Constitutional and Legal Rights

Constitutional and Legal Rights available to the People including accused persons

Presumption of innocence of the accused, burden of proof on the prosecution, observance of principles of natural justice and requirement of mens rea are among the basic features of our criminal justice system. Important Constitutional and legal safeguards available against arbitrary law enforcement are given in the following paragraphs :

Article 20 of the Constitution of India prohibits

• Conviction for an offence under expost-facto criminal law.
• Prosecution and punishment for the same offence more than once.
• Compelling a person accused of any offence to be a witness against himself.

Article 21 protects a person against arbitrary

• Arrest
• Detention &
• Deprivation of life and personal liberty.

Article 22 guarantees to a person arrested for any offence

• Right to be informed as soon as may be of the grounds of arrest,
• Right of freedom to consult and to be represented by a lawyer of his own choice,
• Right to be produced before a Magistrate within 24 hours of arrest and detention beyond the said period only on the order of the Magistrate.

Free legal aid is provided to those who cannot afford the same

• It is provided not only when trial commences but also during Police custody or during production before the Magistrate for the first time or for remand from time to time. Persons eligible for free legal aid are :
• A member of a Scheduled Caste or Scheduled Tribe;
• A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;
• A woman or a child;
• A mentally ill or otherwise disabled person;
• A person who is a victim of flood, drought, earthquake or industrial disaster;
• An industrial workman;
• A person who is in custody including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956, or Juvenile Justice Act, 1986, or is in a psychiatric hospital/or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987; or
• A citizen of India whose annual income from all sources does not exceed fifty thousand rupees.

Section 50 Cr.PC provides for Communication of

• Grounds of arrest to the accused person.
• Right to be released on bail if a person is arrested for a bailable offence.

Sections 49, 54, 56, 57 and 76 Cr.PC provide against arbitrary exercise of power to arrest

• An arrested person cannot be subjected to more restraint than is necessary to prevent his escape (Section 49 CrPC).
• Use of handcuffs is permitted only in exceptionally rare cases to prevent escape or violence keeping in view the propensity of the arrested person.
• Medical examination of an accused by a medical practitioner (section 54 Cr.PC).
• Expeditious production of a person arrested without a warrant, subject to provisions regarding bail, before a Magistrate or the officer-in-charge of a Police Station (Section 56 CrPC).
• No detention of a person arrested without warrant beyond 24 hours in the absence of a special order of a Magistrate under section 167 CrPC (Section 57 CrPC).
• Production before a Magistrate within 24 hours of a person arrested in execution of warrant (Section 76 CrPC).

Section 51, 100 and 165 CrPC while empowering search also lay down safeguards

• Safe custody of articles seized from an arrested person and giving of a receipt in this regard. (Section 51 CrPC).
• Association of witnesses, search in their presence and signing of the search list by them; occupant or his representative to be allowed to be present during the search and providing of a list of seized articles to the person searched. (Section 100 and 165 CrPC).

Section 436, 437, 438 alongwith Sections 50(2) and 167 CrPC provide for the procedure for release on bail

• Bail, on production of proper surety/bond, is a matter of right in case of bailable offences. (Section 436 CrPC).
• In non-bailable cases, the arrested person or his counsel can move the appropriate Court for bail, which may be granted or denied keeping in view the legal provisions and the facts and circumstances of the case.

Special rights of women and children

• A woman can be searched only by another woman with strict regard to decency. (Section 51 and 100 CrPC).
• Any female occupant of a house, who as per custom does not appear in public, not being the person to be arrested, has to be afforded reasonable opportunity to withdraw before entering a place for arresting a person who may be hiding there. (Section 47 CrPC).
• No male under the age of 15 years or a woman can be summoned by Police as witnesses to depose about the facts and circumstances of a case under investigation at any place other than the place in which such male person or woman resides. (Section 160 CrPC).
• Nothing is an offence which is done by a child under seven years of age. ( Section 82 IPC).
• Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. (Section 83 IPC).

The Juvenile Justice (Care Protection of Children) Act, 2000, inter-alia, prohibits:

• Lodging of children in jails and police lock-ups and lays down procedures including norms for investigation and trial of cases of juvenile crimes.
• Publication of names and other details of juveniles who are involved in any proceeding under the Act.
• Trial of juveniles with adults.
• It provided that in matters concerning bail, normally a juvenile shall not be denied bail. It also sets out procedure for rehabilitation and social re-integration of children.