Rights of Accused under the Constitution of India: an Overview

The rights of accused form a major part of a fair trial. For example the right of an accused to be presented in front of a magistrate within 24 hours or an accused not being permitted to be tried twice for the same crime are rights that protect the basic human dignity of a citizen and are enshrined in our Constitution for the same. This article explores the same in depth.

From side Accused

A person in custody of the police, an under-trial, or a convicted individual does not lose his human and fundamental rights by virtue of incarceration also referred as rights to accused. The two cardinal principles of criminal jurisprudence are that the prosecution must prove its charge against the accused beyond the shadow of reasonable doubt and the onus to prove the guilt of the accused to the guilt is stationary on the prosecution and it never shifts. The prosecution has to stand on its own legs so as to bring home the guilt of the accused conclusively and affirmatively and it cannot take advantage of any weakness in the defense version. The intention of the legislature in laying down these principles has been that hundreds of guilty persons may get scot-free but even one innocent should not be punished. Indian Constitution itself provides some basic rights/safeguards to the accused persons which are too followed by the authorities during the process of criminal administration of justice. There is a famous saying in the Criminal Law jurisprudence, “LET HUNDREDS GO UNPUNISHED, BUT NEVER PUNISH AN INNOCENT PERSON”

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused until he is found guilty at the end of a trial on legal evidence.

Clause (1) of Article 20 of the Indian Constitution says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Regarding protection in respect of conviction for offence, Article 20 of the constitution, the following are some important provision creating rights of accused in favor of the accused/arrested person:-

  • No person shall be convicted of any offence excepts for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater the that which might have been inflicted under the law in force at the time of the commission of the offence.
  • No person shall be prosecuted and punished for the same offence more than once.
  • No person accused of any offence shall be compelled to be a witness against himself”.
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Protection against Ex Post-Fact Law [Article20 (1)]

If an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The protection of rights of accused afforded by clause (1) of Article 20 of the Indian Constitution is available only against conviction or sentence for a criminal offence under ex-post facto law and not against the trial. The second part of clause (1) protects a person from ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence.’ In Kedar Nath v. State of West Bengal[1], the accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence, set aside the additional fine imposed by the amended Act. In the criminal trial, the accused can take advantage of the beneficial provisions of the ex-post facto law[2].

The Doctrine of Guarantee against Double Jeopardy [Article 20(2)]

According to this doctrine, if a person is tried and acquitted or convicted of an offence, he cannot be tried again for the same offence or on the same facts for any other offence. This doctrine has been substantially incorporated in the Article 20(2) of the Constitution and is also embodied in Section 300 of the Criminal Procedure Code, 1973[3]. When once a person has been convicted or acquitted of any offence by a competent court, any subsequent trial for the same offence would certainly put him in jeopardy and in any case would cause him unjust harassment. The English common law rule is that “Nemo Debut Bi’s Punibi Prouno Delicto” which means that no one should be punished twice for one fault.  Such a trial can be considered anything but fair, and therefore has been prohibited by the Code of Criminal Procedural as well as by the Constitution[4]. When once a person has been convicted or acquitted of any offence by a competent court, any subsequent trial for the same offence would certainly put him in jeopardy and in any case would cause him unjust harassment. Such a trial can be considered anything but fair, and therefore has been prohibited by the Code of Criminal Procedural as well as by the Constitution. The Doctrine of “Autrefois Acquit” And “Autrefois Convict” has been embodied in Sec 300 of Criminal Procedure Code.

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The Prohibition against Self-incrimination [Article 20(3)] (Right to Silence)

No one is bound to incriminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say anything and that what he does say may be given in evidence against himself. hence also arises the rule that evidence of a confession by the accused is not admissible unless it is proved that such confession was free and voluntary[5].

The privilege against self-incrimination thus enables the maintenance of human privacy in the enforcement of criminal justice. It also goes with the maxim Nemo Tenetur Seipsum Accusare i.e., ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of.’[6] If the confession from the accused is derived from any physical or moral compulsion (be it under a hypnotic state of mind) it should stand to be rejected by the court. The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that “every person is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”. But where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply.[7]

Explaining the scope of this clause in M.P. Sharma v. Satish Chandra[8], the Supreme Court observed that this right embodies the following essentials:

(a) It is a right pertaining to a person who is “accused of an offence.”

(b) It is a protection against “compulsion to be a witness”.

(c) It is a protection against such compulsion relating to his giving evidence “against himself.”

Conclusion

“Human rights” as the expression goes, means certain rights that are considered to be very basic for an individual’s full physical, mental, and spiritual development. Human rights encompass the fundamental principles of humanity and these are the rights which every human being is entitled to enjoy on the basis of the fact of being born human. Indeed, the conception of rights, which every human being is entitled to enjoy by virtue of being a member of human society, has evolved through the history of struggles for the recognition of these rights. In plain simple words, human rights are the rights that every human being possesses by virtue of being a human. The dictionary meaning of the word right is a “privilege”. But when it is used in the context of “human rights” it is about something more basic. Human rights are fundamental to the stability and development of countries all around the world. Great emphasis has been placed on international conventions and their implementation in order to ensure adherence to a universal standard of acceptability.

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Without being exhaustive, it has been discussed that some of the essential human rights as rights of accused must be guaranteed during the pre-trial investigation into criminal activities. These comprise a number of rights essential to preserving not only a suspect’s physical and mental integrity but also his or her right to secure an effective defense throughout these early proceedings and subsequently during the trial itself. In order for these rights to be effectively realized, all legal professions, that is to say, judges, prosecutors and lawyers alike, have an essential role to play. The police and prosecutorial authorities have a professional duty under law to protect these rights, as do the domestic judges, who must at all times be alert to any sign that such important rights as the right to freedom from torture, the right to effective access to legal counsel, the right not to be compelled to testify against oneself and the right to prepare an effective defence etc. have not been respected. Add to these rights the basic rights to equality before the law and to presumption of innocence are also rights of accused, and it can be concluded that international human rights law provides an important foundation for the creation of a judicial system that will function on the basis of respect for the rule of law and individual rights, for the ultimate purpose of administering justice fairly and efficiently.

Also read Rights of Accused in Criminal Justice Administration in India: An Appraisal of Judicial Activism


[1] AIR 1953 SC 404.

[2] RIGHT OF ARRESTED PERSON UNDER THE INDIAN CONSTITUTION, Dr. AMITKUMAR ISHWAR BHAI PARMAR, Vol-2, Issue-9 PP. 1425-1435, ISSN: 2394-5788

[3] Natrajan v. State, 1991 Cri LJ 2329 (Mad).

[4] S.R Myneni Constitutional Law- I

[5] The Law Lexicon, 2nd edition, 2006, justice Y.V.Chandrachud, pg- 1298

[6] M: Jain M.P.: Indian Constitutional law [vol. II]

[7] Black’s Law Dictionary,9th Edn.

[8] 1954 AIR 300, 1954 SCR 1077