Human rights of an accused

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HUMAN RIGHTS OF an ACCUSED

- BY SINDUJA AMUDANATHAN



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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ACCUSED Means

• The term " accused " has not been specifically defined in the code but

• what we generally understand is that the accused means the person charged with an infringement of the law for which he is liable and if convicted then to be punished.

• In other words, a person who is charged with the commission of offence. In the Bill of Rights Ordinance, 1991 affirms that every accused has a right to be presumed innocent until his guilt is proved. Thus, the accused person has every right like other citizen of the country except his curtailment of person liberty in conformity with laws.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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Rights of Person Arrested

Everyone who is arrested for allegedly committing an offence has the right

• to remain silent; • to be informed promptly

– of the right to remain silent; and – of the consequences of not remaining silent;

• not to be compelled to make any confession or admission that could be used in evidence against that person;

• to be brought before a court as soon as reasonably possible, but not later than

– 48 hours after the arrest; or – the end of the first court day after the expiry of the 48 hours, if

the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

• at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

• to be released from detention if the interests of justice permit, subject to reasonable conditions.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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Rights Of Person Detained• Everyone who is detained, including every sentenced prisoner, has the

right • to be informed promptly of the reason for being detained; • to choose, and to consult with, a legal practitioner, and to be informed of

this right promptly; • to have a legal practitioner assigned to the detained person by the state

and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

• to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

• to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

• to communicate with, and be visited by, that person's – spouse or partner; – next of kin; – chosen religious counsellor; and – chosen medical practitioner.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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WEBSITE

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Fair TrialEvery accused person has a right to a fair trial, which includes the

right • to be informed of the charge with sufficient detail to answer it; • to have adequate time and facilities to prepare a defence; • to a public trial before an ordinary court; • to have their trial begin and conclude without unreasonable

delay; • to be present when being tried; • to choose, and be represented by, a legal practitioner, and to be

informed of this right promptly; • not to be tried for an offence in respect of an act or omission

for which that person has previously been either acquitted or convicted;

• to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

• of appeal to, or review by, a higher court.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



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Habeas Corpus

A writ of habeas corpus writ of habeas corpus is is a court order directing a court order directing officials holding a prisoner to officials holding a prisoner to show cause why he or she show cause why he or she should not be released should not be releasedThis right can be suspended This right can be suspended ONLY under circumstances of ONLY under circumstances of rebellion or invasion rebellion or invasion……But what about under But what about under suspicion of acts of suspicion of acts of terrorism?



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Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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ARTICLE 22 of the CONSTITUTION

As per Art. 22 of C.O.I., a person who is arrested for whatever reason, gets

three independent rights.

1. The first is the right to be told or informed thereasons for the arrest as soon as an arrest is made,

2. The second is the right to be produced before a Magistrate within 24 hours and

3. The third is the right to be defended by an advocate of his choice



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



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Other Rights Of An Accused

An Accused/ Convict

• Should be treated with dignity.

• Should not be subjected to any physical /mental torture or any kind of inhuman or degrading punishment.

• Cannot be isolated in a separate cell, except on medical grounds or if he/she has proven to be dangerous to other prisoners.

• Must be presented with means to express his/her grievances faced within the jail.

• Has right to meet his lawyer and family members at least twice a week.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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Cont…

•Has right to send letters to his relatives and to other prisoners irrespective of their relationship.•Has right to write books and get them published, if he/she so desires.•Can give press interview, subject to reasonable restrictions.•Cannot be held in slavery and or servitude.•Cannot be subjected to any labour which is exploitative in nature.•Should be equitable remunerated for his labour and should not be paid below the prescribed wages.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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Right to Protection

• In State of Bombay v. Kathi Kalu, AIR 1961 SC 1808:

• it was held that the protection is available to a person accused of an offence not just with respect to the evidence he has to give in a court room or trial but is also available to him at the previous stage if an accusation has been made against him which might in the normal course result in his prosecution.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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WEBSITE

