While preparing to take the test for my US citizenship, I read its Constitution and the amendments to its Constitution. Among the many things I learned, there are two words of great relevance to arrests in 498A cases: Due Process.
“Due Process” is the principle that the government must respect all of the legal rights that are owed to a citizen in accordance with the law. Due process holds the government subservient to the law of the land. The term government means any branch of the government, such as the executive (police), the judicial (judges and magistrates), and the legislative (MLAs and MPs) branches.
Due process protects a citizen from the abuse of power by any branch of the state.
You read about the Indian Suprene Court’s views on Due Process here:
In the United States, the phrase, “due process of law“, has been construed to forbid the violation of the rights granted by the Bill of Rights.
So what are the Bill Of Rights?
The Bill of Rights is the name by which the first ten amendments to the United States Constitution are collectively known. The founding fathers of the US, just like Indian freedom fighters such as Gandhi, Nehru, and Sardar Patel, experienced an arrest without just cause. As a result, after the US Constitution was ratified, meaning, after it was accepted as the law of the land, ten amendments were made to it that guaranteed individual protections. These amendments became known as the The Bill Of Rights.
In the context of conferring protections on individuals from the excesses of the state, the following amendments to the US Constitution are of immense importance:
- 5th Amendment: no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
- 6th Amendment: the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed.
- No citizen can be denied his life and liberty except by law — Article 21 and enforced through the writ of Habeas Corpus.
- No citizen accused of any offense shall be compelled to be a witness against himself — A fundamental Right and Supreme Court judgment given below.
- The right to a speedy trial — see the Supreme Court judgment below.
- The right to be tried in the place of proper jurisdiction — explained through a Supreme court judgment.
The Fundamental Rights listed above collectively constitute the Right To Due Process In India.
In essence the right to “Due Process” in India is enforced by means of the following Supreme Court judgments:
- The Right Against Arbitrary Arrest (enforced through Habeas Corpus) — Joginder Kumar Vs State Of UP – 1994: This judgment resulted from a writ of Habeas Corpus and it enforces the right against arbitrary arrest. It says: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self–esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”
- The Right To A Speedy Trial — Hussainara Khatoon & Ors.Vs.State Of Bihar, 1979: The accused in these cases might have been on bail – but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. His confidence starts to erode and at the end of the trial, even if he is honorably acquitted, the scars of the long trial remain. He feels condemned despite the acquittal.
- The Right To A Place Of Proper Jurisdiction — Y.Ajith Abraham Vs. Inspector of Police, Chennai, 2004: “Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury’s Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:
Section 178 PLACE OF INQUIRY OR TRIAL
- When it is uncertain in which of several local areas an offence was committed, or
- where an offence is committed partly in one local area and partly in another, or
- where an offence is continuing one, and continues to be committed in more local areas than one, or
- where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”
- The Right Against Self-Incrimination– Article 20 of the Indian Constitution and Nandini Satpathy Vs P.L Dani, 1978: The Supreme Court issued the following directives in this judgments:
- An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
- The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
- The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.
- An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
- Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC. Children below 15 and women should not be summoned to the police station or to any other place by an investigating officer. They should only be questioned at their place of residence. An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self-incrimination and breaches provisions of the Code of Criminal Procedure, 1973 [CrPC]. It is also inadmissible as evidence in a court of law. In addition, causing hurt to get a confession is punishable by imprisonment up to seven years.
Indian citizens have to understand that the Indian Constitution, derived from the US Constitution and its Bill Of Rights, confers the same essential rights as the US Constitution.
This post is an attempt on my part to encourage Indians to assert their right to Due Process.