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This article was written by Priyam Sen, a student of Amity Law School, Gwalior (M.P).


Justice is the idea that all people, everywhere in the world, have the right to a life of dignity.  This means a life free from poverty, violence, discrimination or human rights violations. The right to access to justice is one of the basic fundamental rights of all criminal justice system. The protection of fundamental rights through the criminal justice delivery system is an indispensable feature of any system governed by the rule of law.

The fundamental rights of the accused and the victims are the core of the criminal justice system which is enshrined under part III of the Indian Constitution. These rights impose a mandate on the state to enforce them. There are instances where the rights of the accused and the victim are in conflict with each other but the need of the moment requires balanced approach which has to be adopted by the judges.

A paradigm shift in the Indian Criminal Justice System has become the need of the hour. The focus should be shifted from Criminal justice to victim justice but it should be perceived as complementary and non contradictory to criminal justice.

  1. Introduction

Today in the every step of life individual is threatened with the possibility of violation of his fundamental rights not only by the other individuals but also by the various social institutions which are established with the sole purpose of safeguarding such rights. The protection of fundamental rights through the criminal justice delivery system is an indispensible feature of any system governed by the rule of law. Basic human rights like the presumption of innocence, the right to silence and the burden of proof are all the important pillars on which the criminal justice system stands today. The right to access to justice is one of the basic fundamental rights of all criminal justice system. Access to justice also requires effective access to resolve the grievances of the victims.

The role of the victim is yet to receive required attention by the policy makers in the present criminal justice system. Moreover without the cooperation of victim in reporting crime, furnishing evidence, identifying offender and acting as a witness in court, most crimes will remain unreported and unpunished.

As per the various researches the present criminal system has failed to provide speedy and prompt justice to the citizens. There are piles of cases pending in the courts from several years. The various sub systems of the criminal justice system viz police, prosecution, judiciary, and rehabilitation institutions are also not able to meet their goals resulting in loss of public faith.

  1. The criminal justice System – a brief elucidation.

Criminal justice can be defined as the system of institution and practices of government directed at maintaining social control, deterring and extenuating crime as well as sanctioning those who violate laws with punishment and rehabilitations efforts. Broadly the criminal justice system consist of three main parts (1) legislature the law making body; (2) adjudication: the courts and (3) corrections (jails, probation, prisons, and parole).

The main objectives of the criminal justice system can be categorized as follows:

  • To prevent the occurrence of crime.
  • To punish the transgressors and the criminals.
  • To rehabilitate the transgressors and the criminals.
  • To compensate the victims as far as possible.
  • To maintain law and order in the society.
  • To deter the offenders from committing any criminal act in the future.[1]

  1. Fundamental rights of the accused as per the Indian Constitution


  1. Protection against Ex-post Facto Law

An ex-post facto law is the law that imposes penalties retrospectively i.e. on acts which were committed before the passing of the present legislation. Article 20 (1) of the Indian Constitution provides that no person shall be convicted of any offence expect for the violation of law in force at the time of the commission of an act charged as offence nor shall be subjected to any penalty which is greater than the one which might have been inflicted under the law in force at the time when the offence was committed. Article 11 para 2 of the universal Declaration of Human Rights 1948 provides freedom from ex-post facto laws.[2]

  1. Right against Self incrimination

The article 20(3) of the Indian constitution provides that no person accused of any offence shall be compelled to be a witness against himself. This article provides immunity to the accused from the compulsion of giving testimony which may expose him to prosecution for crime. it is the duty of the prosecution to prove the offence. The accused cannot be forced to make any statement against his own free will.

  1. Right to silence

Right to silence is the principle of common law which means that courts should not come to a conclusion that an accused is guilty merely because he has refused to respond to the questions put to him by the opposite counsel or the court. The prohibition of medical or scientific experimentation without free consent is one of the human rights of the accused[3].

  1. Right to the arrested person to be informed of the ground of arrest

Article 22 of the Indian constitution provides that a person arrested for any offence under any ordinary law be informed as soon as possible the grounds of his offence. Moreover the section 50 of Criminal Procedure Code also provides the same. These grounds of arrest have to be communicated to the accused in the language understood by him the non compliance of which shall lead to violation of the constitutional requirements.

  1. Right to be defended by a lawyer

It is one of the fundamental rights enshrined under Article 22(1) of the Indian Constitution which provides that no person who is arrested shall be denied the right to consult and to be defended by the lawyer of his choice. This is also an essential element of fair trail. This right is important as the ordinary man does not possess the sufficient legal knowledge to defend himself before a court of law.

  1. The arrested person should be produced before the magistrate

 Article 22 (2) provides that an arrested person must be taken to the magistrate within 24 hours of his arrest. The similar provision has also been incorporated under section 56 of CrPC. It is the duty of the police officer while making an arrest without warrant to produce the person before the magistrate having competent jurisdiction in the case without any unnecessary delay and also by compiling with the provisions of bails.

