CHAPTER - 2

RIGHTS OF ACCUSED UNDER THE INDIAN CONSTITUTION

(I) PRELUDE
The Constitution is the basic source of all laws and fundamental rights also
emanates from the Constitution. The provisions of all other laws are subject to provisions
of the Constitution and in case of any inconsistency they are liable to be struck down.
Fundamental rights under Indian Constitution have been incorporated in Part-Ill of the
Constitution. "A constitution is framed for ages to come, and is designed to approach
immortality as nearly as human institutions can approach it. Its course can not always
be tranquil".^ No Fundamental rights were available to the people of India before
independence. The idea of fundamental rights was cherished long ago. The Congress
party had submitted "Nehru Report" on 10th August, 1928, which contained several
fundamental rights. ^ The Preamble of the Constitution reflect the aspirations of the
people of India to secure justice, liberty and equality to all citizens.^ A person may
become accused when there is any criminal charge against him and he can be put
behind bars to face the consequences.
An accused when brought before the court of any category does not cease
to be a citizen of this country despite the fact that he has been charge sheeted of
an offence, hence under the Constitutional Article 5, even an accused does not become
noncitizen on the mere fact that he has been arrested, charge sheeted or incarcer-
ated by the authority. Being a citizen of this free country, the accused is entitled to
all those entitlements that any free citizen is entitled except those curtailment that had
been restricted by virtue of his arrest according to the law of this land." Prisoners
are still persons entitled to all Constitutional rights unless their liberty has been

1. Chief Justice John Marshall of United States said in 1821. Quoted by Granviile,Austin in India
Today.January 31,2000 p-31.
2. The Congress party had passed a resolution in 1927 to draft Constitution of India under
Chairmanship of Mr. Moti Lai Nehru which finally submitted the report which is popularly
known as "Nehru Report". Severalrightswerelisted out in the draft.
3. See Preamble, Constitution of India, 1950.
4. Verma, R.S., Rights of An Accused, Delhi (1999) p.105.
 28

Constitutionally curtailed by procedure that satisfy all the requirements of due pro-
cess. ^ Mr. Justice White's observation in Charles Wolf's case ^ was also referred
by Supreme Court in Francis Coralie's' case that, though rights of prisoner "may be
diminished by the needs and exigencies of the institutional environment, a prisoner
is not wholly stripped of Constitutional protections, when he is imprisoned for crime.
There is no iron curtain drawn between the Constitution and the prisons of this country".^
A person to whom fundamental rights are available does not cease to be so when
he is detained or facing criminal trial or convicted for an offence. Except the legal
restrictions imposed on him, other fundamental rights are still available to him and
he can approach the courts for enforcement of his rights.^ Basic Constitutional rights
cannot be halted at the prison gates and can be enforced within the prison campus.^"
The prison laws do not swallow up the fundamental rights of the legally unfree the
courts will guard the freedom behind the law...." 'Prisons are built with stones of
law" and so it behoves the court to insist that, in the eye of law, prisoners are persons,
not animals, and punish the deviant guardians' of the prison system where they go
berserk and defile the dignity of the human inmate, prison houses are part of Indian
earth and the Indian Constitution cannot be held at bay by jail officials, dressed in
a little, brief authority when Part-Ill is invoked by a convict. For when the prisoner is
traumatized, the Constitution suffers a shock, and when the court takes congnizance
of such violence and violation, it does, like the hound of Heaven. ^^

5. Justice Douglas in Eve Fall's case (1974) 417: U5 817 41 L Ed. 2d 495; This observation was
referred by the Supreme Court of India Francis Coralie v. Union Territory of Delhi, AIR 1981 SC
746 at 751.
6. (1974) 41 LED 2d 935 (USA).
7. AIR 1981 SC 746.
8. See Francis Coralie v. Union Terirtory of Delhi, AIR 1981 SC 746 at 751.
9. See Part III of Constitution of India; A person can move Supreme Court or High Court for
enforcement of his fundamental rights under Article 32 and 226 of the Constitution of India.
10. Iyer, V.R. Krishna, Law, Lawyers and Justice (1989), p. 39.
11. Iyer, V.R. Krishna in SunilBatra v. Delhi Administration, AIR 1978 SC 1675 at p.1682.
12. SunilBatra (No-ll) v. Delhi Administration, AIR 1980 SC 1579 at p. 1583.
 29
Convicts are not by mere reason of the conviction denuded of all the funda-
mental rights which they otherwise possess. A compulsion under the authority of law,
following upon a conviction, to live in prison house entail by its own force the dep-
rivation of fundamental freedom like right to move freely through out the territory of
India or right to practice a profession.... But the Constitution guarantees other
freedoms.... Even a convict is entitled to some precious rights guaranteed by Article
21 that he should not be deprived of life or personal liberty except according to the
procedure established by law.^^ In this Chapter, vahous rights available to accused
person under the Constitution of India would be examined. The right to equality in
the backdrop of rule of law, right to speech and expression and protection against
self-incrimination will be discussed threadbare. The concept of double jeopardy and
domain of personal liberty and provisions relating to preventive detention and rights
available to accused person or detenu will also find a mention in the Chapter. The
study of Constitutional rights of accused would be, in fact incomplete if Constitutional
mechanism for enforcement and safeguard of rights of accused is not discussed.
Some new rights which have emerged in consequence of judicial interpretation will
also find specific mention in the study.
(II) RIGHT TO EQUALITY AND PHILOSOPHY OF DOCTRINE OF RULE
OF LAW
Part-Ill of the Constitution of India, titled as "Fundamental Rights" secure to
the people of India certain basic, natural and inalienable rights. These rights have
been declared essential rights" in order that ^* 'human liberty may be preserved, human
personality developed and an effective social and democratic life promoted"^^ These
fundamental rights represent the basic values cherished by the people of this
country(lndia), since the vedic times and they are calculated to protect the dignity
of the individual and create conditions in which every human being can develop his
personality to the fullest extent. They weave a pattern of guarantee on the basic structure
of human rights, and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions. ^® The aim behind having a declaration

13. D.B Mohan Patnaik v. StateofA.P. 1975 2 SCC 24:1975 Cr.LJ 556.
14. Kumar, Narender, Constitutional Law of India Delhi (1997), p.50.
15. Jain 457 Quoted by Kumar Narender,op.c#.
16. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
 30
of fundamental rights is to make inviolable certain elementary rights appertaining
to the individual, such as the right to life, liberty to free speech, freedom of worship,
etc., under all conditions and to keep them unaffected by the shifting majorities in
the legislatures.^^ The framers of the Indian Constitution followed by the American
model in adopting and incorporating the fundamental rights for the people of India.
The Constitution not only secures the fundamental rights, but also provides a speedy
and effective remedy for their enforcement. The rights, so secured, are rather more
specific and detailed. The Constitution , instead of leaving it for the courts, itself
embodies the limitations or conditions subject to which the right may be excercised.^®
According to the philosophy behind fundamental rights, they are available only
against State, for, they are limitations upon all the powers of the Government, leg-
islative as well as executive. It is against the might of the State that an individual
needs Constitutional protection.^^ The definition of the term "the State" is given in
Article 12 of the Constitution which reads" In this part, unless the context otherwise
requires, "the State" includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India."^ This Article
does not define the term "the State" but states that certain agencies are "the State"
for the purposes of Part III & IV of the Constitution. ^^ A judicial or quasi^udicial authority
has not been held to be a 'State' for the purposes of Part-Ill & IV of the Cosntitution.22
That definition does not say fully what may be included in the word 'State' but, al-
though it says that the word includes certain authorities, it does not consider it nec-
essary to say that courts and judges are excluded. The reason is made obvious at
once. If we consider Article13 (2) there the word "State" must obviously includes
"courts" because othenvise "courts" will be enabled to make rules which take away
or abridge fundamental rights.^^ The definition of "State" is not confined to a

17. A.K Gopalan v. State of Madras, AIR 1950 SC 27.

18. Kumar, Narender ,op.cit.,p.5^.
19. Ibid, p.53.
20. Article 12 of Constitution of India.
21. ibid.
22. Naresh v. State of Maharastra, AIR 1967 SC 1 (ii); Purbani T. C. S. v. R.J. A., AIR 1960 SC
801.
23. Naresti v. State ofMatiarastra, AIR 1967 SC 1 (25) Para 100.
 31

Government Department and the Legislature, but extends to any action -administra-
tive (whether statutory or non statutory) Judicial or quasi-judicial, which can be brought
within the fold of 'State action' being action which violates a fundamental right.^^ The
Constitution declares all laws in derogation or inconsistent with the provisions of Part-
Ill of Constitution to be void.^s Article 13(2) reads that "the state shall not make any
law which takes away or abridges the rights conferred by this part and any law made
in contravention of this clause shall, to the extent of the contravention, be void". Thus,
it is clear that even courts cannot make any law which abridges or violates funda-
mental rights. " It is inappropriate and illogical to conclude positively that the framers
of the Constitution intended to exclude the judiciary from the area of "State" so as
to put it beyond the reach of fundamental rights. Judiciary is an organ of the "State"
and a reading of Part-Ill clearly supports this view."^^
The first fundamental right secured to the people of India Is the "Right to
Equality."^^ The provisions are contained in Article 14 to 18 of the Constitution. Article
14 provides for equality before law and reads:
The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.^^
The source of Article 14 lies in the American and the Irish Constitutions. It
may be mentioned that the Preamble to the Indian Constitution speaks of equality
of status and of opportunity and this article gives effect to that principle in the text
of the Constitution. In a sense, the demand for equality Is linked up with the history
of the freedom movement in India. Indians wanted the same rights and privileges
that their British masters enjoyed in India and the desire for civil rights was implicit
in the formation of the Indian National Congress in ISSS.^^The right to equality finds
place in "Nehru Report". The Committee under the Chairmanship or Motilal Nehru

24. Bakshi, P.M., The Constitution of India, Delhi (1996) Reprint, 1997 p-11; see also Ramana v.
International Airport Authority of India, AIR 1979 SC 1628,1638 Para 14-16; State of Punjab
V. Raja Ram, AIR 1981 SC 1694 para 5; Gulam v. State ofU.R, AIR SC 2198 para 23; Som
Pratiash v. Union of India, AIR 1981 SC 212 para 34, 37.
25. Article 13(1) of Constitution of India.
26. Hidayatullah, M., (ed) Constitutional Law of India, Vol-I (1984), p.171.
27. Kumar, Narender, op. at., p.84.
28. Article 14.
29. Bakshi P.M., Constitutional Lawof lndia,Delhi (1996), p.15.
 32
was appointed to determine the principles of the Constitution of India.^ Article 4
of the said report reads" All citizens are equal before the law and possess equal
civil rights" The Karachi Resolution (March 1931) reiterated, inter alia, this right in
the resolution on fundamental rights and economic and social change. ^^ The right
was reiterated in Sapru Report that" what the Constitution demands and expects
is perfect equality between one section of the community and another in the matter
of political and civic rights, equality of liberty and security in the enjoyment of the
freedom of religion, worship, and the pursuit of the ordinary applications of life."^^
Article 7 of the Universal Declaration of Human Rights provides that" All are equal
before the law and are entitled without any discrimination to equal protection of the
law.AII are entitled to equal protection against any discrimination in violation of the
declaration against any incitement of such discrimination. ^^

The obligation imposed on the State by Article 14 is for the benefit of all persons
within the territory of India. The benefit of Article 14 is, therefore, not limited to citizens.
Every person whether natural or artificial, whether he is a citizen or an alien, ^ is entitled
to the protection of the Article. ^The concept of equality has been held basic to the
rule of law. In Indira Nehru Gandhi yj. RajNahan, ^the Supreme Court by majority
held that right to equality conferred by Article 14 is a basic structure of the Constitution
and an essential feature of democracy or rule of law." Two concepts are enshrined
in the Article- (a) equality before the law; and (b) equal protection of the laws. "Equality
before law" is a negative concept which establishes the" Rule of law" and it is direction
for the State to treat all persons alike and not to discriminate any person. Dr. Ivor

30. The "Nehru Report" was submitted by R. Moti Lai Nehru in August, 1928.
31. Chal^ravarty and Bhattachatya, Congress in Evolution (1940), p.28.
32. The Sapm Report (1945), p.260.
33. The Universal Declaration of Human Rights, 1948 adopted and proclaimed by United Nations
General Assembly resolution 2174 (III) of 10 December, 1948 by United Nations.
34. National Human Rights Commission v. State ofArunachal Pradesh, AIR 1996 SC1234; M.S.
Nizami v. Dy. Custodian of Evacuee Property, AIR 1951 Mad. 930; see also Kumar, Narender,
op.cit., p.84.
35. Chiranjit Lai Chaudheuy v. Union of India, AIR 1951 SC 41.
36. AIR 1975 SC 2299.
37. Ibid.
 33

Jennings, explains," Equality before the law means that among equals the law should
be equal and should be equally administered, that like should be treated alike.The
rights to sue and be sued, to prosecute and be prosecuted for the same kind of action
should be same for all citizens of full age and understanding without distinction of
race, religion, wealth, social status or political influence."^The guarantee of equality
before the law is an aspect of what Dicey calls the Rule of Law in England.^^ Dicey
observed :
When we say that the supremacy or the rule of law is a characteristic
of the English Constitution, we generally include under one expression
at least three distinct though kindred conceptions. We mean, in the
first place, that no man is punishable or can be lawfully made to suffer
in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. In this
sense the rule of law is contrasted with every system of Govt, based
on exercise by persons in authority of wide, arbitrary, or discretionary
powers of constraint. '*°We mean in the second place.... not only that
with us no man is above the law, but (what is a different thing) that
have every man, whatever be his rank and condition, is subject to the
ordinary law of the realm and amenable to the jurisdiction of the or-
dinary tribunals. •*^
"It means that no man is above the law and that every person, whatever be
his rank or conditions, is subject to the juhsdiction of orderly courts." Dicey further
wrote "with us every official from the Prime Minister down to Constable or a Collector
of taxes is under the same responsibility for every act done without legal justification
as any other citizen". Rule of Law requires that no person shall be subject to harsh,
uncivilized or discriminatory treatment even when the object is the securing of the
paramount exigencies of law and order.'•^ The expression "equality before law" is of
English origin and used in almost all wntten constitutions of the world.The object of
the Constitution as stated in Preamble, is to establish equality of status which gets
expressiion in this Article.Both the expressions i.e.,equality before law and equal pro-

38. Jennings, Ivor, Law of The Constitution, 3rcl Ed. p. 49.

39. Dicey, A.V., Law of Constitution, 10th Edn. pp. 202-03.
40 to/c/.,p.183.
41 /to»cf.,p.189;Seealso Anand,C.L.,Constitutional Lawand History of Government of India
(1990), p. 123.
42. Ibid; See Rubinder Singh v. Union of India, AIR 1983 SC 65; see also Pandey J.N., Constitu-
tional Law of India, Allahabad (1984), p. 68.
 34

tection of the laws, though appears to be identical but the first concept is "negative"
and later is "positive".
Equality before law is a dynamic concept having many facets one facet -the
most commonly acknowledged -is that there shall be no privileged person or class
or that none shall be above law. A facet which is of immediate relevance herein
is the obligation upon the State to bring about, through the machinery of law, a more
equal society envisaged by the Preamble and Part- IV of our Constitution, "^ The
phrase "equality before law" is somewhat a negative concept for it Implies absence
of any special privilege in favour of any particular individuals, while the expression
"equal protection of laws" is positive in operation, ensuring equality of treatment to
all in equal circumstances. However the second expression has been held to be the
corollary of the first. It would, therefore, be difficult to imagine a law, having inequality
of operation may yet give equality of protection. It would be a contradiction to say
that any violation of equal protection of laws would not result in violation of equality
before law. It was held both these expressions mean one and the same thing i.e.
equality of status and of opportunity '"The dominant idea common to both these ex-
pressions is that of equal justice. ^ Thus, the fundamental principle is that Article
14 forbids class legislation but permits reasonable classification, for the purpose of
legislation classification must satisfy the twin tests of classification being founded
on an intelligible differentia. Which distinguishes persons or things that are grouped
together from those one left out of the group and that the differentia must have a rational
nexus to the object sought to be achieved by the statute in question. '^ All local or
other authorities under the governmental control or which are instrumentalities of the
State are also "the State" for the purposes of Article 12. The Supreme Court in the
matter of Ajay Hasia v. Khalid Mujib*^ speaking through Justice P. N Bhagwati

