Human Rights of the Accused: A distant dream
The world humanity just celebrated the 60th anniversary of the International Human Rights day on 10th December 2008. On this day, the United Nations gave an eloquent expression to the very loftiest of human aspirations — through the instrument called the Universal Declaration of Human Rights 1948, when it echoed “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." At this background I wish to put down some of reflections on the Abaya case and the accused. While I strongly and vehemently endorse the view that the guilty should be identified and punished, whoever they are because no one is above the law. My only concern is that the really guilty may be given the punishment.
The arrest of the Frs. Thomas, Jose and Sr.Sebi by the Central Bureau of Investigation (CBI) hit both the print and electronic media in down south. The media competed with each other giving such colorful and spicy news regarding them. Some of the citizenry talked about it while others remained silent. We do not know if they are the guilty neither do I know or if the CBI has arrested the right persons involved in the murder of Sr. Abaya which took place way back in 1992. It hit the media then too. But after 16 and half years of silence, the trio has been arrested. Investigations by the previous CBI teams said they were not able to find any evidences against the three accused and had almost closed the case. One wonders what turned the things upside down, how and why suddenly the CBI found them guilty is another question altogether.
The death of Abaya had sent shrills of shock waves in the hearts of every one who heard the news. It stirred the consciousness of every one who heard it then. Now, no doubt it is/ has saddened the hearts and minds of everyone who see the persons who are claded in clothes such symbolize, truth, austerity, serenity, peace, love, selflessness and forgiveness being accused of, murder, being brought to the court for the trial. The question that haunts every one could be are they the real accused in the murder of Abaya or is there some where a missing link in the whole episode. Well, that I leave to the prerogatives of the investigating agency to identify the guilty. Meanwhile what happens to the rights of an arrested person? How that person can claim his/her rights when arrested? Or what are the rights of an arrested person? A note worthy feature of the judicial system of a democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty.
No accused person shall be compelled to give evidence against him/her says the law. The accused person is presumed to be innocent until proved guilty according to law. This presumption of innocence is considered under the provisions of the Indian Evidence Act, 1872. It is a well recognized principle that let a hundred guilty ones go free rather than one innocent person be found guilty, that too without proof. According to Supreme Court self-incrimination is less that `relevant’ and more than confessional. The accused person cannot be compelled by the police to give answers to their questions. Thus there is a right to refuse to give answers to self- incriminatory questions.
In prem Shankar Shukla v. Delhi Administration (1980)3 SCC 526 the Apex Court examined the validity of handcuffing in the light of provisions of the right to personal liberty under Article 21.The Supreme Court held,” handcuffing is prima -facie inhuman and, therefore , unreasonable , is over –harsh and at the first place , arbitrary. Absent fair procedure and objective monitoring, to inflict `corns’ is to resort to zoological strategies repugnant to Article 21. While examining the Punjab Police Manual, 1953, relating to handcuffing the same Court declared that these rules were violative of articles 14, 19 and 21 of the constitution.
If this is so one wonders the act of the CBI who had forcefully taken Sr.Sebi as reported in the news for virginity test/ hymenotomy has not violated her rights under the same Articles, even more. Is it not outraging the modesty of a woman, more particularly against her will? With her consent (as some reports said) if the consent is obtained by force? What is the link between the virginity test and the murder .Can a virginity test prove murder? A virginity test cannot prove the murder. Has the barbaric act not inflicted a deeper wound on the person of Sr. Sebi and more particularly on our Constitutional culture? In my view this action of the CBI was unwarranted, more so an out right violation of the human right of a woman who was under their custody. It is a violation of human dignity and degradation, which destroys to a very large extend, the individual’s personality, in this case by defaming her. It is a calculated assault on the fundamental rights and human dignity of a person. Moreover, the right to privacy is an indispensable part of life and human dignity enshrined in Article 21 of the Indian Constitution. Virginity test is, predominantly women, and once again showing or rather displaying the subjugation and oppression of womanhood, it is an outright violation of human rights.
