“CONSTITUTIONAL SAFEGUARD TO UNDER TRIAL

PRISONERS: A STUDY”
A dissertation to be submitted in partial fulfillment of the requirement for the award of
degree of Master of Laws
In

Institute of Legal Studies

By

PRASOON SOLANKI

LLM (Constitutional and Administrative Law)

Semester II
Roll No. 202410301030153

Under the Guidance

of

Miss. Ayushi Tiwari

Assistant Professor
Institute of Legal Studies

SHRI RAMSWAROOP MEMORIAL UNIVERSITY

BARABANKI, UTTAR PRADESH -225003
Lucknow-Deva Road, Uttar Pradesh
Session: 2024-25

I
 SHRI RAMSWAROOP
MEMORIAL UNIVERSITY
(Established by UP State Govt. ACT 1 to 2012)
Lucknow-Deva Road, Uttar Pradesh-225003

Date: …………………..

TO WHOMSOEVER IT MAY CONCERN

This is to certify that Ms. Prasoon Solanki, LLM, Constitutional and Administrative Law
has completed her dissertation, topic “CONSTITUTIONAL SAFEGUARD TO UNDER
TRIAL PRISONERS: A STUDY” under my supervision, for the award of degree of
Master of Laws at Shri Ramswaroop Memorial University.
Dissertation supervisor will not be responsible for any type of plagiarism, typological errors
or any factual legal infirmities.
She has completed all formalities as required under the ordinance and the dissertation is
forwarded for evaluation.

Miss. Ayushi Tiwari

Assistant Professor
Institute of Legal Studies

II
 SHRI RAMSWAROOP
MEMORIAL UNIVERSITY
(Established by UP State Govt. ACT 1 to 2012) Lucknow-
Deva Road, Uttar Pradesh-225003

DECLARATION

I hereby declare that the Dissertation entitled “CONSTITUTIONAL SAFEGUARD TO

UNDER TRIAL PRISONERS: A STUDY” Submitted by me in the fulfillment of the
requirements for the award of the degree of "Master of Laws" of Shri Ramswaroop
Memorial University, is a record of my own work carried under the supervision of Miss.
Ayushi Tiwari, Institute of Legal Studies.
To the best of my knowledge this Dissertation has been submitted.

Prasoon Solanki
LLM (Constitutional and Administrative Law)
Semester II
Roll No. 202410301030153

III
 ACKNOWLEDGEMENT

From the beginning, I must acknowledge that words fall short in conveying my
gratitude to the many individuals who contributed to the completion of this paper. I
begin by expressing thanks to the Almighty for the patience and good health granted
to me throughout the research phase.

I am deeply indebted to my supervisor, Miss. Ayushi Tiwari, (Assistant Professor)

Institute of Legal Studies, Shri Ramswaroop Memorial University for helping me
understand the intricacies of my discipline and guiding me every step of the way. Her
faith in me gave me the confidence to work positively without losing enthusiasm. He
provided me foresight, inspiration and guidance in preparing this thesis. It would have
impossible to complete my research without his support and kind words of
encouragement.

I offer sincere regards to my family for supporting me and pushing me towards the
successful completion of this research paper.

I end by expressing gratitude with utmost humility to all those I missed out naming as
this paper is a cumulative result of everyone’s effort who showed promise in me and
my ability to carry out research.

PLACE : Lucknow Prasoon Solanki

DATE :

IV
 TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. CERTIFICATE ............................................................................................................................ ii

2. DECLARATION BY THE CANDIDATE .................................................................................. iii

3. ACKNOWLEDGEMENT ........................................................................................................... iv

4. LIST OF ABBREVIATIONS AND ACRONYMS .......................................................................v

5. LIST OF CASES ......................................................................................................................... vi

6. CHAPTER 1 .................................................................................................................................1

INTRODUCTION .......................................................................................................................1

PRISONER UNDER SENTENCE OF DEATH ........................................................................ 16

RIGHT OF JUVENILES ........................................................................................................... 17

SCHEME OF RESEARCH ....................................................................................................... 20

OBJECTIVE .............................................................................................................................. 20

HYPOTHESIS ........................................................................................................................... 20

LIMITATION ............................................................................................................................ 20

REVIEW OF LITERATURE: ................................................................................................... 20

RESEARCH METHODOLOGY ............................................................................................... 20

SCOPE OF RESEARCH ........................................................................................................... 20

RESEARCH QUESTIONS ....................................................................................................... 21

ABSTRACT .............................................................................................................................. 22

7. CHAPTER - 2 ............................................................................................................................ 23

RIGHTS UNDER INDIAN CONSTITUTION .......................................................................... 25

2.1 RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST ....................................... 25

2.2 RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL ........................................ 25

PRACTITIONER....................................................................................................................... 25

2.3 RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE ................................... 35

STATUTES BARRING APPEARANCE OF LAWYERS ........................................................ 40

V
 2.4 RIGHT TO BE PRODUCED BEFORE A MAGISTRATE ................................................. 45

8. CHAPTER 3 ............................................................................................................................... 63

PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES ....................................... 63

3.1 PROTECTION AGAINST EX-POST FACTO LAWS ....................................................... 64

3.2 RIGHT AGAINST DOUBLE JEOPARDY- DOCTRINE OF “AUTREFOIS ACQUIT

AND AUTREFOIS CONVICT ................................................................................................. 64
3.3 RIGHT AGAINST SELF-INCRIMINATION ..................................................................... 66

9. CHAPTER 4 .............................................................................................................................. 77

RIGHTS OF ARRESTED PERSON UNDER CRPC,1973 ........................................................ 77

4.1 PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST .................... 77

4.2 RIGHT TO BE DEFENDED BY A LAWYER ................................................................... 78

4.3 PERSON ARRESTED TO BE PRODUCED BEFORE THE MAGISTRATE ............ 79

4.4 PERSON ARRESTED NOT TO BE DETAINED FOR MORE THAN TWENTY- FOUR
HOURS ..................................................................................................................................... 79
4.5 INFORMATION OF ARREST TO A NOMINATED PERSON ......................................... 80

4.6 RIGHT TO BAIL................................................................................................................. 81

4.7 RIGHT TO FREE LEGAL AID .......................................................................................... 83

4.9 RIGHT TO GET COPIES OF POLICE REPORT AND OTHER DOCUMENTS .............. 87

4.10 RIGHT TO CROSS-EXAMINE PROSECUTION WITNESSES AND TO PRODUCE

DEFENCE EVIDENCE............................................................................................................. 88
4.11 RIGHT TO SPEEDY TRIAL............................................................................................. 88

4.12 COMPENSATION FOR WRONGFUL ARREST ................................................. 90

4.13 RIGHT OF APPEAL............................................................................................... 91

10. CHAPTER 5 CHANGES BROUGHT BY THE NEW CRIMINAL LAWS TO THE
RIGHTS OF UNDER TRIAL PRISONERS ................................................................... 95

11. CHAPTER 6 .................................................................................................................. 99

CONCLUSION AND SUGGESTIONS ........................................................................ 99

12. BIBLIOGRAPHY………………………………………………………………….…..103

VI
 LIST OF ABBREVIATIONS

Acronym/Abbreviation Full Form

AIR All India Reporter

ART Anti-Retroviral Therapy

CrPC Code of Criminal Procedure, 1973

D.K. Basu Guidelines Guidelines issued by the Supreme Court in D.K. Basu v. State of West

Bengal (1997) for protection of under-trial prisoners

ECHR European Court of Human Rights

FIR First Information Report

HRLN Human Rights Law Network

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code, 1860

JJ Act Juvenile Justice (Care and Protection of Children) Act, 2015

LDV Legal Defense Voucher

NALSA National Legal Services Authority

NHRC National Human Rights Commission

NCRB National Crime Records Bureau

PIL Public Interest Litigation

RTI Right to Information

SC Supreme Court

SPP Special Public Prosecutor

UDHR Universal Declaration of Human Rights

UNHRC United Nations Human Rights Council

UPHRC Uttar Pradesh Human Rights Commission

VII
 LIST OF CASES

 Charles Sobraj Vs. Superintendent Central Jail, Tihar AIR 1978 SC 1514
 D.K.Basu v. State of W.B. A.I.R. 1997 S.C. 610.
 Hariharanand V. Jailore, AIR 1954 All. 355.
 Hussainara Khatoon v. State of Bihar A.I.R. 1979 S.C. 1377.
 Janardhan Reddy v. State of Hyderabad
 Joginder Kumar v. State of U.P A.I.R. 1994 S.C. 1349
 M.H.Hoskot v. State of Maharashtra A.I.R. 1978 S.C. 1548.
 M.H.Hoskot v. State of Maharashtra A.I.R. 1997 S.C. 610.
 M.S.M. Sharma Vs. Sri Krishan Sinha AIR 1959 SC 395
 Madhu Vs. State, AIR 1950 Punjab 506
 Nandini Satpathy v. P.L. Dani A.I.R. 1978 S.C. 1025.
 Purshottam v. B.M.Desai A.I.R. 1956 S.C. 20
 Raghuvir Singh Vs. State of Haryana AIR 1980 Cr.LJ 801
 Ranjan Dwivedi v. Union of India A.I.R. 1983 S.C. 624.
 State of M.P. Vs. Shobharam, AIR 1966 SC 1910 (1917) : 1966 Supp. SCR 239.
 State of Punjab v. Ajaib Singh A.I.R. 1966 S.C. 1910.
 Sunil Batra Vs. Delhi Administration 1980 (3) SCC 522

 Vishal Kishore Vs. State of U.P., AIR 1965 All. 56 (59)

VIII
 CHAPTER 1

INTRODUCTION

Rights of arrestee include the rights of arrestee at the time of arrest, at the time of
interrogation, at the time of search and seizure, during the course of trial and even after
conviction.
The term “arrest” in its ordinary sense means the apprehension or restraint or the
deprivation of one‟s personal liberty.
Hon‟ble Sri Justice Rama in his book „Seeds of Modern Public Law in Ancient Indian
Jurisprudence‟ while dealing with the Human Rights and Indian Values Said: “Protection
of human rights even when a person was apprehended by public servants for offences
alleged to have been committed by him or even after conviction and sentence to
undergo imprisonment was also envisaged.”
In this regards, he has also quoted the following verse from “Kautilya”:1

“An officer who obstructs or causes to obstruct prisoners in their daily routine, such as,
sleeping, sitting, eating, etc, shall be liable to be punished with fines ranging from 3
panas and upwards.” 1
The constitution of India under article 22 (1) and (2) provides the rights of the arrested
persons.

Article 22 protection against arrest and detention in certain cases-

(1) “No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by a legal practitioner of his choice” (2) “Every person who is
arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty four hours of such arrest excluding the time necessary for the journey
from the place of arrestto the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority

1
Kautilya
1
of a magistrate”.

Article 22 (1) and (2) provide the following fundamental rights:

i) “Every person has a right to know reasons/grounds of his arrest

ii) Every person has a right to consult a legal practitioner

iii) Every person has a right to be produced before the nearest magistrate within
twenty four hours of his arrest.

iv) Every person has a right not to be detained in custody beyond the period of
twenty four hours without the authority of the magistrate”.

Chapter V of the Code of criminal procedure 1973 deals with the topic of the arrest of
persons.

Section 57 of Code of Criminal Procedure 1973, provides “that person arrested need
not to be detained for more than twenty four hours. No police officer shalldetain in
custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable , and such period shall not,in the absence of a
special order of a magistrate under section 167, exceed twenty four hours exclusive
of the time necessary for the journey from theplace of arrest to the magistrate‟s
court”.

Section 60A- provides that, arrest of any person shall be made strictly in
accordance with the code (Code of Criminal procedure, 1973).

60-A Arrest to be made strictly according to the code- “No arrest shall be madeexcept
in accordance with the provisions of the code or any other law for the time being in
force providing for arrest”. (Amendment Act, 2008- clause 10 inserts a new section
60-A with a view to prohibiting arrest except in accordance with the code or any other
law for the time being in force providingfor arrest.)

i) Every person has a right to know reasons/grounds of his arrest

: Once a person is arrested, he has a right to move an application for bail or he can file
a writ of habeas corpus under article 226 of constitution of India. But,if the person is
not aware of the reasons and grounds of his arrest he is not in a position to prepare his
defence for the purposes of his trial. So, article 22 (1) provides that every person has

2
 right to know reasons and grounds of his arrest.

In Madhu Limaye‟s case2 the facts were: Madhu limaye, members of the Lok Sabha
and several other persons while addressing a petition in the form of a letter to the
Supreme Court under Article 32 mentioned that he along with his companions had
been arrested but had not been communicated the reasons or the grounds of arrest. He
was simply told that the arrest had been made under sections which are bailable.
Madhu Limaye called it a violation of the mandatory provisions of Article 22 (1) of
the Constitution.

The court therefore held that Madhu Limaye and others were entitled to be released
on this ground alone.2

Though the authorities may not necessarily furnish full details of the offence yet,
sufficient particulars must be furnished so that the arrested person may understand
why he has been arrested. The ground to be communicated to the arrested person
should be somewhat similar to the charge framed by the court

for the trial of a case.3 Thus, “ merely to inform the person that he has been arrested
under section 7 of the Criminal Law Amendment Act, 1932, without giving any
particulars of the alleged acts for which such action has been taken against him, is not
sufficient compliance with article 22(1).

ii) Every person has a right to consult a legal practitioner: Every arrested person
has a right to consult a legal practitioner of his own choice. In Article 22 (1) the
opportunity for securing services of a lawyer is also guaranteed. The article does not
guarantee the supply of the lawyer by the state .The only right is to have the
opportunity to engage a lawyer. In Moti Bai Vs. State case5 - It was held that : “The
person arrested has a right to consult a legal adviser of his own choice, ever since the
moment of his arrest and also to have effective interview with the lawyer, out of the
hearing of the police, though it may be within their presence. The right extends to any
person who is arrested, whether under the general law or under a special statute.”6

In Janardahan Reddy Vs. State of Hyderabad case7 the petitioners objected that in
criminal cases Nos. 17 & 18 of 1949, there was no fair trial, that the persons accused
in those cases were not afforded any opportunity to instruct counseland that they

2
AIR 1969 SC 2014
3
 had remained undefended throughout the trial. Since the accused were denied the
right of being defended by a pleader the whole trial was considered unfair. Fourth
para of the affidavit filed on behalf of the petitioners reads as follows:

“The court never offered to facilitate my communication with my relations and

friends or to adjourn the case or to appoint counsel at state‟s expense for my defence.
In fact they said they would not adjourn the case under may circumstances. Being
ignorant, I did not know that I had any right to ask for any of these things”.3

Another important provision in this connection is section 303 (earlier S. 340 of

Criminal Procedure Code, 1973). That section reads: “303 any person accused of an
offence before a Criminal Court, or against whom proceedings are instituted under this
code, may of right be defended by a pleader of his choice.”4

Before the Constitution came into force, the right of the accused to haveconsultation
between him and his legal advisers appears to have been derived and sustained only
from this provision.

In Ram Sarup Vs. Union of India8 case the facts were: The petitioner, Ram Sarup, a
sepoy and subject to the Army Act, had shot dead two sepoys. He was charged on
three counts under section 69 of the Army Act and was tried by the General Court
Martial. He was found guilty of the three charges and was sentenced to death. One of
the contentions raised by the petitioner was that he was not allowed to defend himself
at the General court Martial by a legal practitioner of his choice and therefore, it was
a violation of the provisions of Article 22 (1) of the Constitution. The petitioner
alleged that on several occasions he sought permission to engage a practising civil
lawyer to represent him at the trial but the authorities did not grant his requests saying
that the Military rules did not permit the services of a civilian lawyer and that he
wouldhave to defend his case with the counsel provided by the Military Authorities.
In reply it was stated that this allegation of the petitioner was not made in the petition
itself. Hence no denial of his fundamental rights.

The court thus pointed out that the petitioner did not state in his petition that hehad
made a request for his being represented by a counsel of his choice. He hadsimply

3
Vishal Kishore Vs. State of U.P., AIR 1965 All. 56 (59)
4
Madhu Vs. State, AIR 1950 Punjab 506; Hariharanand V. Jailore, AIR 1954 All. 355.
4
 stated that certain of his relatives who sought interview with him subsequent to his
arrest were refused permission to see him and so it can not becalled a violation of the
fundamental rights. Infact, the petitioner should have made an express request in a
straight forward manner in his petition. His vague language could only mean that
he could not contact his relations for their arranging a civilian lawyer for his
defence. The court thus held on the basis of these facts that there had been no
violation of the fundamental right of the petitioner to be defended by a counsel of his
choice conferred under Article 22
(1) of the Constitution.

Truly speaking in this case, the court took a technical view of the matter. Further the
court was not much impressed by the statement of the petitioner, that he could not
contact his relations for their arranging a civilian lawyer for his defence. It was
because of hyper technical approach that the court held that Article 22 (1) was not
violated.

Right to be provided with a lawyer by the state:

In M.H. Hoskot Vs. State of Maharashtra9 The Supreme Court observed that every
step that makes the right of appeal fruitful is obligatory and every action or inaction
which is useless is unfair and unconstitutional. Under Article 21 theresponsibilities of
the State is two fold “ (1) service of a copy of the judgement to the prisoner in time to
file an appeal and (2) provision of free legal services to a prisoner who is indigent or
otherwise disabled from securing legal assistance. The ends of justice call for such a
service. Both these are State responsibilities under Article 21.

Section 304 (1) of Criminal procedure Code Reads: 304 “(1) where, in a trial before
the court of session, the accused is not represented by a pleader and where it appears
to the Court that the accused has not sufficient means to engage a pleader, the Court
shall assign a pleader for his defence at the expenseof the State”.5

The court in Ranjan Dwivedi‟s case referred to M.H. Hoskot‟s case and Hussainara
Khatoon‟s case and also observed that primarily the mandate in Article 39A is
addressed to the Legislature and the Executive but in so far asthe courts of Justice
can indulge in some judicial law making within the interstices of the constitution, the
courts too are bound by the mandate. Even then the court expressed its inability to
5
AIR 1954 Raj 241
5
 grant remedy to the petitioner on the ground that he sought writ of mandamus for the
enforcement of the Directive Principle enshrined in Article 39A.

Right to be produced before a Magistrate : whether the abducted persons(Recovery

and Restoration) Act 65 of 1949 violates Article 22 and whether the recovery of a
person as an abducted person and the delivery of such a person tothe nearest camp can
be said to be arrest and detention within the meaning of Article 22 (1) and (2) was the
question elaborately dealt with by the Supreme Court in State of Punjab Vs. Ajaib
Singh. This appeal arose out of a habeas corpus petition filed by one Ajaib Singh in
the High court of Punjab for the production and release of one Sardaran alias
Mukhtiar Kaur, a girl of about 12 years of age. The material facts were : the petitioner
Ajaib Singh had three abducted persons in his possession. The recovery police of
Ferozpore, on 22- 06-1951 raided his house and took the girl into custody and
delivered her to thecustody of the Officer in charge of the Muslim Transit Camp at
Ferozpore from whence she was later transferred to and lodged in the recovered
Muslim Women‟s Camp in Jullundhur City. The girl was a Muslim abducted by the
petitioner during the riots of 1947 and was, therefore, an abducted person as defined
in section 2 (1) (a), Abducted persons (Recovery and Restoration) Act 65 of 1949.
The police officer recommended in his report that she should be sent to Pakistan for
restoration to her next of kin.6

Serious riots broke up in India and Pakistan in the wake of partition of August 1947
resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindu
Sikhs from Pakistan to India. There were heart rending tales of abduction of women
and children on both sides of the border. On 11-11-1948 an Inter-Dominion
Agreement between India and Pakistan was arrived at for the recovery of abducted
persons on both sides of the border. To implementthat agreement Act 65 of 1949
was passed.

The expression abducted person is defined by setion 2 (1) (a) as meaning :“A male
child under the age of sixteen years or a female of whatever age who is or
immediately before 1-3-1947, was a Muslim and who, on or after that day and before
1-1-1949 has become separated from his or her family, and in the latter case includes
a child born to any such female after the said date.”

6
State of M.P. Vs. Shobharam, AIR 1966 SC 1910 (1917) : 1966 Supp. SCR
6
Section 4 of the Act, which is important, provides that “if any police officer, not
below the rank of an Assistant Sub-Inspector or any other police officer specially
authorised by the state Government in that behalf, has reason to believe that an
abducted person resides or is to be found in any place, he may, after recording the
reasons for his belief, without warrant, enter and take into custody any person found
therein who, in his opinion, is an abducted person, and deliver or cause such person to
be delivered to the custody of the officer in charge of the nearest camp with the least
possible delay.”

The Supreme court held that the Act did not offend against the provisions of Article
22 of the Constitution.

The Constitution commands that “every person arrested and detained in custody shall
be produced before the nearest Magistrate within 24 hours excluding the time
requisite for the journey from the place of arrest to the courtof the Magistrate,” but S.
4 of the Act requires “ the police officer who takes the abducted person into custody
to deliver such person to the custody of the officer in charge of the nearest camp for
the reception and detention of abducted persons.” The absence from the Act of the
salutary provisions to be found in Article 22 (1) and (2) as to the right of the arrested
person to be informed of the grounds of such arrest and to consult and to be defended
by a legal practitioner of his choice is also significant.

The sole point for the consideration of the Court was whether the taking into custody
of an abducted person by a police officer under S. 4 of the Act and the delivery of
such person by him into the custody of the officer in charge of the nearest camp can
be regarded as arrest and detention within the meaning of Article 22 (1) and (2).

In Gunupati Keshavram Vs. Nafisul Hasan10 there was a petition under Article 32 of
the Constitution complaining that one Shri Homi Dinshaw Mistry was under illegal
detention and he prayed that he be released forthwith. The petition alleged that Shri
Mistry was arrested in Bombay and taken in custody to Lucknow to be produced
before the Speaker of the Uttar Pradesh Legislative Assembly to answer a charge of
breach of privilege. It was further alleged that Shri Mistry was not produced before a
Magistrate within twenty four hours of his arrest; but was kept in detention in the
Speaker‟s custody at Lucknow even till the time of petition. The Supreme Court held
this as a clear breach of the provisions of Article 22 (2) of the Constitution which
7
requires that no such person shall be detained in custody beyond the said period
without the authority of a Magistrate. The Court directed that Shri Mistry be released
forthwith. It is submitted that Gunupati‟s case is wrongly decided. Though the person
was arrested in pursuance of an order of the Speaker of a Legislative Assembly on a
charge of breach of privilege, the implications thereof were not fully considered.
Upon a literal application of Article 22 (2) it was held that since the arrested person
was not produced before a Magistrate, the person must be released. It is doubtful how
far the Magistrate before whom such an arrested person is produced can examine the
validity of the Speaker‟s order. There was no discussion about the merits of the
contention raised on behalf of Mr. Mistry. The advocate did not advance any
argument to support the contention that privilege superseded fundamental right. It was
strange that the point was not discussed in the judgment and no reason in support of
the view was stated.

