Concept of a Fair Trial
Introduction
The right to a fair trial is a norm of international human rights law and also
adopted by many countries in their procedural law. Countries like U.S.A., Canada,
U.K., and India have adopted this norm and it is enshrined in their Constitution.
The right to a fair trial has been defined in numerous international instruments. The
major features of fair criminal trial are preserved in the Universal Declaration of Human Rights, 1948.
Article 10– Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.
Article 11– (1) Everyone charged with a penal offense 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 defense.
(2) No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a
penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.
Article 14 of the International Covenant on Civil and Political
Rights reaffirmed the objects of UDHR and provides that “Everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.” Article 14(2) provides for the presumption of
innocence, and article 14(3) sets out a list of minimum fair trial rights in criminal
proceedings. Article 14(5) establishes the rights of a convicted person to have a
higher court review the conviction or sentence, and article 14(7) prohibits double
jeopardy
Section 11 of the Canadian Charter of Rights and Freedoms, protects a
person’s basic legal rights in criminal prosecution.
Article 6 of the European Convention on Human Rights provides the minimum
rights, adequate time and facilities to prepare their defense, access to legal
representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter to everyone charged with a criminal offense.
The Sixth Amendment to the United States Constitution provides in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. As far as Indian legal system is concerned, the international promise of fair trial is very much reflected in its constitutional scheme as well as its procedural law. Indian judiciary has also highlighted the pivotal role of fair trial in a number of cases. It is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of their basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. The concept of fair trial is
based on the basic principles of natural justice.
Fair Trial
The concept of fair trial is based on the basic ideology that State and its agencies
have the duty to bring the offenders before the law. In their battle against crime
and delinquency, State and its officers cannot on any account forsake the decency
of State behavior and have recourse to extra-legal methods for the sake of detection
of crime and even criminals. For how can they insist on good behavior from others
when their own behavior is blameworthy, unjust and illegal? Therefore the
procedure adopted by the State must be just, fair and reasonable. The Indian courts
have recognized that the primary object of criminal procedure is to ensure a fair
trial of accused persons.[iii] Human life should be valued and a person accused of
any offense should not be punished unless he has been given a fair trial and his
guilt has been proved in such trial.
In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors The Supreme
Court of India observed “each one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the
victim and to society. Fair trial obviously would mean a trial before an impartial
judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial
in which bias or prejudice for or against the accused, the witness or the cause
which is being tried, is eliminated.
The right to a fair trial is a fundamental safeguard to ensure that individuals are
protected from unlawful or arbitrary deprivation of their human rights and
freedoms, most importantly of the right to liberty and security of person.
Principles of Fair Trial
Adversary trial system:
The system adopted by the Criminal Procedure Code, 1973 is the adversary
system based on the accusatorial method. In adversarial system responsibility for
the production of evidence is placed on the prosecution with the judge acting as a
neutral referee. This system of criminal trial assumes that the state, on one hand, by
using its investigative agencies and government counsels will prosecute the
wrongdoer who, on the other hand, will also take recourse of best counsels to
challenge and counter the evidences of the prosecution.
Supreme Court has observed “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.”
In Himanshu Singh Sabharwa v. State of M.P. and Ors., the apex court observed
that if fair trial envisaged under the Code is not imparted to the parties and court
has reasons to believe that prosecuting agency or prosecutor is not acting in the
requisite manner the court can exercise its power under section 311 of the Code or
under section 165 of the Indian Evidence Act, 1872 to call in for the material
witness and procure the relevant documents so as to sub serve the cause of justice.
Presumption of innocence:
Every criminal trial begins with the presumption of innocence in favour of the
accused. The burden of proving the guilt of the accused is upon the prosecution
and unless it relieves itself of that burden, the courts cannot record a finding of the
guilt of the accused. This presumption is seen to flow from the Latin legal
principle ei incumbit probatio qui dicit, non qui negat, that is, the burden of proof
rests on who asserts, not on who denies.
In State of U.P. v. Naresh and Ors. the Supreme Court observed “every accused is
presumed to be innocent unless his guilt is proved. The presumption of innocence
is a human right subject to the statutory exceptions. The said principle forms the
basis of criminal jurisprudence in India
Independent, impartial and competent judges:
The basic principle of the right to a fair trial is that proceedings in any criminal
case are to be conducted by a competent, independent and impartial court. In a
criminal trial, as the state is the prosecuting party and the police is also an agency
of the state, it is important that the judiciary is unchained of all suspicion of
executive influence and control, direct or indirect. The whole burden of fair and
impartial trial thus rests on the shoulders of the judiciary in India.
The primary principle is that no man shall be judge in his own cause. Section
479 of the Code, prohibits trial of a case by a judge or magistrate in which he is a
party or otherwise personally interested. This disqualification can be removed by
obtaining the permission of the appellate court.
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 Cr. P.C.
Pre-Trial Rights
The Cr. P.C. entitles an accused of certain rights during the course of any investigation, enquiry or trial of an offense with which he is charged.
1.Knowledge of the accusation:
Fair trial requires that the accused person is given adequate opportunity to defend
himself. But this opportunity will have no meaning if the accused person is not
informed of the accusation against him. The Code therefore provides in section
228, 240, 246, 251 in plain words that when an accused person is brought before
the court for trial, the particulars of the offense of which he is accused shall be
stated to him.