The hymen (also called maidenhead) is a fold of mucous membrane which surrounds or partially covers the external vaginal opening. It was also the name for the Greek god of marriage, "Hymenaios." It forms part of the vulva, or external genitalia. However, it is not possible to confirm that a woman or post-pubescent girl is not a virgin by examining the hymen. In cases of suspected rape or sexual abuse, a detailed examination of the hymen may be carried out; however, the condition of the hymen alone is often inconclusive or open to misinterpretation, especially if the patient has reached puberty. The most common formation of the hymen is crescentic or crescent-shaped, although several other formations are possible. After a woman gives birth she may be left with remnants of the hymen called carunculae myrtiformes or the hymen may be completely absent
From what I've read, and known a gynecologist can make an educated guess regarding virginity, but there is no way to be 100% sure. Women who are not virgins can still have intact hymens (which stretched, etc), and women who are virgins can have broken or non-existent hymens (some women are born without them, others tear them due to physical exertion, tampon usage, etc). The hymen can also break or split due to physical activity...such as horseback riding, contact sports...not just from sexual intercourse.
It would be hard to determine if the hymen was ruptured because of sexual activity...so I think a virginity test would not be too accurate. The hymen may be damaged by playing sports, using tampons, pelvic examinations or even straddle injuries
First of all, virginity testing is the result of a struggle between biology and ideology. It occurs in countries that have patriarchal values and already use traditional cultural and religious beliefs to subject women to specific gender roles. Many of these countries are developing nations that face severe economic and political instabilities. It again only shows the subjugation, exploitation and humiliation of women.
Undesirable detention, torture and harassment of the accused is still continuing in spite of the land mark judgment delivered by Justice Bhagwati in Sheela Barase case (1983)2 SCC96 . Police and investigating agency has a duty to give fair treatment to the accused in police custody. No accused should be put to unnecessary harassment in matters of investigation of a criminal case unless there are good and substantial reasons fro holding a criminal liable for committing offences. Third degree methods, fabrication of evidence and inflicting torture on the accused have condemned.
In D.K .basu v. State of West Bengal (1997)1 SCC 416 , the Supreme Court has dealt with the issue of `custodial death’ , custodial violence and protection of fundamental rights and human rights of the criminal vis-à-vis duties of the police /investigating agency . The Court held that `any form of torture or cruelty, inhuman or degrading treatment given to the detenu, convicts, under trails and other prisoners would fall within the inhibition of Article 21 of the constitution whether it occurs during investigation or interrogation or otherwise. Using any form of torture for extracting any kind of information would neither be right nor just nor fair and therefore the court declared that it would be offensive to the fundamental right to life and personal liberty. The Court further stated `precious right guaranteed by Article 21 of the constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law .
Commenting upon custodial deaths, the apex Court stated, as follows “custodial torture is a naked violation of human dignity and degradation, which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward –flag of humanity must on each occasion fly half-mast”.
Undoubtedly, it is a sacred duty of the police to be fair and honest in matters of investigating of a criminal case. Mack and Somasundaram, JJ, rightly stated:
“The investigating police are police are primarily the guardians of the liberty of the innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible
Right to life is a natural right. It has been guaranteed as one of the fundamental rights under Part III of the India constitution. The Constitutional guarantee under Article 21 is that no `No person shall be deprived of his her life or personal liberty except according to procedure established by law’.
What are the rights of an accused person under the Constitution of India? An accused person has the right to speedy trial which in a criminal case is considered as an essential ingredient of the right to fair trial. It is the right of an accused to defend himself/herself by a counsel. The accused person has a right to free legal aid and right to a fair trial, right against double jeopardy, Right against self-incrimination , right against `third –degree’ methods and right to fair treatment .
The right to a fair trial is a basic human right. The right is invariably enshrined in the Indian Constitution and all democratic Constitutions which contain a Bill of Rights. As mentioned earlier the note worthy feature of the judicial system of democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty. An accused person is in as much better position to prepare his/her defense if he/she is out on bail rather than when he/she is in custody. Bail is usually granted to the accused person while considering the gravity of bailable offences.