In M.S.M. Sharma Vs. Sri Krishan Sinha11, It was held by majority that Article 19 (1)
(a) and Article 194 (3) (dealing with privileges of the Houses of the Under-trial
prisoners are individuals who have been accused of a crime but have not yet been
convicted by a court of law. They are detained in jails while awaiting trial, often for
extended periods due to judicial delays, lack of legal representation, and systemic
inefficiencies. The Indian Constitution provides various safeguards to protect the
rights of these prisoners and ensure that their detention is not arbitrary or unjust.
Despite these safeguards, a significant number of under-trial prisoners remain
incarcerated for years, highlighting the need for effective legal interventions and
reforms.

This paper examines the constitutional provisions and legal protections available to
under-trial prisoners in India, analyzes judicial interpretations, and explores the
challenges faced in their implementation. It also evaluates the role of the judiciary,
legislature, and law enforcement agencies in safeguarding the rights of under-trial
prisoners.

Constitutional Provisions for Under-Trial Prisoners

1. Right to Life and Personal Liberty (Article 21)

Article 21 of the Indian Constitution guarantees that "No person shall be deprived of

8
 his life or personal liberty except according to the procedure established by law.7"
The Supreme Court of India has expansively interpreted this provision to include the
right to a fair and speedy trial, humane conditions in prison, and protection against
inhumane treatment.

Judicial Interpretation

 In Hussainara Khatoon v. State of Bihar (1979),8 the Supreme Court recognized the
plight of under-trial prisoners and emphasized that prolonged detention without trial
violates Article 21. The Court directed the government to release prisoners who had
been detained for periods longer than their maximum sentence if convicted.
 In A.R. Antulay v. R.S. Nayak (1992),9 the Supreme Court held that the right to a
speedy trial is implicit under Article 21 and that unreasonable delays in trials amount to
a denial of justice.

2. Protection Against Arbitrary Arrest and Detention (Article 22)

Article 22 provides safeguards against arbitrary arrests and detention by ensuring:

 Every arrested person must be informed of the reason for their arrest.
 They must be presented before a magistrate within 24 hours of arrest.
 They have the right to legal representation.

Judicial Interpretation

 In DK Basu v. State of West Bengal (1997),[4] the Supreme Court laid down detailed
guidelines for the arrest and detention of individuals to prevent custodial torture.
 In State of Maharashtra v. Christian Community Welfare Council of India (2003),[5]
the Court reiterated the importance of fair treatment for under-trial prisoners and stated
that unnecessary detention must be avoided.

3. Right to Legal Aid (Article 39A)

Article 39A of the Directive Principles of State Policy mandates that the State ensure
legal aid for those who cannot afford it. The Legal Services Authorities Act, 1987, was

7
Article 21, The Constitution of India, 1950.
8
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
9
A.R. Antulay v. R.S. Nayak, AIR 1992 SC 1701.
9
 enacted to provide free legal aid to under-trial prisoners.

Judicial Interpretation

 In Khatri v. State of Bihar (1981),10 the Supreme Court ruled that failure to provide
legal aid to under-trial prisoners amounts to a violation of their fundamental rights.
11
 The Court in Suk Das v. Union Territory of Arunachal Pradesh (1986) held that
legal aid is essential for justice and must be provided even if the accused does not
explicitly request it.

4. Right Against Cruel and Inhuman Treatment (Article 20 & 21)

Under Article 20, no person can be punished beyond what is prescribed by law. Article
21 further extends protection against torture and inhuman conditions in prison.

Judicial Interpretation

 In Sunil Batra v. Delhi Administration (1978),12 the Supreme Court ruled that
prisoners retain fundamental rights, and any form of physical or mental torture violates
Article 21.
 In Sheela Barse v. State of Maharashtra (1983),13 the Court stressed the need for
humane treatment of prisoners, particularly women under trial.

Challenges Faced by Under-Trial Prisoners

Despite constitutional safeguards, under-trial prisoners face multiple challenges that

hinder their access to justice and fair treatment.

1. Prolonged Detention and Delay in Trials

Judicial delays often result in under-trial prisoners spending years in jail without
conviction. Overburdened courts, shortage of judges, and procedural inefficiencies
contribute to these delays.14

10
Khatri v. State of Bihar, AIR 1981 SC 928.
11
DK Basu v. State of West Bengal, AIR 1997 SC 610.
12
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
13
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
14

10
2. Lack of Legal Representation

Many under-trial prisoners, particularly those from economically weaker sections, do

not have access to competent legal counsel. While legal aid services exist, they are
often ineffective due to lack of resources and proper implementation.

3. Overcrowding in Prisons

India's prison population consists of over 70% under-trial prisoners, leading to

overcrowding and inhumane living conditions. The Model Prison Manual (2016)
emphasizes reducing overcrowding, but implementation remains a challenge.

4. Poor Implementation of Bail Laws

Although provisions like Section 436A of the CrPC allow for the release of under-trial
prisoners who have served half their maximum sentence, the law is not effectively
implemented due to lack of awareness and administrative inefficiencies.

5. Custodial Violence and Human Rights Violations

Despite legal safeguards, reports of custodial torture and mistreatment of under-trial

prisoners continue to emerge. National Crime Records Bureau (NCRB) data indicates a
significant number of custodial deaths due to abuse and negligence.

Judicial and Legislative Efforts to Improve the Condition of Under-Trial

Prisoners

1. Fast-Track Courts and Special Tribunals

The government has established fast-track courts to expedite trials and reduce judicial
backlog. However, their effectiveness remains limited due to uneven distribution and
lack of resources.

2. E-Courts and Digital Case Management

The introduction of e-courts and digital systems aims to streamline case proceedings
and reduce delays. The Supreme Court has emphasized the need for paperless courts to
improve efficiency.

11
 3. Prison Reforms and Open Jails

The government has introduced initiatives like open prisons, where prisoners are
allowed greater mobility and work opportunities. This helps reduce overcrowding and
promotes rehabilitation.

State Legislatures) have to be reconciled and the only way of reconciling the same is
to read Article 19 (1) (a) as subject to the latter part of Article 194 (3).
The provisions of Article 1915

(1) (a) which are general, must yield to article 194 (1) and the latter part of its
clause (3) which are special. The Supreme Court did not follow Gunupati‟s case so
far as it gave primacy to the fundamental right under Article 22 (20 over the
privilege of the State Legislature. The supreme Court did not acceptthe argument
that the observation in Gunupati‟s case clearly establish that Article 194(3) is subject
to the fundamental rights. The Court observed that the decision in Gunupati‟s case
proceeded entirely on a concession of counsel and cannot be regarded as a considered
opinion on the subject. It is curious that Das
J. Who was the member of the Bench which decided Gunupati‟s case, delivered the
judgement of the majority in M.S.M. Sharma‟s case which did not follow
Gunupati‟s case.

In under Article 143 of constitution of India 12 popularly known as keshav Singh‟s case,
the Supreme court pointed out that the decision in Gunupati‟s case dealt with the
applicability of Article 22 (2) to a case falling under the latter part of Article 194(30
and the majority decision in16

M.S.M. Sharma‟s case had incidentally commented on the decision in Gunupati‟s

case. It is also important to note that there was no controversy about the applicability
of Article 22 in M.S.M Sharma‟s case. So it was not necessary for the majority
decision to deal with the point pertaining to the applicability of Article 22 (2). In
Keshav Singh‟s case the Supreme court observed that the obiter observations made in
the majority judgment in M.S.M. Sharma‟s case about the validity or correctness of
the earlier decision in Gunupati‟s case should not be taken as having decided the

10
AIR 1954 SC 636
13 AIR 1956 SC 20
12
point in question. Inother words, the question as to whether Article 22 would apply to
such a case may have to be considered by the Supreme Court if and when it becomes
necessary to do so.

The contention of the petitioner in the case of Purshottam Vs. B.M. Desai13 wasthat
S.46 (2) of the Income Tax Act under which Income Tax Officer issues therecovery
certificate to the additional collector of Bombay is void under Article 13 (1) in that
the same offends Article 22 (1) and (2). The objection that S. 46
(2) contravenes the fundamental rights guaranteed by clauses (1) and (2) of Article
22, in view of decision of this court in the State of Punjab Vs. Ajaib singh was not
pressed. It was held that it is a fallacy to regard arrest and detention of a defaulter
who fails to pay income-tax as a punishment or penaltyfor an offence. It is a coercive
process for recovery of public demand by putting pressure on the defaulter. The
defaulter can get himself released by paying up the dues.

In the case of Collector of Malabar Vs. E. Ebrohim14 the facts were as follows: the
respondent had been arrested in pursuance of a warrant issued by theCollector
of Malabar under S. 48 Madras Revenue Recovery Act, 1864. Section 46 (2) of the
Income Tax Act, 1922 read with S.48 of Madras Revenue Recovery Act, 1864 did not
afford opportunity to the arrested person to appear before the Collector by himself or
through a legal practitioner of his choice andto urge before him any defence open to
him and it did not provide for the production of the arrested person within 24 hours
before a Magistrate as required by Article 22 (2). On behalf of the respondent it was
contended that these sections of the Act and the Indian Income Tax Act did offend,
inter alia, Article 22 of the constitution. In this case, the arrest was not in connection
with any allegation or accusation of any actual or suspected or apprehended
commission of any offence of a criminal or quasi criminal nature. It was really an
arrest for a civil debt in the process or the mode prescribed by law for recovery of
arrears of land revenue. Relying on Ajaib Singh‟s case and

14
AIR 1957 SC 688

13
Purshottam‟s case the court held that neither S.48 of the Madras Act nor S. 46(2) of
the Indian Income Tax Act violates Articles 14, 19, 21 and 22 of the Constitution. The
Court further observed that these sections clearly set out the mode of recovery of
arrears of revenue, that is to say, either by the sale of the movable or immoveable
property of the defaulter, or by execution against his person i.e. by arrest and
imprisonment of the defaulter. The arrest of the defaulter is one of the modes, by
which the arrears of revenue can be recovered. Here the arrest is not by way of
punishment for mere default.Therefore, that where an arrest is made under section 48
after complying with its provisions, the arrest is not for any offence committed or a
punishment for defaulting in any payment. The mode of arrest is no more than a mode
for recovery of the amount due.

Every central and district jail shall have a library from which books may be issued to
the prisoners free of charge. Every prison shall be provided, according to its size and
importance, with an ample library of approved books, periodicals in English and in
the language of the State for the use of literate prisoners. A sufficient number of
copies of such journals as are permitted for use by the prisoners shall be placed in this
library for such prisoners and arrangements made in each prison for reading out the
news published in such journals as are permitted for use by the prisoners.

The Supreme Court held in Sunil Batra Vs. Delhi Administration 1980 (3) SCC 522
that the State Governments should take steps to prepare in Hindi and other regional
languages a prisoners handbook of right and circulate copies to be kept in prisons to
bring legal awareness to the inmates. Article 21 of theConstitution of India recognizes
right to life

In includes right to live with dignity. Prisoners are also are human beings and they are
entitled to all human RIGHTS AND HUMAN DIGNITY. Simply because a person is
in prison, it does not mean that inhuman treatment may bemeted out to him and he be
deprived of his fundamental rights.

14
Justice Mulla Committee examined all aspects of prison administration and made
several recommendations. The recommendations touched upon several issues
including the problems of women prisoners. The National Police commission (1977-
80) looked into issues like arrest, detention in custody and interrogation of women
and made several suggestions. Justice V.R.Krishna Iyer Committee made several
recommendations in respect of women prisoners. Basing on the report of women
prisoners the National Commission for Women on Custodial Justice for Women
(1993) made several recommendations in respect of women prisoners. The
following are some of the important aspects referred in the report for implementation:
-

1. Women prisoners like men should be informed of their rights under the
law.
2. Women constables should conduct searches.
3. Medical check ups of women prisoners or under trtials, should be done by
women doctors as soon as they come to prison.
4. Women prisoners should be allowed to contact their families and
communicate with their lawyers, women social workers, and voluntary
organisations.
5. Women prisoners should be allowed to keep their children withthem.

Section 74 of the Indian Penal Code deals with the limit of solitary confinement.

Section 74 of the IPC reads as under :-

“ Limit of solitary confinement : In executing a sentence of solitary confinement such

confinement shall in no case exceed fourteen days at a time, with intervals between
the period of solitary confinement of not less duration that no such period and when
the imprisonment awarded shall exceed three months, the solitary confinement shall
not exceed seven days in any one month

15
of the whole imprisonment awarded, with intervals between the period of solitary
confinement of not less duration than such periods.

No prisoner shall be placed in solitary confinement as a judicial punishment until the

medial officer has certified that he is in a fit state of health to undergo the said
punishment.”

In Kishore Singh Vs. State of Rajasthan Case the court vehemently condemned
solitary confinement and putting cross bar fetters and declared that flimsy grounds,
such as behaving insolently and in an uncivilized manner, tearing off the history
ticket, etc. Can not be the foundation for solitary confinement and cross bar fetters.

PRISONER UNDER SENTENCE OF DEATH

Immediately after the arrival of the prisoner under death sentence the medical officer
shall examine his height, weight, and the measurement of his neck. The medical
officer shall record his observations in the medical report book.

The prisoner sentenced to death shall then be removed to one of the condemnedcells.
The Jailer shall inspect the cell before the prisoner is placed in it andshall satisfy
himself of its fitness and security. No prisoner under sentence of death shall be placed
in a cell having only a wooden door, and if there is an external wooden door, in
addition to the grated door, it shall be kept open. Prisoners other than those sentenced
to death shall not be kept in this yard.

The following facilities shall be extended to the prisoners sentenced to death,

namely:-

a) Books for reading.

b) Supply of tobacco
c) Admission of visitors
d) Payment of to-and-fro transport charges to the nearest relatives, for
visiting before execution.

16
 e) Legal aid as needed by the prisoners.

When a sentence of death is confirmed by the High Court, the court of session will
issue a warrant to the superintendent of prison with reference to section413 of the
code of Criminal Procedure 1973 fixing the date of execution, whichwill be not less
than 21 days not more than 28 days from the date of the receipt by the session court of
the orders confirming the sentence of death.

The superintendent shall immediately on receipt of a warrant for execution

consequent on the confirmation by the High Court of the sentence of death, inform
the convict concerned that if he wishes to appeal to the supreme courtor to make an
application for special leave to appeal to the supreme court underany of the relevant
provisions of the constitution of India, he shall do so within the period prescribed in
the supreme court rules 1966.

Police Torture against Humanistic constitutional power: The Apex court in Raghuvir
15
Singh Vs. State of Haryana . held that the society was deeply disturbed by the
diabolical recurrence of police torture resulting in a terrible scare in the minds of
common citizens, that their lives and liberty are under a new peril, when the
guardians of law ignore human rights, to death. Thisdevelopment is disastrous to our
human rights, awareness and humanistic constitutional orders.

In Charles Sobraj Vs. Superintendent Central Jail, Tihar16 it was held that the Apex
Court would intervene even in prison administration when constitutional right or
statutory prescriptions are transgressed to the injury of a prisoners.

RIGHT OF JUVENILES

The Juvenile Justice Act 1986 was passed to bring about uniform, legal framework
for juvenile justice in the country so as to ensure that no child under any
circumstances is lodged in jail or police lock up. Under the said Act

15
AIR 1980 Cr.LJ 801
16
AIR 1978 SC 1514

17
observation homes were to be established and maintained for the temporary
receptions of juveniles during the pendency of the enquiry regarding them under this
Act. The Juvenile Justice (Care and Protection of Children) Act 2000 replaced the
earlier Act with similar provisions with regards to detention of juveniles in
observations homes and special homes.

In reference to M.P. there is a Jail Manual as applicable to Madhya Pradesh. In view

of the law relating to prisons, the legislature had framed The Prisons Act 1894.

The State Government has also framed the M.P. Prisons Rules 1968 wherein the
provisions related to classification of prisons and description and construction of
wards, cells and other places of detention are provided. In the rules related to
maintenance of Jail buildings, construction of wards and cells, etc., Sanitation,
conservancy have been mentioned.

An act to make provision for the establishment and regulation of Borstalinstitutions in

M.P. for the detention and training of adolescent offenders had been enacted known
as M.P. Borstal Act 1928.

This Act deals with the establishment of Borstal institutions, where offenders may be
detained under this Act and given industrial training and other instructions for their
reforms and moral influences.

The state government had also framed the rules regarding Borstal institutions 1960.

An act to provide for the release of certain prisoners on conditions imposed by the
Madhya Pradesh Government known as Madhya Pradesh Prisoners Release on
Probation Act 1954 deals with power of government to release by licence on
conditions imposed on offenders.

The state government had also framed the rules known as The Madhya Pradesh
Prisoner‟s Release on Probation Rules 1964.

18
One of the basic tenets of our legal system is the benefit of the presumption of
innocence of the accused till he is found guilty at the end of a trial on legal evidence.
In a democratic society even the rights of the accused are sacrosanct, though accused
of an offence, he does not become a non-person. Rights of the accused include the
rights of the accused at the time of arrest, at the time of search and seizure, during the
process of trial and the like.

The accused in India are afforded certain rights, the most basic of which are found in
the Indian Constitution. The general theory behind these rights is that the government
has enormous resources available to it for the prosecution of individuals, and
individuals therefore are entitled to some protection from misuse of those powers by
the government. An accused has certain rights during the course of any investigation;
enquiry or trial of an offence with which he is charged and he should be protected
against arbitrary or illegal arrest. Police have a wide powers conferred on them to
arrest any person under Cognizable offence without going to magistrate, so Court
should be vigilant to see that theses powers are not abused for lightly used for
personal benefits. No arrest can be made on mere suspicion or information. Even
private person cannot follow and arrest a person on the statement of another person,
however impeachable it is.

Though the police has been given various powers for facilitating the making of
arrests, the powers are subject to certain restraints. These restraints are primarily
provided for the protection of the interests of the person to be arrested, and also of the
society at large. The imposition of the restraints can be considered, to an extent, as the
recognition of the rights of the arrested person. There are, however, some other
provisions which have rather more expressly and directly created important rights in
favour of the arrested person.

SCHEME OF RESEARCH

This article is divided into 4 chapters dealing with the rights of arrested person in
india, various provisions under indian constitution and criminal procedure code,
supreme court‟s decisions on protection of rights (Role of Judiciary), various
problems suffered by the prisoners, solutions for the problems and suggestions.

19
OBJECTIVE

The main object of this research project is to understand the role of prisons in
the light of human rights of prisoners.
HYPOTHESIS

The prisoners are subject to serious human rights violations.

LIMITATION

This research paper is done relying mostly on articles and essays published by authors
online and few on books written on the human rights, prison administration and
prison reforms. Though such books are referred they do not contribute to the bulk of
the research and my research is mostly confined with the online sources. The area of
research is restrained only to the concept of prison administration and the importance
of human rights for prisoners.

REVIEW OF LITERATURE

The existing literature on this research work mainly revolves around the published
works of foreign as well as Indian authors pertaining to the subject matter, well
decided cases cited in Indian journals and cases cited from other countries, and the
articles published in the websites.

RESEARCH METHODOLOGY

The research methodology adopted for the purpose of this project is the
doctrinal method of research. The various library and Internet facilities available for
Law have been utilized for this purpose. Most of the information is, however, from
the Internet.

SCOPE OF RESEARCH

The present study aims to explore and analyze the constitutional safeguards available
to undertrial prisoners in India. Undertrial prisoners are individuals who are accused
of committing an offence and are awaiting trial. This research intends to examine the
legal, constitutional, and human rights frameworks that govern the protection of
undertrials, and how effectively these safeguards are being implemented in practice.

This study covers the historical development and contemporary interpretation of

20
fundamental rights such as the right to life and personal liberty under Article 21, the right to
equality before the law under Article 14, and the protection against arbitrary arrest and
detention under Article 22 of the Constitution of India. It also encompasses an assessment
of various statutory laws, especially the Code of Criminal Procedure (CrPC), Indian
Penal Code (IPC), Indian Evidence Act, Prisons Act, and relevant guidelines issued by
the Supreme Court, High Courts, and National Human Rights Commission (NHRC).

The scope further includes:

 A study of delays in the criminal justice system and their impact on the fundamental
rights of undertrial prisoners.
 An analysis of prison conditions, treatment of undertrials, access to legal aid, and
opportunities for bail or parole.
 A critical review of landmark judgments that have strengthened the rights of
undertrials in India.
 Comparative insights from other legal systems, especially those with progressive
frameworks for the protection of detainees, such as in the UK, USA, and South
Africa.
 The role of state institutions like the police, judiciary, legal aid authorities, and
prison administration in safeguarding the constitutional rights of undertrial prisoners.

The research focuses on India but also draws references from international legal standards
such as the Universal Declaration of Human Rights (UDHR), International Covenant
on Civil and Political Rights (ICCPR), and the United Nations Standard Minimum
Rules for the Treatment of Prisoners (Nelson Mandela Rules).

This study is doctrinal in nature but also includes empirical aspects through available data
and secondary sources such as reports, case studies, interviews, and prison reform
recommendations.

The objective is not only to highlight the gaps between the law and its implementation but
also to recommend legal and policy reforms to ensure that the undertrial prisoners are
treated with dignity, fairness, and justice in accordance with constitutional principles.

21
RESEARCH QUESTIONS

1. What are the constitutional provisions available for the protection of undertrial
prisoners in India?
o How do Articles 14, 21, and 22 of the Constitution ensure safeguards for
undertrials?
2. To what extent are these constitutional safeguards effectively implemented in the
Indian criminal justice system?
o Are these rights practically accessible to undertrial prisoners during the pre-
trial and trial phases?
3. What are the major causes behind the increasing number of undertrial prisoners in
Indian jails?
o How do factors such as judicial delays, police procedures, lack of legal aid,
and poverty contribute?
4. What role do judiciary and legal aid services play in upholding the rights of
undertrial prisoners?
o Have judicial interventions significantly improved the condition of undertrial
prisoners?
5. What are the gaps between law and practice in the treatment of undertrial prisoners
in Indian prisons?
o How do actual prison conditions violate constitutional and human rights
norms?
6. How do the rights of undertrial prisoners in India compare with international human
rights standards?
o What lessons can be drawn from international legal instruments like the
UDHR, ICCPR, and Mandela Rules?
7. What reforms can be proposed to strengthen the legal and institutional framework to
protect the rights of undertrial prisoners?
o What policy and legislative changes are needed to ensure speedier trials and
humane treatment?

22
 ABSTRACT

The Indian Constitution provides various safeguards to ensure the protection of the rights of
undertrial prisoners, recognizing the fundamental principles of justice, equality, and human
dignity. However, despite these constitutional guarantees, a significant proportion of
undertrial prisoners continue to face prolonged detention, overcrowded prisons, and delays
in legal proceedings, leading to a violation of their basic human rights.