43. SriSrinivasa Theatre v. Govt of Tamil Nadu, AIR 1992 SC 999 at p.1004.
44. State ofW.Bv. AnwarAliSarkar, AIR 1952 SC 75; Stieostiankar v. State ofMadtiya Pradesh,
AIR 1951 Nag 58; see also Kumar, Narender , op. cit., p. 85.
45. Sheoshankarv. State ofM.P.,A\R^951 Nag. 53.
46. Justice Desai in D.S. Nakara v. UOI, AIR 1983 SC 130.
47. AIR 1981 SC 481.
 35

enunciated the following test to determine whether an entity is an instrumentality or

agency of the State:

1) If the entire share capital of the corporation is held by government
it would go a long way towards indicating that the corporation is
an instrumentality or agency of Government.
2) Where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation, it would afford some
indication of the corporation being impregnated with governmental
character.
3) It may also be relevant factor whether the corporation enjoys
monopoly status which is the State conferred or State protected.
4) Existence of deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality
5) If the functions of the corporation are of public importance and
closely related to governmental functions, it would be relevant factor
in classifying the corporation as an instrumentality or agency of
Government.
6) Specifically if a department of Government is transferred to a
corporation, it would be a strong factor supporting this interference
of the corporation being an instrumentality or agency of
government.'**
The rule of equality is not absolute and there are exceptions to it. For instance,
foreign diplomats are immune from the jurisdiction of the country's courts. Article
361, immunes the President, the Governor of a State from the jurisdiction of the courts.
Police officers, judges also enjoy some protection and some special groups like the
trade unions are accorded special privileges in certain matters. *^ Articles 14 permits
classification. Classification is merely a systematic arrangement of things into groups
or classes, usually in accordance with some definite scheme.^AII persons are not

48. Ibid.,see R.D.Shettyv. International Airport Authority, A\R 1979 SC^628,Som Prakash Rekhi
V. Union Oflndia,A\R 1981 SC 212.
49. Kumar, Narender, op. cit., p. 86.
50. State ofW.B. v. Anwar AH, AIR 1952 SC 75.
 36

equal by their nature, attainment or circumstances. The varying needs of different

classes of persons often require separate treatment. ^^ The reasonable classification
is permissible. By 'reasonable', it is meant that classification must not be arbitrary
but must be rational. The test of classification require the fulfillment of two conditions,
namely (1) The classification must be founded on an intelligible differential while
distinguishes those that are grouped together from others, (2) the differential must
have a rational relation to the object sought to be achieved by the law under chal-
lenge.^2 FazI Ali J, observed in Kathi Raning Rawat v. State of Saurashtra " that
"a distinction should be drawn between' discrimination without reason and 'discrimi-
nation with reason' The whole doctrine of classification is based on this distinction""
Equality before law is a limitation on the legislative function of the State; a
legislation on the basis of this principle can be reviewed by the court only when an
unequal treatment is alleged to take place on its enforcement. It is because the
legislation itself violates 'equality before law' or it leaves to the executive an unguided
discretion which may be arbitrarily exercised; and thereby may lead to the violation
of 'equal protection of laws'. As regards equal protection of laws as the doctrine
applies to persons similarly situated, i.e. the law that operate alike on all persons
under the like circumstances. ^ Doctrine of equality is a deep rooted base of the
principle of justice. It required that all individuals should be treated alike even though
they are unequal. In this regard the concept of equality visualises a sort of compen-
satory treatment to make all men equal before law without any consideration of caste
and creed, big and small, privileged and unprivileged and rich and poor.^ It is now

51. Chiranjit Lai Chaudharyv. Union of India, A\R 1951 SC 41; State of Bombay v. F.N. Balsara,
AIR 1951 SC 318.
52. See Bakshi, P.M., Constitutional Law of India (1996), Delhi, p 16; see also Chiranjit Lai v.
Union of India, (1950) SCR 869; State of West Bengal v. Anwar Ali 1952 SCR 289; Dhirendra
Kumar v. Superintendent and Legal Remembrancer of Legal Affairs (1955) 1SCR 244;
Ameeroonissa v. Met)boob,{1953) SCR 401, 414; Yusuf v. State of Bombay, AIR 1954 SC
321; Ctiitralekha v. State ofMysore,A\R 1964SC 1823,1827; see also AIR 1979 SC 478; AIR
1962 SC 36; AIR 1963 SC 647,664; AIR 1973 SC 130, AIR 1966 SC 44; AIR 1986 SC 859;
AIR 1984 SC 1420; AIR 1983 SC 1213; see also R. K. Dalmia v. Justice Tendolkar, AIR 1958
SC 538; HanirajCfiulaniv. Bar Council of Mat}arastra andGoa, AIR 1996 SC 1708.
53. AIR 1952 SC 123.
54. Ibid.
55. State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCR 284 at pp. 294, 335.
56. Chaturvedi, A.N.. Rights of Accused Under Indian Constitution (1984), D.59.
 37
well established that while Art 14 forbids class legislation it does not forbid reason-
able classification for the purposes of legislation, in order, however, to pass the test
of permissible classification, two conditions must be fulfilled, namely classification,
must be founded on an intelligible differentia which distinguishes persons or things
that are grouped together from other left out of the group and (2) that differentia must
have a rational relation to the object sought to be achieved by the Act. What is necessary
is that there must be nexus between the basis of classification and the object of the
Act." The burden of showing that a classification rests upon an arbitrary and are not
reasonable basis is upon the person who impeaches the law as a violation of the
guarantee of equal protection. ^ A classification may be reasonable even though
a single individual ( or object) is treated as a class by himself (or itself), if there are
some special circumstances or reasons applicable to him (or it) above and not ap-
plicable to others.^

This Article not only guarantees equal protection as regards substantive laws
but procedural laws also come within its ambit. The implication of the Article is that all
litigants similarly situated are entitled to avail themselves of the same procedural rights
for relief and for defence with like protection and without discrimination.^" So there
cannot be separate procedure for the persons who have committed the same offence
and are subject to same procedure for trial. From the stand point of the latter, (proce-
dural laws) it means that all litigants, who are similarly situated, are able to avail
themselves of the same procedural rights for relief and for defence, without discrimi-
nation of course, if differences are of a minor unsubstantial character, which have not
prejudiced the interest of the person or persons affected, there would not be a denial
of equal protection.^^
The guarantee of equal protection applies against substantive as well as pro-
cedural laws.^ There can be different procedure for trial of a particular offence if it is

57. Justice Das in KathiRaning Rawat v. State ofSaurastra, AIR 1952 SC 123, p. 136.
58. State of UP V. Kartar Singf), AIR 1964 SC 1135.
59. Mittal V. UOI. AIR 1983 SC 1 pp; 165,179
60. St)ree Meenakshi Mills Ltd. Madurai and others v. A. V. Visvanatha Sastri & others, Al R 1955
SC13p.15.
61. State ofW.B. v. Anwar AH (1952) SCR 284.
62. Lachmadas v State of Bombay (1952) SCR 710 at 726.
 38

provided under some Special Act, which will not be derogatory to the equality before
law and it will not amount to discrimination. "A law which authonses the trial of any
case by special court of oy a procedure which differs substantially from the ordinary
procedure, to the prejudice of the accused, offends against Art 14. But there is no
infringement of the Article if certain offences or classes of offences are prescribed by
the legislature to be triable by a special court of under such special procedure, and
such classification is reasonable, having regard to the object of the legislation. ^ In
A.R. Antulay v R. S. Nayak,^ the withdrawal of a case from the special judge and it
's transfer to Bombay High Court, "with a view to hold expeditious trial" was held
dischminatory and hence violative of rights of the appellant guaranteed under Article
14. The direction, the court held, deprived the appellant of his four valuable rights: (i)
the right to be tried by a special judge in accordance with the procedure established
by law and enacted by Parliament; (ii) the right of revision to the High Court under
Section 9 of the Criminal Law Amendment Act, 1952; (iii) the right of first appeal to
the High Court under the same section; and (iv) the right to move the Supreme Court
under Article 136 thereafter by way of a second appeal, if necessary. The Supreme
Court thus held that the direction had caused appellant the denial of rights under Ar-
ticle 14, by denying him the equal protection of laws, by being singled out for a special
procedure not provided for by law.^The West Bengal government enacted West Bengal
Special Courts Act, 1950 with the object" to provide for the speedier trial of certain
offences". Section 5 (1) of the Act empowered the State to set up Special Courts to
direct by a general or special order "the offences" or "the classes of offences" or" the
cases" or "the classes of cases"which were to be tried by the Special Courts. The
Supreme Court held in the matter of State of West Bengal \/.S Anwar All Sarkar^ that
Section 5 (1) of the Act contravened Article 14 and void since it conferred arbitrary
power on the Government to classify offences or cases at its pleasure. The court held
that Act did not lay down any basis of classification. The court further observed that
the object or the policy behind the setting up of Special Courts, stated in the Preamble

63. Special Court Bill 1878 in re AIR 1979 SC 478 Paras 74, 78, 80-84, 87,89.
64. AIR 1988 S C I 531
65. ibid.; see also. Kumar, Narender, op. citp. 105.
66. AIR 1952 SC 75.
 39

to the Act, was too vague and uncertain to form the basis of a valid and reasonable
classification, which could be permitted under Article 14. In State of M.P v. Ram
Kistina Balottiia, ^^ Section 18 of SC and ST (Prevention of Atrocities) Act, 1989
excluded the application of Section 438 of Criminal Procedure Code, 1973 to cases
arising under this Act. This Act was enacted to prevent the commission of offences of
atrocities against the members of the SCs/STs. Section 438 of Cr. PC. empowers a
Court of sessions and the High Court to grant anticipatory bail. The Supreme Court
upheld that the constitutionality of Section 18 and held that the offences which were
enumerated under Section 3 of the Act, 1989 were offence which to say the least,
designated member of Scheduled Castes/Tribes in the eye of society and prevented
them from leading a life of dignity and self respect. Such offences were committed to
humiliate and subjugate members of Scheduled Castes/Tribes with a view to keeping
them in a state of servitude. These offences thus constituted a separate class.^
Section 321 Cr.P.C. empowers the Public Prosecutor or the Assistant Public
Prosecutor to withdraw from the prosecution of any person either generally or in re-
spect of any one or more of the offences for which he is tried with the consent of the
court.® The Section does not indicate the reasons which should weigh with the Pub-
lic Prosecutor or the Assistant Public Prosecutor to move the court nor the grounds on
which the court will grant or refuse permission.™ Nonetheless, it is a duty of the court
to see that the permission is not sought on grounds extraneous to the interest of jus-
tice or that offences which are offences against the State go unpunished merely be-
cause the Govt, as a matter of general policy or expediency unconnected with its duty
to prosecute offenders under the law directs of Public Prosecutor or Assistant Public
Prosecutor to withdraw from the Prosecution.^^ The Section provides for consent of

67. AIR 1995 SC 1198: The same view has been taken in Jai Singh v. Union of India, AIR 1993
Rajasthan177.
68. Ibid.
69 Section 321 Cr.P.C; see also Lai, Ratan, and Lai, Dhiraj Cr.P.C, 1973 Nagpur(1984) p. 315.
70. M. N. S. Nair v. P. V. Balakrishan, Al R1972 SC 496
71. Ibid; see also Ratan Lai, Dhiraj Lai, op.cit., p. 316.
 40
court though it is not mandatory to record reasons.^^ As per figures available total
1,85,432 cases cases were compounded out of 54,61,004 which comes to 3.4% of
the total cases( Annexure). This is Surprising that compounding /withdrawal have
been allowed even in cases of murder, attempt to murder, culpable homicide not
amounting to murder, rape, kidnapping and abduction, dacoity, robbery, burglary, dowry
deaths, theft and cheating. " Section 321 Cr.P.C. does not lay down any intelligible
differential and apparently derogatory to the right of "equality before law" enshrined in
Article 14 of the Constitution. For example if two accused persons are facing a trial
for the same offence in the court, the Govt, withdraws the case against one accused it
would be violation of right to equality as other one may be tried and convicted. In petty
cases compounding of offences is permissible under Section 320 Cr.P.C. where par-
ties can compromise in the case. The withdrawal of cases for serious offences by the
Government, would be in fact violative of Article 14. In other words Section 321 Cr.P.C.
is discriminatory in nature and incompatible with Article 14 of the Constitution and
needs to be scrapped.
In the matter of Mahesh Chand v. State ofRajasthan, ^^ a Special Leave Pe-
tition challenging validity of conviction under Section 307 IPC. came before the Su-
preme Court for allowing the parties to compound the offence.^^ The accused were
acquitted by the trial court but convicted by the High Court for the offence under Sec-
tion 307 I. PC. This offence is not compoundable under law. Parties wanted to treat it
a special case in view of the peculiar circumstances of the case. ^^ Out of the two
accused one happened to be a practising lawyer of lower court. There was a counter
case arising out of the same transaction. The Apex court after examining nature of

72 See Section 321; Section only provides for consent of the court; Madras, Patna and Lahore
High Court have held that Section does not require court to give reasonss, while Nagpur High
Court was of the view that it is desirable that reasons are given; See also Sadayan, (1908) 11
C r U . 193; GulHBhagat v. Narain Sin^, (1923) 2 Patna. 708; LakshmiNarain v. Mohammad
Hanif,(1932) 33 Cr.U 337; AIR 1932 Lah. 368; Satwarao Nagorao Hatkar v.Kanbarao Bhago
Rao Hatkar, (1939) Nag. 393; Dattatraya Govindarao Pakode v. Sidheshwar Balakrishna
Wakhre, (1939) Nag. 85.
73. Crime in India 1997 published in the Indian Police journal, Delhi, Vol. II, No 1, Jan-March
2002. p.39.
74. AIR 1988 SC 2111
75. Ibid.
76. Ibid; The Parties also refen-ed to Suresh Babu v. State ofAP, (1987) 2 J.T. 361.
 41
the case and the circumstances under which the offence was committed, directed the
trial judge to accord permission to compound the offence, after giving an opportunity
to the parties and after being satisfied with the compromise agreed upon."
It is evident that court has allowed compounding of an offence committed un-
der Section 307 I.P.C. duly realizing that this is not a compoundable offence under
Section 320 Cr.P.C. The judgment raises the issues whether court can allow compro-
mise even in serious offences like attempt to murder when Cr. PC. does not provide
for it?.. Whether directions given by the Apex Court to the trial court to allow com-
pourTding of offences among parties (when Cr.P.C. (Sec. 320) does not provide for it),
is in accordance with law.? The court is expected to dispense justice according to
law. Is the direction given to lower court legal? The court has allowed compromise in
a case considering nature of case and circumstances under which the offence was
committed. Can the other offenders who are facing trial for similar offences be not
allowed to compound the offences.? If both the parties are allowed to compromise,
was the State not a party in a criminal proceedings.? All these questions needs to be
examined alongwith right to 'equality before law' under Article 14 of the Constitution.