In matters of human rights the relevant laws are to be justly administered.” It is no use having just laws if they are administered unfairly – a country can put up with laws that are harsh or unjust so long as they are administered by judges but a country cannot long tolerate a legal system which does not give a fair trial. The right to a fair trial is an inherent right in the administration of criminal justice. In order to vindicate thoroughly the right of the accused courts must prepare to challenge the actions of the government if they come in the way of fair trial process.
By virtue of being suspects, accused and under trial prisoners do not cease to be human beings. Hence the rights of these human beaings are to be respected. They are entitled enjoy the rights which are provided under the Constitution as well as the existing laws of the rights of the accused, suspects, and under trials.
Nelson Mandela’s words, way back in 1992, are a fitting finale to my thoughts on this article "Our common humanity transcends the oceans and all national boundaries. It binds us together in a common cause against tyranny, to act together in defence of our very humanity. Let it never be asked of any one of us: what did we do when we knew that an other was oppressed? "What the originators of the Universal Declaration of Human Rights drafted 60 years ago was a blueprint for a better future. But the job was not finished that December. It is a work still in progress.
Saturday, March 28, 2009
1231
Human Rights of the Accused: A distant dream
The world humanity just celebrated the 60th anniversary of the International Human Rights day on 10th December 2008. On this day, the United Nations gave an eloquent expression to the very loftiest of human aspirations — through the instrument called the Universal Declaration of Human Rights 1948, when it echoed “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." At this background I wish to put down some of reflections on the Abaya case and the accused. While I strongly and vehemently endorse the view that the guilty should be identified and punished, whoever they are because no one is above the law. My only concern is that the really guilty may be given the punishment.
The arrest of the Frs. Thomas, Jose and Sr.Sebi by the Central Bureau of Investigation (CBI) hit both the print and electronic media in down south. The media competed with each other giving such colorful and spicy news regarding them. Some of the citizenry talked about it while others remained silent. We do not know if they are the guilty neither do I know or if the CBI has arrested the right persons involved in the murder of Sr. Abaya which took place way back in 1992. It hit the media then too. But after 16 and half years of silence, the trio has been arrested. Investigations by the previous CBI teams said they were not able to find any evidences against the three accused and had almost closed the case. One wonders what turned the things upside down, how and why suddenly the CBI found them guilty is another question altogether.
The death of Abaya had sent shrills of shock waves in the hearts of every one who heard the news. It stirred the consciousness of every one who heard it then. Now, no doubt it is/ has saddened the hearts and minds of everyone who see the persons who are claded in clothes such symbolize, truth, austerity, serenity, peace, love, selflessness and forgiveness being accused of, murder, being brought to the court for the trial. The question that haunts every one could be are they the real accused in the murder of Abaya or is there some where a missing link in the whole episode. Well, that I leave to the prerogatives of the investigating agency to identify the guilty. Meanwhile what happens to the rights of an arrested person? How that person can claim his/her rights when arrested? Or what are the rights of an arrested person? A note worthy feature of the judicial system of a democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty.
No accused person shall be compelled to give evidence against him/her says the law. The accused person is presumed to be innocent until proved guilty according to law. This presumption of innocence is considered under the provisions of the Indian Evidence Act, 1872. It is a well recognized principle that let a hundred guilty ones go free rather than one innocent person be found guilty, that too without proof. According to Supreme Court self-incrimination is less that `relevant’ and more than confessional. The accused person cannot be compelled by the police to give answers to their questions. Thus there is a right to refuse to give answers to self- incriminatory questions.