This study explores the constitutional provisions safeguarding undertrial prisoners in India,
with a particular focus on Articles 14, 19, 21, 22, and 39A of the Constitution, which
uphold the principles of equality, personal liberty, legal aid, and a fair trial. It also examines
the role of the Criminal Procedure Code (CrPC), the Indian Penal Code (IPC), and
judicial precedents in ensuring justice for undertrial prisoners. The research highlights key
issues such as delayed trials, lack of access to legal representation, inhumane prison
conditions, and socio-economic vulnerabilities that exacerbate the plight of undertrial
prisoners.

Through a detailed analysis of landmark Supreme Court judgments, National Crime

Records Bureau (NCRB) data, and reports from the Law Commission of India, this
study evaluates the effectiveness of existing legal frameworks and identifies gaps in their
implementation. The research also examines the role of judiciary, legal aid authorities,
and prison reforms in addressing the systemic challenges faced by undertrial prisoners.

The study concludes by recommending policy measures such as expedited trials, improved
legal aid mechanisms, alternative dispute resolution methods, and enhanced prison
reforms to ensure that undertrial prisoners are not deprived of their fundamental rights.
Strengthening constitutional safeguards and ensuring their effective implementation is
crucial for upholding the rule of law and ensuring justice for all.

Keywords: Undertrial Prisoners, Constitutional Safeguards, Right to Legal Aid, Fair Trial,
Prison Reforms, Human Rights, Criminal Justice System.

23
 CHAPTER - 2

RIGHTS UNDER INDIAN CONSTITUTION

First two clauses of Article 22 read as follows:

ARTICLE 22: Protection against arrest and detention in certain cases -

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period without the authority
of a magistrate.

Article 22 (1) and (2) confers four following fundamental rights upon a person who has
been arrested:

i) Right to be informed, as soon as may be, of the grounds for such arrest.
ii) Right to consult and to be defended by a legal practitioner of his
choice.

iii) Right to be produced before the nearest magistrate within twenty-four

hours of his arrest excluding the time necessary for the journey from the
place of arrest to the Court of Magistrate.

iv) Right not to be detained in custody beyond the period of twentyfour hours
without the authority of the Magistrate.

2.1 RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST

The object underlying the provision that the ground for arrest should be
communicated to the person arrested appears to be this. On learning about the ground for
arrest, the man will be in a position to make an application to the appropriate court for
bail or move the High Court for a writ of habeas corpus.

24
Further, the information will enable the arrested person to prepare his defence in time
for purposes of his trial. For these reasons, it has been provided in clause (1) of
Article 22 that the ground for the arrest must be communicated to the person arrested
as soon as possible.

In re, Madhu Limaye17 the facts were: Madhu Limaye, Member of the Lok Sabha and
several other persons were arrested. Madhu Limaye addressed a petition in the form
of a letter to the Supreme Court under Article 32 mentioning that he along with his
companions had been arrested but had not been communicated the reasons or the
grounds for arrest. It was stated that the arrested persons had been merely told that the
arrest had been made “under sections which are bailable”. In the return filed by the
State this assertion had neither been controverted nor had anything been stated with
reference to it. One of the contentions raised by Madhu Limaye was that there was a
violation of the mandatory provisions of Article 22 (1) of the Constitution.

The Supreme Court observed that Article 22 (1) embodies a rule which has always
been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. For example, the 6th Amendment to the
Constitution of the United States of America contains similar provisions and so does
Article XXXIV of the Japanese Constitution of 1946. In England, whenever an arrest
is made without a warrant, the arrested person has a right to be informed not only that
he is being arrested but also of the reasons or grounds for the arrest. The court further
observed that the two requirements of Clause (1) of Article 22 are meant to afford the
earliest opportunity to the arrested person to remove any mistake, misapprehension or
misunderstanding in the minds of the arresting authority and, also to know exactly
what the accusation against him is so that he can exercise the second right, namely of
consulting a legal practitioner of his choice and to be defended by him. Those who
feel called upon to deprive other persons of liberty in the discharge of what they
conceive to be their duty must, strictly and scrupulously, observe the forms and rules
of law. Whenever that is not done, the petitioner would be entitled to a writ of Habeas
Corpus directing his release. In the present case, the return did not contain any
information as to when and by whom Madhu Limaye and other arrested persons were
informed of the grounds for their arrest. It had not been contended on behalf of the

25
state that the circumstances were such that the arrested persons must have known the
general nature of the alleged offences for which they had been arrested. Hence, the
Court held that Madhu Limaye and others were entitled to be released on this ground
alone.

2.2 RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL

PRACTITIONER

In Article 22 (1) the opportunity for securing services of lawyer is alone guaranteed.
The Article does not require the state to extend legal aid as such but only requires to
allow all reasonable facilities to engage a lawyer to the person arrested and detained
in custody. The choice of counsel is entirely left to the arrested person. The right to
consult arises soon after arrest.

In Janardhan Reddy v. State of Hyderabad18 one of the main points urged on behalf
of the petitioners was that in criminal cases Nos. 17 & 18 of 1949, there was no fair
trial, in as much as the persons accused in those cases were not afforded any
opportunity to instruct counsel and they had remained undefended throughout the
trial. So it was contended that the whole trial in these cases was bad, because the
accused were denied the right of being defended by a pleader. Fourth para of the
affidavit filed on behalf of the petitioners read as follows:

The Court never offered to facilitate my communication with my relations and

friends or to adjourn the case or to appoint counsel at state expense for my
defence. In fact they said they would not adjourn the case under any
circumstances. Being ignorant, I did not know that I had any right to ask for any
of these things.

As to the circumstances under which the accused were not represented by a lawyer a
counter-affidavit filed by Mr. Hanumantha Naidu, a senior police officer, who
investigated the case stated : Facilities were given to the accused to engage lawyers
for their defence. In case in which the accused had no means to engage pleaders for
their defence and applied to the Tribunal for appointment of pleaders at Government
cost, this was done. In some cases, the accused declined to accept the pleaders

26
appointed by the Tribunal for their defence. Some engaged pleaders of their choice at
their cost. Some accused stated that they did not want any lawyer to defend them.

Judges of the High Court had expressed the view that the contention that the Tribunal
did not give the accused an adequate opportunity to engage lawyers was not well-
founded. The Supreme Court observed in this connection that suggestion of the High
Court that the curious attitude adopted by the accused, to whatever cause it may have
been due, to some extent accounts for their not being represented by a lawyer cannot
be ruled out. However, the Supreme Court further added that the Special Tribunal
should have taken some positive steps to assign a lawyer to aid the accused in their
defence.

Advocate of the petitioners relied on Powell v. Alabama19, in which the Supreme

Court of America observed as :

In a capital case where the defendant is unable to employ counsel and is

incapable of adequately making his own defence because of ignorance,
feeblemindedness, illiteracy or the like, it is the duty of the Court whether
requested or not, to assign a counsel for him as a necessary requisite of due
process of law.

The Supreme Court while observing that the assignment of a counsel in the
circumstances mentioned in the passage was highly desirable, held that the judgement
cannot rest wholly on American precedents, which are based on the doctrine of due
process of law, which is peculiar to the American Constitution and also on certain
specific provisions bearing on the right of representation in a criminal proceeding.
The provision which was material to the contention raised was S. 271 of the
Hyderabad Cr. P.C., which corresponded to S. 340 Cr. P.C., 1898, which ran as
follows :

“Any person accused of an offence before a criminal court or against whom

proceedings are instituted under this code in any such Court may of right be defended
by a pleader.”

The Supreme Court observed that this provision must be construed liberally in favour
of the accused and must be read along with the rules made by the High Courts and the
19
287 U.S. 45.

27
circular orders issued by them enjoining that where in capital cases the accused has no
means to defend himself, a counsel should be provided to defend him. The court laid
down following two principles in this regard.

(1) That it cannot be laid down as a rule of law that in every capital case
where the accused is unrepresented, the trial should be held to be vitiated.

(2) That a court of appeal or revision is not powerless to interfere if it is

found that the accused was so handicapped for want of legal aid that the proceedings
against him may be said to amount to negation of a fair trial.

By laying down the first principle the Court, in other words, accepted the
position that even in some capital cases the trial would be valid even if the accused is
not represented by a lawyer. This is a literal view of Article 22 (1). The Court could
not show the courage to accept the principle of Powell v. Alabama. However, by
laying down second principle, the Supreme Court at least sowed a seed for further
development of law in this regard in future.

Another important provision in this connection is S. 303 (earlier S. 340) of Criminal

Procedure Code, 1973. That Section is in these terms :

“303. Any person accused of an offence before a Criminal Court, or against

whom proceedings are instituted under this code, may of right be defended by a
pleader of his choice”.

Before the Constitution come into force, this was probably the only provision
from which the right of the accused to have consultation between him and his legal
advisers appears to have been derived and sustained.

In Ram Sarup v. Union of India20 the facts were : Ram Sarup, petitioner was a
sepoy and subject to the Army Act. He shot dead two sepoys. He was charged on
three counts under S. 69 of the Army Act read with S. 302 of I.P.C. and was tried by
the General Court-Martial. He was found guilty of the three charges and sentenced to
death. One of the contentions raised by the petitioner was that he was not allowed to
be defended at the General CourtMartial by a legal practitioner of his choice and

20
A.I.R. 1965 S.C. 247.

28
therefore, there had been a violation of the provisions of Article 22 (1) of the
Constitution. Petitioner alleged that he had expressed his desire, on many occasions,
for permission to engage a practising civil lawyer to represent him at the trial but the
authorities turned down those requests and told him that it was not permissible under
the Military rules to allow the services of a civilian lawyer and that he would have to
defend his case with the counsel he would be provided by the Military Authorities. In
reply it was stated that this allegation about the petitioner's requests and their being
turned down was not correct, that it was not made in the petition but was made in the
reply after the State had filed its counter affidavits in which it was stated that no such
request for his representation by a legal practitioner had been made and that there had
been no denial of his fundamental rights. The Supreme Court was of the opinion that
the petitioner made no request for his being represented at the Court-Martial by a
counsel of his choice, that consequently no such request was refused and that he
cannot be said to have been denied his fundamental right of being defended by
counsel of his choice. The Court pointed out that the petitioner did not state in his
petition that he had made a request for his being represented by a counsel of his
choice. He had simply stated that certain of his relatives who sought interview with
him subsequent to his arrest were refused permission to see him and that this
procedure which resulted in denial of opportunity to him to defend himself properly
by engaging a competent civilian lawyer through the resources and help of his
relatives had infringed his fundamental right under Article 22 of the Constitution. If
the petitioner had made any express request for being defended by a counsel of his
choice, he should have stated so straightforwardly in his petition. His involved
language could only mean that he could not contact his relations for their arranging a
civilian lawyer for his defence. This negatived any suggestion of a request to the
Military Authorities for permission to allow him representation by a practising lawyer
and its refusal. The Court held on the facts that there had been no violation of the
fundamental right of the petitioner to be defended by a counsel of his choice conferred
under Article 22 (1) of the Constitution.

In this case too, the Court took a technical view of the matter by observing that
the petitioner did not state in his petition that he had made a request for his being
represented by a counsel of his choice. The Court was not much impressed by the
statement of the petitioner, that he could not contact his relations for their arranging a

29
civilian lawyer for his defence. After all a person who is arrested and confined has to
take the help of somebody else like relatives to make provision for engaging a lawyer.
But the Court was inclined to take hyper-technical approach to hold that Article 22(1)
is not violated.

In Nandini Satpathy v. P.L. Dani21 the Supreme Court observed that Article 22 (1)
directs that the right to consult an advocate of his choice shall not be denied to any
person who is arrested. This does not mean that persons who are not under arrest or
custody can be denied that right. The spirit and sense of Article 22 (1) is that it is
fundamental to the rule of law that the services of a lawyer shall be available for
consultation to any accused person under circumstances of near-custodial
interrogation. Moreover, the observance of the right against self incrimination is best
promoted by conceding to the accused the right to consult a legal practitioner of his
choice. Lawyer's presence is a constitutional claim in some circumstances in our
country also, and in the context of Article 20(3) is an assurance of awareness and
observance of the right to silence. The Court referred to Miranda decision22 which
had insisted that if an accused person asks for lawyer's assistance, at the stage of
interrogation, it shall be granted before commencing or continuing with the
questioning. The Court further observed that Article 20 (3) and Article 22 (1) may, in
a way, be telescoped by making it prudent for the police to permit the advocate of the
accused, if there be one, to be present at the time he is examined. Over-reaching
Article 20(3) and Section 161(2) Cr. P.C. will be obviated by this requirement. A rule
is not laid down that the Police must secure the services of a lawyer. That will lead to
„police station lawyer‟ system, an abuse which breeds other vices. But if an accused
person expresses the wish to have his lawyer by his side when his examination goes
on, this facility shall not be denied, without being exposed to the serious reproof that
involuntary self-incrimination secured in secrecy and by coercing the will, was the
project. Not that a lawyer's presence is a panacea for all problems of involuntary self-
crimination, for he cannot supply answers or whisper hints or otherwise interfere with
the course of questioning except to intercept where intimidatory tactics are tried,
caution his client where incrimination is attempted and insist on questions and
answers being noted where objections are not otherwise fully appreciated. He cannot

21
A.I.R. 1978 S.C. 1025.
22
(1966) 384 U.S. 436.

30
harangue the police but may help his client and complain on his behalf, although his
very presence will ordinarily remove the implicit menace of a police station. The
Court observed that presence of a lawyer is asking for the moon in many cases until a
public defender system becomes ubiquitous. The police need not wait more than for a
reasonable while for an advocate's arrival.

Nandini Satpathy's Case makes a clear departure from the literal interpretation stance
of the Supreme Court in earlier cases. The case added an additional fortification to the
right to counsel. The Supreme Court went a step forward in holding that Article 22(1)
does not mean that persons who are not strictly under arrest or custody can be denied
the right to counsel. The Court enlarged this right to include right to counsel to any
accused person under circumstances of near-custodial interrogation. However, the
Court took the help of Article 20 (3) and Miranda decision for this liberal
interpretation.

In Joginder Kumar v. State of U.P.23 the Supreme Court held that right of arrested
person upon request, to have some one informed about his arrest and right to consult
privately with lawyers are inherent in Articles 21 and 22 of the Constitution. The
Supreme Court observed that no arrest can be made because it is lawful for the Police
officer to do so. The existence of the power to arrest is one thing. The justification for
the exercise of it is quite another. The Police Officer must be able to justify the arrest
apart from his power to do so. Arrest and detention in police lock-up of a person can
cause incalculable harm to the reputation and self-esteem of a person. No arrest
should be made by Police Officer without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a reasonable
belief both as to the person's complicity and even so as to the need to effect arrest.
The Supreme Court issued the following requirements :

(1) An arrested person being held in custody is entitled, if he so requests, to have

one friend, relative or other person who is known to him or likely to take an interest
in his welfare told as far as practicable that he has been arrested and where is being
detained.

23
A.I.R. 1994 S.C. 1349.

31
(2) The Police Officer shall inform the arrested person when he is brought to the
police station of this right.

(3) An entry shall be required to be made in the Diary as to who was informed of
the arrest.

These protections from power must be held to flow from Articles 21 and 22 (1) and
enforced strictly. The above requirements shall be followed in all cases of arrest till
legal provisions are made in this behalf.

Section 56 (1) of the Police and Criminal Evidence Act, 1984 in England provides :

Where a person has been arrested and is being held in custody in a

police station or other premises, he shall be entitled, if he so requests, to have one

friend or relative or other person who is known to him or who is likely to take an
interest in his welfare told, as soon as practicable except . .

We find a shift in judicial concern in Joginder Kumar's Case for ensuring

constitutional right to arrested person. A new angle of approach was adopted to the
interpretation of Article 22(1) but with the help of Article 21. The Supreme Court
recognised three incidental rights of arrested person in this regard i.e. i) The right to
have some one i.e. his relative or friend informed about his arrest; ii) The right to
consult privately with lawyer; iii) The right to know from the police officer about this
right. The Supreme Court imposed corresponding duties on the police officers.

Custodial death is perhaps one of the worst crimes in a civilised society governed by
the Rules of Law. The rights inherent in Article 21 and 22 (1) of the Constitution
require to be jealously and scrupulously protected. Any form of torture or cruel,
inhuman or degrading treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation, interrogation or otherwise. The
precious right guaranteed by

Article 21 of the Constitution cannot be denied to convicts, under-trials, detenus and

other prisoners in custody, except according to procedure established by law by
placing such reasonable restrictions as are permitted by law. Therefore, the Supreme

32
Court issued in D.K.Basu v. State of W.B.24 the following requirements to be followed
in all cases of arrest or detention till legal provisions are made in that behalf as
preventive measures.

(1) The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by at least one
witness, who may be either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. It shall also be countersigned by
the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up shall be entitled to have one
friend or relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified
by the police where the next friend or relative of the arrestee lives outside the district
or town through the Legal Aid Organisation in the District and the police station of
the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the person
who has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.

24
A.I.R. 1997 S.C. 610.

33
(7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any, present on his/her body, must be recorded
at that time. The “Inspection Memo” must be signed both by the arrestee and the
police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor

every 48 hours during his detention in custody, by a doctor in the panel of approved
doctors appointed by Director, Health Services of the concerned State or Union
Territory. Director, Health Services should prepare such a panel for all Tehsils and
Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above,
should be sent to illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.

(11) A police control room should be provided at all Districts and State
headquarters, where information regarding the arrest and the place of custody of the
arrestee shall be communicated by the Officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.

The Court emphasized that failure to comply with the said requirements shall apart
from rendering the concerned official liable for departmental action, also render him
liable to be punished for contempt of Court and the proceedings for contempt of Court
may be instituted in any High Court of the country, having territorial jurisdiction over
the matter. The requirements flow from Articles 21 and 22 (1) of the Constitution and
need to be strictly followed. The requirements are in addition to the constitutional and
statutory safeguards and do not detract from various other directions given by the
Courts from time to time in connection with the safeguarding of the rights and dignity
of the arrestee.

Speaking on the right to compensation to arrestee in case of custodial torture, the

Supreme Court observed that monetary or pecuniary compensation is an appropriate
and indeed an effective and sometimes perhaps the only suitable remedy for redressal

34
of the established infringement of the fundamental right to life of a citizen by the
public servants and the State is vicariously liable for their acts. The claim of the
citizen is based on the principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount of compensation
from the State, which shall have the right to be indemnified by the wrong-doer. In the
assessment of compensation, the emphasis has to be on the compensatory and not on
punitive element. The objective is to apply balm to the wounds and not to punish the
transgressor or the offender, as awarding appropriate punishment for the offence
(irrespective of compensation) must be left to the Criminal Courts in which the
offender is prosecuted; which the state in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without prejudice to any other
action like civil suit for damages which is lawfully available to the victim or the heirs
of the deceased victim with respect to the same matter for the tortuous act committed
by the functionaries of the state. The quantum of compensation will, of course,
depend upon the peculiar facts of each case and no strait jacket formula can be
evolved in that behalf. The relief to address the wrong for the established invasion of
the fundamental rights of the citizen under the public law jurisdiction is, thus, in
addition to the traditional remedies and not in derogation of them. The amount of
compensation as awarded by the Court and paid by the State to redress the wrong
done, may in a given case, be adjusted against any amount which may be awarded to
the claimant by way of damages in a civil suit.

This was a case of PIL. A letter by the Executive Chairman, Legal Aid Services,
West Bengal addressed to the Chief Justice of India drawing his attention to certain
news items published in the newspapers regarding deaths in police lock-ups and
custody was treated by the Supreme Court as a writ petition.

The Supreme Court observed that with a view to bring in transparency, the presence
of the counsel of the arrestee at some point of time during the interrogation may deter
the police from using the third degree methods during interrogation.

D.K. Basu's Case not only travels a path of few steps ahead of Joginder Kumar but
also takes a big leap forward. In its anxiety to protect the interests of the arrested
person, the Court has exhibited an instance of judicial over activism rather judicial
waywardness. The case sounds death-knell to Montesquieu's theory of separation of

35
powers amongst three organs of the State. The Supreme Court arrogated to itself the
Constituent or at least legislative power in laying down eleven requirements in this
connection. It is submitted that it is a case of out-right judicial legislation. Showing
concern for the plight of the arrested person is one thing and exceeding one's
jurisdiction and encroaching on the field of another organ is another thing. The
Supreme Court while interpreting a provision of the Constitution may fill in the
interstices but the zeal to artificially create such interstices and then fill it should be
deprecated. The judicial pendulum swung to the other extreme in this case. The
judiciary needs now self-discipline. This judicial hegemony needs to be checked. As
the other two organs of the state cannot control or check this judicial encroachment,
what is required is doctrine of judicial selfrestraint should be followed. The judiciary
should restrain from trespassing in the field of another organ under the guise of
interpretation of the Constitution or doing complete justice. Though these eleven
requirements comprise human rights jurisprudence and it would be in the fitness of
the things, if these were law, these sweeping eleven requirements laid down by the
Supreme Court, it is submitted, cannot have the status of law as its source is not
legislature but judiciary.

It may be noted that these requirements were held to flow from Article 21 and 22 (1)
jointly.

2.3 RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE

In M.H.Hoskot v. State of Maharashtra25 it was observed by the

Supreme Court that generally speaking and subject to just exceptions, at least a single
right of appeal on facts, where criminal conviction is fraught with long loss of liberty,
is basic to civilized jurisprudence. Every step that makes the right of appeal fruitful is
obligatory and every action or inaction which stultifies it is unfair and
unconstitutional. Pertinent to the point are two requirements : (i) service of a copy of
the judgment to the prisoner in time to file an appeal and (ii) provision of free legal
services to a prisoner who is indigent or otherwise disabled from securing legal
assistance where the ends of justice call for such service. Both these are State
responsibilities under Article 21. Where the procedural law provides for further

25
A.I.R. 1978 S.C. 1548.

36
appeals these requirements will similarly apply. One of the ingredients of fair
procedure to a prisoner, who has to seek his liberation through the court process is
lawyer's services. Judicial justice, with procedural intricacies, legal submissions and
critical examination of evidence, leans upon professional expertise and a failure of
equal justice under the law is on the cards where such supportive skill is absent for
one side. The Indian socio-legal milieu makes free legal service at trial and higher
levels, an imperative processual piece of criminal justice where deprivation of life or
personal liberty hangs in the judicial balance. Partial statutory implementation of the
mandate is found in S. 304 Cr. P.C., and in other situations courts cannot be inert in
the face of Article 21 and 39-A. Maneka Gandhi's Case has laid down that personal
liberty cannot be cut out or cut down without fair legal procedure. Enough has been
set out to establish that a prisoner, deprived of his freedom by court sentence but
entitled to appeal against such verdict, can claim, as part of his protection under
Article 21 and as implied in his statutory right to appeal, the necessary concomitant of
right to counsel to prepare and argue his appeal. If a prisoner sentenced to
imprisonment, is virtually unable to exercise his constitutional or statutory right of
appeal, inclusive of special leave to appeal for want of legal assistance, there is
implicit in the Court under Article 142 read with Articles 21 and 39-A of the
Constitution, power to assign counsel for such imprisoned individual 'for doing
complete justice'. The inference is inevitable that this is a State's duty and not
Government's charity. Equally affirmative is the implication that while legal services
must be free to the beneficiary the lawyer himself has to be reasonably remunerated
for his services. Naturally, the State concerned must pay a reasonable sum that the
court may fix when assigning counsel to the prisoner. Of course, the court may judge
the situation and consider from all angles whether it is necessary for the ends of
justice to make available legal aid in the particular case. That discretion resides in the
Court.