(Ill) FREEDOM OF SPEECH AND EXPRESSION

Article 19 (1) (a) guarantees to all citizens" The right to freedom of speech and
expression" and clause (2) of the Article provides, "Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing law, or prevent the State from making any
law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign states, public order, de-
cency or morality, or in relation to contempt of Court, defamation or incitement to an
offence."
Freedom of speech and of the press lay at the foundation of all democratic
organisation, for without free political discussion no public education, so essential for
the proper functioning of the process of popular government, is possible.^^ Freedom

77. \bid.
78. Ramesh Thapar v. State of Madras, AIR 1950 SC 124.
 42
of Speech and expression has been held to be basic and indivisible for a democratic
polity.^ Article 19 of the Constitution guarantees six freedoms to the citizens of India.
Among the freedoms, certain freedoms like "freedoms of movement", "freedom to
reside and settle", and "freedom of profession, occupation, trade or business" cannot
be enjoyed by the prisoners because of the very nature of these freedoms and due to
the condition of incarceration."' Every free citizen has an undoubted right to lay v^^hat
sentiments he pleases before the public. Freedom to air one's views is the lifeline of
any democratic institution and any attempt to stifle, suffocate or gag this right would
sound a death knell to democracy and would help usher in autocracy or dictatorship.^^
The liberty to express one's self freely is important for a number of reasons. Firstly,
self expression is a significant instrument of freedom of conscience and self-fulfill-
ment. Second justifications concerns epistemology Freedom of expression enables
people contribute to debates about social and moral value. The best way to find the
best or truest theory or model of anything is to permit the widest possible range of
ideas to circulate. Thirdly, the freedom of expression allows political discourse which
is necessary in any country which aspires to democracy And lastly It facilitates artis-
tic scholarly endeavours of all sorts.^ The freedom of speech and expression, "means
the right to express one's convictions and opinions freely by word of mouth, writing,
picture or in any other manner (addressed to the eyes or the ears). It would thus
include not only the freedom of press, but expression of one's ideas by any visible
representation, such as by gestures and the like. Expression, naturally presupposes
a second party to whom the idea are expressed or communicated. In short, expres-
sion includes the idea of "publication", ^ and the right to acquire and import ideas and
information about matters of common interest." The freedom of thought and expres-
sion, and the freedom of the press are not only valuable freedoms in themselves, but

79. Secretary, M'mistry of IB. v. Cricket Assoda^or), Bengal, AIR 1995 SC1236 per B. P. Jeevan
Reddy.J. 1293.
80. Kumar, Naresh, Constitutional Rights of Prisoners Delhi (1986), p.65
81. Pririters (Mysore) Ltd. v. Asstt. Commercial Tax Officer, (1994) 2 SCC 434.
82. Feldman, David, Civil liberties and Human Rights"' quoted in Secretary, Mir)istry ofl&B v.
Cricket Association. Bengal, AIR 1995 SC 1236.
83. Romesh Thaper v. State of Madras 0 950) SCR 594.
84. Hamdard Dawakhana v. Union of India (1960) 2 SCR 671.
 43

are basic to a democratic form of government which proceeds on the theory that prob-
lems of government can be solved by the free exchange of thought and by public
discussion.^ It means to freely propagate, communicate or circulate one's opinion or
views. It also means to lay what sentiments, a free citizen pleases, before the public.^

Article 19 (1) (a) guarantees the freedom of speech and expression. The phrase
"speech and expression" is of very wide connotation. "Expression" naturally presup-
poses a second party to whom the ideas are expressed or communicated. The free-
dom of expression thus includes the freedom of the propagation of ideas, their pub-
lication and circulation in short, the freedom of speech and expression includes the
liberty of the press." It will be noticed that this Article guarantees to all citizens free-
dom of speech and expression but does not specifically or separately provide for
liberty of press. It has however, been held that the liberty of the press is implicit in the
freedom of speech and expression which is conferred on a citizen. ^^ Article 19 (1) (a)
does not specifically provide for freedom of press. Dr. B R Ambedkar while explain-
ing the omission, observed that: "The press has no special rights which are not to be
given or which are not to be exercised by the citizen in his individual capacity. The
editor of a press or the manager are merely exercising the right of the expression, and
therefore, no special mention is necessary for the freedom of the press".^^ Under our
Constitution, there is no separate guarantee of freedom of the press. It is implicit in
the freedom of expression which is conferred on all citizens.^ In series of discus-
sions, the Supreme Court has ruled out that freedom of the press is implicit in the
guarantee of freedom of speech and expression, because it partakes of the same
basic nature and character. The legal consequence is that freedom of the press is
one of the fundamental rights guaranteed in our Constitution yet one can appreciate

85. Seervai, H.M., Constitutional Law of India, Bombay Vol. I Third Ed.(1983), p. 491.
86. Printers (Mysore) Ltd. v. Asst. Commercial Tax Officer, (1994) 2 SCC 434.
87. R.PLtd., V. Proprietors, Indian Express Newspapers Pvt. Ltd., AIR 1989 SC 190.
88 M.S.M Stiamia v. Sri Krishna Sintia andottiers, AIR 1950 SC 395 at p.402.
89. C.A.D. VII 980; see also Brij Bhusan v. State of Delhi, AIR 1950 SC 129.
90. Narendra v. State of Punjab, AIR 1958 SC 986; Sakal Papers v Union of India, AIR 1962
SC 305.
 44

the sentiment that urges its specific incorporation as a fundamental right in its own
independent right, rather than depend upon judicial interpretation.^^ Freedom of the
press is not expressly mentioned in article 19 but has been held to flow from the gen-
eral freedom of speech and expression guaranteed to all citizens. As judicially con-
strued, this freedom now includes not merely the freedom to write and publish what
the writer considers proper (subject to reasonable restrictions imposed by law for
specific purpose), but also the freedom to carry on the business so that information
may be disseminated and excessive and prohibitive burden i estricting circulation may
be avoided.^
In Virendra v. State of Punjab, ^Hhe Supreme Court held that banning of pub-
lication in the newspapers of its own views or the views of correspondents about the
burning topic of the day was" a serious encroachment on the valuable and cherished
right to freedom of speech and expression."** The right to publish the life-story of a
condemned prisoner, is so far as, it appears from the public records, even without his
consent or authorisation, has been held to be included in the freedom of the press
guaranteed under Article 19(1) (a). No prior restraint upon such publication can be
imposed.^ It has also been held by the Supreme Court in number of cases^ that
freedom of speech and expression includes the freedom of propagation of one's ideas
or views and this freedom is ensured by the "freedom of circulation"^^ liberty of circu-
lation is as essential to that freedom as the liberty of publication. Indeed without

91. Sorabjee, Soli, "On Freedom of The Press In The Constitution, in Kashyap ,Subhash., C ,
Refomiing the Constitution, New Delhl.(1992).
92. Bakshi P.M., Constitution of India, Delhi (1996),p. 31; See also Virendra v. State of Punjab,
AIR 1958 SC 986; Exfxess Newspapers v. Union of India, AIR 1953 SO 578; Bennett Coleman
V. Union of India, A\R'\9^ZSC^06•,Prabhav. Union of India, A\R 1982 SC6; \ndian Express
News Papers v. Union of India, AIR 1986 SC 515; Sakal Papers v. Union of India, AIR 1962
SC 305; \ndian Express Newspapers v. Union of India, AIR 1986 SC 872; Sharma v. Sri
Krishna, AIR 1959 SC 395,402.
93. AIR 1957 SC 896; see also Express Newspapers (P) Ltd., v. Union of India, AIR 1958 SC 578.
94. \bid.
95. R .Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.
96. See Romesh Thaper v. State ofl^adras, AlR1950 SC 124; SaAa/ Papers (P) Ltd., v. Union of
India; AIR 1962 SC 305; Bennett Coleman and Co., v. Union or India, AIR 1973 p.148.
97. Kumar, Narender ,op.cH.p. 148.
 45

circulation the publication would be of little value.^ The Supreme Court in Bennett
Coleman and Co. v. Union of India ^ held that freedom of speech and expression
was not only in the volume of circulation but also in the volume of news and views. The
fixation of maximum number of pages at 10 was struck down being violation of Article
19(1) (a). The Court held that the newspaper should be left free to determine the
pages and their circulation.
In State of Maharastra v. Prabhaskar Padurang Sanzgin~'°° a matter came
before Supreme Court where a detenu was denied publication of a scientific book.
One Prabhaskar Padurang Sanzgiri was detained by Govt of Maharastra under Rule
30 (1) (b) of Defence of India Rules, 1962 in Bombay Distt. Prison. He wrote a book
in Marathi under the title "Anucha Antarangaat" (Inside the Atom), a purely scientific
book. Maharastra Government rejected the request of petitioner to send the book for
publication. Bombay High Court allowed the petitioner to send the book for publica-
tion. The High Court of Bombay held that the civil rights and liberties of a citizen were
in no way curbed by the order of detention and that it was always open to the detenu to
carry on his activities within the conditions governing his detention. It further held that
there were no rules prohibiting a detenue from sending a book out side the jail with a
view to get it published. State of Maharastra preferred appeal to Supreme Court.
The Supreme Court held that "As there is no condition in the Bombay Conditions of
Detention Order, 1951, prohibiting a detenu from vwiting a book or sending it for pub-
lication, the State of Maharastra infringed the personal liberty of the respondent in
derogation of the law whereunder he is detained.^°^ Hence, it would not be a exag-
geration to say that "Freedom of speech and expression is a natural right which a
human being acquires on birth. It is, therefore, a basic human right. The words 'free-
dom of speech and expression' has to be broadly construed to include the freedom to
circulate one's views by words of mouth or in writing or through audiovisual instrumen-
talities. It, therefore, includes the right to propagate one's views through the print

98. (i) Ex parte Jackson (1976-78) 96 v. 727 and (ii) Levell v. City of Guiffin (1937) 303 US 444
quoted in Romesti Thaperv. State of Madras, AIR 1950 SC124.
99. AIR 1973 S C I 06.
100. AIR 1986 SC 424
101. Ibid.
 46

media or through any other communicable channel, e.g., the radio and the television.
Every citizens of this free country, therefore, has the right to air his or her views through
the printing and/or the electronic media subject of course to permissible restrictions
imposed under Article 19 (2)...^°2The freedom of speech and expression under Ar-
ticle 19 (1) (a) had no geographical limitations. The freedom carried with it, the right
to gather information as also to speak and express oneself, at home and abroad and
to exchange thoughts and ideas with others, not only in India but also outside.^"" Re-
cently, in Secretary, Ministry of l&B v Cricket Association Bengal.'^'^ the Supreme
Court while explaining the scope and content of the freedom of speech and expres-
sion, observed that the freedom included the freedom to communicate or circulate
one's opinion without interference to as large a population in the country as well as
abroad as was possible to reach.
The freedom of speech and expression under Article 19 (1) (a) is not absolute
and reasonable restriction can be imposed by the State under clause (2) of Article
19, which reads "Nothing in sub clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such law im-
poses reasonable restrictions on the exercise of the right conferred by the said sub-
clause in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement of an offence " Clause (2) of Article 19
specifies the purposes and grounds in the interest of which or in relation to which the
reasonable restrictions can be imposed on the freedom of speech and expression. It
may be noticed that reasonable restrictions under clause (2) of Article 19 can be
imposed only by a duly enacted law and not by executive action unsupported by law^"

The expression "security of the State" refers to serious and aggravated forms
of public disorder such as rebellion, waging war against the state, insurrection. ^°^ Thus
the security of the State may be endangered by crimes of violence intended to

102. Life Insurance Corporation of India v. Prof Manubhai D Stiai) ,AIP. ^ 993 SC 171.
103. IVIanei<a Gandhi v. Union ofindia, AIR 1978 SC 597.
104. AIR 1995 SC 1236.
105. Romesi) Thapar v. State of Madras, AIR 1950 S C I 24.
106. Ibid.
 47

overthrow the government, waging of war and rebellion against the Government, ex-
ternal aggression or war etc. ^°^ The expression "security of the State" in Article 19 (2)
does not merely mean as danger to the security of the entire country nor can it be
restricted to an upheaval or a rebellion endangering the security of the entire coun-
try.^*" Thus endangering the security of a part of the Sfafe would involve a threat to the
security of the State. ^^ A speech advocating a change in the system of Government
cannot be said to involve a threat to the security of the State so long as the change
advocated is not unconstitutional."" In Romesh Thapar v. State of l\/ladras^^\ the
Government of Madras, in pursuance of the powers under section 9 (1 -A) of the Ma-
dras Maintenance of Public Order Act, 1949, banned the entry and circulation of the
petitioner's weekly journal "Cross Roacf'. The Government contended that the ban
was imposed in the interest of maintenance of public order while expression was
covered by the expression "security of the State". But, the Supreme Court rejected
the contention of the Government and held that since "public order" had not been
included as a permissible ground of restraint, the right to free speech could not be
restricted on this ground. "^ The court also held that the concept of "public order" was
wider than "security of the State". "Public order" was an expression of wide connota-
tion and stated "That state of tranquillity which prevails among the members of politi-
cal society as a result of internal regulations enforced by the Government which they
have established."3 Anything that disturbs public peace or tranquillity disturbs public
order."'* Public order implies absence of violence and an orderly state of affairs in
which citizens can peacefully pursue their normal avocation of life."^ The expression
"public order" is synonymous with public peace, safety, and tranquillity"^ Public safety

107. state ofBifiarv. Shailabala Devi, AIR 1952 SC 329, Santokt) Singti v. Delhi Administration,
AIR1973SC1091.
108. Ram Nandan v. State, AIR 1959 All 101.
109. KumarNarender ,op.c#.,p.158.
110. Ram Nandan v State, AIR 1959 All 101.
111. AIR 1950 SC 124
112. Ibid; see also Kumar, Narender, op. cit., p.158.
113. Ibid.
114. Madhu Limaye v. State of Bihar, AIR 1971 SC 2486; Supdt Central Prision v. R.M. Lohia, AIR
1960SC633.
115. StateofBhopalv. Arif, AIR 1974SC 255; Basudevv. Rex, AIR 1949 All. 513.
116. Supdt. Central Prison v. Ram Manohar Lohia, Al R1960 SC 633.
 48

means the safety of the community from the external and internal clangers. Thus cre-
ating internal disorder or rebellion would affect public order and public safety ^^^
Clause (2) of Article 19 provides that a restriction may be imposed in the inter-
ests of public order. The words" in the interests o f are of wide connotation. It means
that a restriction may be imposed even before the occurrence of disorder. Thus, if
certain activities have a tendency to cause public disorder, a law penalising such
activities as an offence, cannot but be held to be a law imposing reasonable restric-
tion in the interests of public order" although in some cases those activities may not
actually lead to a breach of public order.^^* Restrictions on the freedom of speech and
expression can be imposed in the interests of decency or morality The purpose is to
restricting speeches and publications which tend to undermine public morals."^The
right to freedom of speech and expression does not entitle a person to commit con-
tempt of Court. The law of contempt of courts* thus imposes reasonable restrictions
on the freedom and is with in the ambit of Article 19 (2).^2o j|-,Qyg|-, "Courts do not like
to assume the posture that they are above criticism and that their functioning needs
no improvement", but it was necessary to make it clear that the liberty of free expres-
sion was not to be confounded with a licence to make unfounded allegation of

