Defence
   3. Speedy Trial

4. Article 39A of the Constitution of India

5. Conclusion

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to a fair trial;
• To help the students understand the manner in which the scope of the right to a fair trial has been expanded by judicial interpretation.
• To give the students an overview of the legal aid framework in India.

2.Introduction

Article 21 is the most significant provision in the Constitution as far as an individual’s right to a fair trial is concerned. Giving Article 21 an expansive and liberal interpretation, the Supreme Court has included within its scope principles such as the presumption of innocence, the right to an adequate defence and a speedy trial. Thanks to the judicial activism of the Supreme Court, Parliament amended the Constitution to include Article 39A which guarantees equal justice and free legal aid to indigent persons. This module will seek to introduce you to the manner in which the right to a fair trial has evolved under Articles 21 and 39A of the Constitution.

3. Article 21 of the Constitution of India

Article 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. In A.K. Gopalan v State of Madras while examining the constitutionality of a law on preventive detention the court held that meaning of ‘liberty’ in article 21 is restricted to personal liberty. Rejecting the argument that natural justice be read into article 21 the court held that “procedure established by law” must mean procedure prescribed by the law of the State.

The Supreme Court however overruled A.K. Gopalan in Maneka Gandhi v Union of India where it established the inter-relationship between Articles 14, 19 and 21 of the Indian Constitution and thus, read the requirement of reasonableness and non-arbitrariness into the phrase “procedure established by law” under article 21. The court held as follows:

“Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades. Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with

Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”

3.1 Presumption of Innocence

The presumption of innocence has also been held to be part of a fair and non-arbitrary procedure under Article 21. P.N. Krishna Lal And Ors.vs Govt. Of Kerala 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 procedure prescribed for trial must also stand the test of the rights guaranteed by those fundamental human rights.

In criminal jurisprudence, the settled law is that the prosecution must prove all the ingredients of the offences for which the accused has been charged. The proof of guilt of the accused is on the prosecution and must be beyond reasonable doubt. At no stage of trial is the accused under an obligation to disprove his innocence. “Unlike in a trial of civil action, the burden of proof of a case always rests on the prosecution and it never gets shifted. To place the entire burden on the accused to prove his innocence, therefore, is arbitrary, unjust and unfair and infringing, violating the guarantee under Article 21.

The presumption of innocence of a person accused in a criminal offence has been recognised in Dahyabhai Chhaganbhai Thakker vs State Of Gujarat. In this case, the court while considering the burden of proof in the case of murder and the defence of insanity held that:

“It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.

The prosecution, therefore, in a case of culpable homicide should prove beyond reasonable doubt that the accused caused death with the requisite intention described in s. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution.

… (however) section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances.”

Essentially, the burden of proving that the accused killed someone is always on the prosecution. If the accused claims that the reason he or she killed someone was due to the fact that they are or were insane, the burden shifts to the accused. This shifting of the burden does not displace the presumption of innocence:

“If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.”

3.2 Right to a Defence

The court in Maneka Gandhi v. Union of India held that ‘audi alterant partem’ or the principle that no decision shall be given against a party without affording him a reasonable hearing was an integral part of natural justice and held that the “court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case.”

Thus, Article 21 of the Indian Constitution embodies protection against arbitrary and unreasonable procedure that deprives a person of his life and liberty and also protects the right of the affected party to a reasonable hearing. Under India’s Code of Criminal Procedure (CrPC) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice.

The right to a defence is a hallmark of the ‘right to a fair trial’ guaranteed by the Constitution of India.

3.3 Speedy Trial

In Hussainara Khatoon v State of Bihar, the Supreme Court considered the status of a large number of under-trails in prisons in Bihar, some of whom had been in prison for a period longer than the maximum penalty prescribed. The court held that the right to a speedy trial along with the right to legal aid were an essential part of any ‘fair and reasonable’ procedure that was contemplated under article 21. Specifically with regards to a speedy trial the court held that:

“If a person is deprived of his liberty under a procedure which is not ‘reasonable, fair or just’, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article.”

The court also held that “the State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial.”

Later in Sheela Barse & Ors vs Union Of India the court held that “the consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right” to fair trial under Article 21.

In State of Bihar v Uma Shankar Ketriwal the High Court quashed the proceedings on the ground that the police did not disclose any evidence against the accused and that the prosecution which commenced 16 years earlier, and was still in progress was an abuse of court process and should be discontinued. Refusing to interfere on appeal with the High Court’s decision, the Supreme Court said that with regard to the delay, such protraction itself meant considerable harassment to the accused and there had to be a limit to the period for which criminal litigation is allowed to continue at the trial stage.