In this case, the party, though offered legal aid by the Court, preferred to argue
himself. The Court observed that even so it upheld the right to counsel not in the
permissive sense of Article 22(1) and its wider amplitude but in the peremptory sense
of Article 21 confined to prison situations. The Court summarised the legal position
asfollows :

37
 i) Where the prisoner is disabled from engaging a lawyer, on reasonable
grounds such as indigence or incommunicado situation, the Court
shall, if the circumstances of the case, the gravity of the sentence and
the ends of justice so require, assign competent counsel for the
prisoner's defence, provided the party does not object to that lawyer.

ii) The State shall pay to assigned counsel such sum as the court may
equitably fix.

iii) These benign prescriptions operate by force of Article 21 [strengthened

by Article 19 (1) (d) read with sub-art (5)] from the lowest to the
highest court where deprivation of life and personal liberty is in
substantial peril.

Article 22 (1) does not provide to arrested person, right to be provided with a lawyer
by the State. However, in M.H. Hoskot's Case the Supreme Court did not hesitate to
imply this right in Article 22 (1) and 21 jointly while pressing into service application
of a Directive Principle of State Policy under Article 39 A of Equal Justice and free
legal aid. To take further support for this implication it took help of Article 142 for
doing complete justice. This is an example of liberal interpretation of Article 22 (1)
and other Articles of the Constitution which carves out a right for the indigent
prisoner or a prisoner in incommunicado situation to be assigned counsel by the Court
at the State's cost. It seems that after the decision of Maneka Gandhi giving a new
dimension to the Article 21, the Supreme Court's judicial activism started blossoming
in this regard.

The State Government must also provide at its own cost a lawyer to the under-trial
prisoner with a view to enable him to apply for bail in exercise of his right under
proviso (a) to Sub-section (2) of Section 167 of Cr. P.C. and the Magistrate must take
care to see that the right of the under-trial prisoner to the assistance of a lawyer
provided at State costs is secured to him. It is a constitutional right of every accused
person who is unable to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado situation, to have free legal
services provided to him by the State and the State is under a constitutional mandate
to provide a lawyer to such accused person if the needs of justice so require. If free

38
legal services are not provided to such an accused, the trial itself may run the risk of
being vitiated as contravening Article 21 and every State Government should try to
avoid such a possible eventuality. Hussainara Khatoon v. State of Bihar26 reiterates
the right of every accused person who is unable to engage a lawyer and secure legal
services on account of reasons such as poverty, indigence or incommunicado
situation, to have free legal services provided to him by the State. The Court added a
further protection to this right by holding that if free legal services are not provided to
such an accused, the trial itself may run the risk of being vitiated as contravening
Article 21.

The Case of Ranjan Dwivedi v. Union of India27 raised a question whether the „right
to be defended by a legal practitioner of his choice‟ under Article 22 (1) of the
Constitution comprehends the right of an accused to be supplied with a lawyer by the
State. The Supreme Court held that the accused petitioner who is being tried for
murder before the Sessions Court is not entitled to the grant of a writ of mandamus for
the enforcement of the Directive Principle enshrined in Article 39 A by ordaining the
Union of India to give financial assistance to him to engage a counsel of his choice on
a scale equivalent to, or commensurate with, the fees that are being paid to the counsel
appearing for the State. As is clear from the terms of Article 39 A, the social objective
of equal justice and free legal aid has to be implemented by suitable legislation or by
formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by
way of making an application before the Trial Court under sub-section (1) of S. 304 of
the Cr. P.C. and not by a petition under Article 32 of the Constitution.

The Court further observed that although in the earlier decisions the Court paid scant
regard to the Directives on the ground that the Courts had little to do with them since
they were not justiciable or enforceable, like the Fundamental Rights, the duty of the
Court in relation to the Directives came to be emphasized in the later decisions laying
down certain broad propositions. One of these is that there is no disharmony between
the Directives and the Fundamental Rights because they supplement each other in
aiming at the same goal of bringing about a social revolution and the establishment of
a Welfare State, which is envisaged in the Preamble. The Courts therefore, have a
responsibility in so interpreting the Constitution as to ensure implementation of the
26
A.I.R. 1979 S.C. 1377.
27
A.I.R. 1983 S.C. 624.

39
Directives and to harmonize the social objective underlying the Directives with the
individual rights. Primarily, the mandate in Article 39 A is addressed to the
Legislature and the Executive, but insofar as the Courts of Justice can indulge in some
judicial law making within the interstices of the Constitution, the courts too are bound
by this mandate. Many a time, it may be difficult for the accused to find sufficient
means to engage a lawyer of competence. In such cases, the Court possesses the
power to grant free legal aid if the interests of justice so require. The remedy of the
petitioner therefore, is to make an application before the Sessions Court making out a
case for the grant of free legal aid and if the Court is satisfied that the requirements of
Sub-sec. (1) of Section 304 of the Code are fulfilled, he may make necessary
directions in that behalf.

S. 304 (1) of Criminal Procedure Code reads :

304. (1) where, in a trial before the Court of Session, the accused is not
represented by a pleader and where it appears to the Court that the accused
has not sufficient means to engage a pleader, the Court shall assign a
pleader for his defence at the expense of the State.

The Court in Ranjan Dwivedi's case referred to M.H. Hoskot's case and Hussainara
Khatoon's case and also observed that primarily the mandate in Article 39 A is
addressed to the Legislature and the Executive but insofar as the Courts of Justice can
indulge in some judicial law-making within the interstices of the Constitution, the
Courts too are bound by this mandate. Even then the Court expressed its inability to
grant remedy to the petitioner on the ground that he sought writ of mandamus for the
enforcement of the Directive Principle enshrined in Article 39 A. The Court directed
the petitioner to approach the Additional Sessions Judge under sub-section (1) of
Section 304 of the code of Criminal Procedure. It cannot be understood why the Court
expressed its inability or helplessness to grant relief to the accused petitioner in the
face of M.H. Hoskot and Hussainara Khatoon decisions of which it took cognizance
which clearly had held that right to counsel in case of indigent accused is a
fundamental right under Article 22 (1) and 21. The Supreme Court could have easily
brushed aside the technicality of petition being for the enforcement of a Directive
Principle of State Policy under Article 39 A and given relief under Article 22 (1) and
21 which were enforceable fundamental rights.

40
STATUTES BARRING APPEARANCE OF LAWYERS

The Madhya Bharat Panchayat Act was passed on June 17, 1949. By S. 75 of the Act,
the Nyaya Panchayat is empowered to try certain offences committed within its
jurisdiction including offence under S. 447 of the Indian Penal Code. The Nyaya
Panchayat has power to impose a fine not exceeding Rs. 100, but it has no power to
inflict a substantive sentence of imprisonment nor a sentence of imprisonment in
default of payment of fine. By S. 89, the decision of the Nyaya Panchayat in its
criminal jurisdiction is final and not appealable except that it is subject to revision by
the Sessions Judge. Section 87 provides that subject to the provisions of S. 63, any
party may appear before a Nyaya Panchayat by a duly authorised representative.
Section 63 provides :

“No legal practitioner shall appear on behalf of or shall plead for or defend any party
in a dispute, case or proceedings pending before the Nyaya Panchayat”.

The facts of the case State of M.P. v. Shobharam28 were on a complaint of trespass
the police registered a case against the respondents under S. 447 of the Indian Penal
Code. The respondents were later arrested by the police and released on the execution
of surety bonds. The case against the respondents was thereafter put up before the
Nyaya Panchayat, a Court established under the Madhya Bharat Panchayat Act, 1949.
The Nyaya Panchayat, after trial, convicted and sentenced the respondents to a fine of
Rs. 75 each. The conviction was upheld by the Additional Sessions Judge. The
respondents then moved the High Court of Madhya Pradesh. The High Court declared
that S. 63 is void to the extent that it denied the respondents the right to be defended
by a legal practitioner of their choice in the trial before the Nyaya Panchayat, quashed
the conviction and sentences. The State of Madhya Pradesh preferred the appeal to the
Supreme Court.

Majority consisting of Bachawat, Shelat and Hidaytullah JJ.

(Mudholkar J. and Sarkar C.J. dissenting) held that Section 63 of the Madhya Bharat
Panchayat Act, 1949 is violative of Article 22 (1) and is void to the extent it denies

41
any person who is arrested the right to be defended by a legal practitioner of his
choice in any trial of the crime for which he is arrested.

The second part of Article 22 (1) reads :

“... nor shall he be denied the right to consult and to be defended by a legal
practitioner of his choice”.

Mr. Sen, advocate for the appellant submitted that “he” means a person who is
arrested and detained, and as the respondents were not detained at the time of the trial
before the Nyaya Panchayat, the constitutional guarantee is not available to them. He
argued that in State of Punjab v. Ajaib Singh29 The Supreme Court has restricted the
constitutional guarantee embodied in the first part of Article 22 (1) to persons arrested
otherwise than under a warrant issued by a Court and he submitted that this restricted
interpretation should not be given to the second part and the protection of the second
part should be extended to all persons. But he also submitted that in the context of
Article 21 the right given by the second part of Clause (1) of Article 22 should be
limited to trials in which any person is deprived of his life or personal liberty or is in
jeopardy of being so deprived.

Bachawat J. (with him Shelat J.) observed that the pronoun “he” in the second part of
Article 22(1) must refer to the last antecedent. “He” therefore, means “any person
who is arrested”. He has the right to consult his lawyer and to be defended by him, so
that he may guard himself against the accusation for which he is arrested. Clause (1)
and (2) of Article 22 safeguard the rights of the person arrested. The arrest of any
person on a criminal charge is a step in an intended criminal proceeding against him.
Upon arrest, he may either be released on bail or be remanded into custody. The arrest
of the accused on a criminal charge has thus an intimate connection with his eventual
trial on the charge. It is at the trial in the Criminal Court that the accused defends or is
defended by counsel. Section 340 (now S. 303) of Cr. P.C., therefore, provides that
any person accused of any offence before a Criminal Court, may of right be defended
by a pleader. In this background, the right of defence by a legal practitioner given by
Article 22 (1) must extend to defence in a trial in a Criminal Court.

42
Bachawat J. further observed that when any person is arrested, he is deprived of his
liberty, the procedure laid down in Clause (1) of Article 22 must then be followed,
and he must be allowed the right to be defended by counsel of his choice. There is no
reason to limit this right to a trial in which he may be sentenced to death or to a term
of imprisonment. There is no reason to deny this right to him in a trial in which he is
in jeopardy of being convicted and sentenced to a heavy fine. The clear words of
Article 22 furnish no basis for this limitation.

It was suggested that the right of defence by counsel given by Article 22 (1) does not
extend to a trial of an offence before the Nyaya Panchayat because the Madhya Bharat
Panchayat Act, 1949 does not authorise any arrest and as a matter of fact, the
respondents were arrested by the police in the exercise of its powers under S. 54 of
Cr. P.C. It was also suggested that the trial of an offence before the Nyaya Panchayat
is akin to an action for recovery of money and as an arrested person has no
constitutional right to be defended by counsel in the action for recovery of money, so
he has no such right to counsel before the Nyaya Panchayat. Bachawat J. did not
accept this line of reasoning. He held that the right attaching to them on their arrest
continued though they were not under detention at the time of the trial. The right was
not lost because they were released on bail. He observed that most of the safeguards
embodied in Clauses (1) and (2) of Article 22 are to be found in the Code of Criminal
procedure. But the Constitution makes the fundamental change that the rights
guaranteed by Clauses (1) and (2) of Article 22 are no longer at the mercy of the
legislature. Bachawat J. (with him Shelat J.) held S. 63 of the Act violative of Article
22 (1) and so void.

Hidaytullah J. agreed with Bachawat J. on this point and observed that when our
Constitution lays down in absolute terms a right to be defended by one's own counsel,
it cannot be taken away by ordinary law and it is not sufficient to say that the accused
who was so deprived of this right, did not stand in danger of losing his personal
liberty. If he was exposed to penalty, he had a right to be defended by counsel. If this
were not so then instead of providing for punishment of imprisonment, penal laws
might provide for unlimited fines and it would be easy to leave the man free but a
pauper. And to this end without a right to be defended by counsel. If this proposition
were accepted as true we might be in the Middle Ages. The Criminal Procedure Code

43
allows the right to be defended by counsel but that is not a guaranteed right. The
framers of the Constitution have well-thought of this right and by including the
prescription in the Constitution have put it beyond the power of any authority to alter
it without the Constitution being altered. There are three rights and each stands by
itself. The first is the right to be told the reason of the arrest as soon as an arrest is
made, the second is the right to be produced before a Magistrate within twenty-four
hours and the third is the right to be defended by a lawyer of one's choice. This is, of
course so while the arrest continues but there are no words to show that the right is
lost no sooner than he is released on bail. The word „defended‟ clearly includes the
exercise of the right so long as the effect of the arrest continues. Before his release on
bail the person defends himself against his arrest and the charge for which he is
arrested and after his release on bail against the charge he is to answer and for
answering which, the bail requires him to remain present. The narrow meaning of the
word 'defended' that the person who is arrested has a right to consult a legal
practitioner of his choice and to take his aid only to get out of the arrest, cannot be
accepted. In addition there is the declaration that no person shall be deprived of his
personal liberty except by procedure established by law. The declaration is general
and insists on legality of the action. The rights given by Article 22 (1) and (2) are
absolute in themselves and do not depend on other laws. There is no force in the
submission that if there is only a punishment of fine and there is no danger to personal
liberty the protection of Article 22 (1) is not available. Personal liberty is invaded by
arrest and continues to be restrained during the period a person is on bail and it
matters not whether there is or is not a possibility of imprisonment. A person arrested
and put on his defence against a criminal charge, which may result in penalty, is
entitled to the right to defend himself with the aid of counsel and any law that takes
away this right offends against the Constitution. Therefore, S. 63 of the Panchayat Act
being inconsistent with Article 22 (1) became void on the inauguration of the
Constitution in so far as it took away the right of an arrested person to be defended by
a legal practitioner of his choice.

Sarkar C.J. (with him J.R. Mudholkar J.) took a contrary view on the point of validity
of S. 63. He observed that a person arrested has the constitutional right to consult a
legal practitioner concerning his arrest. Such person has the Constitutional right to be
defended by a legal practitioner. This right to be defended by a legal practitioner

44
would include a right to take steps through a legal practitioner for his release from the
arrest. S. 63 of the Act puts no ban on either of these rights. The Act is not concerned
with arrest. The right to be defended by a legal practitioner is conferred not only on a
person arrested. The right to be defended by a legal practitioner extends also to a case
of defence in a trial which may result in the „loss of personal liberty‟. On the other
hand, where a person is subjected to a trial under a law which does not provide for an
order resulting in the loss of his personal liberty, he is not entitled to the
Constitutional right to defend himself at the trial by a legal practitioner. The reason is
that Articles 21 and 22 are concerned only with giving protection to personal liberty.
That is strongly indicated by the language used in these Articles and by the context in
which they occur in the Constitution. It would follow that the requirement laid down
in Article 22 (1) is not a constitutional necessity in any enactment which does not
affect life or personal liberty. The Act expressly provides that the Nyaya Panchayat
cannot inflict a sentence of imprisonment, not even one in default of payment of fine.
The Act does not give any power of arrest. For such a law, the procedural requirement
in Article 22 (1) is not a constitutional necessity. The Act does not violate Article
22(1) and cannot be held to be invalid on that ground. In this case the respondents
though had been arrested, they had been arrested not under the Act but under S. 54 (1)
of the Cr. P.C. 1898, the offence being cognizable. The fact that the respondents were
arrested under another law and thereafter tried under the Act cannot give them the
constitutional right to be defended at the trial by a legal practitioner. It cannot be said
that the fact of arrest gives the arrested person the constitutional right to defend
himself in all actions brought against him. The Constitution makers did not intend that
the person arrested would have the right to be defended by a legal practitioner at a
trial which would not result in the deprivation of his personal liberty. He, of course,
had the right to seek relief against the arrest through a legal practitioner. So S. 63 and
the Act are valid.

This is the only case where the Supreme Court had an opportunity to strike down a
provision in law barring appearance of lawyer. Though majority decision seems to be
correct on superficial examination, the rationale adopted by the minority judges and
the cogent reasons given by them in holding „the person arrested would not have the
right to be defended by a legal practitioner at a trial which would not result in the
deprivation of his personal liberty‟ are more convincing.

45
2.4 RIGHT TO BE PRODUCED BEFORE A MAGISTRATE

Whether the Abducted Persons (Recovery and Restoration) Act 65 of 1949 violates
Article 22 and whether the recovery of a person as an abducted person and the
delivery of such person to the nearest camp can be said to be arrest and detention
within the meaning of Article 22 (1) and (2) was the question elaborately dealt with
by the Supreme Court in State of Punjab v. Ajaib Singh30. This appeal arose out of a
habeas corpus petition filed by one Ajaib Singh in the High Court of Punjab for the
production and release of one Sardaran alias Mukhtiar Kaur, a girl of about 12 years
of age. The material facts were : The petitioner Ajaib Singh had three abducted
persons in his possession. The recovery police of Ferozpore, on 22-6-1951 raided his
house and took the girl into custody and delivered her to the custody of the Officer in
charge of the Muslim Transit Camp at Ferozpore from whence she was later
transferred to and lodged in the Recovered Muslim Women‟s Camp in Jullundhur
City. The girl was a Muslim abducted by the petitioner during the riots of 1947 and
was, therefore, an abducted person as defined in S. 2 (1) (a), Abducted Persons
(Recovery and Restoration) Act 65 of 1949. The Police Officers recommended in
their report that she should be sent to Pakistan for restoration to her next of kin.

Serious riots broke-up in India and Pakistan in the wake of partition of August 1947
resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindu
and Sikhs from Pakistan to India. There were heart rending tales of abduction of
women and children on both sides of the border. On 11-11-1948 an Inter-Dominion
Agreement between India and Pakistan was arrived at for the recovery of abducted
persons on both sides of the border. To implement that agreement Act 65 of 1949 was
passed.

The expression “abducted person” is defined by S. 2 (1) (a) as meaning

: A male child under the age of sixteen years or a female of whatever age who is
or immediately before 1-3-1947, was a Muslim and who, on or after that day and
before 1-1-1949 has become separated from his or her family, and in the latter
case includes a child born to any such female after the said date.

30
Ibid.

46
 Section 4 of the Act, which is important, provides that if any police officer, not
below the rank of an Assistant Sub-Inspector or any other police officer specially
authorised by the state Government in that behalf, has reason to believe that an
abducted person resides or is to be found in any place, he may, after recording the
reasons for his belief, without warrant, enter and take into custody any person found
therein who, in his opinion, is an abducted person, and deliver or cause such person to
be delivered to the custody of the officer in charge of the nearest camp with the least
possible delay.

The Supreme Court held that the Act did not offend against the provisions of Article
22 of the Constitution.

The Constitution commands that every person arrested and detained in custody shall
be produced before the nearest Magistrate within 24 hours excluding the time
requisite for the journey from the place of arrest to the Court of the Magistrate, but S.
4 of the Act requires the police officer who takes the abducted person into custody to
deliver such person to the custody of the officer in charge of the nearest camp for the
reception and detention of abducted persons. The absence from the Act of the salutary
provisions to be found in Article 22 (1) and (2) as to the right of the arrested person to
be informed of the grounds of such arrest and to consult and to be defended by a legal
practitioner of his choice is also significant.

The sole point for the consideration of the Court was whether the taking into custody
of an abducted person by a police officer under S. 4 of the Act and the delivery of
such person by him into the custody of the officer in charge of the nearest camp can
be regarded as arrest and detention within the meaning of Article 22(1) and (2).

Advocate for the respondent brought to the notice of the Court various definitions of
the word „arrest‟ given in several and well-known law dictionaries and urged in the
light of such definitions that any physical restraint imposed upon a person must result
in the loss of his personal liberty and must accordingly amount to his arrest. It is
wholly immaterial why or with what purpose such arrest is made. The mere
imposition of physical restraint, irrespective of its reason is arrest and as such, attracts
the application of the constitutional safeguards guaranteed by Article 22 (1) and (2).

47
The Court observed that the result of placing such a wide definition on the term
'arrest' occurring in Article 22 (1) and (2) will render many enactments
unconstitutional, for example the arrest of a defendant before judgment under the
provisions of O. 38, R. 1, C.P.C. or the arrest of a judgment debtor in execution of a
decree under S. 55 of the Code will, on this hypothesis, be unconstitutional inasmuch
as the Code provides for the production of the arrested person, not before a Magistrate
but before the Civil Court which made the order. If two constructions are possible,
then the Court must adopt that which will ensure smooth and harmonious working of
the Constitution and eschew the other which will lead to absurdity or give rise to
practical inconvenience or make well established provisions of existing law nugatory.

The Court further observed that broadly speaking, arrests may be classified into two
categories, namely, arrests under warrants issued by a Court and arrests otherwise
than under such warrants. The warrant quite clearly has to state that the person to be
arrested stands charged with a certain offence. The warrant ex facie sets out the reason
for the arrest, namely, that the person to be arrested has committed or is suspected to
have committed or is likely to commit some offence. In short, the warrant contains a
clear accusation against the person to be arrested. Section 80 (now S.75) of Cr.P.C.
requires that the police officer or other person executing a warrant must notify the
substance thereof to the person to be arrested, and, if so required, shall show him the
warrant. It is thus abundantly clear that the person to be arrested is informed of the
grounds for his arrest before he is actually arrested. Apart from the Code of Criminal
Procedure, there are other statutes which provide for arrest in execution of a warrant
issued by a Court. For example O. 38, R. 1, C.P.C. authorises the court to issue a
warrant for the arrest of a defendant before judgment in certain circumstances. The
Court may under S. 55 read with O. 21, R 38 issue a warrant for the arrest of the
judgment-debtor in execution of the decree. The point to be noted is that, as in the
case of warrant of arrest issued by a Court under the Code of Criminal Procedure, a
warrant of arrest issued by a Court under the Code of Civil Procedure quite plainly
discloses the reason for the arrest and the person to be arrested is made acquainted
with the reasons for his arrest before he is actually arrested.

The Court pointed out that several sections in Chapter 5, Criminal Procedure Code
deal with arrests otherwise than under warrants issued by a Court under that Code.