117. BrijBhushan v. State of Delhi, AIR 1950 SC 129.

118. Ramji Lai v State of UP, AIR 1957 SC 620.
119. Ranjit D. Udeshi v. State of fJlaharastra, AIR 1965 SC 881.
•Section 2(a) of the Contempt of Courts Act, 1971 defines contempt of court as "civil con-
tempt" and "criminal comtempt". "Civil contempt" means wilful disobedience to any judgment,
decree, direction, order, writ or other process of a court or wilful breach of an undertaking
given to a court. "Criminal contempt" means the publication (whether by words spoken or
written or by signs, by visible representations or otherwise) of any matter or the doing of any
other act whatsoever, which -
0) scandalises or tends to scandlise or lowers or tends to lower the authority of any court;
(ii) prejudices or interfers or tends to interfere with, the due course of any judicial proceed-
ings; or
(ill) interferes ortendsto interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner.
120. C. K. Daptitary v. O.RGupta, AIR 1971 SC 1132; The expression " Contempt of Court" is
defined in Sec 2 (a) of Contempt of Courts Act, 1971, contempt may be civil contempt or
criminal contempt.
 49

corruption against the judiciary.^^^ In a recent case of contempt, Arundati Roy has
been convicted for contempt of court by the apex court and sentenced to one day
imprisonment and imposed fine of Rs.2000/- for her observations against the judi-
ciary in her book "God of Small Things". Arundati reacted that" if judiciary re-
moves itself from public scrutiny and accountability it will mean that another pillar of
the Indian democracy will eventually crumble".^" If every other pillar of democracy in
the country the legislature, the judiciary and even the press could be subjected to
criticism, why not the judiciary? Much was made of an observation by the court that "all
citizens could not be permitted to comment upon the conduct of courts in the name of
fair criticism which, if not checked, would destroy the institution itself. ^^ Legal lumi-
nary Fall Nariman also feels that the law is deficient, leaving too much to the discre-
tion of the individual judge. "After ail, notions such as dignity are amorphous, meaning
different things to different people. Moreover, it is most important to avoid anger in
contempt jurisdiction, but in this case the judges appear to be angry".^2'' Parshant
Bhusan a public interest lawyer avers "They are prosecutor, judges and have powers
over which there is no appeal."^^^ The former Justice Rajinder Sachar reacted with
reference to Arundati's case that" judges should allow greater freedom of speech,
they should have a little more strength and confidence in their own position. To feel
insecure and threatened by criticism does not add to the dignity of the courts, ^^e jj^g
freedom of speech and expression is not meant to transgress the law relating to defa-
mation. Article 19(2) covers entire law of defamation civil and criminal. ^" "Incitement

121. M.R Parasharv. Farooq Abdullah, AIR 1984 SC 615; see also In re S. Mulgaokar, AIR 1978
SC 727; Ba-adakani v. Registrar. Orissa, AIR 1974 SC 710; In re Vinay Chandra Mishra, AIR
1995 SC 2348.
122. See Wadhwa, Soma., Small things matter, Outlook, March 18, 2002, New Delhi/Mumbai,
p.48
123. Cowshish, AtuI , Symbolism in Arundati Roy's Sentence, TTie Shillong Times, Tura, March
13,2002, p.4 (Col. 7).
124. Supra note ^22.
125 Ibid.
126 Ibid.
127. Section 499 of IPC, 1860 defines offence of defamation. The Section makes no difference
between slander and libel.
 50

to an offence" did not refer to "incitement to break a law". Thus an incitement to a

breach of every civil law is not necessarily contemplated by Article 19(2). ^^^

(IV) EX-POST-FACTO LAWS AND RIGHTS OF ACCUSED

Article 20(1) of the Constitution reads," 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 of-
fence". "The very wording of Article 20 and the words used therein -'convicted'; 'com-
mission of the act charged as an offence', 'be subjected to a penalty', 'commission of
offence', prosecuted and punished', accused of any offence', would indicate that pro-
ceedings therein contemplated are in the nature of criminal proceedings before a
court of law or a judicial tribunal and the prosecution in this context would mean an
initiation or starting of proceedings of a criminal nature before a court of law or judicial
tribunal in accordance with the procedure prescribed in the Statute which creates the
offence and regulates the procedure. ^^^
Present Article 20 was Article 14 of the Draft Constitution. Mr. Naziruddin
Ahmad (West Bengal) moved" that in clause (1) of Article 14, after the words, "greater
than" the words, or of a kind other than be inserted". And clause (1) may provide: "No
person shall be subjected to a penalty greater than that which might have been in-
flicted under the law at the time of the commission of the offence" This was the first
part and the second part of Article 14 which was moved by Pandit Thakur Dass
Bhargava, "That in clause (1) of Article 14, for the words, 'under the law at the time of
the commission" the words, 'under the law in force at the time of the commission be
substituted.^^ In the jurisprudence of Constitutional law, Article 20(1) incorporates a

128. Dr. Ram ManoharLohia v. Supdt. Central Prison, Fatehgarh, AIR 1955 All 377; Incitement to
an offence was added to Act 19(2) by Constitution (First Amendment) Act, 1951.
129. MaqboolHussain v. State ofBon)bay, AIR 1953 SC 325; see also Basu, D.D., Commentary
on Constitution of India sixth edition, Calcutta (1978) p. 33 ;There was no prohibition to enact
ex-post-faCto laws under the Government of India Act,1935.
130. Constituent Assembly Debates, Vol. 7, pp. 789-790.
 51

prohibition against 'ex-post-facto penalty law'.^^^ Article 20 provides protection in re-

spect of conviction for offences. It constitutes a limitation on the legislative power of
the Parliament or the State Legislature under Article 246 read with three Legislative
lists contained in the seventh schedule to the ConstitutionJ^^ Because of the word
'person' used in each clause, the article must be regarded as applicable to a corpo-
ration which is accused, prosecuted, convicted or punished for an offence. ^^ The
protection contained in Article 20 is available to all persons citizens or noncitizens.
The term "person" in Article 20 includes a corporation which is accused, prosecuted,
convicted or punished for an offence.^**
An ex-post-facto law is one which gives the pre-enactment conduct a different
legal effect from that which it would have had without the passage of the enactment.
Thus, it reaches, back to attach new legal nghts and duties to already completed
transactions.^^ In Phillips v. Evre, ^^ it was laid down that ex-post-facto laws are laws
which violated and punished what had been lawful when done.
The rights guaranteed under Article 20 and the two succeeding Articles namely
21 and 22 can be claimed even by a foreigner, who is of course, not entitled to the
rights guaranteed under Article 19. ^^^
An 'ex-post facto laW is a law which is enacted subsequent to some occur-
rence, i.e., the commission of some act or omission.^^£x-posf-facfo/aws may fall in
three categories:

131. Bakshi, P.M, The Constitution of India, Delhi (1997), p.35; Sharma v. Satish, (1954) SCR
1077; There was no prohibition in Govt, of India Act, 1935 or any other law priorto commencment
of the Constitution, against ex-post-facto laws. The Legislature was competent to pass such
laws. The courts, however, used to lean against a retsospective interpretation.; see also
Basu, D.D., op. cit. VI ed. vol. D (1978), pp. 3-40.
132. AK Gopalan v. State of Madras, AIR 1950 SC 300.
133. Supra note 100.
134. MP Sharma v. Satist) Chandra, AIR 1954 SC 300.
135. Forbes Pioneer Boat Line v. Board of Comr's 258 US 338 (1922) quoted in Chaturvedi, A.N.,
op.cit. ,p. 98.
136. (1170) LR. 6 Q.B.I, at p. 26; see also Chaturvedi A.N., op. erf.,102.
137. Chaudhary and Chaturvedi's, Lawof Fudamental Rights,ed.lll, Law Book Company(1985), pp.
502-503.
138. Kumar, Narender,op.c/f., p. 183.
 52

(a) A law which declares some act or omission as an offence for the
first time after the completion of that act or omission. ^^
(b) A law which enhances the punishment or penalty for an offence
subsequent to the commission of that offence. ^^
(c) A law which prescribes a new and different procedure for the
prosecution of an offence subsequent to the commission of that
offence. ^"^
Clause (1) of Article 20 provides protection only in respect of (a) and (b). " It
should be noted that while substantive law imposing liability or penalty cannot be al-
tered to the prejudice of the person supposed to be guilty with retrospective effect,
there is no vested right in procedure. Besides this, the thrust of Article 20(1) is in the
field of criminal law only, since the word 'offence' as defined in Article 367 read with
the General Clauses Act can only denote on act or omission punishable by law." ^*^
Section 26 of the General Clauses Act, 1897 define the term "offence" as an act or
omission made punishable by any lawfor the time being in force." ^"^ This is a limita-
tion upon the law making power of the legislatures in India. A law is said prospec-
tive, when it affects acts done or omission made after the law comes into effect. The
majority of laws are prospective in their operation. But sometimes the legislature may
give retrospective effect to a law, that is to say to bring within the operation of the law,
not only future acts and omissions but also acts or omissions committed even prior to
the enactment of the law in question. Though ordinarily a legislature can enact pro-
spective as well as retrospective laws, according to the present clause a legislature
shall not be competent to make a criminal law retrospective so as to provide that a
person may be convicted for an act which was not an offence under the law in force at

139. Kanaihalal v. Indumati, AIR 1958 SC 444.

140. Kedar Nath v. State of West Bengal, AIR 1953 SC 404.
141. Shiv Bahadur v. State of Vidtiya Pradesti, AIR 1953 SC 394.
142. Bakshi, P. M., op.cit.,p 35; Article 367 of the Constitution deals with interpretation of the
General Clauses Act, 1897 subject to adaptations made under Article 372; See also Shiv
Bahadur v. State of UP (1953) SCR 118; Kedar Nath v. State of WB, AIR 1953 SC 404;
Jawala Ram v. State ofPepsu, AIR 1962 SC 1246; State of West Bengal v. SK Ghose ,AIR
1963SC255.
143. Maqt)ool Hussain v. State of Bombay, AIR 1953 SC 325.
 53

the time of commission of that act or to subject an accused to a penalty greater than
that which might have been inflicted under the law in force at the time of the commis-
sion of the offence. In other words, when the legislature declares an act to be an
offence or provides a penalty for an offence, it cannot make the law retrospective so
as to prejudicially affect the persons who have committed such acts prior to the enact-
ment of that lawJ'^The first limitation is in respect of conviction and punishment of a
person for an offence which, when committed was not an offence by the law of the
land. The second is in regard to the imposition of a greater penalty than that which
ought to have been imposed under the existing law on the date of the commission of
the offence. ^'^ The first part of clause(1) of Article 20 relates to the first category of ex-
post- facto lavjs^ It says that "no person shall be convicted of any offence except for
violation a law in force at the time of the commission of the act charged as an of-
fence". It explains that a person can only be convicted of an "offence" if the charge
against him is an "offence" under the "law in force" at the time of commission of that
act. It seems to the Constitutional recognition to the principle that no one can be
convicted except for the violation of a "law in force."'^'^ Although clause (1) is mainly
concerned with retroactive penal legislation, it also seems to give Constitutional rec-
ognition to the principle that there cannot be a conviction except for violation of a 'law
in force'. It would seem, therefore, that in India, there can be no 'common law' of-
fences; and the judiciary cannot, in India, create an offence not created by statute.
How far the word 'violation'would require that the violation should be personal, is a
matter not specifically provided for in the article.^^^The expression "law in force" in
Article 20(1) postulates the actual factual existence of law at the relevant time and it
excludes the retrospective operation of any subsequent law^^The expression "law in
force", refers to the law factually in operation at the time when the offence was com-
mitted and does not relate to the law" deemed to be in force" but the retrospective

144. Kedar Nath v. State of Bengal (1954) SCR 1150.

145. Chaturvedi, A.N., op.cit.,p. 336.
146. KumarNarender,op.c#.,p183.
147. Bakshi, P.M., op.cit.,p. 35.
148. M/s W.R.E.D Co., Ltd., v. State of Madras, AIR 1962 SC 1753; Shiv Bahadur v. State of
Vindhya Pradesh, AIR 1953 SC 394.
 54
operation of law subsequently made. The law for the violation of which a person is
sought to be convicted must 'have been', in fact in force at the time when the act with
which he is charged was committed. ^*^ But rules and regulations made under Stat-
ute which is repealed but continued in force under Section 24 of the General Clauses
Act are 'law in force' within the meaning of Article 20 (1), even though they are kept
alive by a legal fiction. ""^ Article 372 (3), Expl. 1, shows that 'a law in force' means an
enacted law even if it, or parts of it, are not in operation either at all or in particular
areas. It is clear that such a law is not a law in force within the meaning of Article 20,
for, if the law is not in operation it cannot constitute any act a crime during the time it is
not in force. ^^^
In Pareed Lubha v. Nilambaram ^^, the non-payment of panchayat tax was not
punishable as an offence under the Kerala Panchayat Act, 1960 when it was enacted.
As a result, large number of persons committed defaults in the payment of the tax.
The Act was subsequently amended and non payment of tax was made punishable
retrospectively. The court held that defaulters, prior to the amendment of the law,
could not be convicted for the omission to pay the tax under the amended law. It was
held in SoniDevrajbhaiBabubhai v State ofGujarat^^ that Section 304-B inserted
in the Indian Penal Code, 1860 on November 19,1986, creating a distinct offence of
dowry death and providing a minimum sentence of seven years imprisonment, could
not be applied to such death caused before the insertion of the section, because of
the prohibition contained in Article 20 (1). In Om Prakash v State ofUttarPradesh^^,
it was held the accused could not be punished under Section 165-A of Indian Penal
Code for offering bribe in 1948 as Section 3 of the Criminal Law (Amendment) Act,
1952 inserted Section 165-A in the Indian Penal Code, 1860 declaring offer of bribe
as punishable offence.

149. Pulin V. Satyaranjan, AIR 1953 Cal. 599.

150. Basu, D.D., Commentry on the Constitution of India, Vlth ed., Vol. D, (1978), pp. 11-12
151. Seerval, H.M., Constitutional law of India, Vol. 1, (1983), p. 757.
152. AIR 1967 Ker 155.
153. AIR 1991 SC 2173.
154. AIR 1957 SC 388.
 55

Second part of clause (1) of Article 20 prohibits the enhancement of punish-

ment or penalty subsequently. ^* The Prevention of Corruption Act, 1947 provided for
punishment of imprisonment and fine for offence committed under the Act. In Kedar
Nath V. State of West Bengal ^^ the accused, managing agent of a company com-
mitted an offence in 1947. Subsequently, the criminal law (Special Courts) Amend-
ment Act, 1949 amended the said Act. The amended law enhanced the penalty for
the offences committed under the Act by an additional fine to be equivalent to the
amount of money found to have been procured by the offender through the offence. It
was held that penalty enhanced by amended law, which came into force in 1949,
could not be imposed on the accused for the offence committed in 1947, because of
the prohibition contained in second part of clause (1) of Article 20.

