• Author Name: Anupama Kumari Rai
  • Details:  Advocate, Bombay High Court, B.Sc, LLM

Article 1 of UDHR says “All human beings are born free and equal in dignity and rights and are endowed with reason and conscience and should act towards one another in the spirit of common brotherhood and conscience”. Article 21 of Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law. The Article prohibits the deprivation of the above rights except according to a procedure established by law”.

I have been asked this question many times, “Why do criminals need rights when they have criminally violated the rights of others?” Well, criminal jurisprudence is based on studies on criminals’ behaviour, impact of crimes on victims, criminals and society, etc.

The primary purposes of criminal law are Deterrence, Retribution and Protection. Reformation & Rehabilitation are the silent purposes to improve the complexion of society. “Once Criminal, Always Criminal” can’t sustain the test of reasonableness, wisdom and conscience. All crimes are not the same and so aren’t criminals. Gravity, nature and involvement define, which yardstick of jurisprudential law is to be applied.

When the police arrest someone, they take away the person’s fundamental right to freedom. Consequently, there are several procedures the police must follow before they can make a legal arrest so that our rights remain protected.

Art 11 of UDHR and Indian criminal jurisprudence is deeply based on the concept of Presumption of innocence. Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

There are several rights available to arrested person are discussed below:-

Right to remain silence:-

Article 20(3) of the Constitution of India guarantees every person the right against self-incrimination, and it has been stated under this article that no person, who has been accused of an offence, shall be compelled to act as a witness against himself.

Right To Know The Grounds of Arrest:-

The Constitution of India recognises this right as fundamental right under Article 22(2) that a person who is arrested shall not be detained in custody without being informed as soon as possible of the ground for arrest . Sec 50(1), 55 and 75 of Cr. P. C also deals with the right to know the provision related to grounds of arrest.

Right To Consult A Legal Practitioner:-

It is the right of every arrested person to consult a legal practitioner of his own choice. This has also been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which is undeniable in all cases. Section 50(3) of the Code of criminal procedure also states that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice. This right begins as soon as the person is arrested.

Rights of Free Legal Aid:-

The Supreme Court in the case of Khatri(II) v. The State of Bihar held that the state is under a constitutional obligation as is implicit in article 21 of the constitution as well to provide free legal aid to an indigent accused person .

Right To Be Examined By A Medical Practitioner:-

Section 54 of Cr.P.C. enumerates this right and it states that examination of arrested person by medical practitioner at the request of the arrested person. When an arrested person, whether on a charge or otherwise alleges at the time when he is produced before a Magistrate or at any time for which he is detained in custody that the examination of his body will afford evidence which will lead to disproving the commission of offence by him or which will establish the committing of offence by any other person against his body, the Magistrate shall, direct the examination of the body of such person by a registered medical practitioner.

Right To Be Taken Before A Magistrate Without Delay:- Irrespective of the fact, whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. Further, the arrested person has to be confined in a police station only and nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24 hours in any case. While calculating the time period of 24 hours, the time necessary for the journey is to be excluded.

The same has been enumerated in the Constitution as a Fundamental Right under Article 22(2). This right has been created with a view to eliminate the possibility of police officials from extracting confessions or compelling a person to give information. If the police officials fail to produce an arrested person before a magistrate within 24 hours of the arrest, the police officials shall be held guilty of wrongful detention.

Rights at Trial:-

  1. Right To A Fair TrialArticle 21 of Indian Constitution provides few sparkles of hope to the lives of arrested, undertrials and convicts. The treatment of such people has to be humane and in the manner prescribed by law. In Maneka Gandhi v. Union of India {AIR 1978 SC 597} the Supreme Court held that the State and for that matter the police as its principal law enforcing agency have the undoubted duty to bring offenders to book. Even so, the law and procedure adopted by the State for achieving this laudable social objective have to conform to civilized standards. The procedure adopted by the State must, therefore, be just, fair and reasonable.

The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera.

  1. Right to A Speedy Trial: The SC in the Hussainara Khatoon case has made it mandatory that the investigation in the trial must be conducted “as expeditiously as possible.”