Rights of Accused - lawrms.org/

The criminal justice system operates on the “Golden Thread” of British jurisprudence—the presumption of innocence. The rights of an accused are not loopholes for criminals but are safeguards for human liberty against the immense power of the State.

I. Constitutional Perspective

The Constitution of India acts as the “Grand Norm” from which all procedural protections flow. The rights of the accused are primarily anchored in Articles 20, 21, and 22.

1. Article 20: Protection in Respect of Conviction for Offenses

Ex Post Facto Law (Art. 20(1)): No one can be convicted for an act that was not an offense at the time of its commission.
Double Jeopardy (Art. 20(2)): No person shall be prosecuted and punished for the same offense more than once (Nemo debet bis vexari).
Right Against Self-Incrimination (Art. 20(3)): “No person accused of any offense shall be compelled to be a witness against himself.” This protects the accused’s right to silence.

2. Article 21: Protection of Life and Personal Liberty

This is the heart of human rights law in India.

Right to a Fair Trial: Implied in Article 21. A trial must be fair, open, and impartial.
Right to Speedy Trial: Justice delayed is justice denied.
Right Against Handcuffing/Torture: Preservation of human dignity even in custody.

3. Article 22: Protection Against Arrest and Detention

Right to be Informed (Art. 22(1)): The accused must be informed of the grounds of arrest “as soon as may be.”
Right to Counsel (Art. 22(1)): The right to consult and be defended by a legal practitioner of their choice.
Right to Production (Art. 22(2)): The accused must be produced before the nearest Magistrate within 24 hours of arrest.

II. Statutory Perspective (CrPC & BNSS)

While the Code of Criminal Procedure, 1973 (CrPC) has been the bedrock, the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has codified many judicial pronouncements.

Right	Provision (CrPC 1973)	Provision (BNSS 2023)	Description
Grounds of Arrest	Section 50	Section 47	Police must inform the arrestee of the offense and grounds.
Right to Bail	Section 50(2)	Section 47(2)	In bailable offenses, police must inform the accused of their right to be released on bail.
Production before Magistrate	Section 57	Section 58	Police cannot detain a person for more than 24 hours without judicial authorization.
Right to Legal Aid	Section 304	Section 341	State must provide a pleader for the accused in certain cases (Sessions trials) if they are indigent.
Medical Examination	Section 54	Section 53	Right to be examined by a medical practitioner to detect evidence of torture or existing injuries.
Right to Silence	Section 313	Section 351	The court may question the accused, but the accused is not liable to punishment for refusing to answer.

III. Case Laws (Landmark Judgments)

1. D.K. Basu v. State of West Bengal (1997)

Focus: Custodial Torture & Arrest Procedures.
Facts: A PIL was filed following rising incidents of custodial deaths and torture by police, highlighting the lack of transparency during arrests.
Issue: How to curb custodial violence and what procedures must police follow during an arrest?
Decision: The Supreme Court issued the famous “11 Golden Guidelines” (now largely codified in the BNSS). These include:
- Police personnel must bear clear identification/name tags.
- An “Arrest Memo” must be prepared at the time of arrest, attested by a witness.
- The arrestee has a right to inform a friend or relative about their arrest.
- Medical examination of the arrestee every 48 hours.

2. Nandini Satpathy v. P.L. Dani (1978)

Focus: Right Against Self-Incrimination (Art. 20(3)).
Facts: The former Chief Minister of Orissa was interrogated by police on corruption charges. She was given a long list of questions and she refused to answer them, claiming protection under Art. 20(3). She was charged with “refusing to answer public servant” (Sec 179 IPC).
Issue: Does the right to silence apply during the police interrogation stage, or only in court?
Decision: The Court held that Article 20(3) extends to the police interrogation stage. The accused has the right to remain silent if the answer would expose them to a criminal charge. However, they must answer non-incriminating questions (e.g., name, address).

3. Hussainara Khatoon v. Home Secretary, State of Bihar (1979)

Focus: Right to Speedy Trial.
Facts: A PIL exposed the plight of thousands of undertrial prisoners in Bihar who had been in jail for periods longer than the maximum sentence for their alleged crimes.
Issue: Is the “Right to Speedy Trial” a fundamental right under the Constitution?
Decision: Justice P.N. Bhagwati ruled that Speedy Trial is an integral part of Article 21. The State cannot cite financial constraints as an excuse to deny this right. The court ordered the immediate release of undertrials who had served their maximum potential sentences.

4. Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012)

Focus: Right to Free Legal Aid.
Facts: Ajmal Kasab, the Pakistani terrorist involved in the 26/11 Mumbai attacks, requested legal representation. The question was regarding the State’s obligation to provide a lawyer to a foreign national accused of terrorism.
Issue: Is the right to legal aid mandatory even for a terrorist involved in a “war against the state”?
Decision: The SC held that Article 21 permits no exception. Every accused, regardless of the gravity of the crime, has a constitutional right to a fair trial and legal representation. If the accused cannot afford a lawyer, the State must provide one.

From a Human Rights perspective, the rights of the accused are not designed to shield the guilty, but to protect the innocent. As Justice V.R. Krishna Iyer eloquently noted, “The history of liberty has largely been the history of observance of procedural safeguards.”

The transition from the procedure established by law (A.K. Gopalan era) to due process of law (Maneka Gandhi era) signifies that the State cannot deprive a citizen of their liberty merely by following a printed statute; the procedure itself must be “fair, just, and reasonable.”