In State of West Bengal y. S.K. Ghosh, ^^^ the accused, a govt, servant was
placed under suspension for commission of embezzlement before August, 1944.
Subsequently on August 23,1944, an ordinance was issued providing for confisca-
tion of the property of a person convicted for embezzlement of government money, to
set off the embezzled money Therefore, property of the accused was forfeited under
the ordinance and the ordinance was held valid as it did not impose a penalty but
merely provided a speedier remedy for the recovery of the embezzled money. ^^ In
Satwant Singh v. State of Punjab, ^^ Section 420 of the Indian Penal Code, 1860,
had prescribed an unlimited fine for an offence. The accused committed an offence
under this section prior to 1947. In 1949, an ordinance was issued prescribing mini-
mum fine for the person convicted under this section. This minimum fine was imposed
on the accused for an offence committed by him in 1947 i.e. prior to the issuance of
the ordinance. The court held that the imposition of fine was not violative of Article
20(1 y^. The Supreme Court observed that Article 20(1) was not infringed by the
ordinance, because the minimum fine presaibed by it could not be said to be greater

155. Kumar, Narender, op. cit., p. 184.

156. AIR 1953 SC 404.
157. AIR 1963 SC 255; see also AIR 1953 Mad.337
158. Ibid.
159. AIR 1960 SC 266
160. Ibid
 56

than what could be imposed on the accused under Section 420 at the time at which he
committed the offence. The court explained that under Article 20(1), all that had to be
considered was, whether the ex-post facto law imposed a penalty greater than that
which might be inflicted under the law in force at the time of commission of the of-
fence. It could not, therefore, be said that the ordinance imposed any such penalty.^^^
In Rattan Lai v. State of Punjab''^, the accused, a boy of 16 years was con-
victed for the offence of house trespass and outraging the modesty of a girl aged
seven years. The Magistrate sentenced the boy for rigorous imprisonment for six
months and also the fine. While the accused was undergoing imprisonment, the Pro-
bation of Offenders' Act, 1958 came into force, which provided that a person below
the age of 21 years should not ordinarily be sentenced to imprisonment. The accused
claimed benefit under the Act, a reformation measure. The State contended that the
Act in question being an ex-post-facto could not be pleaded by the accused. The
Supreme Court held that ex-post facto law which was beneficial to the accused did
not fall within the prohibition of Article 20 (1) and further held that the rule of beneficial
construction required that ex-post facto law could be applied to reduce the punish-
ment.
The Supreme Court of India appears to have adopted the language of Cadler
V. Bull in the matter of Rattan Lai v. State of Punjab ^^^ when it observed "every law
that takes away or impairs a vested right is retrospective. Every ex-post-facto law is
necessarily retrospective. But an ex-post-facto /aw which only mollifies the rigour of a
criminal law does not fall within the said prohibition Article 20 (1)^" (emphasis added).
Clause (1) of Article 20 does not prohibit the trial of offences under the ex-post
facto laws. Therefore, a law enacted subsequent to the commission of the offence,
prescribing a new procedure different from the ordinary procedure for prosecution or
trial, is not hit by Article 20 (1).^^ "What is prohibited under Article 20 is only

161. Kumar, Narender, op.ctf., p 185 ; ibid

162. AIR 1965 SC 444; In T Barai v. Henry All. Hoe, AIR 1983 SC 150; Held that an accused
should have the benefit of a retrospetive or retroactive criminal legislation reducing punish-
ment for an offence; see also Public Prosecutor v. K. C Ayyappan Pillai, AIR 1953 Mad 337.
163. AIR 1965 SC 444.
164. Chaturvedi, A.N., op. cit., p. 106.
165. St)iv Bahadur v. State of Vindt)ya Pradesh ,AIR 1953 SC 394.
 57

conviction or sentence under an ex-post-facto law and not the trial thereof. Such trial
under a procedure different from what obtained at the time of the commission of the
offence.... cannot ipso facto be held to be unconstitutional. A person accused of the
commission of an offence has no fundamental right to trial... by a particular procedure,
except in so far as any Constitutional objection by way of discrimination or the viola-
tion of any other fundamental right may be involved" ^* (emphasis added). What this
article prohibits is only conviction and sentence under ex-post-facto law and not the
trial thereof.^" A law which retrospectively changes the venue of trial of an offence
from a criminal court to an administrative tribunal, has been held not falling within the
prohibition of Article 20 (1 ).^^ Hence, an accused cannot contend on the strength of
Article 20 (1) that he cannot be tried under a procedure different from what obtained
at the time of the commission of the offence. ^^
The term 'penalty' in Article 20 (1) indicates that the prohibition provided therein
applies to punishment imposed for offences and it does not prohibit imposition of civil
liability retrospectively. In Hathsingh Manufacturing Co. v Union oflndia,^''° an Act
passed in June, 1957 imposed on the employers closing their undertaking, a liability
to pay compensation to their employees with effect from November 28,1956. Failure
to discharge the liability was made punishable. It was pleaded that the Act enacted in
1957 infringed Article 20 (1) because it imposed a liability to pay compensation. Since
Nov 28,1956 and non payment was made punishable retrospectively The Supreme
Court upheld the constitutionality of impugned Act and held that liability imposed was
a civil liability and its failure was not an offence and Article 20(1) would have no appli-
cation.^^^ Likewise, a penalty levied under a tax law has been held to be only a civil

166. Shiv Bahadur v. State of V.R (1953) SCR 1188.

167. Chaudhary and Chaturvedi, op. cit. ,pp. 502-503.
168. Union of India v. Srikumar, AIR 1966 SC 1206; see also G.P. Nayyarv. State (Delhi Admn.)
AIR 1979 SC 602.
169. Nayyar v. State AIR 1979 SC 602 (Para 7); The Constitution of USA provides for protection
even against ex-post-facto procedural laws and trial under expost facto law is ban-ed under
US Constitution.
170. AIR 1960 SC 923.
171. Ibid; see also Jai Singh v. State ofHaryana, AIR 1995 P&H 243.
 58

liability not hit by Article 20 (1 ).^^ Article 20 (1) has no application in cases of preven-
tive detention^^and disciplinary proceedings.^^"

(V) PHILOSOPHY OF SELF- INCRIMINATION

Clause (3) of Article 20 reads that" No person accused of an offence shall be
compelled to be a witness against himself." The clause is based on the maxim "nemo
tenetur prodere accussare seipsum" which means , "no man is bound to accuse
himself. The language of Article 20 (3) resembles the fifth amendment of the Ameri-
can Constitution, which lays down that" no person shall be compelled in any criminal
case to be a witness against himself." ^^^ The English common laws principle" no
man is bound to accuse himself" was interpreted as right. David M. Paciocce used
the term" principle against self-incrimination" rather than the familiar term" privilege
against self-incrimination". ^^^ Leonard Levy viewed that" to speak of the privilege
against self-incrimination, degrades it, inadvertently in comparison to other Constitu-
tional rights." ^^^
The privilege against self-incrimination was developed due to reaction to the
extensive employment of the oath. Hence, the principle was established in the com-
mon law as a revolt against procedure in which accused was questioned under oath
by judges, both to get evidence and to get confession. In Lilabum's case the British
Parliament established the rule in 1641 that one may not be required to testify against
himself."^ The doctrine of immunity from self-incrimination is founded on the

172. Shiv Dutt Rai Fateh Chand v. Union of India, AIR 1984 SC1194; JawalaRam v. Pepsu, AIR
1962SC
1246; MP VSunderamier & Co. v. State ofAP, AIR 1958 SC 468.
173. Prahlad Krishna v. State of Bombay, AIR 1955 Bom.1
174. Pandurang Swamy v. State ofAP, AIR 1971 AP 234.
175. Fifth Amendment of the Constituion of USA; see also P.Rajangam v. State of Madras, AIR
1959 Mad 294.
176. Paciocco, David, M., "Self incrimination : Removing The Coffin Nails,"' 35 MC Gill Law Jour-
nal, 7 5^989).
177. Levy, Leonard, "The Right Against Self-incrimination: History and Judicial History," 84 Jotmial
of Politics, 9 0969).
178. Weinberger, A.D., Freedom and Protection, The Bill of Rights. (Connecticut: Greenwood
Press Publishers 1962), p.47.
 59
presumption of innocence which characterises the English system of criminal justice
as against inquisitorial system known to its ancient law and at present prevailing in
France and some other continental countries.^™ Section 3 of Act 15 of 1852 recognised
that an accused in a criminal proceeding was not a competent or compellable wit-
ness to give evidence for or against himself; but it was modified in 1855 by section 32
of Act of 1855 which made him compellable to answer even incriminating questions,
but kept him immune from arrest and prosecution on the basis of such evidence ex-
cept a prosecution for giving a false evidence. This situation still continues under
Section 132 of the Evidence Act of 1872. Section 130 of the Indian Evidence Act,
1872 protects a suitor from producing a document but it is not certain whether it ap-
plies to an accused or not. ^^ The right against self-incrimination is enshrined in Ar-
ticle 20 (3) of the Constitution of India. Prior to Constitution, the identical provision
was available in Section 342 of the Code of Criminal Procedure, 1898, which is still
available under Section 313 of the Code of Criminal Procedure, 1973.
The protection contained in Article 20(3) is available to every person. The
term "person" in Article 20(3) includes not only natural individuals but also companies
and un-incorporated bodies. ^^^ The protection isavailableonly if the following ingre-
dients are present^^^:
(i) It is a right available to a person accused of an offence;
(ii) It is a protection against compulsion to be a witness; and
(iii) It is a protection against such "compulsion" resulting in his
giving evidence against himself.

(i) PERSON ACCUSED OF AN OFFENCE

A person "accused of an offence" means a person against whom a formal
accusation relating to the commission of an offence has been levelled, which in

179. Chaturvedi, A. N., op.cit.,p.206.

180. Ibid., p. 166
181. State of Maliarastra v. NE&P Co., AIR 1961 Bom 242; MP Sharma v. Satish Ctiandra, AIR
1954
SC 300.
182. M.P.Sharma v. Satish Ctiandra, AIR 1954 SC 300; Delhi Judicial Service Association v. State
of Gujarat, AIR 1991 SC 2176.
 60

normal course may result in a prosecution.^^^" Accused of an offence" would indicate

that the proceedings therein contemplated are of the nature of criminal proceedings
before a court of law or a judicial tribunal and the prosecution in this context would
mean an initiation or starting of proceedings of a criminal nature before a court of law
or a judicial tribunal in accordance with the procedure presaibed in the statute which
creates the offence and regulates procedure. ^"The words "accused of any offence"
indicate an accusation made in a criminal prosecution before the court or a judicial
tribunal where a person is charged with having committed an act which is punishable
under the Indian Penal Code, 1860 or any special or local law. ^^The word "accused
of any offence" makes it clear that the privilege under the Indian Constitution is con-
fined to an accused in a criminal proceedings and does not apply to civil proceed-
ings.^^ For invoking the Constitutional right against testimonial compulsion guaran-
teed under Article 20(3) it must appear that a formal accusation has been made against
the party pleading the guarantee and that it relates to the commission of an offence
which in the normal course may result in prosecution.^^^

Where a custom officer arrested a person and informed him of the ground of
his arrest for the purpose of holding an inquiry into the violation of provisions of the
Sea Customs Act, 1898, there being no formal accusation of an offence, it was held
that Article 20 (3) would not apply ^^ "Formal accusation" is ordinarily brought into
existence by lodging of an FIR or a formal complaint to the appropriate authority or
court against the specific individual accused of the commission of a crime. ^^ In R.K.
Dalmia v Delhi Admn.,^^ the Court held that there can be no accused without some
formal accusation which the Supreme Court considers to be the first information re-
port of the case. ^^^ It is, however, not necessary, to avail the privilege contained in

183. M.P Sharma v. Satish Chandra, Al R1954 SC 300.

184. AIR 1953 SC 325.
185. Amin v. State, AIR 1958 All 293.
186. Narayan Lai v. A.Maneek, AIR 1961 SC 26.
187. Ibid.,a\ p. 38.
188. Veera Ibrahim v. State of Maharastra, AIR 1976 SC 1167.
189. Balkishan v. State of Maharastra, AIR 1981 SC 379.
190. AIR 1962 SCI 821.
191. Ibid.; see Ram Lai Bhogi Lai Shah v.DKGuha, AIR 1973 SC 1196.
 61
Article 20(3), that actual trial or inquiry should have commenced before a court or a
judicial tribunal. ^^ Article 20 (3) does not apply to departmental inquiries into allega-
tions against a government servant, since, there is no accusation of any offence within
the meaning of Article 20(3). ^^^ The protection given to the 'accused' commences as
soon as a formal accusation is made, whether before or during prosecution. It follows
that the lodging of a First Information Report, the filing of a complaint in court or the
issue of a show-cause notice under a special criminal statute brings Article 20(3) into
play. But these must be a proceeding contemplating action against a particular per-
son.^**

In Nandini Satoathyv. P.L Dani,^^ the appellant, a former Chief Minister of

Orissa was directed to appear at vigilance Police Station Cuttack for examination, in
connection with a case under the Prevention of Corruption Act, 1947 and Sections
161/165 and 120-B and 109 of I.P.C. registered against her. On the basis of this first
information report, investigation was commenced against her During the investiga-
tion, she was interrogated with reference to long list of questions given to her in writ-
ing. She refused to answer those questions claiming protection under Article 20(3).
At this, she was prosecuted under Section 179 of Indian Penal Code, 1860, which
provides for punishment for a person refusing to answer the questions demanded by
public servant. She contended that she was justified in refusing to answer the ques-
tion on the ground of Article 20(3) as well as Section 161 (2)^^ of the Code of Crimi-
nal Procedure, 1973. The Supreme Court held that Section 160(1)of Cr.PC. bars
the calling of a woman to a Police Station which was violated in the case. The Court
ruled that Article 20 (3) extended back to the stage of police investigation not

192. Supra note 159 at p. 300.

193. Srikant Upadhya v. Union of India, AIR 1963 Pat.38.
194. Bakshi P.M., The Constitution of India, (1997) Delhi p.36; see also Dastagirv. State of Ma-
dras, AIR 1980 SC 756, 761; State of Bombay v. Kathi Kalu, AIR 1961 SC 1808, 1816;
R.K.Dalmia v. Delhi Admn. AIR 1962 SC 1821,1870; Joseph v. Narayana, AIR 1964 SC 1552,
1556; Veera Ibrahim V. Stateoffi^aharastra, A\R 1976 SC^^67•, Nandini v. Dani, AIR 1978 SC
1025, Paragraph 30; Balkishan v. State ofMaharastra, AIR 1981 SC 379, paragraph 70.
195. AIR 1978 SC 1025.
196. Section 161(2) Cr.P.C, entitles a person not to answer questions which tend to expose him to
a criminal charge or to a penalty.
 62

commencing in court only, since such inquiry was of an accusatory nature and could
end in prosecution. The ban on self accusation and the right to silence while one
investigation or trial was underway the court viewed, extended beyond that case and
protected the accused in regard to other offences pending or imminent, which might
deter him from voluntary disclosure of criminatory matter/'^^The court held that Sec-
tion 161(2) of the Code of 1973 and Article 20(3) of the Constitution were co-terminus
in the protective area and equal in ambit. In fact, it asserted that Section 161 (2) was
a parliamentary gloss upon Article 20(3)^^Hence, it can be concluded that "the pro-
tection contained in Article 20(3) is also available at the stage of police investiga-
tion."i*

(ii) PROTECTION AGAINST COMPULSION TO BE A WITNESS

Clause (3) of Article 20 also provides the protection against compulsion of the
accused "to be a witness against himself .2°° Which can also be said to be a "protec-
tion against 'testimonial compulsion"^"^ also. In M.P Sharma v. Satish Chandra,^°^
the Supreme Court gave a wide connotation to the term "to be a witness" so as to
include oral, documentary and testimonial evidence. The court held that the protec-
tion contained in Article 20 (3), covered not merely testimonial compulsion in the court
room but also compelled testimony previously obtained from him. The court held that,
it would extend to any compulsory process for production of evidentiary documents
which is reasonably likely to support prosecution against the accused.2°^The proposi-
tion laid down in M.P Sharma's case ^°^ was narrowed down in State of Bombay y.
KathiKalu Oghacf°^, and observed that it is well established that clause (3) of Article
20 is directed against self-incrimination by the accused person. Self-incrimination

197. Nandini's Case; see also Kumar, Narender, op.cit. ,p. 192-3
198. NandiniSatpathy v. P.L. Dani, AIR 1978 SC 1025.
199. Kumar, Narender, op.c/f.,p.193.
200. See later part of clause (3) of Article 20 of Constitution.
201. Bakshi, P.M.,op.c/?.,p.35.
202. AIR 1954 SC 300.
203. Ibid.
204. AIR 1954 SC 300.
205. AIR 1961 SC 1808;see also Gujarat v. Shyam Lai Mohan Lai Choksi, AIR 1965 SC 1251.