48
Section 54 (now S. 41) sets out nine several circumstances in which a police officer
may, without an order from a Magistrate and without a warrant arrest a person.
Sections 55, 57, 151 and 401 (3) (now Ss. 41, 42, 151, 432) confer similar powers on
police officers. S. 59 (now S. 43) authorises even a private person to arrest any person
who in his view commits a non-bailable and cognizable offence or any proclaimed
offender. A perusal of the sections referred to above makes it plain that the reason in
each case of arrest without a warrant is that the person arrested is accused of having
committed or reasonably suspected to have committed or of being about to commit or
of being likely to commit some offence or misconduct. It is also to be noted that there
is no provision, except in S. 56

(now S. 55) for acquainting the person to be arrested without warrant with the
groundsfor his arrest. S. 69 and S. 61 (now Ss. 56 & 57) prescribe the procedure to be
followed after a person is arrested without warrant.

S. 61 (now S. 57) reads as under :

No police officer shall detain in custody a person arrested without warrant

for a longer period than under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate under S.
167, exceed twenty-four hours, exclusive of the time necessary for the journey
from the place of arrest to the Magistrate's Court.

Apart from the Code of Criminal Procedure, there are other statutes which authorise
the arrest of a person without a warrant issued by any Court. For example Ss. 173 and
174 of Sea Customs Act (8 of 1878) and S. 64 of Forest Act (16 of 1927). In both
cases, the reason for the arrest is that the arrested person is reasonably suspected to
have been guilty of an offence under the Act and there is provision in both cases for
the immediate production of the arrested person before a Magistrate. As in the cases
of arrest without warrant under the Code of Criminal Procedure, an arrest without
warrant under these Acts also proceeds upon an accusation that the person arrested is
reasonably suspected of having committed an offence.

While considering whether the protection of Article 22 (1) and (2) extends to both
categories of arrests, the Court came to the conclusion that arrests without warrants
issued by a Court call for greater protection than do arrests under such warrants. The

49
provision that the arrested person should within 24 hours be produced before the
nearest magistrate is particularly desirable in the case of arrest otherwise than under a
warrant issued by the Court, for it ensures the immediate application of a judicial
mind to the legal authority of the person making the arrest and the regularity of the
procedure adopted by him. In the case of arrest under a warrant issued by a Court, the
judicial mind had already been applied to the case when the warrant was issued and,
therefore, there is less reason for making such production in that case a matter of a
substantive fundamental right. It is also perfectly plain that the language of Article 22
(2) has been practically copied from Ss. 60 and 61 (now Ss. 56 & 57) Cr.P.C. which
admittedly prescribe the procedure to be followed after a person has been arrested
without a warrant. The requirement of Article 22 (1) that no person who is arrested
shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest indicates that the clause really contemplates an arrest without
a warrant of Court, for a person arrested under a Court's warrant is made acquainted
with the grounds of his arrest before the arrest is actually effected. There can be no
doubt that the right to consult a legal practitioner of his choice is to enable the arrested
person to be advised about the legality or sufficiency of the grounds for his arrest. The
right of the arrested person to be defended by a legal practitioner of his choice
postulates that there is an accusation against him against which he has to be defended.
The language of Article 22 (1) and (2) indicates that the fundamental right conferred
by it gives protection against such arrests as are effected otherwise than under a
warrant issued by a Court on the allegation or accusation that the arrested person has,
or is suspected to have committed, or is about or likely to commit an act of a criminal
or quasicriminal nature or some activity prejudicial to the public or the State interest.
In other words, there is indication in the language of Article 22 (1) and (2) that it was
designed to give protection against the act of the executive or other non judicial
authority.

As to the validity of S. 4 of the impugned Act, the Supreme Court finally observed
that whatever else may come within the purview of Article 22 (1) and (2), the Court
was satisfied that the physical restraint put upon an abducted person in the process of
recovering and taking that person into custody without any allegation or accusation of
any actual or suspected or apprehended commission by that person of any offence of a
criminal or quasi criminal nature or of any act prejudicial to the State or public

50
interest and delivery of that person to the custody of the officer in charge of the
nearest camp under S. 4 of the impugned Act cannot be regarded as arrest and
detention within the meaning of Article 22 (1) and (2).

The pronouncement that the protection under Article 22 (1) and (2) does not extend
to arrest under warrant is in the nature of an obiter dicta. It is a salutary practice of
final tribunals like the Supreme Court not to decide more than is necessary in
constitutional cases. The decision of the Court that „arrest‟ in Article 22 (1) and (2)
refers to arrest “upon an allegation or accusation of a criminal or quasi-criminal
nature” was sufficient to dispose of the case before the Court. Whether such arrest
must be one under warrant or without warrant was a question which was not
necessary to be decided for the purpose of the disposal of the case. The statement of
the Court that Article 22 (1) and (2) reproduces the language of sections 60 and 61
(now Ss. 56 and 57) of the Criminal Procedure Code is not correct because Cr.P.C.
provisions specifically refer to “arrest without warrant”; Article 22 (1) and (2) used
the word „arrested‟ without any qualification and without referring to warrant at all.
Merely because in the existing statutory law, the protection is confined to arrests
without warrant, it cannot be inferred that the framers of the Constitution did not
intend to give this protection to arrests under warrant also. The Court relied upon the
argument that the object of production before a Magistrate is to ensure the application
of a judicial mind to the legal authority and regularity of the arrest; in the case of
arrest under warrant, there has already been such application of a judicial mind at the
time of issuing the warrant. This argument is not convincing because in such case
judicial mind is applied ex parte and without hearing the person arrested. The
argument is oblivious of the fact that the right to consult and be defended by a legal
practitioner is a distinct right ensured by clause (1) of Article 22. If it is held that
clause (1) does not extend to arrests under warrant, the arrested person shall have no
constitutional right to consult or to be defended by a lawyer.31 This would be absurd.

In Gunupati Keshavram v. Nafisul Hasan32 there was a petition under Article 32 of

the Constitution complaining that one Shri Homi Dinshaw Mistry was under illegal
detention and praying that he be released forthwith. The petition alleged that Shri
Mistry was arrested in Bombay and taken in custody to Lucknow to be produced
31
D.D. Basu, Commentary on the Constitution of India, Vol. D at 168-169 (7th ed.).

51
before the Speaker of the Uttar Pradesh Legislative Assembly to answer a charge of
breach of privilege. It was further alleged that Shri Mistry was not produced before a
Magistrate within twenty four hours of his arrest; but was kept in detention in the
Speaker's custody at Lucknow even till the time of petition. The Supreme Court held
this as a clear breach of the provisions of Article 22 (2) of the Constitution which
requires that no such person shall be detained in custody beyond the said period
without the authority of a Magistrate. The Court directed that Shri Mistry be released
forthwith. It is submitted that Gunupati's case is wrongly decided. Though the person
was arrested in pursuance of an order of the Speaker of a Legislative Assembly on a
charge of breach of privilege, the implications thereof were not fully considered.
Upon a literal application of Article 22 (2) it was held that since the arrested person
was not produced before a Magistrate, the person must be released. It is doubtful how
far the Magistrate before whom such an arrested person is produced can examine the
validity of the Speaker's order. There was no discussion about the merits of the
contention raised on behalf of Mr. Mistry. Advocate did not advance any argument to
support the contention that privilege superseded fundamental right. It was strange that
the point was not discussed in the judgment and no reason in support of the view was
stated.

In M.S.M. Sharma v. Sri Krishna Sinha33, it was held by majority that Article 19 (1)
(a) and Article 194 (3) (dealing with privileges of the Houses of the State
Legislatures) have to be reconciled and the only way of reconciling the same is to
readArticle 19 (1) (a) as subject to the latter part of Article 194

(3). The provisions of Article 19 (1) (a) which are general, must yield to Article 194
(1) and the latter part of its clause (3) which are special. The Supreme Court did not
follow Gunupati's case so far as it gave primacy to the fundamental right under
Article 22 (2) over the privilege of the State Legislature. The Supreme Court did not
accept the argument that the observations in Gunupati's case clearly establish that
Article 194 (3) is subject to the fundamental rights. The Court observed that the
decision in Gunupati's case proceeded entirely on a concession of counsel and cannot
be regarded as a considered opinion on the subject. It is curious that Das J. who was

52
the member of the Bench which decided Gunupati's case, delivered the judgment of
the majority in M.S.M.Sharma's case which did not follow Gunupati's case.

34
In In Re under Article 143 of Constitution of India popularly known as
Keshav Singh's case, the Supreme Court pointed out that the decision in Gunupati's
case dealt with the applicability of Article 22 (2) to a case falling under the latter part
of Article 194 (3) and the majority decision in M.S.M. Sharma's case had incidentally
commented on the decision in Gunupati's case. It is also important to note that there
was no controversy about the applicability of Article 22 in M.S.M. Sharma's case. So
it was not necessary for the majority decision to deal with the point pertaining to the
applicability of Article 22 (2). In Keshav Singh's case the Supreme Court observed
that the obiter observations made in the majority judgment in M.S.M. Sharma's case
about the validity or correctness of the earlier decision in Gunupati's case should not
be taken as having decided the point in question. In other words, the question as to
whether Article 22 (2) would apply to such a case may have to be considered by the
Supreme Court if and when it becomes necessary to do so.

The contention of the petitioner in the case of Purshottam v. B.M.Desai35 was

that S. 46 (2) of the Income Tax Act under which Income Tax Officer issues the
recovery certificate to the Additional Collector of Bombay is void under Article 13 (1)
in that the same offends Article 22 (1) and (2). The objection that S. 46 (2)
contravenes the fundamental rights guaranteed by clauses (1) and (2) of Article 22, in
view of decision of this Court in the State of Punjab v. Ajaib Singh was not pressed. It
was held that it is a fallacy to regard arrest and detention of a defaulter who fails to
pay income-tax as a punishment or penalty for an offence. It is a coercive process for
recovery of public demand by putting pressure on the defaulter. The defaulter can get
himself released by paying up the dues.

In the case of Collector of Malabar v. E.Ebrahim36 the facts were as follows :

The respondent had been arrested in pursuance of a warrant issued by the Collector of
Malabar under S. 48, Madras Revenue Recovery Act, 1864. S. 46 (2) of the Income
Tax Act, 1922 read with S. 48 of Madras Revenue Recovery Act, 1864 did not afford

34
A.I.R. 1965 S.C. 745.
35
A.I.R. 1956 S.C. 20
36
A.I.R. 1957 S.C. 688.

53
opportunity to the arrested person to appear before the Collector by himself or through
a legal practitioner of his choice and to urge before him any defence open to him and
it did not provide for the production of the arrested person within 24 hours before a
Magistrate as required by Article 22 (2). On behalf of the respondent it was contended
that these sections of the Act and the Indian Income Tax Act did offend, inter alia,
Article 22 of the Constitution. In this case, the arrest was not in connection with any
allegation or accusation of any actual or suspected or apprehended commission of any
offence of a criminal or quasi-criminal nature. It was really an arrest for a civil debt in
the process or the mode prescribed by law for recovery of arrears of land revenue.
Relying on Ajaib Singh's case and Purshottam's case the court held that neither S. 48
of the Madras Act nor S. 46 (2) of the Indian Income Tax Act violates Articles 14, 19,
21 and 22 of the Constitution. The Court further observed that these sections clearly
set out the mode of recovery of arrears of revenue, that is to say, either by the sale of
the movable or immovable property of the defaulter, or by execution against his
person i.e. by arrest and imprisonment of the defaulter. The arrest of the defaulter is
one of the modes, by which the arrears of revenue can be recovered. Here the arrest is
not by way of punishment for mere default. Therefore, that where an arrest is made
under S. 48 after complying with its provisions, the arrest is not for any offence
committed or a punishment for defaulting in any payment. The mode of arrest is no
more than a mode for recovery of the amount due.

The provision for production of an arrested man before a magistrate is not to

be treated as a mere formality but as purposeful and designed to enable the person
arrested to be released on bail or other provision made for his proper custody, pending
investigation into the offences with which he is charged pending an inquiry or trial. In
State of U.P. v. Abdul Samad37 involving arrest and deportation of a person, it was
held that it was not necessary to produce such a person before the magistrate if he was
produced before the High Court.

In In re Madhu Limaye38 the facts were : Madhu Limaye and others were
arrested and a case was instituted against them. It was claimed that Madhu Limaye
and others had committed offences under S. 188 and S. 143, Penal Code (which is
cognizable) by violating the orders made under S. 144, Cr. P.C. and by forming
37
A.I.R. 1962 S.C. 1506.
61
A.I.R. 1969 S.C. 1014.

54
unlawful assembly. They were produced before the Sub-Divisional Magistrate, who
remanded them to jail custody as they refused to furnish bail-bonds. One of the
contentions raised by Madhu Limaye was that the orders for remand were bad and
vitiated. The Supreme Court observed that clause (2) of Article 22 provides the most
material safeguard that the arrested person must be produced before a Magistrate
within 24 hours of his arrest, so that an independent authority exercising judicial
powers may without delay apply its mind to his case. The Criminal Procedure Code
contains analogous provisions in Section 60 (now S. 56) but our Constitution makers
were anxious to make these safeguards an integral part of fundamental rights. Once it
is shown that the arrests made by the police officers were illegal it was necessary for
the State to establish that at the stage of remand the Magistrate directed detention in
jail custody after applying his mind to all relevant matters. This the state had failed to
do. The remand orders are patently routine and appear to have been made
mechanically.

When police though obtained remand of arrested person without producing

him before magistrate within requisite period, it was held that there was gross
violation of his rights under Article 21 and 22 (2). In Bhim Singh v. State of J. & K.39
the Court observed that when a person is imprisoned with mischievous or malicious
intent and that his constitutional and legal rights were invaded, the mischief or malice
and the invasion may not be washed away or wished away by his being set free. In
appropriate cases the Court has the jurisdiction to compensate the victim by awarding
suitable monetary compensation. In this case a member of the Legislature Assembly
was arrested while en route to seat of Assembly and in consequence, the member was
deprived of his constitutional rights to attend the Assembly Session. The Court held
that responsibility for arrest lay with higher echelons of the Government and it was fit
case for compensating the victim by awarding compensation.

Compensation of Rs. 50,000/- was awarded.

55
3.5 Constitutional Safeguards to Under-Trial Prisoners

Under-trial prisoners constitute a significant portion of the prison population in India. These
individuals, who are awaiting trial or judicial determination, are often subjected to
prolonged incarceration due to systemic delays, lack of legal assistance, and socio-economic
constraints. The Indian Constitution provides various safeguards to under-trial prisoners to
ensure their fundamental rights are protected, especially under Articles 14, 19, 20, 21, and
22. Despite these constitutional provisions, under-trial prisoners continue to face numerous
hardships, necessitating judicial intervention and policy reforms.

3.5.1 Right to Equality (Article 14) and Its Applicability to Under-Trial Prisoners

Article 14 of the Indian Constitution guarantees the right to equality before the law and
equal protection of the law to all persons, including under-trial prisoners. The Supreme
Court of India has time and again reiterated that under-trials should not be treated
differently from other citizens, except to the extent necessary for their lawful detention.

In E.P. Royappa v. State of Tamil Nadu, the Supreme Court emphasized that arbitrary
discrimination in state actions violates Article 14¹. 17This principle extends to
the treatment of under-trial prisoners, ensuring that they are not subject to arbitrary
discrimination by prison authorities. Moreover, in Prem Shankar Shukla v. Delhi
Administration, the Supreme Court held that indiscriminate handcuffing of under-trial
prisoners violates their fundamental rights².18

Despite such rulings, under-trial prisoners frequently face discriminatory treatment, such as
denial of bail, prolonged detention, and overcrowded prison conditions. The principle of
equality before the law mandates that the state must ensure a fair and just legal process for
all individuals, including under-trials.

3.5.2 Right to Freedom (Article 19) and its Restrictions on Under-Trials

Article 19 guarantees several freedoms, including the right to movement, speech, and
assembly. However, these freedoms can be reasonably restricted for individuals under legal
detention. Under-trial prisoners, while subject to restrictions, retain their fundamental rights

17
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
18
Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.
56
unless explicitly denied by law.

In Sunil Batra v. Delhi Administration, the Supreme Court held that prisoners, including
under-trials, do not forfeit their fundamental rights merely by being
incarcerated³. The Court asserted that restrictions imposed on prisoners must
be reasonable and not arbitrary. This case underscored that under-trials have the right to
legal assistance, humane treatment, and freedom from cruel or degrading punishment.19

The judiciary has also recognized that under-trials should not be deprived of their right to
communicate with family members and lawyers. In Francis Coralie Mullin v.
Administrator, Union Territory of Delhi, 20the Supreme Court observed that restrictions on
prisoners should not result in the violation of their dignity and human rights⁴.

3.5.3 Protection Against Arbitrary Arrest and Detention (Article 20 and 22)

Protection Against Ex-Post Facto Laws and Double Jeopardy (Article 20)

Article 20 provides three fundamental protections to accused persons, including under-trials:

1. Protection Against Ex-Post Facto Laws – No person shall be convicted for an act
that was not an offense at the time of commission.
2. Protection Against Double Jeopardy – No person shall be prosecuted and
punished for the same offense more than once.
3. Protection Against Self-Incrimination – No accused person shall be compelled to
be a witness against himself.

These safeguards are crucial in preventing wrongful convictions and ensuring a fair trial.
The Supreme Court in Kartar Singh v. State of Punjab emphasized the significance of these
protections in safeguarding the rights of under-trials⁵.21

Right to Legal Representation and Protection Against Illegal Detention (Article

22)

Article 22 provides specific safeguards to individuals in case of preventive detention and

arrest:

19
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
20
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.
21
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
57
 1. Right to be informed of the grounds of arrest – This ensures transparency and
prevents unlawful detention.
2. Right to legal representation – Every arrested individual has the right to consult
and be defended by a legal practitioner of their choice.
3. Right to be produced before a magistrate within 24 hours – This prevents illegal
detention and torture.
4. Restrictions on preventive detention – No person can be detained beyond three
months unless approved by an Advisory Board.

In D.K. Basu v. State of West Bengal, the Supreme Court issued guidelines for arrest and
detention procedures, emphasizing that failure to comply would result in legal
consequences⁶. Despite such directives, cases of illegal detention and custodial
torture of under-trials remain rampant in India.22

3.5.4 Right to Speedy Trial (Article 21)

Article 21 guarantees the right to life and personal liberty, which includes the right to a
speedy trial. The Supreme Court in Hussainara Khatoon v. State of Bihar declared that
prolonged detention of under-trials due to judicial delays violates Article 21⁷.
The Court directed the release of thousands of under-trial prisoners who had been detained
for periods longer than the maximum sentence prescribed for their offenses.

The right to a speedy trial is essential to ensure justice. However, due to an overburdened
judiciary and procedural inefficiencies, many under-trials languish in jails for years without
trial. The government has introduced measures such as Fast Track Courts and alternative
dispute resolution mechanisms to address these delays.

3.5.5 Rights Against Torture and Inhuman Treatment

Under-trial prisoners are often subjected to custodial violence, which violates their
fundamental rights. The Supreme Court in Sheela Barse v. State of Maharashtra held that
prisoners, including under-trials, must be treated with dignity and protected against torture
and inhuman treatment⁸23.

In Prison Reforms Case (Sunil Batra v. Delhi Administration), the Supreme Court issued

22
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
23
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
58
directions to improve prison conditions, emphasizing that under-trials should not be
subjected to the same treatment as convicted prisoners⁹.24

The judiciary has also highlighted the need for prison reforms and legal aid to under-trials.
The Legal Services Authorities Act, 1987, was enacted to provide free legal aid to
underprivileged individuals, ensuring that under-trial prisoners have access to justice.

3.5.6 Bail Provisions and the Right to Liberty

Bail is a crucial safeguard for under-trial prisoners, ensuring that individuals are not
detained unnecessarily. The Supreme Court in Moti Ram v. State of Madhya Pradesh
criticized the practice of denying bail to poor under-trial prisoners due to their inability to
25
furnish sureties¹⁰. The Court emphasized that bail conditions should be
reasonable and should not discriminate against the underprivileged.

In Sanjay Chandra v. CBI, the Supreme Court reiterated that bail should be the rule, and jail
should be the exception, particularly in cases of economic offenses¹¹. Despite
such rulings, many under-trial prisoners remain in custody due to stringent bail conditions
and lack of legal representation.26

3.5.7 Conclusion

While the Indian Constitution provides extensive safeguards for under-trial prisoners, the
ground reality often deviates from these constitutional ideals. Systemic delays, lack of legal
aid, and arbitrary treatment continue to plague the criminal justice system. Judicial
pronouncements have played a crucial role in upholding the rights of under-trial prisoners,
but further reforms are needed to ensure fair and speedy justice.

Prison reforms, alternative dispute resolution mechanisms, and the effective implementation
of legal aid services are essential steps toward protecting the rights of under-trial prisoners.
The fundamental principle of "innocent until proven guilty" must guide judicial and
administrative actions, ensuring that under-trial prisoners are not subjected to unnecessary
hardship or prolonged incarceration.

24
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
25
Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1594.
26
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
59
Rights are essential for the development of individuals and the protection of their liberties.
The Constitution of India, adopted in 1950, enshrines a comprehensive set of rights to
ensure dignity, freedom, and equality for all citizens. These rights, particularly the
Fundamental Rights guaranteed under Part III (Articles 12-35), act as safeguards against
state excesses and protect individual liberties.

Apart from fundamental rights, the Directive Principles of State Policy (DPSP) under
Part IV and Fundamental Duties under Part IVA also play a crucial role in ensuring
justice and the well-being of citizens. This chapter explores the different categories of rights
under the Indian Constitution, their significance, and their judicial interpretations.

2. Fundamental Rights (Articles 12-35)

Fundamental Rights are the cornerstone of the Indian democratic system. They are
justiciable, meaning they can be enforced through courts if violated. The Supreme Court and
High Courts have the power to issue writs under Article 32 and Article 226 to protect
these rights.

2.1 Right to Equality (Articles 14-18)

The right to equality ensures that every citizen is treated equally before the law.

 Article 14 – Equality before the law and equal protection of laws

o Ensures no discrimination and guarantees rule of law.
o In E.P. Royappa v. State of Tamil Nadu (1974)27 the Supreme Court ruled
that equality is a dynamic concept that prevents arbitrariness.
 Article 15 – Prohibition of discrimination
o Prohibits discrimination based on religion, race, caste, sex, or place of birth.
o Allows affirmative action (reservations for Scheduled Castes, Scheduled
Tribes, and Other Backward Classes).
o Indra Sawhney v. Union of India (1992)28upheld reservations within limits.
 Article 16 – Equality in public employment
o Ensures equal opportunity in state employment.
 Article 17 – Abolition of untouchability
27
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
28
Indra Sawhney v. Union of India, AIR 1992 SC 477.
60
 o Declares untouchability an offense.
o Reinforced by the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
 Article 18 – Abolition of titles
o Bans state-conferred titles except for military and academic distinctions.