In prem Shankar Shukla v. Delhi Administration (1980)3 SCC 526 the Apex Court examined the validity of handcuffing in the light of provisions of the right to personal liberty under Article 21.The Supreme Court held,” handcuffing is prima -facie inhuman and, therefore , unreasonable , is over –harsh and at the first place , arbitrary. Absent fair procedure and objective monitoring, to inflict `corns’ is to resort to zoological strategies repugnant to Article 21. While examining the Punjab Police Manual, 1953, relating to handcuffing the same Court declared that these rules were violative of articles 14, 19 and 21 of the constitution.
If this is so one wonders the act of the CBI who had forcefully taken Sr.Sebi as reported in the news for virginity test/ hymenotomy has not violated her rights under the same Articles, even more. Is it not outraging the modesty of a woman, more particularly against her will? With her consent (as some reports said) if the consent is obtained by force? What is the link between the virginity test and the murder .Can a virginity test prove murder? A virginity test cannot prove the murder. Has the barbaric act not inflicted a deeper wound on the person of Sr. Sebi and more particularly on our Constitutional culture? In my view this action of the CBI was unwarranted, more so an out right violation of the human right of a woman who was under their custody. It is a violation of human dignity and degradation, which destroys to a very large extend, the individual’s personality, in this case by defaming her. It is a calculated assault on the fundamental rights and human dignity of a person. Moreover, the right to privacy is an indispensable part of life and human dignity enshrined in Article 21 of the Indian Constitution. Virginity test is, predominantly women, and once again showing or rather displaying the subjugation and oppression of womanhood, it is an outright violation of human rights.
The hymen (also called maidenhead) is a fold of mucous membrane which surrounds or partially covers the external vaginal opening. It was also the name for the Greek god of marriage, "Hymenaios." It forms part of the vulva, or external genitalia. However, it is not possible to confirm that a woman or post-pubescent girl is not a virgin by examining the hymen. In cases of suspected rape or sexual abuse, a detailed examination of the hymen may be carried out; however, the condition of the hymen alone is often inconclusive or open to misinterpretation, especially if the patient has reached puberty. The most common formation of the hymen is crescentic or crescent-shaped, although several other formations are possible. After a woman gives birth she may be left with remnants of the hymen called carunculae myrtiformes or the hymen may be completely absent
From what I've read, and known a gynecologist can make an educated guess regarding virginity, but there is no way to be 100% sure. Women who are not virgins can still have intact hymens (which stretched, etc), and women who are virgins can have broken or non-existent hymens (some women are born without them, others tear them due to physical exertion, tampon usage, etc). The hymen can also break or split due to physical activity...such as horseback riding, contact sports...not just from sexual intercourse.
It would be hard to determine if the hymen was ruptured because of sexual activity...so I think a virginity test would not be too accurate. The hymen may be damaged by playing sports, using tampons, pelvic examinations or even straddle injuries
First of all, virginity testing is the result of a struggle between biology and ideology. It occurs in countries that have patriarchal values and already use traditional cultural and religious beliefs to subject women to specific gender roles. Many of these countries are developing nations that face severe economic and political instabilities. It again only shows the subjugation, exploitation and humiliation of women.
Undesirable detention, torture and harassment of the accused is still continuing in spite of the land mark judgment delivered by Justice Bhagwati in Sheela Barase case (1983)2 SCC96 . Police and investigating agency has a duty to give fair treatment to the accused in police custody. No accused should be put to unnecessary harassment in matters of investigation of a criminal case unless there are good and substantial reasons fro holding a criminal liable for committing offences. Third degree methods, fabrication of evidence and inflicting torture on the accused have condemned.
In D.K .basu v. State of West Bengal (1997)1 SCC 416 , the Supreme Court has dealt with the issue of `custodial death’ , custodial violence and protection of fundamental rights and human rights of the criminal vis-à-vis duties of the police /investigating agency . The Court held that `any form of torture or cruelty, inhuman or degrading treatment given to the detenu, convicts, under trails and other prisoners would fall within the inhibition of Article 21 of the constitution whether it occurs during investigation or interrogation or otherwise. Using any form of torture for extracting any kind of information would neither be right nor just nor fair and therefore the court declared that it would be offensive to the fundamental right to life and personal liberty. The Court further stated `precious right guaranteed by Article 21 of the constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law .