I *. • , -*- ^ ^

hfi
 63

must mean conveying information based upon the personal knowledge of the person
giving the information and cannot include merely the mechanical process of produc-
ing documents in court which may throw a light on any of the points in the controversy
but which do not contain any statement of the accused based on his personal knowl-
edge. For example, the accused person may be in possession of a document which
is in his writing or which contains his signatures or his thumb impression. The produc-
tion of such a document, with a view to comparison of the writing or the signature or
the impression, is not the statement of an accused person which can be said to be of
the nature of a personal testimony.^
An accused person cannot be said to have been compelled to be a witness against
himself simply because he made a statement while in police custody without anything
more... The mere questioning of an accused person by a police officer, resulting in a
voluntary statement, which may ultimately turn out to be inaiminatory, is not 'compul-
sjon'.207 'Compulsion', in the context must mean what in law is called 'duress' The
compulsion is in this sense is a physical objective act and not the state of mind of the
person making the statement, except where mind has been so conditioned by some
extraneous process as to render the making of the statement involuntary and, there-
fore, extorted. ^°^ To be a witness is not equivalent to "furnishing evidence" in its
widest significance; that is to say, as including not merely making of oral or written
statements but also production of documents or giving materials which may be rel-
evant at a trial to determine the guilt or innocence of the accused.^o^Self- incrimination
in the context of Article 20(3) only means conveying information based upon personal
knowledge of the person giving information.^^" Therefore, where an accused is com-
pelled to produce a document in his possession, which is not based on personal
knowledge of the accused, there is no violation of Article 20 (3) because he does not
become a witness by the mere fact that he has produced it.^^^The immunity does not

206. AIR 1961 SC1808; see also Kumar, Narender , op.cit.,p. 193.
207. Per Majority in State of Bombay v. Kathi Kalu Oghad, 1961 (2), Cr.LJ. 956 (SC) at p.864:AIR
1961 SC 1808 at pp. 1816-17.
208. Ibid., p. 1816; See also M P Sharma v. Satisti Chandra AIR 1954 SC 300; Kaiawati v. State
ofHP CI 953) SCR 546.
209. Ibid.
210. State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
211. State of Gujarat v. Shyamlal, AIR 1963 Guj. 178.
 64

extend to civil proceedings or other than criminal proceedings.^^^ |t has also been
explained by Supreme Court^" that in order to claim the immunity from being com-
pelled to make a self-incriminating statement. It must appear that a formal accusation
has been made against the person at the time when he is asked to make the incrimi-
nating statement. He cannot claim the immunity at some general inquiry or investiga-
tion on the ground that his statement may at some late stage lead to an accusation.^i-*
The right against self incrimination protects only testimonial evidence but no
real or physical evidence. The information which is in the mind of the accused person
is more private than that of is physically possessed. It was settled in the common law
that the right against self-incrimination had nothing to do with the obtainment of real or
physical evidence.^^^ Article 14(3) of the U.N. Covenant on Civil And Political Rights,
1966, enunciated that in the determination of any criminal charge against him, every-
one shall be entitled... not to be compelled to testify against himself or to confess
guilt."^•'®The Constitutionalrightagainst self inaimination applies to an accused only
He can invoke the application of Article 20 (S).^^^ As well an accused should be made
compelled to be a witness against himself in order to invoke the application of Article
20(3). 218The Constitutional bar is against compulsion and not against voluntary of-
fer.^^^ The protection against compulsion ' to be a witness' is confined to persons
'accused of an offence'. There is no Constitutional protection for witnesses (i.e. per-
sons other than the accused). However, the Evidence Act, in Section 132 and 148,
confers a limited protection against self-incrimination to witness in civil and criminal
courts.22° To justify the construction of the word according to the natural sense, the
court put forward the argument that the phrase used is "to be a witness" and not to

212. Maqbool Hussain v. State of Bombay, AIR 1954 SC 375

213. NarayanLalv. MR Mistry,A\R 1954SC29.
214. \bid.
215. Paciocco, David, M., op.cit., p. 108.
216. Article 14 (3), U.N. International Covenant On Civil & Political Rights, 1966.
217. R.K. Dalmiav. Delhi Administration, MR 1962 SC 1821.
218. Mohd Dastagir v. State of h/ladras, AIR 1960 SC 756.
219. R.S.Btiagatv. UnionofIndia, AIR 1982Del 191.
220. Narayan Lai v. Maneck, AIR 1961 SC 29, 38-39; Charoria v. State ofMatiarastra, AIR 1988
SC 938, 947.
 65

"appear as a witness."^^! ln Delhi Service Association, Tis l-iazari Court Delhi v. State
of Gujarat & others,^^^ the court opined that the following three conditions must be
satisfied in order to avail the protection of Article 20 (3) of the Constitution: ^^
(i) The person must be accused of an offence,
(ii) The element of compulsion to be a witness should be there, and
(iii) It must be against himself.
The Court further observed that all the above three ingredients must necessar-
ily exist before protection of Article 20 (3) is available, and if any of these ingredients
do not exist Article 20(3) cannot be invoked.^^A notice calling upon a person who
may be prosecuted for an offence relating to the property to show cause why the
attachment order in respect of that property should not be made absolute, does not in
any way compel him to be a witness against him.^^

(iii) HANDWRITING/FINGER PRINTS AND ACCUSED

Practically, "It is difficult, if not impossible, for the suspect or the accused to
prove by means of evidence that he was subject to third degree and was compelled to
make a statement in the police custody It may be said that the construction of "com-
pulsion" leaves the accused at the mercy of the police and the very purpose of the
guarantee is defeated." "^ where an order was passed by the Magistrate whereby
the investigating officer was allowed to take specimen writings and signature of the
accused person, the order was held to be violative of Article 20 (3) of the Constitution
as" to be a witness against himself is not confined to the oral testimony; and the

221. MPSharma v. Satish Chandra, A!R1954 SC 300.

222. (1991) 4 Sec419; JT 1991 (3) SC 617.
223. Ibid.
22A. Ibid.
225. G.S.Salwan v. Union of India, AIR 1960 Punjab 531:1960 Cr.LJ 984; Radha Krishan v. State,
AIR 1960 Punjab 294; 1960 CrLJ 847; See also State v. Devsi Dosa, AIR 1960 Bom. 443:
1960 Cr.LJ 1317.
226. M.C. Naughten, John, "Privilege Against Self-incrimination - A Symposium - Raison de-etre"
J.Cri/77.L51:J-1 August, 60,179.
 66

protection extends in and out of the court. "7 it was held that" a direction under Sec-
tion 5 of the Madhya Bharat Identification of Prisoners Act which empowered a Mag-
istrate to direct an accused to give his thumb-impression, specimen writing and sig-
nature for comparison with other documents intended to be used against the accused
at the trial for an offence was repugnant to the intendment of Article 20 (3) and was
void to that extent and consequently the Magistrate's direction was held illegal." '^^ To
get specimen of handwriting by non-voluntary positive act of the accused thus falls
within the inhibition of Article 20 (3) of the Constitution."^ The problem arises when
accused person refuse to give handwriting or thumb impression or identification test.
In such cases accused can be compelled for it. Various High Courts are not unani-
mous on this account. The High Court of Madras ^3°, Madhya Pradesh "^ Jammu and
Kashmir "2 and Allahabad ^^^have held that accused can't be compelled to give his
handwriting, thumb impression or palm or finger prints and such compulsion would be
violative of Article 20(3). Other High Courts ^^^ have held that taking of such evidence,
even by use offeree does not amount to testimonial compulsion.
In Pakhar Singh v. State, ^^\he Punjab High Court held that the compulsion to
a person to exhibit his body or identification marks on it on procurement of finger
prints by force for establishing his identity was not testimonial compulsion in view of
the provisions of Section 5 and 6 of Identification of Prisioners Act, 1920 and also

227. Sailendra Nath Sinha's case, AIR1955 Cal. 247.

228. Chatruvedi, AN. , op.ctf.,p. 183; see also Dorai Swami v. Palaniandi, AIR 1956 Mad 632;
Bhaluka Behra v. State AIR 1957 Cut 200; Tarini Kumar v. State, AIR 1960 Cal. 318; 1960
Cr.LJ 579; It has been heldthat the specimen writing taken by the police while the accused is
in their custody amounted to testimonial compulsion.
229. State v. ShankarNair, AIR 1960 Ker 392 (F.B): 1960 CilJ 1603 (Ker); see also State v. Ram
Kumar,AlR 1957 MP 73; Damodaran v. State, 1960Cr.U 75 (Ker).
230. Raju MutfiukoliPillai V. PeriyasainiNadar, AIR 1956 Mad, 632.
231. Nazir Singh Zanda Singh v. State, AIR 1959 MP 411.
232. Gulam Nabi v. State, AIR 1957 J&K 44.
233. BalrajBhalla v. Ramesh Chandra Nigam, AIR 1960 All 157.
234. See In re Sheikh Mohammad, AIR 1957 Mad 57; Badri Lai v. State, AIR 1960 Raj 184 ;
Subbaiah v. Ramaswamy, AIR 1970 Mad 85; IVIahal Chand v. State, AIR 1960 Cal 23; IVIahipal
V. State, 1971 C r U 1405; PeareLalv. State, AIR 1961 Cal 53^•,Asharfiv. State 1961 (1) CrU
340 (All).
235. AIR 1958 Punjab 294:1958 Cr.LJ 1084 (Punj).
 67
Sections 5 and 73 of the Evidence Act. Rama Swamp v. State,^^ the accused was
directed by the court to give handwriting under Section 73 of the Evidence Act. This
order was challenged on the ground that submitting handwriting amounted to compul-
sory evidence. But the court held that the direction to submit handwriting was not
violative of the Article 20(3). In re Sheikh Mohammad, ^^^ the court held that taking of
specimen signature, thumb impression etc., is constitutionally valid. The High Court
of Madras held that the taking of accused's picture after arrest or handwriting, thumb
impression, palm, foot print, blood sample and wine tests, use of emotic stomach
pump or similar device for extracting ornaments swallowed, requiring to wear or trying
on particular dress or requiring identification parade or perform physical act during
trial are not violation of Article 20 (3). ^^^ The Magistrate's direction regarding taking
of specimen handwriting,thumb impression etc., were held constitutionally valid f^ A
direction to an accused to give his handwriting, ^'*° finger prints and impressions,^''^
likewise foot and palm prints and specimen of hair ^^^ were not held testimonial com-
pulsion.

In State of Bombay w. KathiKalu Oghad,^'^\he following issues were raised -

(1) whether a direction given by a court to an accused present in court to give his
specimen writing and signature for the purpose of comparison under the provisions of
Section 73, Evidence Act, violates Article 20 (3); (2) whether by production of speci-
men handwriting of the accused, he could be said to have been 'a witness against
himself within the ambit of Article 20(3)'; (3) whether the mere fact that the accused
was in police custody when specimen handwriting had been given, could by itself
amount to compulsion apart from the elements vitiating the consent of the accused;
(4) wether the impressions of the accused's palms and fingers taken from him after

236. AIR 1958 All. 1191, Subeda/-v. State,AIR 1957 All. 346.
237. AIR 1957 Mad. 47.
238. Subbayya Sounder v. Bhoopala Subramanian, AIR 1959 Mad.396.
239. I n re Sheikh Mohammad, Al R 1957 Mad 47.
240. Badri Lai v. State, AIR 1960 Raj 184; see also State v. Abu Ismail, 1959 Cr.LJ 1057 (Bom)
241. Mahal Chand v. State, AIR 1960 Cal 123:1961 (1) CrLJ 249 (Cal); Bhupendra Nath v. UOIA\R
1959 HP.29 : 1959 Cr.LJ 1165 HP : see also Subayya Gounderv. Bhoopala, AIR 1959 Mad
396.
242. Mahipal v. State, 1971 (2) Cr.LJ 856.
243. AIR 1961 SC 1808 :1961 (2) Cr.LJ 856
 68
his arrest, which were compared with the impressions on the glass panes and phials
were not admissible in view of Article 20 (3); (5) whether Sections 5 and 6 of the
Identifications of Prisioners Act, 1920 violated Article 20 (3). The majority judgment
held that the voluntary statements were admissible in evidence; Section 27 of the
Evidence Act did not contravene Article 20 (3); but the compelled statements were hit
by Article 20(3); and hence these propositions were held law. ^^ It has now been
settled that a direction by a Magistrate requiring an accused person to give his, speci-
men handwriting, signature, thumb impressions, finger prints or foot prints to be used
for comparison with some other signatures, and the handwritings, thumb impressions
etc., which the police may require in the course of investigation will not amount to
compelling the accused to be a witness against himself. ^'^ The Rajasthan High Court
held that the taking blood from the veins of accused not violative of Article 20 (3) of the
Constitution. ^^ The court further held that this is neither oral or documentary evidence
, but belong to third category of material evidence which is outside the limits of testi-
mony. 2»
'7
The Supreme Court ended the differences between the High Court in Oghad's
case}^ Para 22 of the judgment reads: "Article 20 (3) never means that an accused
can never be compelled to be a witness. All that Article 20(3) prohibits is that he can
not be compelled to be a witness against himself. In giving his specimen writing or
thumb impression or finger impressions, the accused Is certainly furnishing evidence
but cannot be said that in doing so he is furnishing evidence against himself." ^^ The
expression 'to be a witness' does not include giving thumb impression, impressions
of foot or palm or fingers or specimen of writing or showing parts of the body byway of
identification.^^

244. Ibid; See also Chaturvedi ,A.N., op.c/Y.,pp. 185-86.

245. Chaturvedi, A.N., op.cit. ,p. 187.
246. Miss SwatiLodtia v. State ofRajastlian, 1991, Cr.LJ, 939 (Raj.)
247. Ibid.
248. State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
249. Ibid.
250. Ibid a\^ 877.
 69

An examination of a person under Section 53 of the Code of Criminal Proce-

dure does not only mean to examine the apparent visible signs of the body but also
includes the examination of any organ inside the body ^^^ Any compulsion used against
a person accused of consuming liquor and taken to the medical doctor for extraction
of blood in order to determine alcoholic percentage and intoxication is a procedure
established by law.2^2 |t has been held in number of cases that" the immunity under
Article 20 (3) does not extend to compulsory production of material objects or com-
pulsion to give specimen writing, specimen signature, finger impression or compul-
sory exhibition of the body or giving of blood specimens." ^^
It has been held that the tape-recording of statement made by the accused,
though the recording was done without his knowledge, but without force or oppres-
sion, is not hit by Article 20 (3). ^^ The tape recorded conversation was held admis-
sible. 2*The tape recorded statements become admissible if (1) the conversation is
relevant to the matter issue, (2) the voice is clearly identified, and (3)the accuracy of
the tape recorded conversation is proved by eliminating the possibility of erasing the
tape recorded conversation is proved by eliminating the possibility of erasing the
tape recording. A contemporaneous tape record of a relevant conversation is rel-
evant fact and is admissible under Section 8 of the Evidence Act. It is resgastae.^
The Supreme Court of USA held that the Fifth Amendment prohibits compel-
ling a person to speak and incriminate himself but it does not prohibit compelled
revelation of written thoughts.^" If a person in custody is to be subjected to interroga-
tion he must first be informed in clear and unequivocal terms that he has the right to