In case of serious offenses, the court is required to frame in writing a formal charge
and then read and explain the charge to the accused person. A charge is not an
accusation in abstract, but a concrete accusation of an offense alleged to have been
committed by a person. The right to have precise and specific accusation is
contained in section 211, Cr. P.C.
2.Right to open trial:
Fair trial also requires public hearing in an open court. The right to a public
hearing means that the hearing should as a rule is conducted orally and publicly,
without a specific request by the parties to that effect. A judgment is considered to
have been made public either when it was orally pronounced in court or when it
was published, or when it was made public by a combination of those methods.
Section 327 of the Code makes provision for open courts for public hearing but it
also gives discretion to the presiding judge or magistrate that if he thinks fit, he can deny the access of the public generally or any particular person to the court during disclosure of indecent matter or when there is likelihood of a disturbance or for any other reasonable cause.
3. Aid of counsel:
The requirement of fair trial involves two things: a) an opportunity to the accused
to secure a counsel of his own choice, and b) the duty of the state to provide a
counsel to the accused in certain cases. The Law Commission of India in its
14th Report has mentioned that free legal aid to persons of limited means is a
service which a Welfare State owes to it citizens.
In India, right to counsel is recognized as fundamental right of an arrested person
under article 22(1) which provides, inter alia, no person shall be denied the right to
consult, and to be defended by, a legal practitioner of his choice. Sections
303 and 304 of the Code are manifestation of this constitutional mandate
4. Expeditious trial:
Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed
justice leads to unnecessary harassment. The concept of speedy trial is an integral
part of article 21 of the 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.
5.Proceedings in the presence of the accused:
For the conduct of a fair trial, it is necessary that all proceedings related to the case
should take place in the presence of the accused or his counsel. The underlying
principle behind this is that in a criminal trial the court should not proceed ex parte
against the accused person. It is also necessary for the reason that it facilitates the
accused to understand properly the prosecution case and to know the witnesses
against him so that he can prepare his defence
6.Right to bail:
By virtue of Section 436 the accused can claim bail as a matter of right in cases
which have been shown as bailable offenses in the First Schedule to the Code. Bail
is basically release from restraint, more particularly, release from custody of the
police. An order of bail gives back to the accused freedom of his movement on
condition that he will appear to take his trial. If the offense is bailable, bail will be
granted without more ado. But bail under Section 389(1) after conviction is not a
matter of right whether the offense is bailable or non-bailable.[xxvii] If no charge –
sheet is filed before the expiry of 60/90 days as the case may be; the accused in
custody has a right to be released on bail. In non-bailable offenses, the Magistrate
has the power to release on bail without notice to the other side if charge sheet is
not filed within a period of sixty days. The provision of bail to women, sick and
old age persons is given priority subject to the nature of the
7. Prohibition on double jeopardy:
The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and
‘autrefois convict’ which mean that if a person is tried and acquitted or convicted
of an offence he cannot be tried again for the same offense or on the same facts for
any other offense. This clause embodies the common law rule of nemo debet vis
vexer which means that no man should be put twice in peril for the same offense.
Section 300 of the Code provides that persons once convicted or acquitted not to
be tried for the same offense or on the same facts for any other offense. Plea of
double jeopardy is not applicable in case the proceedings for which the accused is
being tried are distinct and separate from the offense for which the accused has
already been tried and convicted
Right against self-incrimination: Clause (3) of Article 20 provides: “No person accused of any offence shall be
compelled to be a witness against himself.” This Clause is based on the
maxim nemo tenetur prodere accussare seipsum, which means that “no man is
bound to accuse himself.Right against self-incrimination:
Post-Trial Rights
1. Lawful punishment:
Article 20(1) explains that a person can be convicted of an offense only if that act
is made punishable by a law in force. It gives constitutional recognition to the rule
that no one can be convicted except for the violation of a law in force. In Om
Prakash v. State of Uttar Pradesh[xxxiv], offering bribe was not an offense in
Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section
165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It
Compiled by Dr. Kalpna Sharma, Assistant Professor, LC II, University of Delhi
was held that the accused could not be punished under Section 165A for offering
bribe in 1948. Article 20(1) provides that no person shall 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 offense. It prohibits the enhancement of punishment for
an offense retrospectively. But article 20(1) has no application to cases of
preventive detention.
2. Right to human treatment:
A prisoner does not become a non-person. Prison deprives liberty. Even while
doing this, prison system must aim at reformation. In prison, treatment must be
geared to psychic healing, release of stress, restoration of self-respect apart from
training to adapt oneself to the life outside.[xxxvi] Every prisoner has the right to a
clean and sanitized environment in the jail, right to be medically examined by the
medical officer, right to visit and access by family members, etc. Recognizing the
right to medical facilities, the National Human Rights Commission recommended
the award Rs. 1 Lakh to be paid as compensation by the Govt. of Maharashtra to
the dependents of an under trial prisoner who died in the Nasik Road Prison due to
lack of medical treatment.[xxxvii]
3. Right to file appeal:
Section 389(1) empowers the appellate court to suspend execution of sentence, or
when the convicted person I in confinement, to grant bail pending any appeal to it.
Court need not give notice to the public prosecutor before suspending sentence or
releasing on bail. Existence of an appeal is a condition precedent for granting bail.
Bail to a convicted person is not a matter of right irrespective of whether the
offence is bailable or non-bailable and should be allowed only when after reading
the judgement and hearing the accused it is considered justified.