Commenting upon custodial deaths, the apex Court stated, as follows “custodial torture is a naked violation of human dignity and degradation, which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward –flag of humanity must on each occasion fly half-mast”.
Undoubtedly, it is a sacred duty of the police to be fair and honest in matters of investigating of a criminal case. Mack and Somasundaram, JJ, rightly stated:
“The investigating police are police are primarily the guardians of the liberty of the innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible
Right to life is a natural right. It has been guaranteed as one of the fundamental rights under Part III of the India constitution. The Constitutional guarantee under Article 21 is that no `No person shall be deprived of his her life or personal liberty except according to procedure established by law’.
What are the rights of an accused person under the Constitution of India? An accused person has the right to speedy trial which in a criminal case is considered as an essential ingredient of the right to fair trial. It is the right of an accused to defend himself/herself by a counsel. The accused person has a right to free legal aid and right to a fair trial, right against double jeopardy, Right against self-incrimination , right against `third –degree’ methods and right to fair treatment .
The right to a fair trial is a basic human right. The right is invariably enshrined in the Indian Constitution and all democratic Constitutions which contain a Bill of Rights. As mentioned earlier the note worthy feature of the judicial system of democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty. An accused person is in as much better position to prepare his/her defense if he/she is out on bail rather than when he/she is in custody. Bail is usually granted to the accused person while considering the gravity of bailable offences.
In matters of human rights the relevant laws are to be justly administered.” It is no use having just laws if they are administered unfairly – a country can put up with laws that are harsh or unjust so long as they are administered by judges but a country cannot long tolerate a legal system which does not give a fair trial. The right to a fair trial is an inherent right in the administration of criminal justice. In order to vindicate thoroughly the right of the accused courts must prepare to challenge the actions of the government if they come in the way of fair trial process.
By virtue of being suspects, accused and under trial prisoners do not cease to be human beings. Hence the rights of these human beaings are to be respected. They are entitled enjoy the rights which are provided under the Constitution as well as the existing laws of the rights of the accused, suspects, and under trials.
Nelson Mandela’s words, way back in 1992, are a fitting finale to my thoughts on this article "Our common humanity transcends the oceans and all national boundaries. It binds us together in a common cause against tyranny, to act together in defence of our very humanity. Let it never be asked of any one of us: what did we do when we knew that an other was oppressed? "What the originators of the Universal Declaration of Human Rights drafted 60 years ago was a blueprint for a better future. But the job was not finished that December. It is a work still in progress.
The world humanity just celebrated the 60th anniversary of the International Human Rights day on 10th December 2008. On this day, the United Nations gave an eloquent expression to the very loftiest of human aspirations — through the instrument called the Universal Declaration of Human Rights 1948, when it echoed “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." At this background I wish to put down some of reflections on the Abaya case and the accused. While I strongly and vehemently endorse the view that the guilty should be identified and punished, whoever they are because no one is above the law. My only concern is that the really guilty may be given the punishment.
The arrest of the Frs. Thomas, Jose and Sr.Sebi by the Central Bureau of Investigation (CBI) hit both the print and electronic media in down south. The media competed with each other giving such colorful and spicy news regarding them. Some of the citizenry talked about it while others remained silent. We do not know if they are the guilty neither do I know or if the CBI has arrested the right persons involved in the murder of Sr. Abaya which took place way back in 1992. It hit the media then too. But after 16 and half years of silence, the trio has been arrested. Investigations by the previous CBI teams said they were not able to find any evidences against the three accused and had almost closed the case. One wonders what turned the things upside down, how and why suddenly the CBI found them guilty is another question altogether.
