Human Rights and
Criminal Justice System
in India
Human Rights
Human rights are the basic rights available to any human being by virtue of his
birth in human race. It is inherent in all human beings irrespective of their
nationality, religion, language, sex, color or any other consideration. The
Protection of Human Rights Act, 1993 defines Human Rights as: “human rights”
means the rights relating to life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India”.
History of Human Rights
The independence of the judiciary was one of the outstanding features of the Hindu
judicial system. Even during the days of Hindu monarchy, the administration of
justice always remained separate from the executive. It was, as a rule, independent
both in form and spirit. It was the Hindu judicial system that first realized and
recognized the importance of the separation of the judiciary from the executive and
gave this fundamental principle a practical shape and form.
There are many references in the Vedas, which throw light on the existence of
human rights in ancient lndia. The Vedas proclaim liberty of body (Tan), dwelling
house (Skridhi), and life (Jibase). Life was more human and liberal in the PostVedic
era. After Eiuddha, Emperor Ashoka protected and secured the most precious of
human rights.
The modern version of human rights jurisprudence may be said to have taken birth
in lndia at tile time of the British rule.
The Indian Constitution was framed by the Constituent Assembly of India, which
met for the first time on December 9, 1946. The Constitution of India gave
primary importance to human rights.
Concept
India was a signatory to the Universal Declaration of Human Rights. A number of
fundamental rights guaranteed ta the individuals in Part Ill of the lndian
Constitution are similar to the provisions of the Universal Declaration of Human
Rights.
Article 14 of the lndia Constitution proclaims the general right of all persons to
equality before the law, while Article 15 prohibits the State from discriminating
against citizen on grounds of religion, race, caste, sex or place of birth, and
prohibits any restriction on any citizen's access to any public place, including wells
and tanks. Equality of opportunity for all citizens in matters of public employment
is guaranteed under Article 16. Article 17 abolishes untouchability and makes its
practice an offence punishable under law. Both Articles 15 and 16 enable the State
to make special provisions for the advancement of socially and educationally
backward classes, for such castes and tribes as recognized in the Constitution
(known as the Scheduled Castes and Scheduled Tribes) require very special
treatment for their advancement. Article 18 abolishes all non-military or
nonacademic titles.
The right to freedom guaranteed to all citizens under Article 19 encompasses the
right to freedom of speech and expression, the right to assemble peaceably without
arms, the right to form associations or unions, the right to move freely throughout
the territory of India, the right of residence, and the right to practice any
profession, or to carry on any occupation, trade or business. The protection of a
person in respect of conviction of offences under Article 20 includes protection
against ex post facto criminal laws, the principle of autre fois convict and the right
against self-incrimination. Article 21, the core of all fundamental rights provisions
in the Indian Constitution, ordains: "No person shall be deprived of his life or
personal liberty except according to procedure established by law." Article 21A
was added to the Constitution by the Eighty Sixth Constitutional 67 Amendment
Act 2002. Article 21A proclaims "the State shall provide free and compulsory
education t3 all children of the age of six to fourteen years in such manner as the
State may, by law, determine." The rights of a person, arrested and detained by the
State authorities, are provided in Article 22. These include the, right to be
informed of the grounds of arrest, the right to legal advice and the right to be
produced before a magistrate within 24 hours of arrest (except where one is
arrested under a preventive detention law). The right against exploitation includes
prohibition of trafficking in human beings and forced labor (Article 23), and
prohibition of employment of children below 14 years of age "to work in any
factory or mine or in any other hazardous employment." Subject to public order
and morality, all persons are equally entitled to freedom of conscience and the
right to profess, practice and propagate religion (Article 25). Every religious
denomination or section also has the right to establish and maintain religious
institutions and manage their religious affairs (Article 26). No one may be
compelled to pay any religious taxes (Article 27). The wholly State-funded
educational institutions are barred from imparting religious instructions (Article
28). The rights of any section of citizens or a minority to promote its distinct
language, script or culture, to have access to State-funded educational institutions
(Article 29), and to establish and maintain educational institutions of its choice
(Article 30) are also guaranteed. The right to Constitutional remedies is essentially
the right to move the Supreme Court of India for 2nforcement of the above rights
(Article 32). The Supreme Court is vested with wide Constitutional powers in this
regard. 68 They include the power to issue directions, orders or writs for the
enforcement of the fundamental rights (Article 32(2)). State (i.e. provincial) High
Courts too have identical powers (Article 226). As laws inconsistent with or in
derogation of the rights conferred by part Ill of the Constitution are void (Article
13), the Courts have the power to adjudge the Constitutional validity of all laws.