2.2 Right to Freedom (Articles 19-22)

These articles provide citizens with essential liberties.

 Article 19 – Six freedoms:

o Freedom of speech and expression (Bennett Coleman & Co. v. Union of
India, 1973)29
o Freedom to assemble peacefully.
o Freedom to form associations.
o Freedom to move freely.
o Freedom to reside and settle.
o Freedom to practice any profession.
 Article 20 – Protection in criminal cases
o No ex post facto law (laws cannot punish retrospectively).
o No double jeopardy (a person cannot be tried twice for the same offense).
o Right against self-incrimination (Selvi v. State of Karnataka, 2010)30
 Article 21 – Right to life and personal liberty
o Broadly interpreted in Maneka Gandhi v. Union of India (1978)31
o Includes right to privacy, right to a dignified death, and right to a clean
environment.
 Article 21A – Right to education
o Inserted by the 86th Constitutional Amendment (2002).
o Ensures free and compulsory education for children aged 6-14 years (Mohini
Jain v. State of Karnataka, 199232
 Article 22 – Protection in preventive detention cases
o Ensures rights of detained individuals.

29
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.
30
Selvi v. State of Karnataka, (2010) 7 SCC 263.
31
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
32
Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.
61
2.3 Right Against Exploitation (Articles 23-24)

 Article 23 – Prohibition of human trafficking and forced labor

o Enforced through the Bonded Labour System (Abolition) Act, 1976.
 Article 24 – Prohibition of child labor
o Prohibits employment of children below 14 years in hazardous industries
(M.C. Mehta v. State of Tamil Nadu, 1996)33

2.4 Right to Freedom of Religion (Articles 25-28)

 Article 25 – Freedom of conscience and free profession of religion

 Article 26 – Right to manage religious institutions
 Article 27 – No taxation for promoting religion
 Article 28 – No religious instruction in state-funded institutions

The Supreme Court in S.R. Bommai v. Union of India (1994)34 ruled that secularism is a
basic structure of the Constitution.

2.5 Cultural and Educational Rights (Articles 29-30)

 Article 29 – Protection of cultural rights of minorities

 Article 30 – Right of minorities to establish and administer educational
institutions
o T.M.A. Pai Foundation v. State of Karnataka (2002)35 upheld minority rights
in education.

2.6 Right to Constitutional Remedies (Article 32)

 Allows citizens to directly approach the Supreme Court for the enforcement of
fundamental rights.
 Dr. B.R. Ambedkar called it the "heart and soul" of the Constitution.
 Courts can issue writs (Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo
Warranto).

33
M.C. Mehta v. State of Tamil Nadu, AIR 1996 SC 699
34
S.R. Bommai v. Union of India, AIR 1994 SC 1918.
35
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
62
 3. Directive Principles of State Policy (Articles 36-51)

These non-justiciable guidelines aim to establish social and economic justice.

 Article 39A – Free legal aid

 Article 41 – Right to work, education, and public assistance
 Article 43 – Living wage for workers

In Minerva Mills Ltd. v. Union of India (1980)36 the Supreme Court ruled that DPSPs and
Fundamental Rights must be balanced.

4. Fundamental Duties (Article 51A)

Added by the 42nd Amendment (1976), these duties encourage responsible citizenship.

 Respect the Constitution.

 Promote harmony and scientific temper.
 Protect public property.

5. Recent Developments and Challenges

1. Right to Privacy
o Declared a fundamental right in Justice K.S. Puttaswamy v. Union of India
(2017)37
2. Freedom of Speech and Social Media
o Debate over regulation (Shreya Singhal v. Union of India, 2015)38
3. Right to Clean Environment
o Recognized under Article 21 (M.C. Mehta v. Union of India, 1986)39

36
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
37
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
38
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
39
M.C. Mehta v. Union of India, AIR 1986 SC 1086.
63
 CHAPTER 3

PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

As Indian Constitution is wedded to Democracy and Rule of Law, the concept of free
and fair trial is a constitutional commitment for which the cardinal principle of
Criminal Law revolves around the Natural Justice wherein, even the accused or guilty
person is treated with a human treatment. Every person is entitled to the basic human
rights, fundamental rights under the Indian Constitution and certain legal rights under
various laws. These rights are provided to a person, irrespective of the fact that person
is accused of a crime. These rights are given to an accused in India on the lines that
„let hundreds go unpunished, but never punish an innocent person.‟

The rights of accused in India are provided at different stages which include right of
an accused before his trial begins, rights of accused during a court trial, and right of
an accused after his trial is completed. Following are some important provisions
creating rights in favour of the accused persons: -

3.1 PROTECTION AGAINST EX-POST FACTO LAWS

Clause (1) of Article 20 of the Indian Constitution says that “no person shall be
convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.”62

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts
already done and increases the penalty for such acts. If an act is not an offence at the
date of its commission it cannot be an offence at the date subsequent to its
commission. The protection afforded by clause (1) of Article 20 of the Indian
Constitution is available only against conviction or sentence for a criminal offence
under ex post facto law and not against the trial. The protection of clause (1) of
A rAt Ii Rc l e1 9 25 30 ScCa n4 n0 4o t be claimed in case of preventive detention, or demanding security
63

from a person. So, a trial under a procedure different from what it was at the time of
64
the commission of the offence or by a special court constituted after the commission
of the offence cannot ipso facto be held unconstitutional. The second part of clause

(1) protects a person from „a penalty greater than that which he might have been
subjected to at the time of the commission of the offence.‟

In Kedar Nath v. State of West Bengal63, the accused committed an offence in 1947,
which under the Act then in force was punishable by imprisonment or fine or both.
The Act was amended in 1949 which enhanced the punishment for the same offence
by an additional fine equivalent to the amount of money procured by the accused
through the offence. The Supreme Court held that the enhanced punishment could not
be applicable to the act committed by the accused in 1947 and hence, set aside the
additional fine imposed by the amended Act.

In the criminal trial, the accused can take advantage of the beneficial provisions of the
ex- post facto law. The rule of beneficial construction requires that ex post facto law
should be applied to mitigate the rigorous (reducing the sentence) of the previous law
on the same subject. Such a law is not affected by Article 20(1) of the Constitution.

3.2 RIGHT AGAINST DOUBLE JEOPARDY- DOCTRINE OF

“AUTREFOIS ACQUIT” AND “AUTREFOIS CONVICT”

According to this doctrine, if a person is tried and acquitted or convicted of an

offence, he cannot be tried again for the same offence or on the same facts for any
other offence. This doctrine has been substantially incorporated in the Article 20(2) of
the Constitution and is also embodied in Section 300 of the Criminal Procedure Code,
1973. When once a person has been convicted or acquitted of any offence by a
competent court, any subsequent trial for the same offence would certainly put him in
jeopardy and in any case would cause him unjust harassment. Such a trial can be
considered anything but fair, and therefore has been prohibited by the Code of
Criminal Procedural as well as by the Constitution. The doctrine of “autrefois acquit”
and “autrefois convict” has been embodied in Section 300 of Criminal Procedure
Code as follows:

63
AIR 1953 SC 404

65
Person once convicted or acquitted not to be tried for same offence –
(1) a person who has once been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted for such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again for the same offence, nor on
the same facts for any other offence for which a different charge from the one made
against him might have been made under sub-section (1) of section 221, or for which
he might have been convicted under sub- section (2) thereof.

The dismissal of a complaint, or the discharge of the accused, is not an acquittal for
the purposes of this section. These rules or pleas are based on the principle that “a
man may not be put twice in jeopardy for the same offence”.

Article 20(2) of the Constitution recognizes the principle as a fundamental right. It

says, “no person shall be prosecuted and punished for the same offence more than
once”. While, Article 20(2) does not in terms maintain a previous acquittal, Section
300 of the Code fully incorporates the principle and explains in detail the implications
of the expression “same offence”.64

In order to get benefit of the basic rule contained in Sec 300(1) of Criminal Procedure
Code it is necessary for an accused person to establish that he had been tried by a
“court of competent jurisdiction” for an offence. An order of acquittal passed by a
court which believes that it has no jurisdiction to take cognizance of the offence or to
try the case, is a nullity and the subsequent trial for the same offence is not barred by
the principle of autrefois acquit. To operate as a bar the second prosecution and
consequential punishment there under, must be for the “same offence”. The crucial
requirement for attracting the basic rule is that the offences are the same, i.e. they
should be identical. It is therefore necessary to analyze and compare not the
allegations in the two complaints but the ingredients of the two offences. Section 300
of Criminal Procedure Code bars the trial for the same offence and not for different
offences which may result from the commission or omission of the same set of the
act.

64
Natrajan v. State, 1991 Cri LJ 2329 (Mad)
66
3.3 RIGHT AGAINST SELF-INCRIMINATION

Clause (3) of Article 20 provides that no person accused of any offence shall be
compelled to be a witness against himself. Thus Article 20(3) embodies the general
principles of English and American jurisprudence that no one shall be compelled to
give testimony which may expose him to prosecution for crime. The cardinal
principle of criminal law which is really the bed rock of English jurisprudence is that
an accused must be presumed to be innocent till the contrary is proved.65 It is the duty
of the prosecution to prove the offence. The accused need not make any admission or
statement against his free will. The guarantee extends to any person accused of an
offence and prohibits all kinds of compulsions to make him a witness against himself.
Explaining the scope of this clause in M.P. Sharma v. Satish Chandra66, the Supreme
Court observed that this right embodies the following essentials:
It is a right pertaining to a person who is “accused of an offence.”

a) It is a protection against “compulsion to be a witness”.

b) It is a protection against such compulsion relating to his giving evidence

“against himself.” In Nandini Satpathy v. P.L. Dani67, the Supreme Court has
considerably widened the scope of clause (3) of Article 20. The Court has held that
the prohibitive scope of Article 20(3) goes back to the stage of police interrogation
not commencing in court only. It extends to, and protects the accused in regard to
other offences-pending or imminent, which may deter him from voluntary disclosure.
The phrase “compelled testimony” must be read as evidence procured not merely by
physical threats or violence but by psychic (mental) torture, atmospheric pressure,
environmental coercion, tiring interrogatives, proximity, overbearing and
intimidatory methods and the like.

Right to silence is also available to accused of a criminal offence. Right to silence is a

principle of common law and it means that normally courts should not be encouraged
to conclude, by parties or prosecutors that a suspect or an accused is guilty merely
because he has refused to respond to question put to him by the police or by the

65
Article 11(1) of Universal Declaration of Human Rights, 1948 lays down: “Everyone charged with a
66
AIR 1954 SC 300
67
AIR 1978 SC 1025

67
penal offence has the right to be presumed innocent until proved guilty according to law in a public trial
at which he has had all the guarantees necessary for his defence”.

Courts. The prohibition of medical or scientific experimentation without free consent

is one of the human rights of the accused68. In case of Smt. Selvi & Ors. vs. State of
69
Karnataka , wherein the question was- Whether involuntary administration of
scientific techniques namely Narcoanalysis, Polygraph (lie Detector) test and Brain
Electrical Activation Profile (BEAP) test violates the „ right against self
incrimination‟ enumerated in Article 20(3) of the Constitution. In answer, it was held
that it is also a reasonable restriction on „personal liberty‟ as understood in the context
of Article 21 of the Constitution. Following observations were made in this landmark
case:70

(i) No individual should be forcibly subjected to any of the techniques in

question, whether in the context of investigation in criminal cases or
otherwise. Doing so would amount to an unwarranted intrusion into
personal liberty.
(ii) Section 53, 53-A and 54 of Criminal Procedure Code permits the
examination including examination of blood, blood-stains, semen swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail
dipping by the use of modern and scientific techniques including DNA
profiling. But the scientific tests such as Polygraph test, Narcoanalysis and
BEAP do not come within the purview of said provisions.
(iii) It would be unjustified intrusion into mental privacy of individual and also
amount to cruel, inhuman or degrading treatment.
(iv) Voluntary administration of impugned techniques are however permissible
subject following safeguards, but test results by themselves cannot be
admitted in evidence.
(a) No Lie Detector Tests should be administered except on the basis
of consent of the accused. An option should be given to the
accused whether he wishes to avail such test.
(b) If the accused volunteers for a Lie Detector Test, he should be
given access to a lawyer and the physical, emotional and legal
implication of such a test should be explained to him by the police
and his lawyer.
68
Article 7 of the International Covenant on Civil and Political Rights, 1966
69
(2010) 7 SCC 26370
http://shodhganga.inflibnet.ac.in/bitstream/10603/39088/9/09_%20chapter%203.pdf

68
 (c) The consent should be recorded before a Judicial Magistrate.
(d) During the hearing before the Magistrate, the person alleged to
have agreed should be duly represented by a lawyer.
(e) At the hearing, the person in question should also be told in clear
terms that the statement that is made shall not be a „confessional‟
statement to the Magistrate but will have the status of a statement
made to the police.
(f) The Magistrate shall consider all factors relating to the detention
including the length of detention and the nature of the
interrogation.
(g) The actual recording of the Lie Detector Test shall be done by an
independent agency (such as a hospital) and conducted in the
presence of a lawyer.
(h) A full medical and factual narration of the manner of the
information received must be taken on record.

The underlying rationale of right against self incrimination is as follows:

(i) The purpose of the „rule against involuntary confessions‟ is to ensure that the
testimony considered during trial is reliable. The premise is that involuntary
statements are more likely to mislead the judge and the prosecutor, thereby
resulting in a miscarriage of justice.
(ii) The right against self-incrimination‟ is a vital safeguard against torture and
other „third- degree methods‟ that could be used to elicit information.
(iii) The exclusion of compelled testimony is important, otherwise the
investigators will be more inclined to extract information through such
compulsion as a matter of course. The frequent reliance on such „short cuts‟
will compromise the diligence required for conducting meaningful
investigations.
(iv) During trial stage the onus is on the prosecution to prove the charges leveled
against the defendant and the „right against self-incrimination‟ is a vital
protection to ensure that the prosecution discharges the said onus.7
1

69
3.4 Right Against Self-Incrimination

The right against self-incrimination is a fundamental legal principle enshrined in

Article 20(3) of the Indian Constitution, which states:

"No person accused of any offence shall be compelled to be a witness against

himself."

This provision is a crucial safeguard that protects an individual from being forced to
confess to a crime or provide testimony that may lead to their conviction. The right is
based on the presumption of innocence, a core principle of criminal jurisprudence,
which places the burden of proof on the prosecution.

The right against self-incrimination is deeply rooted in international human rights law.
Article 14(3)(g) of the International Covenant on Civil and Political Rights
(ICCPR), 1966, states that no one shall be compelled to testify against himself or
confess guilt. Similarly, Article 11(1) of the Universal Declaration of Human
Rights (UDHR), 1948, ensures the presumption of innocence until proven guilty.

This constitutional guarantee is aimed at preventing coerced confessions, protecting

individual liberty, and ensuring that judicial proceedings are based on fair and
voluntary evidence.

Scope of Article 20(3) of the Indian Constitution

The right against self-incrimination applies only to a person accused of an offence. It

does not extend to witnesses or third parties who are not directly facing criminal
charges. The Supreme Court in M.P. Sharma v. Satish Chandra (1954) established
three essential conditions for invoking this right:

1. The person must be accused of an offence – The protection under Article 20(3) is
not available to individuals who are merely under investigation but have not been
formally charged.
2. There must be compulsion to provide evidence – If a person voluntarily provides
testimony or evidence, this protection does not apply.
3. The evidence must be self-incriminatory – The testimony must be capable of
exposing the accused to criminal liability.

70
 Judicial Interpretation and Expansion of the Right

The scope of the right against self-incrimination has been interpreted and expanded by
the judiciary through several landmark judgments.

1. Nandini Satpathy v. P.L. Dani (1978)40

In this case, the Supreme Court ruled that Article 20(3) protection extends to the
pre-trial stage, including police interrogations. The Court held that the right applies
not only to forced confessions but also to statements made under psychological or
environmental coercion.

Key takeaways from the judgment:

 The right against self-incrimination applies even before formal charges are
framed.
 The accused has the right to remain silent during interrogation.
 Coercion includes not just physical force but also psychological pressure and
intimidation.

2. Selvi & Ors. v. State of Karnataka (2010)41

The case addressed whether involuntary administration of scientific techniques such

as Narcoanalysis, Polygraph (Lie Detector), and Brain Electrical Activation
Profile (BEAP) Tests violated the right against self-incrimination. The Supreme
Court held that:

1. No individual can be forcibly subjected to these tests, as it would be an

unwarranted intrusion into personal liberty.
2. Narcoanalysis and Lie Detector Tests do not fall under permissible medical
examinations under Sections 53, 53-A, and 54 of the Code of Criminal Procedure
(CrPC), 1973.
3. Forced scientific tests amount to mental and physical coercion and are
unconstitutional.

However, the Court permitted voluntary use of these tests under strict safeguards:

40
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
41
Selvi & Ors. v. State of Karnataka, (2010) 7 SCC 263.
71
  The accused must give explicit consent.
 The Magistrate must record the consent before administering the test.
 The accused must have access to a lawyer.
 The test results cannot be used as direct evidence in court.

This judgment reaffirmed the mental privacy of individuals and upheld the principle
of voluntary testimony.

3. State of Bombay v. Kathi Kalu Oghad (1962)42

The Supreme Court clarified that:

 The right against self-incrimination applies only to testimonial evidence (oral or

written statements).
 It does not apply to physical evidence, such as fingerprints, handwriting samples,
or blood tests.

Thus, an accused person can be compelled to provide fingerprints or undergo DNA

testing without violating Article 20(3).

Right to Silence and its Legal Implications

The right to silence is an essential aspect of the right against self-incrimination. It

means that courts cannot presume guilt merely because an accused refuses to answer
questions.

However, Indian law places some limitations on the right to silence:

1. Section 313 of CrPC, 1973 – Allows the court to question the accused during
the trial. While the accused is not compelled to answer, their silence may be
considered by the court.
2. Section 161 of CrPC – Allows police to question a suspect, but any statement
made cannot be used as evidence unless recorded before a Magistrate under
Section 164 of CrPC.
3. The Evidence Act, 1872:
4. Section 25 – Confessions made to a police officer are inadmissible in court.

42
State of Bombay v. Kathi Kalu Oghad, AIR 1962 SC 1806.
72
o Section 26 – Confessions made while in police custody are inadmissible
unless made before a Magistrate.

Significance of the Right Against Self-Incrimination

The right against self-incrimination serves multiple purposes:

1. Prevents Forced Confessions – Ensures that accused persons are not

subjected to coercion, threats, or torture.
2. Preserves the Presumption of Innocence – Reinforces the principle that an
accused is innocent until proven guilty.
3. Protects Personal Liberty – Safeguards individuals from abuse of power by
law enforcement agencies.
4. Ensures Fair Trials – Ensures that trials are based on voluntary and credible
evidence.

Challenges and Limitations

Despite strong legal safeguards, several challenges remain:

1. Custodial Torture and Coercion – Accused persons, especially in high-

profile cases, are often subjected to third-degree interrogation techniques.
2. Misuse of Scientific Tests – Although courts prohibit involuntary
Narcoanalysis, there have been instances where police use these techniques
illegally.
3. Judicial Discretion – Courts sometimes rely on circumstantial evidence
derived from forced statements.
4. Terrorism and National Security Laws – Special laws such as the Unlawful
Activities (Prevention) Act (UAPA) impose stricter rules on self-
incrimination, limiting constitutional protections.

The right against self-incrimination is a cornerstone of Indian criminal

jurisprudence. It ensures that accused individuals are treated fairly and humanely
by protecting them from being compelled to testify against themselves. Judicial
interpretations have expanded its scope, ensuring that no individual is forced into
giving self-incriminatory statements under physical or psychological coercion.

73
However, challenges remain, especially concerning custodial torture, judicial
discretion, and national security laws. Strengthening police accountability, enforcing
strict legal safeguards, and ensuring fair trial rights are necessary to uphold the
true spirit of Article 20(3).

3.4.1 Historical Background of the Right Against Self-Incrimination

The concept of protection against self-incrimination dates back to Roman and English
law. In ancient Rome, an accused individual was not compelled to testify against
themselves, adhering to the "nemo tenetur se ipsum accusare" (no man is bound to
accuse himself) principle.

In England, the right against self-incrimination evolved through resistance against the
coercive practices of the Star Chamber, a secret court used to force confessions
through torture. This led to the establishment of the right under the English common
law, which was later incorporated into the Fifth Amendment of the U.S. Constitution
in 1791.

The principle was also adopted in India during the British colonial period and later
secured under Article 20(3) of the Indian Constitution. The framers of the
Constitution recognized the need for this protection to prevent abuses of power by law
enforcement authorities.

3.4.2 Legal Framework of the Right Against Self-Incrimination in India

3.4.2.1 Constitutional Provisions

The right against self-incrimination is enshrined under Article 20(3) of the Indian
Constitution. The essential elements of this right are:

1. Protection applies to accused persons only – The person must be formally accused
of an offense before invoking Article 20(3).
2. Compulsion is necessary – The accused must be forced to provide self-
incriminating testimony. Voluntary statements do not attract this protection.
3. Protection against being a witness against oneself – This means the accused
cannot be compelled to make oral or written statements that may be used as evidence
against them.

74
 3.4.2.2 Protection under the Indian Evidence Act, 1872

Section 161(2) of the Code of Criminal Procedure (CrPC) states that a person is not
bound to answer questions that may expose them to a criminal charge. Similarly,
Section 25 of the Indian Evidence Act, 1872, states that confessions made to a police
officer are inadmissible in court, and Section 26 further ensures that confessions made
in police custody cannot be used as evidence unless made before a magistrate.

3.4.2.3 Judicial Interpretations

Over the years, Indian courts have interpreted and reinforced the right against self-
incrimination through landmark judgments.

(a) M.P. Sharma v. Satish Chandra (1954)43

In this case, the Supreme Court held that the right under Article 20(3) is wide and
includes oral, documentary, and testimonial evidence. The Court ruled that
individuals cannot be forced to provide documents that may incriminate
them¹.

(b) State of Bombay v. Kathi Kalu Oghad (1961)44

This case clarified that compulsion must be established to invoke Article 20(3). It
further held that providing thumb impressions, signatures, or handwriting samples does
not violate this right because they are not "testimony" but physical
evidence².

(c) Nandini Satpathy v. P.L. Dani (1978)45

The Supreme Court ruled that a person has the right to remain silent during
interrogation and cannot be compelled to answer questions that may incriminate
them. The Court emphasized that the right against self-incrimination extends beyond
the courtroom to police interrogations³.

43
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
44
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
45
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
75
 (d) Selvi v. State of Karnataka (2010)46

A significant expansion of the right against self-incrimination occurred in this case.

The Supreme Court ruled that:

 Narco-analysis, polygraph tests, and brain-mapping techniques without consent

violate Article 20(3).
 Forcing an accused to undergo such tests is unconstitutional as it amounts to
compelled testimony⁴.

