Reformations Brought Under Criminal Law in Light of Human Right Concept


 “If the law fails to respond the need of the changing society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth, law must therefore constantly be on move to adopt itself to the changes in the dynamic society and should not lag behind.”[1]Justice P.N Bhagwati

Every individual of our society is entitled to have the fundamental and certain basic rights. Human rights are those rights which every individual must have against or other public authority by virtue of being the member of human family irrespective of any other consideration while the rights of accused are sacrosanct. For the social control, prevention and control of crime there is a need to change “Criminal Justice System” as per the needs of the society, the law as always been considered as an instrument through which it could be possible to amend the law and to protect the rights of the people as “Protection of Human Right concept.


“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 is to the victim and to the 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 witnesses or the cause which is being tried is eliminated”.[2]

Read – Prisoner’s Rights Vs Fundamental Rights

Fair trial is a paramount requisite of the administration of justice. The fairness cannot be measured in an absolute manner, but it is always relative.[3] The fair trial implies to administer the justice fairly and impartially as it should be administered, fair to the accused, fair to the state and fair to the vast mass of the people for whose protection penal laws are made and administered.[4] The main object of the state is to provide society a peaceful environment to the people and to protect them from the offenders by giving appropriate punishment.[5] The object of establishing court is to bring justice at the doorstep of the litigant to save time, expenditure and serve justice speedily.[6] The criminal procedure code of 1973 taking in view of the accused person has provided accused with the principles of natural justice and ensures fair deal to the poor sections of the society. The provision which deals about fair trial are covered in Criminal Procedure Code 1973 and Indian Evidence Act 1872. The fair trial is conducted by independent, impartial and competent judge[7] and in an open court.[8]


Speedy trial and Fair trial of person accused of crime, though integral part of Article 21, however, there is held to be a qualitative differences between them. Unlike the right of accused to fair trial, deprivation of the right to speedy trial “does not per se prejudice the accused in defending himself.”[9] Speedy justice demands speedy and expeditious trial.[10] It secures the right to live with human dignity and protection of personal liberty of the individual as mentioned under Article 21 of the Indian Constitution.[11] There has been well known saying “Justice Delayed is Justice Denied”. However the expeditious justice is very rare, as litigation as assumed alarming proportion with the expansion and explosion of the population, expanding of business activities, sagging moral activities and values, culture of demanding only rights and tardy disposal of the cases by courts, the arrears and pendency is mounting up day by day. [12] The right of speedy trial is the very essence of justice and delay in the trial causes denial of justice to the accused. Therefore every person who is arrested or detained shall be entitled to trial within a reasonable time period or to release during pending trial.[13] Every person is entitled to full equality and opportunity to 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.[14]


The “embryo” or the traces of prisoner’s right in India can be find in the most celebrated decision of A.K Gopalan v. State of Madras[15], it was held that when a prisoner is totally deprived of his personal liberty under the procedure that has been established by the law, the fundamental rights including right to freedom of movement are not available[16] but a prisoner cannot be denied to have the basic fundamental rights. Another most important case was the State of Maharashtra v. Prabhakar Padurang[17], in this case it was held that the conditions of detention cannot be extended to the deprivation of fundamental rights consistent with the facts of detention.


By the term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any organ of the body through which soul communicates with the outer world”[18] – Field J.

The Honourable Supreme Court of India has adopted the annotation of Article 21 and expanded the concept of life given by Field J that “life means more than mere physical existence”. Right to life is not restricted to mere animal existence. It means more than just physical survival.


In the new and wider interpretations of Article 21 of Indian constitution the Honourable Supreme Court of India held that “Right to live” does not mean the confinement to physical existence but it includes within the ambit the right to live with Human dignity.[19] While expanding and widening the ambit of Article 21, the Supreme Court of India held that the word “life” may include all those things which are the bare necessities of life such as food, shelter, clothing and adequate nutrition.[20] The Supreme Court also extended the concept of life and held that “Life” is not limited to “death” but, when a person is executed with death penalty and doctor gave the death certificate and dead body was not lowered down for half an hour after the certificate of death, is thus violation of Right to life under Article 21 of Indian Constitution.[21] It is thus only because of wider interpretation of Article 21 which has guaranteed every human being outside or behind the bars certain basic rights and not even the State has the authority to violate those rights. A prisoner does not cease to be a human being even when he or she is lodged in a jail, prisoner still continues to enjoy certain basic fundamental rights including right to life.[22] There have been debates over the topic that convicts are not wholly devoid of their fundamental rights. “However a prisoner liberty is in the very nature of things circumscribed by the very fact of his or her confinement. His interest in the limited liberty left to him is the more substantial”.[23]


Communication is an essential feature for human being for a reasonable being. The prisoners are also having a right to communicate with the outside world, essentially through the use of mails and conversation with various subject to the matters of discipline.[24] Jawarhar Lal Nehru has explained the difficulties faced by the prisoner for interviews and writing letter.[25] Originally the prison authorities were reluctant to grant this right. Even writing of letters and prison interviews were at the mercy of the prison staff.