Furthermore, by virtue of Article 141, the law declared by the Supreme Court shall
be binding on all courts in India.
MAIN SOURCE OF HUMAN RIGHTS IN INDIA
There are many sources of Human Rights in India. The main Sources of Human
Rights in lndia are as follows:
• UN Charter
• Universal Declaration of Human Rights 1948
• International Covenant on Civil and Political Rights
• 1" and 2" Optional Protocol to the International Covenant on Civil and
Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention against Torture
• United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
INSTITUTIONS WHO PROTECT THE
HUMAN RIGHTS
There are mainly three agencies in India who Protects the Human Rights
➢ National Human Rights Commission
➢ State Human Rights Commission
➢ NGOs related to National Human Rights Commission
The Commission issued instructions that any instance of custodial death must be
reported to it within 24 hours of occurrence. Such information was to be followed
by the submission to the Commission of the relevant post-mortem report, the
magisterial inquest report and a videography report on the postmortem.
Unfortunately, it was observed that there was frequent delay in the sending of
these reports. This in turn delayed the processing of cases of custodial violence in
the Commission and the awarding of interim relief when, prima-facie, there was
reason to conclude that a custodial death had resulted from custodial violence.
Given this unsatisfactory situation, the Commission has issued fresh instructions
requesting that all concerned reports, namely the post-mortem, videography and
magisterial inquiry reports, must be sent to the Commission within two months of
the incident. The postmortem reports have to be recorded on a new form, designed
by the Commission, which has been circulated to all concerned authorities.
Further, in every case of custodial death, a magisterial inquiry has also to be
conducted as directed by the Commission. It should be completed expeditiously
and transmitted to the Commission within the deadline of two months that has
been set by the Commission.
In certain cases of custodial death, and after the post-mortem examination, the
viscera are sent for examination and a viscera report is required. However, such
reports also take time in being received. The Commission has therefore clarified
that the post- mortem reports and other related documents should be sent to the
Commission without waiting for the viscera report, with the latter being sent
subsequently as soon as it is available.
Characteristics and Nature of Human Rights
1. Human Rights are inalienable - Human rights are conferred on an
individual due to the very nature of his existence. They are inherent in all
individuals irrespective of their caste, creed, religion, sex and nationality. Human
rights are conferred to an individual even after his death. The different rituals in
different religions bear testimony to this fact.
2. Human Rights Are Essential and Necessary - In the absence of human
rights, the moral, physical, social and spiritual welfare of an individual is
impossible. Human rights are also essential as they provide suitable conditions for
material and moral upliftment of the people.
3. Human Rights are in connection with human dignity- To treat another
individual with dignity irrespective of the fact that the person is a male or female,
rich or poor etc. is concerned with human dignity. For eg. In 1993, India has
enacted a law that forbids the practice of carrying human excreta. This law is
called Employment of Manual Scavengers and Dry Latrines (Prohibition) Act.
4. Human Rights Are Irrevocable: Human rights are irrevocable. They
cannot be taken away by any power or authority because these rights originate
with the social nature of man in the society of human beings and they belong to a
person simply because he is a human being. As such human rights have
similarities to moral rights.
5. Human Rights Are Necessary for the fulfillment of purpose of life:
Human life has a purpose. The term "human right" is applied to those conditions
which are essential for the fulfillment of this purpose. No government has the
power to curtail or take away the rights which are sacrosanct, inviolable and
immutable.