The death of Abaya had sent shrills of shock waves in the hearts of every one who heard the news. It stirred the consciousness of every one who heard it then. Now, no doubt it is/ has saddened the hearts and minds of everyone who see the persons who are claded in clothes such symbolize, truth, austerity, serenity, peace, love, selflessness and forgiveness being accused of, murder, being brought to the court for the trial. The question that haunts every one could be are they the real accused in the murder of Abaya or is there some where a missing link in the whole episode. Well, that I leave to the prerogatives of the investigating agency to identify the guilty. Meanwhile what happens to the rights of an arrested person? How that person can claim his/her rights when arrested? Or what are the rights of an arrested person? A note worthy feature of the judicial system of a democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty.
No accused person shall be compelled to give evidence against him/her says the law. The accused person is presumed to be innocent until proved guilty according to law. This presumption of innocence is considered under the provisions of the Indian Evidence Act, 1872. It is a well recognized principle that let a hundred guilty ones go free rather than one innocent person be found guilty, that too without proof. According to Supreme Court self-incrimination is less that `relevant’ and more than confessional. The accused person cannot be compelled by the police to give answers to their questions. Thus there is a right to refuse to give answers to self- incriminatory questions.
In prem Shankar Shukla v. Delhi Administration (1980)3 SCC 526 the Apex Court examined the validity of handcuffing in the light of provisions of the right to personal liberty under Article 21.The Supreme Court held,” handcuffing is prima -facie inhuman and, therefore , unreasonable , is over –harsh and at the first place , arbitrary. Absent fair procedure and objective monitoring, to inflict `corns’ is to resort to zoological strategies repugnant to Article 21. While examining the Punjab Police Manual, 1953, relating to handcuffing the same Court declared that these rules were violative of articles 14, 19 and 21 of the constitution.
If this is so one wonders the act of the CBI who had forcefully taken Sr.Sebi as reported in the news for virginity test/ hymenotomy has not violated her rights under the same Articles, even more. Is it not outraging the modesty of a woman, more particularly against her will? With her consent (as some reports said) if the consent is obtained by force? What is the link between the virginity test and the murder .Can a virginity test prove murder? A virginity test cannot prove the murder. Has the barbaric act not inflicted a deeper wound on the person of Sr. Sebi and more particularly on our Constitutional culture? In my view this action of the CBI was unwarranted, more so an out right violation of the human right of a woman who was under their custody. It is a violation of human dignity and degradation, which destroys to a very large extend, the individual’s personality, in this case by defaming her. It is a calculated assault on the fundamental rights and human dignity of a person. Moreover, the right to privacy is an indispensable part of life and human dignity enshrined in Article 21 of the Indian Constitution. Virginity test is, predominantly women, and once again showing or rather displaying the subjugation and oppression of womanhood, it is an outright violation of human rights.
The hymen (also called maidenhead) is a fold of mucous membrane which surrounds or partially covers the external vaginal opening. It was also the name for the Greek god of marriage, "Hymenaios." It forms part of the vulva, or external genitalia. However, it is not possible to confirm that a woman or post-pubescent girl is not a virgin by examining the hymen. In cases of suspected rape or sexual abuse, a detailed examination of the hymen may be carried out; however, the condition of the hymen alone is often inconclusive or open to misinterpretation, especially if the patient has reached puberty. The most common formation of the hymen is crescentic or crescent-shaped, although several other formations are possible. After a woman gives birth she may be left with remnants of the hymen called carunculae myrtiformes or the hymen may be completely absent
From what I've read, and known a gynecologist can make an educated guess regarding virginity, but there is no way to be 100% sure. Women who are not virgins can still have intact hymens (which stretched, etc), and women who are virgins can have broken or non-existent hymens (some women are born without them, others tear them due to physical exertion, tampon usage, etc). The hymen can also break or split due to physical activity...such as horseback riding, contact sports...not just from sexual intercourse.
It would be hard to determine if the hymen was ruptured because of sexual activity...so I think a virginity test would not be too accurate. The hymen may be damaged by playing sports, using tampons, pelvic examinations or even straddle injuries
First of all, virginity testing is the result of a struggle between biology and ideology. It occurs in countries that have patriarchal values and already use traditional cultural and religious beliefs to subject women to specific gender roles. Many of these countries are developing nations that face severe economic and political instabilities. It again only shows the subjugation, exploitation and humiliation of women.