3.4.3 Significance of the Right Against Self-Incrimination

3.4.3.1 Protection Against Coerced Confessions

One of the primary reasons for the right against self-incrimination is to protect
individuals from forced confessions obtained through torture, threats, or inducements.
In custodial settings, law enforcement agencies may resort to third-degree methods,
violating human rights.

The Supreme Court, in D.K. Basu v. State of West Bengal, laid down guidelines to
prevent custodial torture, emphasizing that confessions must be
voluntary⁵. This judgment reinforced that the police cannot force
individuals to incriminate themselves.

3.4.3.2 Ensuring Fair Trial and Due Process

The right against self-incrimination ensures that individuals receive a fair trial based
on evidence lawfully collected by the prosecution. The burden of proof lies on the state
to establish guilt beyond a reasonable doubt. If self-incriminating testimony were
permitted under compulsion, it would undermine the fairness of criminal trials.

3.4.3.3 Preventing Misuse of Power by Law Enforcement Agencies

If individuals could be compelled to confess, there would be an increased risk of

wrongful convictions. The right against self-incrimination acts as a safeguard against
arbitrary use of power by investigative agencies.

46
Selvi v. State of Karnataka, (2010) 7 SCC 263.
76
For example, in Maneka Gandhi v. Union of India, the Supreme Court ruled that the
right to life under Article 21 includes procedural fairness and protection against
arbitrary state action⁶.

3.4.3.4 Balance Between Investigative Needs and Individual Rights

While the state has an interest in conducting investigations, this right ensures that
investigations do not violate personal liberty. Authorities must collect independent
evidence rather than coercing individuals into confessions.

3.4.3.5 International Recognition of the Right Against Self-Incrimination

The right against self-incrimination is widely recognized in international human

rights instruments:

 Article 14(3)(g) of the International Covenant on Civil and Political Rights

(ICCPR) states that no one should be compelled to testify against themselves.
 Fifth Amendment of the U.S. Constitution guarantees protection against self-
incrimination, similar to Article 20(3) of the Indian Constitution.

3.4.4 Challenges and Limitations

3.4.4.1 Misuse of the Right

Sometimes, accused persons misuse this right to withhold crucial information that
could aid the investigation.

3.4.4.2 Judicial Discretion

Courts have ruled that physical evidence (DNA samples, fingerprints, etc.) does not
attract Article 20(3). This raises debates about the scope of self-incrimination.

3.4.4.3 Technological Advancements

With advancements in forensic science and electronic surveillance, the applicability

of this right to digital evidence remains a grey area.

77
 CHAPTER 4

RIGHTS OF ARRESTED PERSON UNDER CRPC,1973

4.1 PERSON ARRESTED TO BE INFORMED OF

GROUNDS OF ARREST

Article 22 (1) of the Constitution provides that a person arrested for an offence under
ordinary law be informed as soon as may be the grounds of arrest. In addition to the
constitutional provision, Section 50 of Criminal Procedure Code also provides for the
same.

(i) According to Section 50(1) of Criminal Procedure Code, every police officer
or other person arresting any person without warrant shall forthwith communicate to
him full particulars of the offence for which he is arrested or other grounds for such
arrest.

(ii) When a subordinate officer is deputed by a senior police officer to arrest a

person under Section 55 of Criminal Procedure Code, he shall deliver to the officer
required to make the arrest an order in writing, specifying the person to be arrested
and the offence or other cause for which the arrest is made and the officer so required
shall, before making the arrest, notify to the person to be arrested the substance of the
order and, if so required by such person, shall show him the order. Non compliance
with this provision will render the arrest illegal.72

(iii) In case of arrest to be made under a warrant, Section 75 provides that the
police officer or other person executing a warrant of arrest shall notify the substance
thereof to the person to be arrested, and if so required, shall show him the warrant. If
the substance of the warrant is not notified, the arrest would be unlawful.

The right to be informed of the grounds of arrest is a precious right of the arrested
person. The grounds of arrest should be communicated to the arrested person in the
language understood by him; otherwise it would not amount to sufficient compliance
with constitutional requirements.

78
 4.2 RIGHT TO BE DEFENDED BY A LAWYER

It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution provides that no person who is arrested shall be denied the right to
consult and to be defended by a legal practitioner of his choice. The right of the
accused to have a counsel of his choice is fundamental and essential to fair trial. The
right is recognized because of the obvious fact that ordinarily an accused person does
not have the knowledge of law and the professional skill to defend himself before a
court of law wherein the prosecution is conducted by a competent and experienced
prosecutor. This has been expressed by the Supreme Court of America in Powell v.
Alabama73. The Court observed that “The right to be heard would be, in many cases,
of little avail if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in the science of
law. If charged with crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and the knowledge adequately to prepare his
defence, even though he has a perfect one. He requires the guiding hand of counsel at
every step of the proceeding against him. Without it, though he be not guilty, he faces
the danger of conviction because he does not know how to establish his innocence. If
that be true of men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect.”47

The Criminal Procedure Code has specifically recognized the right of a person against
whom proceedings are instituted to be defended by a counsel. According to Section
303 of Criminal Procedure Code, any person accused of an offence before a criminal
court, or against whom proceedings are instituted, may of right be defended by a
pleader of his choice.

In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar75, the Supreme Court
has explicitly observed as follows:

“The right to free legal services is, therefore, clearly an essential ingredient of
81
Section 50-A inserted in 2005 effective from 23-6-2006.
47
75 (1980) 1 SCC 98
79
„reasonable, fair and just‟ procedure for a person accused of an offence and it must
beheld implicit in the guarantee of Article 21. This is a constitutional right of every
accused person who is unable to engage a lawyer and secure legal services on account
of reasons such as poverty, indigence or incommunicado situation and the State is
under a mandate to provide a lawyer to an accused person if the circumstances of the
case and the needs of justice so required, provided of course the accused person does
not object to the provision of such lawyer.

It is now therefore clear that unless refused, failure to provide legal aid to an indigent
accused would vitiate the trial, entailing setting aside of conviction and sentence. 76
The right begins from the moment of arrest i.e. pre-trial stage. The arrestee can also
have consultation with his friends or relatives.

4.3 PERSON ARRESTED TO BE PRODUCED BEFORE THE

MAGISTRATE

Article 22 (2) of the Constitution provides that an arrested person must be taken to the
Magistrate within 24 hours of arrest. Similar provision has been incorporated under
Section 56 of Criminal Procedure Code. A police officer making an arrest without
warrant shall, without unnecessary delay and subject to the provisions herein
contained as to bail, take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police station.

4.4 PERSON ARRESTED NOT TO BE DETAINED FOR MORE

THAN TWENTY- FOUR HOURS

Section 57 of Criminal Procedure Code provides that:

“No police officer shall detain in custody a person arrested without warrant for a
longer period than under all the circumstances of the case is reasonable, and such
period shall not, in the absence of a special order of a Magistrate under section 167,
exceed twenty four hours exclusive of the time necessary for the journey from the
place of arrest to the Magistrate‟s Court.”

The right has been further strengthened by its incorporation in the Constitution as a
81
Section 50-A inserted in 2005 effective from 23-6-2006.

80
fundamental right. Article 22(2) of the Constitution provides:

“Every person who is arrested and detained in custody shall be produced before the
nearest Magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the Magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a Magistrate.”

In case of arrest with a warrant, the proviso to Section 76 of the Criminal Procedure
Code provides a similar rule in substance. This provision contained in section 57 of
Criminal Procedure Code enables the Magistrates to keep a check over the police
77
investigation . If a police officer fails to produce an arrested person before a
magistrate within 24 hours of the arrest, he shall be held guilty of wrongful
detention78.s
4.5 INFORMATION OF ARREST TO A NOMINATED PERSON
The rules emerging from decisions such as Joginder Singh v. State of U.P.79 and D.K.
Basu v. State of West Bengal80 have been enacted in Section 50-A81.

Section 50-A of Criminal Procedure Code provides:

(1) Every police officer or other person making any arrest under this code shall
forthwith give the information regarding such arrest and place where the
arrested person is being held to any of his friends, relatives or such other
persons as may be disclosed or nominated by the arrested person for the
purpose of giving such information.
(2) The Police Officer shall inform the arrested person for the purpose of giving
such information of his right under Sub Section (1) as soon as he is brought to
police station.
(3) An entry of the fact as to who has been informed of the arrest of such person
shall be in a book to be kept in the police station in such form as may be
prescribed in this behalf by the State Government.

(4) It shall be the duty of Magistrate before whom such arrested person is
proceed,to satisfy himself that the requirement of sub-section (2) and Sub-Section (3)
have been complied with in respect of such arrested person.

77
Khatri (II) v. state of Bihar, (1981) 1 SCC 627
78
Sharifbai vs. Abdul Razak, AIR 1961 Bom 42

81
These rights are inherent in Article 21 and 22 of the Constitution and are required to
be recognized and scrupulously protected.
4.6 RIGHT TO BAIL
The release on bail is crucial to the accused as the consequences of pre-trial detention
are grave. If release on bail is denied, it would mean that though he is presumed to be
innocent until proven guilty.

Justice Krishna Iyer aptly remarked that “the issue of bail is one of liberty, justice,
public safety and burden of public treasury all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial process”.

Maintaining that bail is the rule and jail an exception82, the Supreme Court has time
and again said that deprivation of liberty must be considered a punishment.

There is no definition of bail in the Criminal Procedure Code, although the terms
„bailable offence‟ and „non-bailable offence‟ have been defined in section 2(a)
Cr.P.C. Bail has been defined in the law lexicon as security for the appearance of the
accused person on giving which he is released pending trial or investigation.

In Hussainara Khatoon v State of Bihar83, Justice Bhagwati found that the unfortunate
under trials languished in prisons not because they were guilty but because they were
too poor to afford bail. He thus ordered the release of persons whose period of
imprisonment had exceeded the period of imprisonment for their offences. He brought
into focus the failure of the Magistrates to respect section 167(2) of the Criminal
procedure Code which entitles an under trial to be released from prison on the expiry
of 60 days or 90 days as the case may be.

In Sant Bir v. State of Bihar84, the Court recognised the inequitable operation of the
law and condemned it - "The rule of law does not exist merely for those who have the
means to fight for their rights and very often for perpetuation of status quo but it
exists also for the poor and the downtrodden and it is the solemn duty of the Court to

82
Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240
83
Supra note 13.
84
AIR 1982 SC 1470

82
protect and uphold the basic human rights of the weaker sections of society.” In
Mantoo Majumdar v. State of Bihar85 the Apex Court once again upheld the under
trials‟ right to personal liberty and ordered the release of the petitioners on their own
bond and without sureties as they had spent six years awaiting their trial, in prison.

Besides the constitutional provisions, the provisions of Cr.P.C. also need to be

discussed for a better understanding of the bail provisions which are as under:

Bail in Bailable Cases: Section 436(1) affirms the right of a person accused of a
bailable-offence to be released on bail. The section makes it clear that when any
person accused of a bailable offence is arrested or detained without warrant, and is
prepared at any time while in the custody of such officer or at any stage of the
proceeding before such Court to give bail; such person shall be released on bail.

The words „shall be released on bail‟ denotes that it is mandatory upon the Magistrate
to give bail. He would have no discretion to impose any conditions, the only
discretion that is left in him is as to the amount of the bond or whether the bail could
be on his bond or with sureties.

Besides that the proviso to section 436(1) makes provison for the bail of an indigent
person stating that if such person is indigent and in unable to furnish surety, instead of
taking bail from such person he may, and shall be discharged on his executing a bond
without sureties for his appearance. Moreover for the definition of the term „indigent‟
the explanation provides that where a person is unable to give bail within a week of
the date of his arrest, it shall be a sufficient ground for the officer or the Court to
presume that he is an indigent person for the purposes of this proviso.

Bail in Non-Bailable Cases: Bail, in non-bailable offences, is not a matter of right of

the accused person. Section 437 of the Code of Criminal Procedure envisages the
provision as regards bail in case of non-bailable offences, stating that the Magistrate
may release an accused on bail, if such accused appears before the Magistrate.

The proviso provides for some special considerations while granting bail in such cases
like:

85
1980 AIR 847

83
 • If such person is under the age of sixteen years or;
• Is a woman or is sick or;
• An infirm
The Supreme Court, while dealing with Section 437 of CrPC, is of the view that
though this Section gives special consideration to a woman, it cannot be considered to
be a mandatory provision86.

• Bail on Default: With the incorporation of section 167(2) of Cr.P.C, the

investigating agency is required to complete the job of investigation and file the
charge-sheet within the time limit of either 60 or 90 days as the case may be. In case
the above is not completed within the definite period, the accused is entitled to be
released on bail.

The whole object of providing a prescribed time limit under section 167(2) Cr.P.C. to
the investigation agency to complete the investigation is that the accused should
receive expeditious treatments at the hands of the criminal justice system, as it is
implicit in Article 21 that every accused has right to an speedy disposal of his case.
4.7 RIGHT TO FREE LEGAL AID

The state is under a constitutional mandate (implicit in Article 21 of the Constitution,

explicit in Article 39-A of the Constitution) to provide free legal aid to indigent
accused persons. Section 304 of the Code of Criminal Procedure also provides such a
right to the accused. It states that:

“(1) Where, in a trial before the Court of Session, the accused is not represented by
apleader, and where it appears to the Court that the accused has not sufficient means
to engage a pleader, the Court shall assign a pleader for his defence at the expense of
the State.

A failure to inform the accused of this right and non compliance with this requirement
would vitiate the trial as held in Sukhdas vs. Union Territory of Arunachal Pradesh. 87
In Khatri

86
Gurubaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632

87
(1986) 2 SCC 401

84
 88
(II) vs. State of Bihar , the Supreme Court has held that the State is under a
constitutional mandate to provide free legal aid to an indigent accused person, and
that their constitutional obligation to provide legal aid does not arise only when the
trial commences but also when the accused is for the first time produced before the
Magistrate as also when he is remanded from time to time. The Apex Court has
therefore cast a duty on all Magistrate and courts to inform the indigent accused about
his right to get free legal aid.

In 1987, Legal Services Authorities Act was enacted to give a statutory base to legal
aid programmes throughout the country on a uniform pattern. The National Legal
Services Authority (NALSA) has been constituted under the Legal Services
Authorities Act, 1987 to provide free Legal Services to the weaker sections of the
society and to organize Lok Adalats for amicable settlement of disputes.89

In every State, State Legal Services Authority has been constituted to give effect to
the policies and directions of the NALSA and to give free legal services to the people
and conduct Lok Adalats in the State. The State Legal Services Authority is headed
by Hon‟ble the Chief Justice of the respective High Court who is the Patron-in-Chief
of the State Legal Services Authority.90

In every District, District Legal Services Authority has been constituted to implement
legal services programmes in the district. The District Legal Services Authority is
situated in the District Courts Complex in every District and chaired by the District
Judge of the respective district.91 These authorities provides legal aid to the needy
persons including accused, convicts and victims of criminal cases.

EVIDENCE TO BE TAKEN IN PRESENCE OF THE ACCUSED

The personal presence of the accused throughout the trial would enable him to
understand properly the prosecution case as it is unfolded in the court. This would
facilitate in the making of the preparations for his defence. A criminal trial in the
absence of the accused is unthinkable. A trial and a decision behind the neck of the
accused person is not contemplated by the Code, though no specific provision to that

88
Supra Note 15.
89
J.N. Pandey, Constitutional Law of India, Central Law Agency Allahabad, 51st Edition, 2014.
90
Ibid.
91
Ibid.
85
effect is found therein. The requirement of the presence of the accused during his trial
can be implied from the provisions which allow the court to dispense with the
personal attendance of the accused person under certain circumstances.

Section 273 of Criminal Procedure Code requires that the evidence is to be taken in
the presence of the accused person; however, the section allows the same to be taken
in the presence of the accused‟s pleader if the personal attendance of the accused
person is dispensed with.

Fair trial requires that the particulars of the offence have to be explained to the
accused person and that the trial is to take place in his presence. Therefore, the section
makes it imperative that all the evidence must be taken in the presence of the accused,
failure to do so would vitiate the trial, and the fact that no objection was taken by the
accused is immaterial.

Evidence given by witnesses becomes more reliable if given on oath and tested by
cross- examination. A criminal trial which denies the accused person the right to
cross-examine prosecution witnesses is based on weak foundation, and cannot be
considered as a fair trial.92

Though the burden of proving the guilt is entirely on the prosecution and the law does
not require the accused to lead evidence to prove his innocence, yet a criminal trial in
which the accused is not permitted to give evidence to disprove the prosecution case,
or to prove any special defence available to him, cannot be considered as just and fair.
The refusal without any legal justification by a Magistrate to issue process to
witnesses named by the accused person was held enough to vitiate the trial.93

The right created by the section is further supplemented by Section 278 of Criminal
Procedure Code. It provides that wherever the law requires the evidence of a witness

to be read over to him after its completion, the reading shall be done in the presence
of the accused, or of his pleader if the accused appears by pleader, and shall, if
necessary, be corrected.

92
Sukhrah v. State of Rajasthan, AIR 1967 Raj 267
93
Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51

86
If any evidence is given in a language not understood by the accused person, the bare
compliance with Section 273 of Criminal Procedure Code will not serve its purpose
unless the evidence is interpreted to the accused in a language understood by him.
Section 279 of Criminal Procedure Code provides that:

(1) Whenever any evidence is given in a language not understood by the accused,
and he is present in Court in person, it shall be interpreted to him in open
Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the
language of the Court, and not understood by the pleader, it shall be
interpreted to such pleader in that language.
(3) When documents are put for the purpose of formal proof, it shall be in the
discretion of the Court to interpret as much thereof as appears necessary.

However, non-compliance with Section 279(1) of Criminal Procedure Code will be

considered as mere irregularity not vitiating the trial if there was no prejudice or
injustice cause to the accused person.94
4.8 RIGHT TO GET COPIES OF POLICE REPORT AND OTHER
DOCUMENTS
According to Section 207 of Criminal Procedure Code the magistrate is under an
imperative duty to furnish to the accused, free of cost, copies of statements made to
the police and of other documents to be relied upon by the prosecution. The object of
furnishing the accused person with copies of the statements and documents as
mentioned above is to put him on notice of what he has to meet at the time of the
inquiry or trial and to prepare himself for his defence.95 The right conferred on the
accused is confined to the documents enlisted in the section and does not extend to
other documents. In cases where cognizance of the offence has been taken otherwise
than on a police report, the case is not ordinarily investigated by the police and
naturally there are no statements recorded by the police. Therefore the valuable right
given to the accused by Section 207 Criminal Procedure Code regarding the supply of
copies would not be available in such cases. In the absence of any preliminary inquiry
preceding trial, and when no police record is available to the accused person before
his trial, it might cause considerable hardship to the accused to prepare himself for his
defence, particularly when the offence alleged is a serious one exclusively triable by
the court of session. Section 208 of Criminal Procedure Code tried to remove this

87
hardship and enables the accused to know the case made against him and to prepare
for his defence. Section 207 and 208 of Criminal Procedure Code deals with supply to
the accused of copy of police report and other documents and supply of copies of
statements and documents to accused in other cases triable by Court of Session
respectively.

According to Section 238 of Criminal Procedure Code at the time of commencement

of the trial in a warrant case it is the duty of the Magistrate to satisfy himself that he
has complied with the provisions of Section 207 of Criminal Procedure Code
However in a summons case instituted on a police report no such duty has been
specifically cast on the Magistrate conducting the trial. However free copies have to
be supplied to the accused in such cases by the Magistrate in view of the imperative
duty created by Section 207 of Criminal Procedure Code. If the copies of the
statements etc. are not supplied to the accused person as required by Section 207 of
Criminal Procedure Code, it is undoubtedly a serious irregularity, however this
irregularity in itself will not vitiate the trial. It will have to see whether the omission
to supply copies has in fact occasioned a prejudice to the accused person in his
defence. If it is found in positive, the conviction of the accused person must be set
aside, and a fair retrial after furnishing to the accused all the copies to which he is
entitled must be ordered.96
4.9 RIGHT TO CROSS-EXAMINE PROSECUTION WITNESSES AND
TO PRODUCE DEFENCE EVIDENCE

Evidence given by witnesses may become more reliable if given on oath and tested by
cross examination. A criminal trial which denies the accused person the right to cross-
examine prosecution witnesses is based on weak foundation, and cannot be
considered as a fair trial.97 It is mandatory that every accused must have assistance of
counsel during the time of examination of prosecution witnesses.

In Mohd. Hussain @ Julfikare Ali v. The State (Govt. of NCT) Delhi98, it was held
that right to have counsel at the cost of state where accused is unable to engage a
counsel is part of fair trial. The right of a person charged with crime to have the
services of a lawyer is fundamental and essential to fair trial. The right to cross-
examine a witness apart from being a natural right is statutory right.

In Mohd. Sukur Ali v. State of Assam99, it was held that a criminal case should not be

88
decided against accused in the absence of the Counsel. An accused in criminal case
should not suffer for the fault of his counsel and in such a situation appoint another
counsel as amicus curiae to defend the accused.

In A.S. Mohammed Rafi v. State of Tamil Nadu rep. by Home Dept. and others100, it
was held that Professional ethics requires that a lawyer cannot refuse a brief, provided
a client is willing to pay his fee and lawyer is not otherwise engaged. Bar cannot pass
a resolution that none of the lawyer shall appear for a particular person whatsoever
heinous crime he has committed. Chapter II of the rules by Bar council of India states
about "standards of Professional conduct and etiquette."

An advocate is bound to accept any brief in the Court or tribunal or before any of the
authorities in or before which he proposed to practice at a fee consistent with his
standing at the Bar and the nature of the case. Special circumstances may justify his
refusal to accept a particular brief. Though the burden of proving the guilt is entirely
on the prosecution and though the law does not require the accused to lead evidence
to prove his innocence, yet a criminal trial in which the accused is not permitted to
give evidence to disprove the prosecution case, or to prove any special defence
available to him, cannot be any standard to be considered as just and fair. The refusal
without any legal justification by a Magistrate to issue process to witnesses named by
the accused person was held enough to vitiate the trial.101

4.10 RIGHT TO SPEEDY TRIAL

Justice delayed is justice denied. This is all the more true in a criminal trial where the
accused is not released on bail during the pendency of the trial and trial is inordinately
delayed. However, the code does not in so many words confer any such right on the
accused to have his case decided expeditiously. Section 437(6) of Criminal Procedure
Code provides that if the accused is in detention and the trial is not completed within
60 days from the first date fixed for hearing he shall be released on bail. But this only
mitigates the hardship of the accused person but does not give him speedy trial and
secondly this rule is applicable only in case of proceedings before a Magistrate.