6. Human Rights Are Universal - Human rights are not a monopoly of any
privileged class of people. Human rights are universal in nature, without
consideration and without exception. The values such as divinity, dlignity and
equality which form the basis of these rights are inherent in human nature.
7. Human Rights Are never absolute - Man is a social animal and he lives in
a civic society, which always put certain restrictions on the enjoyment of his rights
and freedoms. Human rights as such are those limited powers or claims, which are
contributory to the common good and which are recognized and guaranteed by the
State, through its laws to the individuals. As such each right has certain limitations
8. Human Rights Are Dynamic - Human rights are not static, they are
dynamic. Human rights go on expanding with socio-eco-cultural and political
developments within the State. Judges have to interpret laws in such ways as are in
tune with the changed social values. For eg. The right to be cared for in sickness
has now been extended to include free medical treatment in public hospitals under
the Public Health Scheme, free medical examinations in schools, and the
provisions for especially equipped schools for the physically handicapped
9. Rights as limits to state power - Human rights imply that every individual
has legitimate claims upon his or her society for certain freedom and benefits. So
human rights limit the state's power. These may be in the form of negative
restrictions, on the powers of the State, from violating the inalienable freedoms of
the individuals. or in the nature of demands on the State, i.e. positive obligations of
the State. For eg. Six freedoms that are enumerated under the right to liberty forbid
the State from interfering with the individual.
Case Study
Case3: Death of Salman Dinkar Padvi in Police Firing: Maharashtra (Case
No.1332!13/2000-2001/FC) Dinakar B. Padvi, Nandurbar, Maharashtra filed a
complaint with the Commission alleging that on 28 June 2000 one leopard entered
Khapar town in Taluk Akkalkua Nan-Durbar, Maharashtra. Intrigued by the
leopard many people gathered to see it. The Police too tried to catch the leopard
alive but as they did not succeed, they opened fire. According to the complainant,
his son Salman Dinkar Padvi was seriously injured in the police firing and later
succumbed to his injuries in the government hospital. The Commission called for a
report in this matter from the Director General of Police, Maharashtra. In response
the Deputy Conservator of Forests admitted to the fact that Salman Dinkar Padvi
had died in the police firing. The Commission also observed that simply because it
was an accidental death it did not absolve the State Government of its
responsibility to pay immediate interim relief under section 18(3) of the Act. to the
legal heirs of the deceased, who according to the complainant was the only
breadwinner of the family. Considering the fact that the sole bread-winner of the
family had died in the firing. The Commission directed that it be inquired from the
Chief Secretary whether the State Government had given any relief-ex-gratia or
otherwise to the next of kin of the deceased and, if not, whether the Government
was considering the grant of some. In a subsequent report, Superintendent of
Police, Nandurbar, Maharashtra sent a report stating that the dependents of the
victim Salman Dinkar Padvi had been granted relief of Rs. One Lakh from the
Chief Minister's Relief Fund and also confirmed disbursement of the amount. The
Commission has since closed the case.
Criminal Justice System
in India
Need and evolution of criminal justice systems
According to Hobbes, man is selfish by nature and can go to any extent for
pleasure. As said by Bentham, a person avoids pain and demands to seek pleasure.
He is usually moved by his instincts and, in earlier times, there were no regulations
and limits to control his conduct. With the increasing population and communities,
his interests collided with others’ and led to a situation of conflict. Thus, in order to
regulate the conduct of a man, a system was needed that could monitor his actions.
The development of the criminal justice system is the same as the development of
man.
The first stage was when there was no control over his actions and he acted as per
his needs and demands. If needed, he could hurt anyone and fulfil his wishes. Then
came the second stage, where the territory expanded and the concept of ‘state’
emerged. At this stage, a ruler ruled the kingdom and other people acted on his
behalf. This stage, however, could not handle the conflict of interests, and so the
king gave strict punishments based on the theory of eye for an eye and body for a
body. This stage was full of revenge and hatred. When the king still could not
regulate the actions of man and there was chaos in society, a need for a proper
system was felt. With the advancement of time and development in society, the
monarchy was replaced by the aristocracy, which was further replaced by
democracy, and the government was thought to have a system to control the rate of
crime in each state; hence, the criminal justice system emerged.