Undesirable detention, torture and harassment of the accused is still continuing in spite of the land mark judgment delivered by Justice Bhagwati in Sheela Barase case (1983)2 SCC96 . Police and investigating agency has a duty to give fair treatment to the accused in police custody. No accused should be put to unnecessary harassment in matters of investigation of a criminal case unless there are good and substantial reasons fro holding a criminal liable for committing offences. Third degree methods, fabrication of evidence and inflicting torture on the accused have condemned.
In D.K .basu v. State of West Bengal (1997)1 SCC 416 , the Supreme Court has dealt with the issue of `custodial death’ , custodial violence and protection of fundamental rights and human rights of the criminal vis-à-vis duties of the police /investigating agency . The Court held that `any form of torture or cruelty, inhuman or degrading treatment given to the detenu, convicts, under trails and other prisoners would fall within the inhibition of Article 21 of the constitution whether it occurs during investigation or interrogation or otherwise. Using any form of torture for extracting any kind of information would neither be right nor just nor fair and therefore the court declared that it would be offensive to the fundamental right to life and personal liberty. The Court further stated `precious right guaranteed by Article 21 of the constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law .
Commenting upon custodial deaths, the apex Court stated, as follows “custodial torture is a naked violation of human dignity and degradation, which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward –flag of humanity must on each occasion fly half-mast”.
Undoubtedly, it is a sacred duty of the police to be fair and honest in matters of investigating of a criminal case. Mack and Somasundaram, JJ, rightly stated:
“The investigating police are police are primarily the guardians of the liberty of the innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible
Right to life is a natural right. It has been guaranteed as one of the fundamental rights under Part III of the India constitution. The Constitutional guarantee under Article 21 is that no `No person shall be deprived of his her life or personal liberty except according to procedure established by law’.
What are the rights of an accused person under the Constitution of India? An accused person has the right to speedy trial which in a criminal case is considered as an essential ingredient of the right to fair trial. It is the right of an accused to defend himself/herself by a counsel. The accused person has a right to free legal aid and right to a fair trial, right against double jeopardy, Right against self-incrimination , right against `third –degree’ methods and right to fair treatment .
The right to a fair trial is a basic human right. The right is invariably enshrined in the Indian Constitution and all democratic Constitutions which contain a Bill of Rights. As mentioned earlier the note worthy feature of the judicial system of democratic country is the universal recognition of the presumption of the accused person’s innocence until he/she is proved guilty. An accused person is in as much better position to prepare his/her defense if he/she is out on bail rather than when he/she is in custody. Bail is usually granted to the accused person while considering the gravity of bailable offences.
In matters of human rights the relevant laws are to be justly administered.” It is no use having just laws if they are administered unfairly – a country can put up with laws that are harsh or unjust so long as they are administered by judges but a country cannot long tolerate a legal system which does not give a fair trial. The right to a fair trial is an inherent right in the administration of criminal justice. In order to vindicate thoroughly the right of the accused courts must prepare to challenge the actions of the government if they come in the way of fair trial process.
By virtue of being suspects, accused and under trial prisoners do not cease to be human beings. Hence the rights of these human beaings are to be respected. They are entitled enjoy the rights which are provided under the Constitution as well as the existing laws of the rights of the accused, suspects, and under trials.
Nelson Mandela’s words, way back in 1992, are a fitting finale to my thoughts on this article "Our common humanity transcends the oceans and all national boundaries. It binds us together in a common cause against tyranny, to act together in defence of our very humanity. Let it never be asked of any one of us: what did we do when we knew that an other was oppressed? "What the originators of the Universal Declaration of Human Rights drafted 60 years ago was a blueprint for a better future. But the job was not finished that December. It is a work still in progress.
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