251. Anil A Lokhande v. State, 1981 Cr.LJ 125 (Bom); it was held that blood examination of an
arrestee is not a testimonial compulsion; see also Delhi Admn. v. Pali Ram, AIR 1979
SC14:1979 Cr.LJ 17 (SC); Anant Kumar v. State ofAP, 1977 Cr.LJ 1997 (AP).
252. State v. Sheshappa,A\R 1964 Bombay 253:1964 (2) Cr.LJ 523 (Bombay)
253. Bakshi, P.M.,op.ctf.,p.37; Dastagir v. State of Madras, AIR 1960 SC 756; Ram Swaroop v.
Stefe, AIR 1958 All 119,126; Palani, in re, AIR 1955 Mad 495; Subbiahv. Ramaswami,MR
1970 Mad. 85 ; Pokhar Singh v. State, AIR 1958 Pun. 294.
254. Usufalliv. State of Maharastra,A\R 1968 SC 147; S.K.Singhv. V.V.Giri, AIR 1970 SC 2097;
R.M.Halbaniv. State of hAaharastra, AIR 1973 SC 157.
255. ShriNRama Reddy v.ShV.V.Giri, AIR 1971 SC 1162; UsufalliEsmail Nagree v. State of
Maharastra, AIR 1968 SC 147; see also S.Partap Singh v. State of Punjab, AIR 1964 SC 72.
256. Shri NRama Reddy v. Shri V. V.Giri, AIR 1971 SC 1162.
257. Fisher v. United States, 425 US 391,405-14(1974).
 70

remain silent The warnings of the right to remain silent must be accomplished by
the explanation that anything said can and will be used against the individual in court... .an
individual held for interrogation must be clearly informed that he has the right to con-
sult with a lawyer and to have the lav^er with him during interrogation.... it is necessary
to warn him not only that he has the right to consult with an attorney but also that if he is
indigent a lawyer will be appointed to represent him... once warning has been given,
the subsequent procedure is clear. If the individual indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent, the interrogation
must cease.2^ In a land mark judgment of Miranda v Arizona, ^^^ the court laid down
that once warnings have been given, the subsequent procedure is clear. If the indi-
vidual indicates in any manner, at any time prior to or during questioning that he wishes
to remain silent, the interrogation must cease. At this point he has shown that he
intends to exercise his Fifth Amendment privilege, any statement taken, after the per-
son invokes his privilege cannot be other than the production of compulsion, subtle or
otherwise. Without the right to cut off questioning, the settings of in custody interroga-
tion operates on the individual to overcome free choice in producing a statement after
the privilege has been invoked."^^° However, the accused can waive the right to si-
lence at any time. As such he can waive the right knowingly and voluntarily.^^^

Doreen J. M.C. Barnet opined that the accused has a right to silence, he is not
compellable witness and he need not incriminate himself, so that the prosecutor has
to be able to prove his case without co-operation of an accused.^^^ In context of posi-
tion in U.K. Mayne in his book "Criminal Law" has observed that "It is the business of
the Crown to prove him guilty and he need not do anything but stand by and see what
case has been made out against him.... He is entitled to rely on the defence that the
evidence as it stands is inconclusive and that the crown is bound to make it conclu-
sive without any help from him."^^^

258. Miranda v. Arizona, 384 US 436 (1966).

259. 384 US 473-74 (1966; See also Shent< v. Eliiswortli 293. F. Supp., 26 l\/liranda 24.
260. Ibid.
261. Colorado v. Connelly, 107 S Ct 524 (1986); Taque v. Louisiana, 444 US 469 (1980)
262. Doreen, J. M.C,Barnet. ,Cconviction, Law, The State And The Construction of Justice, (Lon-
don), The Mac Millan Press (Ltd 1981), p.1
263. Mayne'sCriminal Law, quoted by James, J., \nSubedarv. Sfafe1957Cr.LJ698(AII)atp.699.
 71

In India when matter came before Mysore High Court in the case of In re B.N.
Rama Krishna,^^ the court held that the answers given by the accused under section
342(2) Section 313(2) of new Code) of Code would not offend Article 20 (3) for two
reasons (i) It is matter of option to the accused to answer or not when he is ques-
tioned, and no oath is administered to him as to a witness and his testimony cannot
be put in evidence in the trial or enquiry, thus Section 342 (New Sec. 313) is not
repugnant to clause (3) of Article 20; (ii) the Judge or jury have power to draw infer-
ence from refusal but that does not mean compelling an accused to be a witness
against himself.2^ Section 313 (l)Cr.P.C. provides that "in every inquiry or trial, for
the purpose of enabling the accused personally to explain any circumstances appear-
ing in the evidence against him, the court - (a) may at any stage without previously
warning the accused, put such questions to him as the court considers necessary; (b)
shall, after the witnesses for prosecution have been examined and before he is called
on for his defence, question him generally on the case."^^ No oath shall be adminis-
tered to the accused when he is examined under sub-Section (1 ).^^^ There is no ex-
press right to silence in Constitution of India and Section 161 Cr.P.C. expressly pro-
vides that a police officer during investigation may examine any person supposed to
be acquainted with the facts and circumstances of the case ^^ and "such person shall
be bound to answer truly all questions relating to such case put to him by such officer,
other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture."^^ The words "any person" in this Section
(Sec 161 Cr.P.C.) which must be read in conjunction with Section162, include any
person who may subsequently be accused of the crime in respect of which the inves-
tigation is made by the police officer."° The word "truly" used after the word "answer"
indicates that the peson examined is legally bound to state the truth. A person who

264. AIR 1955 Mad 100 :1955 Cr.LJ 452 (Mad).

265. Ibid.; see Re Govinda Reddy, AIR 1958 Myr 150.
266. Sub Sec (1) (a) (b) of section 313 CrPC 1973.
267. Sub Sec (2) of Section 313 ibid.
268. Sub Section (1) Section 161 CrPC 1973.
269. Sub Section (2) Ibid.
270. Lal,Ratan,Lal .Dhiraj, The Code of Criminal Procedure, 1973,1984 (Reprint), Nagpurp.138;
see Pakala Narayana Swami, (1939) 661A 66; 41 Bom. LR 428; 18 Pat, 234; Velu Viswanathan,
(1971) Cr.LJ 725.
 72

gives false information in answer to sucti question can be prosecuted under the pro-
visions of Sees. 202 and 203 of the Indian Penal Code."^ No presumption arises,
ipso facto, from the silence of an accused person. The fact of silence may, with all
other circumstances of the case, be taken into account in a proper case, but even
then, it must be clearly borne in mind that an accused person always has a right to
remain silent if he wishes and, the silence of the accused must never be allowed, to
any degree, to become a substitute for proof by the prosecution of its case."^ The
doctrine of presumption of innocence confers valuable privileges on the accused; and
thus he is not bound to confess guilt and to answer any questions and can keep his
lips sealed placing his reliance on the presumption of innocence.^"
The Supreme Court of U. S. A enunciated a rule that evidence seized through
an unlawful search by federal officers could not be used an evidence in the federal
courts.^'''This was a departure from English common law which judged the admissi-
bility and relevance."^ In Indian law, there is no basis for the assumption that a search
or seizure of a thing or document was in itself to be treated as a compelled production
of it.2™ The Supreme Court has refused to import any prohibition against search and
seizure of a person's premises without his consent. The Court held "A power of search
and seizure is in any system of jurisprudence an overriding power of the State for the
protection of social security and that power is necessarily regulated by law. ^^^ |{ ^gg
been held that the protection of Article 20(3) does not extend to searches made in
pursuance of a warrant issued under Section 96 (Section 93 new Cr. PC.) of the Code
of Criminal Procedure, 1898."8 In V. S. Kuttan Pillai \i. Rama Krishnan,^''^ the

271. Sankaralinga Kone, (1900) 23 Mad.

272. Ghura, (1941) All 912.
273. Ajmer Singh v. State of Punjab (1953), SCR 418.
274. Weeks v. United States, 232 US 383, 34 Set 341, 58 L.Ed.652 (1914).
275. St.Paul Minn, American Constitutional Law; Case and Text by Albert B Saye, West Publish-
ing Co. (1979), p. 498.
276. M.P.Sharma v. Satish Chandra, AIR 1954 SC 300; State ofGujaratv. Sham Lai, AIR 1965 SC
1251.
277. Shanva v. Satish Chan&a, (1954) SCR 1077.
278. ibid; See Section 93 (1) & (3) of Cr.P.C. 1973.
279. AIR 1980 SC 185.
 73

Supreme Court has held that search of the premises occupied by the accused without
the accused being compelled to be a party to such search would not be violative of
the Constitutional guarantee enshrined in Article 20 (3).

(VI) DOUBLE JEOPARDY AND RIGHTS OF ACCUSED

Article 20(2) of the Constitution provides that "No Person shall be prosecuted
and punished for the same offence more than once." Article 20 (2) incorporates a
prohibition against 'double Jeopardy'.^®" This Clause enacts the well known principle
of criminal jurisprudence that" no one should be put in jeopardy twice for the same
offence"^^'^ which is based on common law maxim "Nemo debet bis vexah", which
means that a person must not be put in peril twice for this same offence. As has been
laid down in Venkataraman v. Union oflndia,^^ Article 20(2) refers to judicial punish-
ment and gives immunity to a person from being prosecuted and punished for the
same offence more than once. In other words, if a person has been prosecuted and
punished in a previous proceeding of an offence, he cannot be prosecuted and pun-
ished for the same offence again in a subsequent proceeding. If any law provides for
such double punishment, such law would be void. The Article, however, does not give
immunity from proceeding other than proceedings before a court of law or a judicial
tribunal. Hence, a Government servant who has been punished for an offence in court
of law may yet be subjected to departmental proceedings for the same offence or
conversely ^^

Where a person has been convicted for an offence by a competent court, the
conviction is a bar to any further Criminal proceedings against him for the same of-
fence. The object is that no one ought to be punished twice for one and the same
offence. It is to avoid the harassment which must be caused to a person for succes-
sive criminal proceedings where only one crime has been committed.^^^The doctrine

280. Bakshl, PM., Constitution of India.Delhi (1997), p. 35

281. Maqbool Hussain v. State of Bombay, AIR 1953 SC 352; Sunil Batra v. Delhi Administration,
AIR 1978 SC 1675; see also Kumar, Narender., op.cit., pp 186-187.
282. AIR 1954 SC 375
283. Ibid.
284. Kumar, Narender,op.ctf., p. 187
 74

of double jeopardy emanating from the common law principles has been universally
recognised as an established rule of criminal jurisprudence.^^The roots of the prin-
ciple are found in the common law principles of England,2^"that where a person has
been convicted of an offence by a court of competent jurisdiction the conviction is a
bar to all further criminal proceedings for the same offence." ^^
Prangnyaa (Res judicate) has been referred to as one of the possible de-
fences to an action in ancient times.^^Once a decision has been given, it becomes
final and cannot be reopened by leading fresh evidence. Narada puts it as follows: ^
Yatha pakvesu dhanyesu nisphalah Pravriso gun ah
Nir nitev ya vaharanam Pramanam aphalarm Tatha

Black.J, of Supreme Court of the United States in Green v. U.S.^^has ob-

served that, "The underlying idea one that is deeply ingrained in atleast the Anglo -
American system of jurisprudence is that the state with all its resources and power
should not be allowed to make repeated attempts to convict an individual for an al-
leged offence, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in continuing state of anxiety and insecurity, as well as enhanc-
ing the possibility that even though innocent he may be found guilty."28Mn order to in-
voke protection conferred by Article 20(2) of the Constitution, there must have been a
prosecution and punishment in respect of the same offence before a court of law or a
tribunal required by law to decide the matters in controversy judicially on evidence on
oath which it must be authorised by law to administer and not before a tribunal which
entertains a departmental or an administrative enquiry even though set up by a stat-
ute, but not required to proceed on legal evidence on oath. ^ The Clause guarantee

285. Chaturvedi, A.N., op.cit.,p. 158.

286. IWd., p. 130;
287 Per Charles J., in Reg. v. Miles (1890), 24 Queen's Bench Division, 423 ; see also Cooley,
Constitutional Limitations 6th Edn. p. 193, Hennessy, MortoneD.B., "Constitutional Rights of
The Accused", Mass L.R. Vol. 60,18 at p. 27 (1975).
288. Narada II, 5-6
289. Narada (Introduction 1,62)
290. (1957) 355 US. 184 at pp. 187-88
291. Ibid.
292. Chaturvedi, A.N., op.cit.,p. 130.
 75

that no person be prosecuted and punished for the same offence more than once.
'And' is used here in the ordinary conductive sense. Hence, Art 20(2) bars a second
prosecution only where the accused has been both prosecuted and punished for the
same offence previously ^^^ In order to enable a citizen to invoke the protection of
clause (2) of Article 20 of the Constitution there must have been both prosecution and
punishment in respect of same offence. The words "prosecuted and punished" are to
be taken not distributively so as to mean prosecuted or punished. 2** Article 20 (2)
dealing with double jeopardy what it bars is prosecution and punishment after an ear-
lier punishment for the same offence. 'Offence' here means an offence as defined in
Section 3 (38) of the General Clauses Act applied to the Constitution by Article 367.
The offence must be same, that is to say involving the same ingredients in all respect
and a trial for a separate and distinct offence is not barred under article 20(2). How-
ever, this article must be taken as supplemented by Section 26 of the General Clauses
Act, 1897 and the provision of the Code of Criminal Procedure, 1973 as to second
prosecution after conviction or acquittal for an offence where the second prosecution
is excluded by the doctrine of autrefois convict orautrefoic acquit}^ The fundamental
right which guaranteed in Article 20(2) enumerates the principle of autrefois convict
or "double jeopardy". The roots of the principle are to be found in the well established
rule of common law in England that where a person has been convicted of an offence
by a court of competent jurisdiction, the conviction is a bar to all further criminal pro-
ceedings of the same offence.^^ In Article 20(2) "the words "prosecuted" and "pun-
ished" are not to be read disjunctively so as to mean "prosecuted" or "punished" but to
be read conjunctively Both the factors must coexist in order to attract the invocation
of Article 20 (2) of the Constitution." ^^

293. Venkataraman v. UOI (1954) SCR 1150.

294. Venkataraman v. UOI, AIR 1954 SC 375 at p. 377.
295. Bakshi P.M. The Constitution of India.Delhi (1997) , p. 36; see also Makbool v. State of
Bombay, (1953) SCR 730; Kalawati v. State of HP (1953) SCR 546; State of Bombay v. Apte,
AIR 1961 SC 548; Narayan Lai v. Mistry, AIR 1961 SC 29; Leo Roy v. Suphntendent, District
Jail, AIR 1958 SC 118,121; Assistant Customs Collector v Malwani, AIR 1970 SC 962.
296. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 at 328.
297. Rajjab AH v. State 7973 Cr LJ. 139.
 76
"Prosecution" has been defined as "A proceeding either by way of indictment
or information, in the criminal Courts, in order to put and offender upon his trial in all
criminal prosecution, the king is normally the prosecutor.'^* The term "prosecution" is
not defined in the Constitution. The court explained the term, "prosecution" means
initiation or starting of any proceeding, criminal in nature, before a court or a judicial
tribunal.^* In Narayan LalBansiLalv. M.R Mistry,^ observed that a "prosecution" in
Article 20(2) meant a proceeding either by way of indictment of information in a crimi-
nal court so as to put an offender on his trial. ^^ There are different stages of investiga-
tion before prosecution of an offence. In the event of commission of an offence, the
law and order machinery can be set in motion by lodging First Information Report^ in
Police Station or filing a complaint in appropriate court. Police conducts investiga-
tion for collection of evidence and then file police report^ before the court and "pros-
ecution" begins when magistrate takes the cognizance of an offence under Section
190 CrPC. ^Prosecution in this context, thus, means an initiationor starting of pro-
ceedings of a criminal nature before a court of law.^
Since Article 20 (2) protects an accused from prosecution and punishment
twice for the same offence, it does not protect an accused from prosecution and pun-
ishment for an offence under which he was previously prosecuted and was acquit-
ted.^Thus, in order to claim the protection of Article 20(2) it was necessary to estab-
lish three points - a previous prosecution, punishment and the punishment was for the
same offence; and unless all the three conditions were fulfilled the clause (2) of that
Article could not be invoked. ^^ Hence, for application of clause (2) of Article 22 "There
must have been a previous proceedings before a court of law or judicial tribunal, ^

