Author: Priyanshi Sarin

[Views are Personal]


The importance of a fair trial for legal systems is an extension and adaptation to the fundamental principle of rule of law. It has long been recognised internationally, both Articles 6(1) of the European Convention on Human Rights and Article 14(1) of the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human rights, 1948 recognise this principle. India as a signatory to these international covenants has a paramount duty to respect it. The Indian justice system is based on an accusatorial method, wherein criminal disputes are resolved before  an impartial and competent court after giving a fair and adequate opportunity to the disputants to place before the court, their respective cases. In order to fulfil the prerequisite of having a fair trial which requires an independent judge, the Criminal Procedure Code has made a provision to separate the judiciary from the executive, by requiring the appointment of judicial magistrates under the direct supervision and control of the High Court in each State. Additionally, our adversary system necessarily requires competent and able lawyers adequately representing the Parties before the court. Whilst all these rights are codified and imbedded in the Code as well as are sanctioned by the International covenants, dispensing Justice becomes impossible under situations wherein the accused is not brought before the judiciary but rather is victimised at the hands of the Police or the Public by way of encounters and media trials.

Contemporary Issue

 The contemporary techniques today are threatening the constitutional rights of the accused and going against the basic premise of “innocent until proven guilty.” This presumption is seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non qui negat, which denotes that the burden of proof rests on the one who asserts, not on the one who denies. The recent Hyderabad encounter has thrown light upon the rights of the accused and divided public opinion widely, wherein we witnessed that the ordinary citizens were praising the Police but the human rights activists condemned their acts expressing immense fear over this “heroic” behaviour as a threat to our justice system. The encounter was justified by pointing out the fallacies of our system, which is criticised for being time-consuming and uncertain, and to which the biggest testimony is the “Nirbhaya Judgment”. It is well-known that delay often leads to the witness becoming hostile, psychological trauma, threats to the victim and his/her family etc., and while accurate statistics are not available, it is estimated that approximately about three crore cases are pending in various law courts all over the country. Secondly, the statutory rule which permits rightful exercise of private defence and acknowledges that there can be exceptional circumstances which necessitate to kill the person, accused of an offence punishable with death or imprisonment for life was manipulated to justify the gruesome act. This deduces that our Criminal Code requires restructuring, such legislations are used as loopholes to override and exceed one’s ambit of power.

Nonetheless, to overcome these challenges an “encounter” is not the answer. The administration of a criminal justice system has four vital units, namely, the Police, Prosecution, Judiciary and the correctional institutions. These components are supposed to work in a harmonious and cohesive manner with close coordination and cooperation in order to produce desired results more effectively, which signifies a duty to respect the basic principle of separation of powers and understand that as investigators their role is limited to generating evidence;  it is the courts that are bestowed with the duty to authenticate the accusation. More importantly, the accused can under no condition cease to be a human being and is entitled to human rights, which are inclusive of the right to be heard and represented before being adjudged guilty.

This encounter has become a subject of controversy, majorly because it is not unknown that in the past the police machinery has been accused of employing torture in many of their operational fields including crime investigation, conducting fake encounters in order to justify their duty; which is completely against the principles of humanity. The high headedness of police came to light when the Inspector of Nadiad Police Station arrested, assaulted and handcuffed the Chief Judicial Magistrate undermining the dignity and independence of the judiciary and paraded him in public with the object to humiliate him. Thus, when the police can torture a judicial officer, then the plight and susceptibility of the common man to police torture become all the more deplorable.

In a democratic country like ours, respect for human life assumes supremacy wherein encounters and extra-judicial killings shake the core principles of the Constitution and sets a dangerous precedent. Thus, the author reasons that supporting such encounters or media trials would give a freeway to Police to become the investigators, as well as executors which would be perilous.

In order to assure a fair trial, it is imperative to follow strict procedural safeguards embedded in the Constitution and the Criminal Procedure Code from the moment the police receive information about an offence and initiate a criminal investigation. It is suggested that the authorities committing human rights violations shall undergo rigorous interrogation as well as face the brunt of their actions so as to set a precedent for the future and break the pattern of incentivising/promoting police officials indulging in such acts.  The first and foremost requirement is the imparting of education in human rights to the police and prison officials,  in consonance with the Supreme Court guidelines. The Central Government should give directions to those States which have not yet established Human Rights Commissions and it should also provide additional powers to the Commission for creating a conducive atmosphere for the protection of human rights of the accused, suspects and undertrial prisoners.

Concluding Remarks

Indian Judges are bestowed with the noble job of rendering justice and they play a pivotal role in dealing with the issues and challenges present today. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Committee on Criminal Justice Reforms observed that judges in India are too passive, even by the standards of the adversarial system, and that the judge in his anxiety to maintain his position of neutrality never takes any initiative to discover the truth. In a country with a vast population of poor people, justice has to be necessarily cheap and expeditious for which it is the need of the hour to employ more and more judges.

Finally, as responsible citizens we must refrain from supporting such acts, and realise that any form of appraisals are empowering officers to conduct extra-judicial killings. The implementation of Justice is possible only with our support, it is our duty to not pressure these state agencies and leave it to the Judiciary, after-all the suicides which are committed due to false allegations and accusations by the court of Instagram or Whatsapp are also indirectly covered under the garb of extra-judicial killings.

About the Author: Priyanshi is a third-year law student at Symbiosis Law School, Pune.

Disclaimer: Although we try to ensure that the information provided, whether in relation to the products, services, or offering or otherwise provided (hereinafter mentioned as “INFORMATION”) on the website is correct at the time of publishing, we or any third parties do not provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements. Neither the website nor any person/organization acting on its behalf may accept any legal liability/responsibility.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s