  1. Right to speedy trail

As it is commonly said the justice delayed is justice denied it is the fundamental right of the accused that the trial of the case should be conducted expeditiously. In Hussainara Khatoon (IV) V. State of Bihar[4] , the Supreme Court declared that speedy trial is an essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article 21 and that it is the constitutional obligation of the state of devise such a procedure as would ensure speedy trial to accused. It is also the constitutional obligation of the court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vies, to enforce the fundamental right of the accused to speedy trial by issuing necessary directions to the State.[5]

  1. Right to free legal aid

It is the fundamental right of the accused to be defended by the lawyer in the court of law but if he is unable to do so due to poor financial condition it is the duty of the state to provide free legal aid to the accused. In Huassainara Khatoon (IV) v. Home Secretary, State of Bihar[6] , the Supreme Court after adverting to Article 39-A of the Constitution and after approvingly referring to the creative interpretation of Article 21 of the constitution as propounded in its earlier epoch-making decision in Maneka Gandhi v. Union of India[7] , has explicitly observed as follows: The right to free legal services is, therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.[8]

9. Preventive Detention – violation of Fundamental rights?

The preventive laws were enacted to curb various terrorism and anti national activities to ensure safety. Terrorism can be controlled by the application of deterrent theory of criminal administration of justice but Indian being a democratic country does not follow this theory rather it adopts the reformative theory by which it believes that a man can learn reform in any stage of his life. On the basis of this theory it is believed that a terrorist can also be reformed by the social change of his surroundings. The Article 22 (3) of the constitution of India provides that if a person is arrested or detained under preventive detention law then the protection against arrest and detention under Article 22(1) and 22(2) shall not be available. Preventive detention is the action taken beforehand to prevent commission of a future offence. It is an anticipatory measure and does not relate to an offence while criminal proceedings are to punish a person for an offence committed by him.[9] The object of Preventive Detention is not to Punish but to intercept to prevent the Detune from doing something prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner.[10] Therefore it can be derived that those who are reasonable for the national security or for the maintenance of public order must be the sole judges of what the National Security or Public order requires. It should be the responsibility of the detaining authority to detain a person with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. It has always been the view of the court that detention of the individuals without trial for whatever short period of time is wholly inconsistent with the basic ideas of our Government and Judicial system. Anti social activity can never furnish an adequate reason for invading the personal liberty of the citizens except in strict accordance with and necessity to suffice legal procedure requirements considering weightage of the crime and no injustice is done[11].

10. Victims of crime vis-à-vis the Constitutional law.

The Indian constitution contains various provisions which endorse the principle of victim compensation. The Article 41 which imbibes victimology in a wider perspective mandates inter alia that the state shall make effective provisions for securing public assistance in case of disablement and in other cases of undeserved wants. Article 51-A makes it a fundamental duty of every citizen of India to protect and improve the natural environment… and to have comparison for living creatures and to develop humanism. If empathetically interpreted and imaginatively expanded, one can find here the constitutional beginnings of victimology in the opinion of Krishna Iyer[12]. Further, the guarantee against unjustified deprivation of life and liberty (Article 21) has it elements obligating the State to Compensate victims of criminal violence, as stated by D.D. Basu[13]. The issues related to the rights of the accused are most often advocated by the people but the issues of victims rights have been consigned to the back burner and forgotten. There are very few statutory provisions in the Indian Criminal law in favor of the victims but the judiciary has contributed through its precedents in extending the scope of these existing provisions.

The concept of payment of compensation to the victim was evolved by the Supreme Court on the rationale that it is the duty of the welfare state to protect the fundamental rights of the citizen against the actions of its agencies and also for the hardships of the victims on the ground of humanitarianism and obligations of social welfare. In Rudal Sah v. State of Bihar[14] the Supreme Court for the first time made it categorically clear that the higher judiciary has the power to award compensation for violation of fundamental rights through the exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of human rights jurisprudence.

11. The role of justice in overcoming poverty.

Justice is the idea that all people, everywhere in the world, have the right to a life of dignity.  This means a life free from poverty, violence, discrimination or human rights violations.  A world where justice exists is a world where all people are included in society and all people can claim their rights to education, shelter, and health care regardless of how poor or rich they are.

The poor in the developing world endure such extraordinary levels of injustice that it has a devastating impact on their ability to move forward.  It undermines so much of what they try to achieve.  A vicious cycle occurs time and time again through the generations[15].

Today the connection between the poverty and crime is equally strong, estimates of the number of poor people in the criminal justice system range from two-third to eighty percent. So the majority of people with whom the system deals is primarily poor.  After two years of comprehensive negotiations and discussions, the members of the UN have agreed on a framework for global development efforts which is called the 2030 Agenda for Sustainable Development. According to Ban Ki Moon the former UN secretary General it represents “the people’s agenda, a plan of action for ending poverty in all its dimensions, irreversibly, everywhere, and leaving no one behind.” Importantly, for the first time, this global vision includes setting targets for justice and governance, building on the more limited focus of the Millennium Development Goals (MDGs), a set of targets agreed in 2000 that provided the world with its first ever set of global development priorities. Targets including “access to justice” and ensuring that everyone has access to legal identity, such as birth registration, by 2030 are included in Goal 16 of the 17 Sustainable Development Goals that form part of Agenda 30.[16]

The basic precondition for sustainable economic development is rule of law. In societies with weak legal system those who lack the resources for or access to the judiciary are often denied the safeguard of their fundamental rights. It is estimated that almost 4 billion people around the world do not enjoy the protection provided by the laws.