History
How the Criminal Justice System Evolved
in India?
Criminal Justice System in its Present Form
▪ Throughout India's history, different criminal justice systems have evolved and
gained prominence in different regions under different rulers.
▪ Indian Penal Code (IPC) is the official criminal code of India drafted in
1860 in the wake of the first law commission established in 1834 under the
Charter Act of 1833.
▪ In line , the Code of Criminal Procedure (CrPC) provides procedures for
administering criminal law in India. It was enacted in 1973 and became
effective on 1 April 1974.
▪ The Criminal Justice System in India follows the legal procedure established by
the British during the pre-independence era.
▪ An Indian Penal Code (IPC) defining crime and prescribing appropriate
punishments was adopted in 1860, prepared by the first Law Commission of
India.
• It was developed in line with the English criminal law.
• Code of Criminal Procedure was enacted in 1861 and established the rules to
be followed in all stages. This was amended in 1973.
• The Committee opined that the existing system “weighed in favor of the
accused and did not adequately focus on justice to the victims of crime.”
Objective of Criminal Justice System
The primary objective of the criminal justice system is to make the entire process
fair and transparent to both the victim and accused. It starts with the entry of the case
that is followed by the prosecution and pretrial. After this, the trial process initiates
which is also known as adjudication. Later on, a post-trial is also carried. These are
the procedures followed by the criminal justice system.
The objectives are the criminal justice system:
• To maintain harmony through a proper law and order system.
• To punish the criminals.
• To stop the offender from engaging in any crime in future.
• To prevent the occurrence of crime in society.
• To rehabilitate the transgressors and the criminals.
• To compensate the victims as far as possible.
Types of criminal justice systems
There are two major types of criminal justice systems in the world. These are:
• Adversarial system
• Inquisitorial system
1. Adversarial system
This system is followed in common law countries that were once colonies of a
particular country. In this system, there is a prosecution advocate and a defence
advocate who argue before the court, and the case is decided on the basis of
principles of evidence law and procedural laws. The judge decides the case on the
basis of arguments between the two counsels and evidence shown in court. This
system presumes the accused to be innocent until proven guilty beyond a
reasonable doubt.
India follows this system because it was once a colony of the British empire and
hence called a common law country. The prosecutor represents the state, as it is
presumed that a crime has been committed against the state at large, and so, it is
the obligation of the state to provide justice. In this system, both parties are given
rights to a fair trial and hearing, and so justice is delayed.
2. Inquisitorial system
This system is followed in civil law countries. In this system, the judge can himself
investigate the matter and decide the case on the basis of investigation and inquiry.
The counsel from each side is present, but unlike in the adversarial system, there is
no cross-examination of witnesses. The decision and its accuracy depend on the
prudence and skills of the judge.
This trial procedure is much faster in this system, and it is not costly. It is less formal,
and the determination of justice does not depend on the advocate but on the ability
of each particular judge.
Conclusion
The entire existence of an orderly society depends upon the sound and efficient
functioning of the Criminal Justice System. The law of the land has to be in tune
with the demands of the changing times and nature of complexities in offences.
There should be a broader dialogue among all the stakeholders for effective
provisions so that the interest of justice is served and served right, where no
innocent suffers prejudice, exclusion leading to miscarriage of justice.
Similarly, the rules and procedures established by law need to reach the common
man, and the role of civil society in this endeavor is paramount. Further, there is a
need to streamline the police reforms, beef up the forensic evidence-based
investigation, and prioritize advanced scientific analysis which must be
strengthened and upgraded, catering to the demands of the present times. The
infrastructural challenges confronting the judiciary must be addressed to facilitate
the process of ensuring justice.
