Due Process And The Bill Of Rights In The Indian Context

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:

Siddharam Satlingappa Mhetre – The SC on Due Process

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.

The Indian Constitution confers on Indian citizens, the following FUNDAMENTAL RIGHTS, equivalent to the 5th and 6th amendments:

  1. No citizen can be denied his life and liberty except by law —  Article 21 and enforced through the writ of Habeas Corpus.
  2. No citizen  accused of any offense shall be compelled to be a witness against himself — A fundamental Right and Supreme Court judgment given below.
  3. The right to a speedy trial — see the Supreme Court judgment below.
  4. 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:

  1. 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.”
  2. 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.
  3. The Right To A Place Of Proper JurisdictionY.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:

    1. When it is uncertain in which of several local areas an offence was committed, or
    2. where an offence is committed partly in one local area and partly in another, or
    3. where an offence is continuing one, and continues to be committed in more local areas than one, or
    4. 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.”
  4. 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:
    1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
    2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
    3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.
    4. 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.
    5. 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.



7 Responses to “Due Process And The Bill Of Rights In The Indian Context”

  1. 1 vasant December 7, 2009 at 6:13 am

    If judge is acting as obstacle for speedy trial , what is procedure to make complaint against him ?.


    • 2 kkmittal January 23, 2010 at 12:19 pm

      Sir, Pl make awritten compaint against the judge giving true incidents of harassment to higher Judge Distt Judge /High court chief Justice and suereme court of India.It will be better if it is done online followed by hard copy


  2. 3 Carlisle Collins August 22, 2010 at 11:19 pm

    My Dear Friend: Your dissertation, your opinion, and your proposal is certainly admirable and worthy of commendation – except, as things stand right now, it may be seen as a flattering exaggeration. Through these years in the U.S., the rock-solid foundation on which ‘due process’ was standing proud and erect, has been methodically and surreptitiously eroded; so now it’s attempting to balance itself on a chunk of thin ice wobbling precariously on the dark sea of uncertainty. In the words of Adolph Hitler, “It is a quite special secret pleasure how the people around us fail to realize what is really happening to them …. What good fortune for governments that the people do not think.”

    It is no big secret that, day by day, America is moving closer and closer to becoming a Police State; a dictatorship. We’ve seen it coming for years. But as is typical of other nations before us who’ve bent over to tyrannical rule, our citizenry of intellectual paraplegics dismiss these signs as “conspiracy theories” while grabbing another beer and watching the ball game on TV. “It can’t happen to us”, they say. These were the same ‘last words’ of twenty nine million people – civilians – in Russia under Joseph Stalin. That’s TWENTY NINE MILLION declared “enemy of the State”, “treasonous”, “traitorous”, “combatants”, etc. and herded off into Gulags (concentration camps) overnight. And “due process” was merely the stroke of the pen: an Executive Order condemning them to eventual death!

    Through strategic legislation, Americans also are giving up their Rights in exchange for the illusion of security from an external “foe” conjured up by those in the know. The so called “Patriot” Act is yet another astonishingly treasonous act that eliminated yet another key check to control out of control government. Once ferocious watchdogs, the Magna Carta,, the 1878 Posse Comitatus Act. habeas corpus , etc. have now become yelping, toothless puppies sniveling in the corner.

    I don’t have the nerve or the face to feed the line of “due process” to the multitude of US prisoners, many its own citizens, who have been detained and tortured for years in secret prisons without any formal charges being filed. Or justify to abductees the Extraordinary Rendition Program where select people are kidnapped from all over the world and extra-judicially transported to CIA’s secret prisons. Or explain to the involuntary indoctrinates the national security imperative of the MK-ULTRA mind control experiments, etc., etc…

    The passage of the Patriot Act and its incrementally more demanding provisions is stifling any expectation of freedom and individuality. The government’s warrantless wiretaps and other invasions of personal privacy are now legal. In essence, it is a powerful tool to crush dissent; and dissent “they” do expect, and dissent “they “shall crush!

    In preparation for the big event, more and more prisons are being constructed; many are former military bases equipped at present to accommodate 3 million people complete with mass crematoriums and enclosed in secured, electrified perimeters with guard towers,. These are built along similar lines as Stalin’s Gulags per Advisor Yevgeny Primakov, a former KGB general! No one raises an eyebrow as to why countless number of guillotines is being transported there… But as we see Obama’s abominations diluting “due process” in America, we are seeing its infancy here in India.

    Due Process in India wasn’t really meant to be a constitutional right per se. The framers of the Indian Constitution deliberately shelved the proposal they believed would overburden the judicature. Instead, they prescribed “procedure” that should stand the test of being “… ‘just, fair and reasonable”: An arbitrary criteria that leaves much to the individual discretion of the judge. Nevertheless, in the landmark’ narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due process” is now a “guarantee” under the Constitution. This declaration is a remarkable rejection of the framers’ decision to delete the due process clause.

    “Due Process” in India is like a newly hatched chick. Let us pray that no one comes along and crushes it in his stride!

    I am sorry for painting such a gloomy picture. I am even more sorry because my statement is true!

    “As nightfall does not come at once, neither does oppression. In both instances, there’s a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness.” – Supreme Court Justice William O. Douglas.


  3. 4 Sharma November 4, 2011 at 5:34 am

    The Rajya Sabha has come out with its recommendations on amendment to the 498a IPC.

    There is no comment from you on it.


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  1. 1 The 498A Survival Kit « IPC 498A Trackback on November 28, 2009 at 12:21 am

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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