12. Vision for the future Criminal Justice System

The principle duty of the state is to provide basic rights to the citizen these include pursuits of life, liberty and peace. The extent of these rights act as a barometer for measuring how successful a criminal justice system has been working. The criminal proceedings need to be organized and systematic to effectively search the truth. The procedure should not act as a barrier in searching the truth. Similar to the inherent power of the High court under section 482 of CrPC, the other criminal courts should also be provided with such power in order to pass any order to secure the ends of the justice.

The need is to make the police a ‘service‘ in real sense, to meet the expectations of a democratic India. Hence, the police should be made ‘service oriented’. In a democratic polity, like in India, the ‘service oriented’ and ‘public oriented’ police can better serve the people and for this the ‘proactive’ and ‘community policing’ should be adopted as an appropriate means. The ‘democratic policing’, in which the participation of the public in policing and police-public-interaction is encouraged, can even help the police to win over the people and face the menace of terrorism and insurgency with their help[17].

The weakest link of the Criminal Justice System is the prosecution Selection, service conditions, training, and supervision of the prosecutors requires immediate attention to augment the quality of prosecution and to achieve the synergy between investigation and prosecution crucial for effectual Criminal Justice Administration. An independent Directorate of Prosecution accountable to the Courts need to be set up, under the control of the proposed Board of Criminal Justice, with a well-trained, well-paid cadre of prosecutors for delivery of quality justice. Criminal Justice System needs greater professionalism and accountability from its stakeholders. A modern Criminal Court Complex with single window services has to come up initially in at least the district headquarters. It will have a police station and interrogation room on the ground floor; police lock-ups/sub-jail, and magistrate’s courts on the first floor; prosecutors’ offices, legal aid services, witness’s rooms etc. on the second floor; sessions court in the third floor and the administrative office on the fourth floor[18].

13. Conclusion

The present criminal justice system has been unable to serve the very purpose of securing life and property. It does not deter criminals due to the delay and uncertainties involved in the justice delivery system. It provides wide discretion to the police rendering the system vulnerable to manipulation and corruption which in turn endanger the fundamental rights of the citizen.

While delivering a keynote address at a national seminar Mr. Malimath said that more than 80%of the reported cases went unpunished due the loopholes present in the current criminal justice system as there is an urgent need to review the system by taking corrective measures to improve at the right time.

A paradigm shift in the Indian Criminal Justice System has become the need of the hour. the focus should be shifted from Criminal justice to victim justice but it should be perceived as complementary and non contradictory to criminal justice.

[1] Rahul Kumar Singh, Objective Of Criminal Justice System, Legal Service India, (Jan 29, 2017, 19:41PM),

[2] Article 15 of International Covenant on Civil and Political Rights, 1966.

[3] Article 7 of the International Covenant on Civil and Political Rights, 1966.

[4] AIR 1995 SC 366

[5] S. Guin v. Grindlays Bank Ltd., 1986 SCC(Cri) 64: (1986) 1 SCC 654: 1986 Cri LJ 255; Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (Pat), Mihir Kumar Ghosh v. State of West Bengal, 1990 Cri LJ 26 (Cal).

[6] (1980) 1 SCC 98: 1980 SCC (Cri) 40, 47: 1979 Cri LJ 1045.

[7] (1978) 1 SCC 248: AIR 1978 SC 597

[8] Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98, 105: 1980 SCC (Cri) 40, 45: 1979 Cri LJ 1045; M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, 557: 1978 SCC (Cri) 468, 481: 1978 Cri LJ 1678.

[9] Alijan Mja V. District Magistrate, Dhanbad AIR 1983, SC 1130

[10] Ankul Chandra Pradhan Vs. Union of India, AIR 1997, SC 2814

[11] Rudrasin, preventive detention and constiution of India- Effect on human rights, legal services India, (Jan 29, 2016, 18:15 PM)

[12] V.R.Krishna Iyer, A Burgeoning Global Jurisprudence of Victimology and some compassionate Dimensions of India Justice to victims of crime, 1999

[13] D.D.Basu, Constitutional Law of India,223 , (Wadhwa & Co., Nagpur, 2003).

[14] AIR 1983 SC 1086

[15] What does justice have to do with overcoming poverty?, Operation Uganda, (Jan 31, 2017, 20:17 PM)

[16] What Does Justice Have to Do with Overcoming Poverty? open soceity foundation, (Jan 31, 2017, 19:43PM) .

[17] Shodhganga,chapter-6. Conclusion and Suggestions, (Jan30, 2017, 7:15AM)

[18] Ibid

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