Right to health and care is an essential ingredient of Article 21 of the Indian constitution. Article 21 casts an obligation over the state to provide health and medical facilities to all human beings. Every doctor has an obligation to preserve the life of others and state cannot interfere to delay and avoid the discharge the services extended by medical profession. Denial of government hospital to provide medical facilities to an injured person is a violation of “right to life” under Article 21 of the Indian constitution. “Preservation of human life whether it is outside or inside the prison is of paramount importance”.[26] The right to health and medical treatment is a basic human right. The Gujarat High Court held that the jail authorities are under the obligation to take care of ailing convicts and it is the duty of the jail authorities to provide them the medical facilities and take them to the hospitals for medical treatment.[27]


A substantial or we can say a major part of prison population in the country consists of under trials and those inmates whose trial is yet to commence. Thus right to free legal aid is an essential mandate of Article 21 of Indian constitution. The Supreme Court held that free legal aid and assistance at state cost is a fundamental right of a person accused of offence which may involve jeopardy to his life and personal liberty.[28] Neither the state government nor any government can deny, providing the concept of free legal aid and assistance to the accused and the state government is under constitutional mandate to provide legal assistance to a poor accused by pleading financial or administrative inability.[29]

Read – Attempt To Suicide: An Overview

Regarding this right of free legal aid, Justice Krishna Iyer said that “This is the state’s duty and not government’s charity”. If a prisoner is unable to exercise his constitutional right to appeal including Special Leave to appeal for want of legal assistance, the court will grant him such rights under Article 142, read with Article 21 and 39 A of the constitution. The power to appoint or assign counsel to the prisoner does not object to the lawyer named by the court. On the other hand implication of free legal aid and assistance is the duty of the state and state must pay the lawyer an amount fixed by the court.[30]


[1] G.T. Swamy And Anr. vs Goodluck Agencies And Anr  ILR 1988 KAR 3147

[2] Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 at 395.

[3] Dr. Mool Singh, “Profile of Fair Trial”, 29 Journal of The Legal Studies p 65-74

[4] Willie (William) Stanleyv. State of M.P.,AIR 1956 SC 116.

[5] TalabHaji Hussainv. Madhukar Purshottam Mondkar, 1958 SC 376, Iqbal Ismail Sodawala.v. State of Maharashtra,(1975) 3 SCC 14.

[6] S. Geethanjali, “Speedy Justice”, 58VOL. 2 Andhra Law Times and 31 (1988).

[7] Section 479,Criminal Procedure Code,1973.

[8] Section 327,Criminal Procedure Code,1973.

[9] Mohd Hussain v. State, AIR 2012 SC 3860, Dharemender Kirthal v. State of UP AIR 2013 SC 2569

[10] Neha Gupta, “Role of Lawyers in Providing Speedy Justice”, 64, All India Arbitration Law Reporterand 13 (2006 (4)).

[11] K. Rama Chandra Reddy, “Suggestions for Speedy Justice in Criminal Trials”, 3 SCC8(1990).

[12] J. C. Seth, “Justice In Time –Inventing Effective Measures”, 55 Arbitration Law Reporter and 29 (2004(2)).

[13] Article 3, Universal Declaration of Human Rights, 1948.

[14] Article 10, Universal Declaration of Human Rights, 1948.

[15] A.I.R. 1950 S.C. 27.

[16] Id., B.K.Mukerjee J.p.93

[17] A.I.R 1966 SC.424.

[18] Observation by Field J in Munn v.Illinois, 94 US 11.

[19] Maneka Gandhi v. Union o f India, AIR 1978 SC 597, and followed m Francis Coralie v. Delhi Administration, AIR 1981 SC 746

[20] Francis Coralie v Delhi Administration, AIR 1981 SC 746

[21] Pandit Parmanand v Union o f India, (1995) 3 SCC 248

[22] State o f Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083

[23] DBM Patnaik v State o f Andhra Pradesh, AIR 1974 SC 2092, and Sunil Batra v. Delhi Administration, AIR 1978 SC 1675

[24] For example the Kerala Prisons Rules 1958, Rule 435

Provides that:— “every newly convicted prisoner be allowed with the reasonable facilities for seeing and  communicating with his relatives, friends or legal advisers with a view to the preparation of an appeal or To the procuring of bail and shall also be allowed to have interviews and write letters to his relatives, friends or legal advisers, once or twice, or often if the superintendent considers it necessary, to enable him to arrange for the management of his property or other family affairs”.

[25] Jawarhar Lal Nehru, An autobiography (1967), p 221

[26] Parmannd Katara v. Union o f India, AIR 1989 SC 2039 : (1989) 4 SCC 286;  Consumer Education and Research Center v. Union o f India, (1995) 3 SCC 42; Kishore Brothers Ltd v. Employee’s State Insurance corporation, (1996) 2 SCC 682

[27] Rasikbhai Ramsing Rana v. State o f Gujarat, (DB) 1997 Cr LR (Guj) 442

[28] Sukdas v. Arunachal Pradesh, AIR 1986 SC 991

[29] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 and followed in the case of Khatn (II) v. State of Bihar, AIR 1981 SC 928

[30] MH Hoskot v. State o f Maharashtra, (1978) 3 SCC 544 : AIR 1978 SC 1548

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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