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Right to legal representation

Minister of Home Affairs v Dabengwa 1982 (1) ZLR 236 S Crt

• Fieldsend CJ: • An appeal against an order of the High Court

directing that two detained persons be permitted to obtain and instruct legal representatives. Local authority had issued regulations prohibiting the detainees from communicating with or receiving communication from their lawyers. Such prohibition at variance with para 2 of schedule 2 of the constitution and therefore ultra vires.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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Article 21Judicial Activism – M.H.Haskoot v/s. State Of

Maharashtra• Wherein Indian Supreme Court held that, when

ever an under trial an accused as a prisoner are unable to defend themselves, then it is the obligation of the state to provide free legal assistant to such prisoner. Why because even though, they have been deprived from their liberty by the state the free and fair is a part and parcel of - Article 21. Therefore free legal assistant go hand in hand or along with free trial. Otherwise it would be anti-national. How can we discriminate due to they don't have anybody to appear on behalf of them. That is the role of government advocates.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

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Right to a fair trial / hearing

• S v Beahan 1989 (2) ZLR 20 (SC)• Gubbay JA:• The right to a fair trial is guaranteed by s18 of the

Constitution. Extent to which the prosecution is obliged to call witnesses who may assist the defence. Held that while the prosecution of an accused person must be conducted with due regard to traditional considerations of candour, fairness, and justice, the prosecution was not obliged to call witnesses regarded as material to the case of the defence, solely in order to afford the defence the advantage of cross-examination.

• If an accused person claims his fundamental right to a fair hearing has been violated, in that he has not been afforded facilities to obtain the attendance of witnesses to testify on his behalf, he must make some plausible showing of how their testimony would have been both material and favourable to his defence.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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FREEDOM OF SPEECH AND EXPRESSION

• State of Maharashtra v/s. Prabhakar Pondurng – As being a prisoner all rights of freedom of speech and expression was deprived. The petitioner prisoner wanted to publish his own biography. Matter came before the court. Court held that, though he is a prisoner still he seems to be a human being. Under Article19(1) – freedom of speech includes freedom of speech and expression also, article 21 is still available too. Therefore it's available to a prisoner



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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Cont…

• O. Raj Gopal v/s. State of Tamil Nadu (Auto shankar case)

• There was a serial killer with the stone in the prison and he wanted to write certain articles to papers as a series about relationship/support/expose criminals and police. Held that though is a prisoner freedom of speech and expression is available to him as following above decision too.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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RIGHT TO COMPENSATIONRIGHT TO COMPENSATION

• Khatri v/s. State of Bihar (Bhagalapura binding case)

For the 1st time compensation jurisprudence evolved.

• Radal Shah v/s. State of Bihar – awarded Rs. 35,000/= as compensation.

For this purpose the judiciary adopted certain measures to provide respect to prisoner's rights. Thus the state is under an obligation to compensate to the victim for the violation of their rights. Therefore it protects HR.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



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Right to Interim Bail

In July 2010, the SC held that a person is entitled to interim bail pending disposal of the main application, as this is a constitutional right in consonance with A.21 of the Constitution of India. The ruling was delivered to protect the reputation of persons, who are lodged in prison.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

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WEBSITE

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RIGHT TO HEALTHRIGHT TO HEALTH

• Mostly prisoners do not enjoy a right to free and qualified, frequent medical attention. They don't have choice to have physician of their own unless when his condition is critical then the doctor may come. They have no opinion on treatment.

• Thus they have become ‘double handicapp'. It violates right to health of a prisoner. Right to life does not include right to die without right to health. By not providing right to health, the state shall be promoting right to die.

• Veena Sethi v/s. State of bihar - Supreme Court held the importance of medical care to prisoners.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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WEBSITE

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Conclusion

“It is better to allow It is better to allow 10 guilty men to go 10 guilty men to go free than to punish free than to punish a single innocent a single innocent man”

Education

Human rights of an accused