In Abdul Rehman Antulay v R.S. Nayak, the Supreme Court examined the scope of the right to fair trial and laid down the following guidelines:

• The right to a speedy trial flowing from Article 21 encompasses all the stages, namely those of investigation, inquiry, trial, appeal, revision and re-trial.
• In every case, where the right to a speedy trial is alleged to have been infringed, the first question to be put and answered is: who is responsible for the delay? Proceedings by either party in good faith, to vindicate their rights and interests as perceived by them, cannot be taken as delaying tactics; nor can the time taken in pursuing such proceedings be counted towards delay.
• While determining whether undue delay has occurred, one must take into account all the attendant circumstances, including the nature of offence, the number of accused persons and witnesses, the court’s workload, the prevailing local conditions and so on.
• Every delay does not necessarily prejudice the accused. However, inordinately long delays may be taken as presumptive proof of prejudice. The prosecution should not be permitted to become a persecution. But when the prosecution becomes a persecution depends on the facts of a given case.
• An accused’s plea of denial of a speedy trial cannot be defeated by saying that the accused did not at any time demand a speedy trial.
• The court has to balance and weigh several relevant factors – balancing test and determine in each case whether the right to a speedy trial has been denied in a given case.
• Charge or conviction must be quashed if the court comes to the conclusion that the right to a speedy trial of an accused has been infringed. But this is not the only course open. It is open to the court to make any other appropriate order including an order to conclude the trial within a fixed time period, where the trial is not concluded, or reducing the sentence, where the trial has concluded as may be deemed just and equitable in the circumstances of the case.
• It is neither advisable nor practicable to fix any time limit for trial of offences. Not fixing any such outer limit ineffectuates the guarantee of the right to a speedy trial.
• An objection based on denial of the right to a speedy trial and for relief on that account should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in cases of grave and exceptional nature.

4. Article 39A of the Constitution of India

Article 39A lays down the Directive Principle of State Policy with regard to equal justice and free legal aid. Article 39A of the Constitution states that the State shall secure that the operation of the legal system promote justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Even though Article 39A is directive principle under the constitution and is not justiciable, the Supreme Court has held Article 39A to be a part of the requirement of fair and reasonable procedure under Article 21, and is therefore in the nature of a fundamental right under the Constitution.

In Khatri v State of Bihar (1981) Several blind prisoners were not provided with legal representation from the time of their initial appearance in front of a Judicial Magistrate till their remand orders were passed. The Magistrate’s records showed that no legal representation was asked for and thus not provided. The Magistrate himself had not asked the accused at any stage if they wanted to be defended by lawyers.

The Supreme Court reaffirmed that the right to legal representation begins when the accused is first brought before a Magistrate and not merely at the trial stage. It is at this stage that the accused is at highest risk, and thus he is entitled to legal representation. The Court remarked that it would be unfair to expect an illiterate person to ask for representation because he most likely did not even know that he was entitled to this right. Therefore, the Court held that magistrates and judges must inform every accused person that he is entitled to free legal services at the state’s expense.

In 1987, the Indian Parliament enacted the legal Services Authorities Act (LSAA) which gives an expansive meaning to ‘legal services’ to include legal advice apart from legal representation in cases. Section 12 of the LSAA lists out the categories of persons automatically entitled to legal aid without having to satisfy a means test.

This includes a member of the historically and socially disadvantage groups (Scheduled Caste or Scheduled Tribe); a victim of trafficking in human being or forced labour; a person with disabilities and ‘a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster’.

LSAA set up a network of legal aid institutions at the village, district, and state level and the National Legal Services Authority (NALSA). These authorities usually comprise members of the judiciary and the executive at the local level. The functions of NALSA under section 4 of the LSAA include organizing ‘legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes through lok adalats’ and ‘taking necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections of the society and for this purpose, give training to social workers in legal skills.’ According to the Act the ‘court’ includes a civil, criminal or revenue court and any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions. Under the Act ‘legal service’ includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal. The Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case.

5. Conclusion

Thus we see that India’s judiciary has taken a proactive role in expanded the scope and ambit of an individual’s right to a fair trial. The executive and the legislature have been left with no choice but to follow the judiciary’s lead and introduce Article 39A into the Constitution. This right to fair trial includes the right to be presumed innocent. It goes beyond just the presumption of innocence and a right to a fair hearing. It includes within its ambit the right to a speedy trial and an adequate defence. Unfortunately, will the citizen’s of this country have the benefit of fair trial laws, its implementation at the ground level has often been lacking due to wilful default in many cases.

Reference

• The introduction of Lok Adalats (People’s Court) added a new dimension to the legal aid sector in India.
• NALSA disburses funds and grants to State Legal Services Authorities and NGOs for implementing legal aid schemes and programmes.
• The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority.
• Jain, Tarun ” Let Hundred Guilty Be Acquitted But One Innocent Should Not Be Convicted’: Tracing the Origin and the Implications of the Maxim.” (December 31, 2007). PRESUMPTIONS: DOCTRINES & APPLICATIONS, ICFAI University Publications, 2008.
• Noorani, A. G. “Free Speech and Fair Trials.” (2005): 5395-5397.
• Agrawala, Pramila and Pramila Agrawal, Indian Judiciary and Natural Justice The Indian Journal of Political Science, 1964
• Maneka Gandhi v Union of India 1978 AIR 597
• Chauhan, R.S. Trial by Media: An International Perspective (2011) PL October S-38
• Tiwari, Neeraj Fair trial vis-à-vis criminal justice administration: A critical study of Indian criminal justice system Journal of Law and Conflict Resolution Vol. 2(4), pp. 66-73, April 2010
• Fair Trial Manual – A Handbook for Judges and Magistrates (http://www.humanrightsinitiative.org/publications/police/fair_trial_manual.pdf)
• Principles of Natural Justice In Indian Constitution (http://www.legalservicesindia.com/article/article/principles-of-natural-justice-in-indian-constitution-1519-1.html)
• Trial Observation Manual for Criminal Proceedings (http://www.opentrial.info/images/2/2f/Criminal_Trial_Monitoring.pdf)