97
Sukanraj v. State of Rajasthan, AIR 1967 Raj 267
98
AIR 2012 SC 750
99
AIR 2011 SC 1222
89
The code has given a more positive direction to courts when it says: in every inquiry
or trial the proceedings shall be held as expeditiously as possible, and in particular,
when the examination of witnesses has once begun, the same shall be continued from
day to day until all the witnesses in attendance have been examined unless the court
finds the adjournment of the same beyond the following day to be necessary for
reasons to be recorded102. A criminal trial which drags on for unreasonably long time
is not a fair trial. Section 309(1) of Criminal Procedure Code gives directions to the
courts with a view to have speedy trials and quick disposals. The right of the accused
in this context has been recognized but the real problem is how to make it a reality in
actual practice. The provisions with regard to limitation help the accused to certain
extent.
103
In Hussainara Khatoon vs. State of Bihar , the Supreme Court considered the
problem in all its seriousness and declared that speedy trial is an essential ingredient
of „reasonable, fair and just‟ procedure guaranteed by Article 21 and that it is the
constitutional obligation of the state of devise such a procedure as would ensure
speedy trial to accused. The State cannot avoid its constitutional obligation to provide
speedy trial to the accused by pleading financial or administrative inability. The State
is under a constitutional mandate to ensure speedy trial and whatever is necessary for
this purpose has to be done by the State. It is also the constitutional obligation of this
court, as the guardian of the fundamental rights of the people, to enforce the
fundamental right of the accused to speedy trial by issuing necessary directions to the
State.104

The right to speedy trial came to receive examination in the Supreme Court in Motilal
Saraf v. State of J&K105. Dismissing a fresh complaint made after 26 years of an
earlier complaint the Supreme Court explained the meaning and relevance of speedy
trial right as:

102
Section 309(1) Criminal Procedure Code, 1973
103
Supra note 13
90
5. “The concept of speedy trial is read into Article 21 as an essential part of the
fundamental right to life and liberty guaranteed and preserved under our
Constitution. The right to speedy trial begins with actual restraint imposed by arrest
and consequent incarceration, and continues at all stages, namely, the stage of
investigation, inquiry, trial, appeal and revision so that any possible prejudice that
may result from impressible and avoidable delay from the time of the commission
of the offence will if consummates into a finality, can be averted.”106
5.1 COMPENSATION FOR WRONGFUL ARREST

The accused persons have a right to compensation for groundless arrest. Section 358
of the Criminal Procedure Code empowers the court to order any person to pay
compensation to another person for causing a police officer to arrest such other
person wrongfully. Usually it is the police officer who investigates and makes the
arrest and the complainant, if at all can be considered to have a nexus with the arrest,
it is rather indirect or remote. For applying Section 358 some direct and proximate
nexus between the complainant and the arrest is required. It has been held that there
should be something to indicate that the informant caused the arrest of the accused
without any sufficient grounds.

107
In Nilabati Behara v. State of Orissa , Justice J.S. Verma stressing the right to
remedy in gross violation of fundamental rights and referring to Article 9(5)47 of the
ICCPR held that anyone who has been victim of an unlawful detention or arrest shall
have an enforceable right to compensation.

In Bhim Singh vs. State of J & K & Ors108, the Apex court held that holding illegal
detention in police custody of the petitioner Bhim Singh is violative of his rights
under Articles 21 and 22(2) of the Constitution, and in exercise of its power to award
compensation under Article 32, directed the State to pay monetary compensation.

104
S. Guin v. Grindlays Bank Ltd., (1986) 1 SCC 654
105
(2007) 1 SCC (Cri) 180
106
Ibid.
107
1993 AIR SC 1960

91
In Rudal Shah109 case, it was held that a claim for compensation for contravention of
human rights and fundamental freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for enforcement and protection of such
rights, and such a claim is based on strict liability made by resorting to a
constitutional remedy provided for the enforcement of a fundamental right.

The Supreme Court has held in its various judgments that it is imperative to state that
it is the sacrosanct duty of the police authorities to remember that a citizen while in
custody is not denuded of his fundamental rights under Article 21 of the constitution.
The restrictions imposed have the sanction of law by which his enjoyment of
fundamental right is curtailed but his basic human rights are not crippled so that the
police officers can treat him in an inhuman manner. On the contrary, they are under
obligation to protect his human rights and prevent all forms of atrocities.

5.2 RIGHT OF APPEAL

The Supreme Court has rightly observed:

“One component of fair procedure is natural justice. Generally speaking and subject
to just exceptions, at least a single right of appeal on facts, where criminal conviction
is fraught with loss of liberty, is basic to civilized jurisprudence. It is integral to fair
procedure, natural justice and normative universality save in special cases like the
original tribunal being a high bench sitting on a collegiate basis. In short, a first
appeal as provided in the Criminal Procedure Code, manifests this value upheld in
Article 21.”

Appeal is one of the two important review procedures. An appeal is a complaint to a

superior court of an injustice done or error committed by an inferior one, whose
judgment or decision the court above is called upon to correct or reverse. An appeal is

108
Article 9(5) of International Covenant on Civil and Political Rights: Anyone who has been the
victim of unlawful arrest or detention shall have an enforceable right to compensation.
109
AIR 1986 SC 494

92
 a creature of statute and there can be no inherent right of appeal from any judgment or
determination unless an appeal is expressly provided for by the law itself.

The Indian Constitution provides various safeguards to individuals who are under trial.
These constitutional safeguards ensure that the fundamental rights of an accused person are
not violated, and they are given a fair chance to defend themselves in a court of law. The
criminal justice system in India operates on the principle that an accused is presumed
innocent until proven guilty.

1. Right to Life and Personal Liberty (Article 21)

Article 21 of the Indian Constitution states that "No person shall be deprived of his life or
personal liberty except according to the procedure established by law." This article is of
paramount importance for under-trial prisoners as it guarantees them the right to a fair trial,
humane treatment in prison, and access to legal representation. In the case of Maneka
Gandhi v. Union of India (1978), the Supreme Court ruled that the procedure established by
law must be just, fair, and reasonable. In Hussainara Khatoon v. State of Bihar (1979), the
court highlighted the plight of under-trial prisoners languishing in jails and emphasized the
need for speedy trials.

2. Right to Equality (Article 14)

Under-trial prisoners have the right to be treated equally before the law. Article 14 ensures
that no individual is discriminated against on any ground. In E.P. Royappa v. State of Tamil
Nadu (1974), the Supreme Court established that arbitrariness is antithetical to equality.
This principle ensures that under-trial prisoners are not subjected to discrimination based on
their socio-economic status.

3. Right Against Arbitrary Arrest (Article 22)

Article 22 provides protection against arbitrary arrests and detentions. It states that no
person who is arrested shall be detained without being informed of the grounds of arrest.
The accused has the right to consult and be defended by a legal practitioner of their choice.
In DK Basu v. State of West Bengal (1997), the Supreme Court laid down guidelines to
prevent custodial torture.

93
4. Right to Free Legal Aid (Article 39A)

Article 39A, added through the 42nd Amendment, mandates the state to provide free legal
aid to economically disadvantaged individuals. In Khatri v. State of Bihar (1981), the
Supreme Court ruled that the state must provide legal aid at the earliest stage of
proceedings. The Legal Services Authorities Act, 1987 was enacted to ensure free legal aid
to under-trial prisoners.

5. Right to Bail

The Code of Criminal Procedure (CrPC) provides bail provisions for under-trial prisoners,
ensuring that they are not unnecessarily detained. Under Section 436 CrPC, a person
accused of a bailable offense has the right to be released on bail. In Moti Ram v. State of
Madhya Pradesh (1978), the court held that bail should not be denied due to poverty.

6. Right to Speedy Trial

The concept of a speedy trial is integral to the protection of under-trial prisoners. The
Supreme Court in Hussainara Khatoon v. State of Bihar (1979)48 mandated that the right to
a speedy trial is a fundamental right under Article 21. The Malimath Committee Report
(2003) emphasized the need for reforms to reduce delays in trials.

7. Right Against Inhuman Treatment in Jail

Under-trial prisoners have the right to be treated with dignity and must not be subjected to
inhuman treatment in custody.

 The Supreme Court in Sunil Batra v. Delhi Administration (1978) held that solitary
confinement and other forms of cruel treatment are unconstitutional.
 The Prison Manual and Model Jail Manual prescribe the standards of treatment for
under-trial prisoners.

5.3 Prison Manual and Model Jail Manual

The right to appeal is an essential safeguard for under-trial prisoners, ensuring that they
have the opportunity to challenge a conviction or sentence. The Constitution and statutory
laws provide multiple avenues for appeals.

48
Hussainara Khatoon v. State of Bihar (1979)
94
1. Constitutional Provisions

 Article 136 of the Constitution grants the Supreme Court discretionary powers to
grant special leave to appeal against any judgment.
 Article 226 and 227 empower the High Courts to issue writs, including habeas
corpus, for the protection of fundamental rights.

2. Statutory Provisions

 Section 374 CrPC: Provides for appeals against convictions to the High Court and
Sessions Court.
 Section 389 CrPC: Allows for suspension of sentence during appeal.
 Section 482 CrPC: Empowers the High Court to quash criminal proceedings in
cases of abuse of the legal process.

3. Judicial Precedents

 In Narayan Gopal v. State of Maharashtra (1996), the Supreme Court emphasized

the right to appeal as an extension of the right to a fair trial.
 In State of Rajasthan v. Balchand (1977), the principle "bail is the rule, jail is the
exception" was established, reinforcing the right of appeal in bail matters.

4. International Perspective

 Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR)
recognizes the right to appeal as a fundamental human right.
 The Universal Declaration of Human Rights (UDHR), Article 10 and 11, guarantees
fair trial rights, including appeals.

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 CHAPTER 5
CHANGES BROUGHT BY THE NEW CRIMINAL LAWS TO THE RIGHTS OF
UNDER TRIAL PRISONERS

The criminal justice system in India has undergone a historic overhaul with the enactment of
three new criminal laws: the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
These have replaced the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and
Indian Evidence Act respectively. A significant focus of these reforms has been on ensuring
the rights of undertrial prisoners, who have long faced challenges due to systemic delays,
inadequate legal aid, overcrowded prisons, and prolonged pre-trial detention.

This chapter critically analyses the impact of the new criminal laws on undertrial prisoners,
highlighting the progressive changes, potential challenges, and the practical implications
for safeguarding their constitutional and legal rights.

5.1 Introduction to Undertrial Prisoners and the Need for Reform

Undertrial prisoners are those individuals who are in judicial custody while awaiting the
outcome of their trial. As per NCRB data, over 75% of the Indian prison population comprises
undertrial prisoners. Despite being presumed innocent until proven guilty, they often suffer
harsh conditions, mental and physical abuse, and deprivation of liberty for extended periods.

The need for reform was urgent and evident. The new criminal laws aim to enhance efficiency,
transparency, and justice delivery while protecting the rights of the accused, especially
undertrials.

5.2 Key Changes Introduced by the BNSS, 2023 Affecting Undertrial Prisoners

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), replacing the Criminal Procedure
Code, 1973, introduces several measures to address the plight of undertrials:

5.2.1 Time-Bound Investigation and Trial (Section 193, BNSS)

A landmark change is the provision mandating completion of investigation within 90 days

(extendable to 180 days in exceptional circumstances). This helps prevent indefinite detention
of undertrial prisoners. It seeks to reduce the number of prisoners awaiting charge sheets and
trials for years.
96
5.2.2 Forensic and Technological Aid

The BNSS mandates the use of forensic teams in investigating serious offences. The
incorporation of technology (like video conferencing, e-FIRs, and digital case management)
expedites investigation and trial, thereby reducing pre-trial detention.

5.2.3 Provision for 'Zero FIR'

The BNSS institutionalizes the Zero FIR mechanism, allowing FIRs to be registered at any
police station, even if the offence occurred elsewhere. This ensures faster registration and
action, which indirectly contributes to quicker trials and reduction in detention periods.

5.2.4 Mandatory Bail Hearings and Review (Section 479, BNSS)

One of the most critical reforms is the mandatory periodic review of undertrial detention. If
the investigation is not completed within the stipulated time, the undertrial becomes eligible for
bail, unless the court records reasons to deny it. This aligns with Article 21 of the Constitution.

5.2.5 Right to Legal Aid and Representation

The new law strengthens the right to legal aid for all accused. BNSS ensures prompt access to
a lawyer and legal representation at the earliest stage, particularly critical for undertrials.

5.2.6 Trial in Absence of Accused (Section 356, BNSS)

BNSS allows the court to proceed with the trial in the absence of the accused under certain
circumstances. While it speeds up proceedings, it raises questions about its compatibility with
the right to fair trial unless proper safeguards are in place.

5.3 Relevant Provisions Under the Bharatiya Nyaya Sanhita (BNS), 2023

While BNS primarily defines offences and punishments, it includes provisions affecting
undertrial rights:

5.3.1 Decriminalisation and Rationalisation

Certain minor offences have been decriminalised or converted to civil offences, reducing the
burden on courts and curbing unnecessary arrests and detentions of undertrials.

5.3.2 Introduction of Community Service as Punishment

97
For specific petty offences, community service is introduced as an alternative punishment.
This helps avoid incarceration and the swelling of undertrial populations in prisons.

5.3.3 Gender-Neutral and Victim-Centric Provisions

The BNS introduces gender-neutral definitions for several offences. A fairer and more balanced
approach toward victims and accused, including undertrials, is envisioned.

5.4 Bharatiya Sakshya Adhiniyam (BSA), 2023 and Undertrial Justice

The Bharatiya Sakshya Adhiniyam, replacing the Indian Evidence Act, ensures that evidence
is collected and presented in a timely and tamper-proof manner. Its impact on undertrial
prisoners includes:

 Digital evidence admissibility helps speed up trials.

 Provisions for electronic records, CCTV footage, and other modern evidence sources
aid in quicker disposal of cases.
 Reduces the chance of procedural delays, which often extend undertrial detentions.

5.5 Strengthened Constitutional Safeguards for Undertrial Prisoners

The new laws reinforce several constitutional rights guaranteed under:

 Article 21 – Right to Life and Personal Liberty

 Article 22 – Protection against arbitrary arrest and detention
 Article 39A – Free legal aid to the poor and weaker sections

The regular review of pre-trial detention, mandatory bail hearings, and emphasis on
speedy trials reflect the attempt to harmonize procedural law with human rights standards.

5.6 Challenges and Criticism

While the changes are progressive, certain concerns remain:

 Implementation gap: Success depends on police training, judicial awareness, and legal
aid accessibility.
 Trial in absentia provisions may compromise fair trial rights.
 Technological divide: Poor or rural undertrial prisoners may not benefit equally due to
lack of digital access or awareness.
98
  Judicial discretion: Despite reforms, discretionary powers still play a role in granting
bail, which can be inconsistently applied.

5.7 Recommendations for Effective Implementation

1. Regular Monitoring of Detention

Courts should actively monitor detention periods and enforce the provisions for time-
bound trials and investigations.
2. Enhanced Legal Aid Infrastructure
Legal services authorities must be strengthened to provide effective representation to
undertrials.
3. Training and Sensitisation of Law Enforcement
Police and jail authorities must be trained in the new legal framework, rights of
undertrials, and human rights principles.
4. Use of Technology and Video Conferencing
Video conferencing must be made accessible in all jails for timely hearings.
5. Speedy Justice Delivery Mechanisms
Establishment of fast-track courts or special benches for long-pending undertrial cases.

99
 CHAPTER 6

6.1 CONCLUSION AND SUGGESTIONS

It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as
the in the Constitution, the power of arrest given to the police is being misused till this
day. It is also believed that the police often use their position of power to threaten the
arrested persons and take advantage of their office to extort money. There have also
been innumerable reports on custodial violence that lead many to believe that
deprivation of basic rights of the arrested persons has become commonplace
nowadays.

The Mallimath Committee in its Report on the reforms in the Criminal Justice System
has stated that the accused has the right to know the rights given to him under law and
how to enforce such rights. There have also been criticisms that the police fail to
inform the persons arrested of the charge against them and hence, let the arrested
persons flounder in custody, in complete ignorance of their alleged crimes. This has
been attributed to the Colonial nature of our Criminal Justice System where the duty
of arrest was thrust upon the Indian officers while the Britishers drew up the charge
against the accused. Thus, it is entirely possible that the English origins of the Indian
Criminal Justice system may have resulted unwittingly in the rights of the arrested
persons falling through the cracks.

There is imminent need to bring in changes in Criminal Justice Administration so that

state should recognize that its primary duty is not to punish, but to socialize and
reform the wrongdoer and above all it should be clearly understood that socialization
is not identical with punishment, for its comprises prevention, education, care and
rehabilitation within the framework of social defence. Thus, in the end we find that
Rule of law regulates the functionary of every organ of the state machinery, including
the agency responsible for conducting prosecution and investigation which must
confine themselves within the four corners of the law.

It is the duty of the police to protect the rights of society. It must be remembered that
this society includes all people, including the arrested. Thus, it is still the police‟s duty
to protect the rights of the arrested person. Hence, in light of the discussed provisions,
a police officer must make sure that handcuffs are not used unnecessarily, that the
accused is not harassed needlessly, that the arrested person is made aware of the

100
 grounds of his arrest, informed whether he is entitled to bail and of course, produced
before a Magistrate within twenty-four hours of his arrest. The Code of Criminal
Procedure, 1973 provides certain safeguards but till date the power of arrest given to
the police is being misused. It is believed till today that the police use authority in
order to threaten arrested people and extort money from them. There have been
reports that the police fail to inform the arrested people against the charges against
them and do not provide them with adequate means of representation they should get.
Thus it is very important to bring changes in Criminal Justice Administration so that
the State
knows that its primary duty is to seize and reform the wrongdoer and not just punish
him. All of the proceedings go according to the Rule of Law which regulates functions
of all organs of the State’s Machinery. It also includes people and agencies conducting
prosecution and investigation cases.
It is the first and foremost duty of the police to protect all individuals and their rights in
society which also includes the arrested people. Thus, it is the duty of the police to also
protect the rights of the accused and make sure that they are treated fairly according to
the proceedings established by law and not harassed unnecessarily. The police should
make sure that the person arrested is informed about his rights like grounds of arrest, if
he / she is entitled to bail and produced before a magistrate within twenty four hours.

5.1 Suggestions

To strengthen the constitutional safeguards for undertrial prisoners and improve their
situation, the following suggestions should be considered:

1. Expediting the Trial Process

o Courts should ensure strict compliance with the principle of a speedy trial
by setting up fast-track courts for undertrial cases.
o Special provisions should be made for disposing of cases that have been
pending for more than two years.
o The use of video conferencing for court hearings should be increased to
minimize delays caused by logistical issues.
2. Effective Implementation of Bail Laws
o Courts should liberalize bail provisions and encourage granting bail for
minor offenses.

101
 o The authorities should ensure that Section 436A of the CrPC, which
provides for the release of undertrial prisoners who have spent half of the
maximum prescribed punishment as undertrial detention, is strictly
implemented.
o The government should establish bail assistance programs for economically
weaker sections who are unable to furnish bail bonds.
3. Strengthening Legal Aid Services
o Legal Aid Clinics should be set up in every prison to ensure undertrial
prisoners are aware of their rights and receive timely legal assistance.
o The National Legal Services Authority (NALSA) and State Legal
Services Authorities (SLSA) should actively monitor and facilitate the legal
aid process for undertrials.
o The Legal Aid Defense Counsel System should be strengthened to ensure
competent legal representation.
4. Use of Technology in Judicial Processes
o Courts should digitize case records and introduce case-tracking
mechanisms to monitor the status of undertrial prisoners.
o Prison management systems should be integrated with judicial databases to
allow real-time monitoring of undertrial cases.
o Adoption of Artificial Intelligence (AI) and data analytics to predict case
backlogs and allocate resources efficiently.
5. Prison Reforms and Alternative Dispute Resolution (ADR)
o Government agencies should work towards reducing overcrowding by
identifying and releasing eligible undertrial prisoners through regular
reviews.
o Alternative dispute resolution mechanisms like mediation and plea
bargaining should be encouraged in cases where applicable.
o The concept of community-based rehabilitation should be introduced to
prevent unnecessary incarceration.
6. Awareness and Sensitization Programs
o Regular awareness campaigns should be conducted for prisoners, police
officers, and judicial officers about the constitutional safeguards available to
undertrial prisoners.
o NGOs and human rights organizations should be involved in monitoring
prison conditions and advocating for better treatment of undertrial prisoners.

102
7. Judicial and Police Reforms
o Strengthening judicial accountability by imposing penalties on authorities
who fail to ensure a fair and speedy trial.
o Police officers should be trained to avoid unnecessary arrests and ensure
that detentions are compliant with legal provisions.
o Establishing special monitoring committees at the district and state levels to
oversee the treatment of undertrial prisoners.

103
 BIBLIOGRAPHY
Books

1. H.M. Seervai, Constitutional Law of India, vol. 1 (4th ed. 2019).

2. V.N. Shukla, Constitution of India (Mahendra P. Singh ed., 14th ed. 2021).
3. Justice V.R. Krishna Iyer, Prisoners' Rights (1984).
4. K.D. Gaur, Textbook on the Indian Penal Code (7th ed. 2021).
5. M.P. Jain, Indian Constitutional Law (8th ed. 2018).

Journal Articles

1. Abhinav Chandrachud, Due Process of Law and the Undertrial Prisoner in India, 13
NUJS L. Rev. 45 (2020).
2. Rajeev Dhavan, The Supreme Court of India and Prison Reform: The Rhetoric of
Rights, 4 Soc. Action 289 (1987).
3. Arvind Narrain, The Prison as a Site of Control and Resistance: The Limits of
Constitutionalism, 12(3) Indian J. Criminology 35 (2018).
4. Anjana Chatterjee, Undertrial Prisoners and Human Rights in India, 5(2) Int’l J. L. &
Mgmt. Stud. 141 (2020).

Statutes and Legislation

1. The Constitution of India, 1950.

2. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
3. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
4. The Legal Services Authorities Act, 1987, No. 39, Acts of Parliament, 1987 (India).
5. The Prisons Act, 1894, No. 9, Acts of Parliament, 1894 (India).
6. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023)
7. Bharatiya Nyaya Sanhita, 2023 (BNS, 2023)

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Reports and Publications

1. Law Commission of India, 268th Report on Amendments to Criminal Procedure

Code – Bail Provisions (2017).
2. National Crime Records Bureau, Prison Statistics India 2021 (Ministry of Home
Affairs, Govt. of India, 2022).
3. People’s Union for Civil Liberties, Report on the Condition of Undertrial Prisoners
in India (PUCL 2019).
4. Commonwealth Human Rights Initiative, The Disconnected: Undertrial Prisoners
and the Legal Aid System (2018).

Online Resources

1. Supreme Court of India, Judgments on Undertrial Prisoners, https://main.sci.gov.in

(last visited Mar. 29, 2025).
2. National Legal Services Authority, Legal Aid to Undertrials, https://nalsa.gov.in (last
visited Mar. 29, 2025).
3. Amnesty International India, Justice Under Trial, https://amnesty.org.in (last visited
Mar. 29, 2025).
4. Human Rights Watch, Prison Conditions in India, https://www.hrw.org (last visited
Mar. 29, 2025).

105