The true essence of these rights lies in the constant friction between State Security and Individual Liberty. The judiciary’s role is to ensure that while the State has the sword of justice, the accused is never denied the shield of rights.

Contemporary changes and challenges:

The landscape of criminal justice in India is currently undergoing a seismic shift with the transition from the colonial Code of Criminal Procedure (CrPC), 1973 to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

While the intent of “decolonization” is noble, several provisions in the new code arguably dilute the procedural due process rights of the accused. Below is a critical analysis of these recent challenges and forward-looking suggestions.

I. Recent Challenges (The “BNSS” Era & Beyond)

The most pressing challenges stem from the new statutory framework and the aggressive interpretation of “Special Acts” (like PMLA and UAPA).

1. The “Elastic” Police Custody (Section 187, BNSS)

The Change: Under the old CrPC (Section 167), police custody could only be authorized in the first 15 days of remand. Once this period expired, the accused moved to judicial custody (jail), where police access is restricted.
The Challenge: Section 187 of the BNSS allows police custody of 15 days to be taken in parts at any time during the initial 40 or 60 days of the investigation period.
Human Rights Critique: This hangs the “Sword of Damocles” over the accused.
- Risk of Coercion: The fear of being pulled back into police custody (where torture risk is higher) can be used to coerce the accused into cooperation or confession during judicial custody.
- Bail Impediment: Courts may be reluctant to grant bail if the Investigating Officer (IO) claims they have not yet exhausted their 15 days of custody, effectively keeping the accused incarcerated for months.

2. The Return of Handcuffs (Section 43, BNSS)

The Change: The BNSS explicitly permits the use of handcuffs for habitual offenders or those accused of grave crimes (terror, organized crime, economic offenses, etc.).
The Challenge: This statutorily overrides the Supreme Court’s ratio in Prem Shankar Shukla v. Delhi Administration (1980), which held that handcuffing is prima facie inhuman and unreasonable unless there is a clear and present danger of escape.
Critique: “Economic offenses” are broad. Handcuffing a white-collar accused before conviction attacks their dignity and violates Article 21.

3. The “Twin Conditions” in Special Acts (PMLA/UAPA)

The Challenge: In acts like the Prevention of Money Laundering Act (PMLA), bail is subject to Section 45, which requires the court to be satisfied that the accused is not guilty—a “devil’s proof” at the pre-trial stage.
Recent Trend: While the SC has granted bail in high-profile cases (e.g., Manish Sisodia, Senthil Balaji) citing “prolonged incarceration,” lower courts often default to “Jail is the rule” due to the statutory bar.
Critique: The process itself becomes the punishment. The presumption of innocence is effectively reversed.

4. Digital Evidence & Integrity (BSA 2023)

The Challenge: The new Bharatiya Sakshya Adhiniyam (BSA) admits electronic records as primary evidence. However, without strict “hashing” (digital fingerprinting) at the time of seizure, electronic evidence is prone to tampering.
Critique: Determining the “authenticity” of a seized smartphone or laptop without a secure chain of custody remains a gray area, threatening the fair trial rights of the accused.

II. Suggestions & Reforms (The Way Forward)

To balance State security with individual liberty, the following reforms are jurisprudentially essential:

1. Enact a Specific “Bail Act”

Source: Recommended by the SC in Satender Kumar Antil v. CBI (2022).
Proposal: India needs a dedicated Bail Act (like the UK) to eliminate arbitrariness.
- It should clearly define conditions for granting bail based on flight risk and tampering, rather than the vague “seriousness of the offense.”
- It must mandate that “bail applications must be decided within 2 weeks,” preventing indefinite pre-trial detention.

2. Mandatory “Hashing” of Digital Evidence

Proposal: To protect the accused from planted evidence (a fear highlighted in cases like Bhima Koregaon), the law must mandate that:
- A Hash Value (digital fingerprint) of every seized electronic device must be generated at the scene of the raid.
- This hash must be provided to the accused immediately.
- Any discrepancy in the hash value during the trial should lead to automatic exclusion of that evidence.

3. Institutional Separation of Investigation & Prosecution

Proposal: An independent Directorate of Prosecution (separate from the Police) should vet every charge sheet.
Impact: Police often file charge sheets just to stop the “default bail” clock (under Sec 167 CrPC/187 BNSS). An independent prosecutor would refuse to file weak cases, protecting the accused from baseless trials.

4. Videography of Search and Seizure (Strict Compliance)

Context: The BNSS mandates videography of search and seizure.
Suggestion: Courts must adopt a strict “Exclusionary Rule”—if the police fail to videograph the recovery of a weapon or contraband, that evidence must be inadmissible in court. It should not be treated as a mere “procedural irregularity.”

Conclusion: The “Sentinels of Liberty”

As we move into the era of the BNSS, the challenge for a Human Rights scholar is to ensure that “Procedure Established by Law” does not become a tool for “Authorized Oppression.”

While the new codes aim to modernize justice, they risk expanding state power at the cost of civil liberty. The ultimate suggestion is a shift in judicial mindset: Courts must return to the principle that deprivation of liberty is a grave punishment, and it cannot be inflicted on a person merely accused of a crime, regardless of how heinous the accusation may be.

As Justice Krishna Iyer famously warned: “The handcuffs on the accused today may be on the hands of the judge tomorrow.” The protection of the accused is, ultimately, the protection of the rule of law itself.