298. Wharton's Law Lexicon, quoted (1959) Supp. (1) SCR 274 at D. 285.
299. Thomas Dana v. State of Punjab, AIR 1959 SC 375; Narayan Lai v. M.R Mistry, AIR 1961 SC
28; Sewpujanrai V. Collector of Customs, AIR 1958 SC845.
300. AIR1961SC29.
301. Ibid.
302. See Section. 154 Cr.P.C. 1973.
303. Police Report is filed in the Court after completion of Investigation under section 173(2) of
Cr.PC.1973.
304. Sec. 190 Cr.PC provides that Magistrate may take Cognizance of an offence upon receipt of
a complaint; upon police report; upon informaiton received from any other person or upon his
knowledge about commission of some offence.
305. Thomas Dana v. State of Punjab, AIR 1959 SC 375 at 383; Narayan Lai v. M.R Mistry, AIR
1961 SC 29.
306. M. Dev v. Tripura, AIR 1959 Tri. 51.
307. Chaturvedi, A.N..,op.ctf., p.135.
308. Makbool v. State of Bombay, (1953) SCR 730: AIR 1959 SC 375.
 77

The proceedings must be for the commission of an "offence". The "offence" is an act
or omission made punishable by any law for the time being in force.^The person
must have been "prosecuted and punished" in the previous proceedings. The "of-
fence" must be the "same" for which punishment is being awarded in the subsequent
proceedings. If the person is prosecuted and acquitted after the trial, this principle will
have no application as there must be prosecution as well as the punishment, there-
fore, in such cases the person can be again prosecuted and punished.^^° In State of
M.R V \/eeres/7vvaf Rao,^" the court held that the protection against "double jeopardy
contained in Article 20 (2) would be available only when the accused has been not
only prosecuted but also punished after such prosecution. Therefore, if there is no
punishment for the offence as a result of the prosecution, clause (2) of Article 20 would
have no application. Both prosecution and punishment must co-exist for the opera-
tion of Article 20(2). It, thus follows that where a person having been prosecuted for an
offence is acquitted, he can be prosecuted for the "same offence" again.^^^ justice
Subba Rao observed in the matter of Bhagwan Swaroop Lai Bishan Lai v. State of
Matiarastra, ^^^that " to ascertain that the two offences are the same it is not the
identity of the allegation but the identity of the ingredients that matters."

Section 300 of Cr.P.C. provides that a person once convicted or acquitted is

not to be tried for same offence.^^^ A person who has once been tried by a court of
competent jurisdiction for an offence and convicted or acquitted of such offence shall,
while such conviction or acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence for which a different
charge from the one made against him might have been made under sub section (1)

309. See Sec. 3 (38) of General Clause Act, 1897.

310. The punishment which a offender is liable under IPC & other laws is (1) death (2) imprison-
ment for life (3) imprisonment is of two types - rigorous and simple (4) Forfeiture of property
and (5) fine; see also Thomas Dana v. State of Punjab, AIR 1959 SC 375
311. AIR 1957 SC 592.
312. \bid.
313. AIR 1965 SC 682
314. See heading of Section 300 Cr.P.C, 1973..
 78

of Section 221, or for which he might have been convicted under sub-section (2)
thereof.^^^ A person acquitted or convicted of any offence may be afterwards tried,
with the consent of the State Government, for any distinct offence for which a sepa-
rate charge might have been made against him at the former trial under sub-section
(1) of Section 220.^^^ A person convicted of any offence constituted by any act caus-
ing consequences which, together with such act, constituted different offence from
that of which he was convicted, may be afterwards tried for such last-mentioned of-
fence, if the consequences had not happened, or were not known to the court to have
happened at the time when he was convicted.^^^ A person acquitted or convicted of
any offence constituted by any acts may, not- withstanding such acquitted or convic-
tion, be subsequently changed with, and tried for, any other offence constituted by the
some acts which he may have committed if the court by which he was first tried was
not competent to try the offence with which he is subsequently charged. ^^^
This section lays down that a person once convicted or acquitted cannot be
tried for the same offence. It is based on the maxim nemo debet bis vexari, which
means that a person cannot be tried a second time for an offence which is involved in
the offence with which he was previously charged. In order to bar the trial of any
person already tried, it must be shown (1) that he has been tried by a competent court
for the same offence of one for which he might have been charged or convicted at that
trial, on the same facts (2) that he has been convicted or acquitted at the trial, and (3)
that such conviction or acquittal is in force.^^^ Where the conviction of a person and
the sentence passed on him set aside on the ground of want of proper sanction it
cannot be said that there was a proper trial at all and the result of the decision cannot
operate under this section as a bar to a fresh trial after receipt of a fresh sanction.^°
The acquittal or conviction, in order to be an actual defence to the charge must be by

315. Sub Section (1) of Section 300 Cr. P.C.

316. to/cf.,Sub Section (2)
317. //j/cf.,Sub Section (3)
318. /b/d.,Sub Section (4)
319. Lai, Ratan & Lai, Dhiraj.Ttie Code of Criminal Procedure, 1973, Reprint, Nagpur,(1984),p.281;
see also Govt, of Bombay v. Abdul Wahab, (1945) 47 Bom. L.R. 998, (1946) Bom. 258, F.B;
Mohammad Safi, AIR 1966 SC 69, Kharitan, AIR 1965 SO 83; Assistant Commissioner Cus-
toms V. L R. Melwani, (1968) 72 Bom. L.R. 782.
320. M. Gopalakhshna Naidu, (1952) Nag 52.
 79
a court of competent jurisdiction.^^^ A trial by a court not having jurisdiction is void ab
initio and the accused, if acquitted, is liable to be retried.^^ If the court which held the
first trial was not competent to try the charge put forward as the second trial, this
section would have no application.^" Procedural technicalities do not weigh with the
court in giving benefit of the doctrine of double jeopardy. Thus where a fresh trial was
ordered after the rectification of order sanctioning prosecution it could not be checked
on the plea of double jeopardy. ^^^ Neither Constitution of India ^^s nor the Code of
Criminal Procedure^^ confer any immunity where trial is a nullity and prosecution for
same offence on same facts is not barred under section 300 CrPC or Article 20(2) of
the Constitution.

In Maqbool Hussein v. State of Bombay,^" the appellant, an Indian citizen

brought some gold without making a declaration from a foreign country. The customs
authorities took action against him under Section 167 of the Sea Customs Act, 1898
and confiscated the gold. Later on, he was charged under Section 8 of the Foreign
Exchange Regulation Act, 1947. The court held that the sea customs authorities were
not a court or a judicial tribunal and the adjudging of confiscation under the Sea Cus-
toms Act, 1898 did not constitute a judgment or as order of a court or a judicial
tribunal necessary for the purpose of supporting a plea of double jeopardy The pro-
ceeding taken before the sea customs authorities, therefore, did not amount to pros-
ecution of the appellant nor the order of confiscation constitute a punishment imposed
by a court or a judicial tribunal. It was, therefore, held that the prosecution under the
Foreign Exchange Regulation Act, 1947 was the first prosecution not barred by Ar-
ticle 20 (2). 328 In Leo Roy v. Supdt. District Jail,^^^ the proceedings before the

321. Samsudin (1896) 22 Bom. 711' AbdulGhani, (1902) 29 Cal. 412.

322. Jivram Dankarji, (1915) 40 Bom. 97,17 Bom. LR 881; Ambaji (1928) 30 Bom. LR 380; 52
Bom. 257; Shanker Tulshiram, (1928) 30 Bom LR 1435, 53 Bom 69.
323. Pumananda Das Gupta, (1939), Cal 1, SB.
324. Gopal Krishna v. State of MP, 1952 CrLJ 845; see also in re Devannrohom, 1952 Cr.U. 1976;
In re SubramaniaActiari, 1955 Cr. LJ 514; Datta Pantv. Advya Chari A\R^9X Hyd. 127; BaiJ
Nath Prasad v. State ofBfiopal, AIR 1957 SC 494.
325. See Article 20 (2).
326. See Section 300 Cr.P.C.
327. AIR 1953 SC 325.
328. See also Asst. Collector v. Malwani, AIR 1970 SC 962; \nreP. Bapanaiah, AIR 1970 AP 47.
329. 1958 Cr.LG 260; AIR 1958 SC 119.
 80

customs authorities were under section 167 (8) of the Sea Customs Act where the
petitioner's contraband were confiscated. A subsequent criminal prosecution for the
charge of criminal conspiracy under Section 120-B of the Indian Penal Code on the
same facts were held not to be violative of Article 20(2) of the Constitution. The Court
observed"... The offence of conspiracy to commit a crime is a different offence from
the crime that is the object of the conspiracy because the conspiracy preceded the
commission of the crime and is complete before the crime is attempted or completed,
equally the crime attempted or completed does not require the element of conspiracy
as one of its ingredients. They are, therefore, quite separate offences."^
In S.A. Venkataraman y. L//?/on o/'/nc//a,^Mhe appellant, a government ser-
vant has charged with committing corruption. An enquiry was held against him under
the Public Servants (Injuries) Act, 1850. As a result of report of Enquiry Commis-
sioner, he was dismissed from service. Thereafter, he was prosecuted before the
court for having committed offence under sections 161 and 165 of the Indian Penal
Code 1860 and Section 5 (2) of the Prevention of Corruption Act, 1947. The Su-
preme Court held that the proceeding taken before the Enquiry Commissioner did not
amount to a prosecution for an offence. It was in the nature of a fact finding inquiry
held to advise the Government for taking any disciplinary action against the appellant,
if so called for. Therefore, the prosecution under the Indian Penal Code, 1860 and
the Prevention of Corruption Act, 1947, was the first prosecution not barred by
Article 20 (2).

Departmental Enquiry is not a prosecution and the award of such proceeding

is not a punishment, ^^ and there is no bar of Clause (2) of Article 20 in holding a
departmental enquiry before commencement and after the conclusion of the criminal
prosecution. ^ It must be noted that an appeal against an acquittal is in substance a
continuance of the prosecution. A prosecution starts at the court of first instance and
concludes at the final court of appeal. ^^ In Ka/awaf/v. Sfafe of/-/. P, ^ the appellant

330. Ibid, at p. 262.

331. AIR 1954 SC 375; 1954 Cr.LJ 993
332. Ibid.
333. Ibid.
334. Kumar, Narendenop.ctf., p.188.
335. AIR1953SC131.
 81

charged for committing murder of her husband was prosecuted but acquitted by the
Distnct Judge. The State preferred an appeal against acquittal in High Court. The
accused contended that proceedings before High Court contravened Article 20(2).
The court held that appeal against the acquittal was not second prosecution, but con-
tinuance of the original prosecution, therefore, Article 20 (2) would not be attracted.
Besides, there was no punishment for the offence in the earlier prosecution.
The plea of" double jeopardy" may be distinguished from the rule of "issue
estoppel"; the rule of issue estoppel precludes evidence being led to prove a fact in
issue as regards which evidence has already been led and a specific finding recorded
at an earlier criminal trial before a competent court. The rule related only to the admis-
sibility of evidence. ^ While Article 20 (2) bars double punishment, the rule of issue
estoppel finding was in favour of the accused of a previous trial. Article 20(2) has no
direct bearing on the question at issue while the rule of issue estoppel relates to evi-
dence on the question in issue at the two trials. What is required for the application of
the rule of estoppel is the identity of issue and the acquittal of the accused at a previ-
ous trial on the same issue, while Article 20(2) would be attracted if the "offence" is the
same in the second prosecution for which the accused has eariier been prosecuted
and punished. ^^

(VII) DOMAIN OF PERSONAL LIBERTY AND RIGHTS OF ACCUSED

The concepts of 'right to life' and 'personal liberty' were not known to the people
of eariier periods. The origin of these concepts may be traced in ancient Greek civili-
zation. Greeks distinguished between the liberty of the group and liberty of the indi-
vidual.^ The Preamble to the Constitution of India assures among other things"
dignity of the individual". Personal liberty and human dignity are most cherished val-
ues of our Constitution. These are the necessary epitomes which help in the develop-
ment of an individual personality and the realisation of human rights. ^

336. Piara Singh v. State of Punjab, AIR 1969 SC 961; State ofA.P v. Kokkiliagada Meerayya,
AIR 1970 SC 771.
337. Asst. Collector v. Malwani, AIR 1970, SC 962; ManipurAdmn v. Bira Singt), AIR 1965 SC 87.
338. Bhatt, R.L. "Personal Liberty: A Conceptional Analysis," K.U. Law Journal {^ 979), Vol. 5, pp. 12-13;
see also Deshta op. cit. ,p. 19.
339. Jaswal, S.Paramjit & Jaswal, Nishtha , Human Rights And The Law(1995),p.129.
 82

Article 21 of the Constitution pertains to protection of life and personal lib-

erty.*" The Article provides," No person shall be deprived of his life or personal liberty
except according to procedure established by law." ^^ Liberty in ordinary sense is
freedom of external control, interference or freedom from bondage captivity or physical
restraint. But under law the expression is not confined to "freedom from bodily re-
straint" but extends to the conduct in which an individual is free to pursue. The word
liberty is qualified by the word "personal" in our Constitution. Hence the expression
"whatever it may be either restricted interrpretation , whatever it may be either re-
stricted or liberal interpretation. "Personal liberty" is too precious a thing to be taken
lightly by anyone much less the state and its functionaries and nothing could be more
precious and sacrosanct than the liberty of an individual.^^ Montesquieu observed
that liberty is the right to do whatever the laws permit.^ Personal Liberty means Per-
sonal Rights not to be subjected to imprisonment, arrest or other physical coercion in
any manner that, does not admit legal justification.^ Hence liberty of an individual is a
matter of great Constitutional importance in our system of governance.*^

Right to personal liberty is one of the most, if not the most important, of the
human rights.**® An important issue arises as to whether Article 21 " is the sole re-
pository of the right to life and personal liberty or that this right exists independent of
Article 21 as a common law right."**^ The Supreme Court in the matter of ADM
Jabalpur v. Shiv Kant Shukia ^ observed "If any right existed before the commence-
ment of the Constitution and the same right with its same contents is conferred by
Part-Ill as a fundamental right, the source of that right is in Part-Ill and none is an
preexisting right. Such pre-Constitution right has been elevated by Part-Ill as a Fun-
damental Right. If there is a pre-Constitution right which has become now a Funda-
mental Right, the common law right has no separate existence under our

340. See heading of Article 21.

341. Article 21.
342. Burhanuddin Tahavali v. Union of India, 1994 JCC 63.
343. Montesquieu, (1689-1755), The Spirit of The Laws, 1748, bkXI,3.
344. Dicey.A.V., Constitutional Law, pp 207, 208.
345. Rameshwar Dayal v. State of Bihar, AIR 1968 SC1303.
346. Khanna J., K.L.J. 1978, Vol 4 p.133.
347. Bansal V.K., Right To Life and Personal Liberty in India, New Delhi (1987), p. 98.
348. AIR 1976 SC 1207,p. 1241
 83

Constitution."^ If there be any right other than and more extensive than Fundamental
Right in Part-Ill, such right may continue to exist under Article 372. ^InAK Gopalan
V. State of Madras, ^^ while interpreting the term personal liberty in a restricted form,
J. Mukherjee observed "In the ordinary language 'personal liberty' means liberty relat-
ing to or concerning the person or body of the individual and personal liberty in this
sense is the antithesis of physical restraint or coercion. According to Dicey, who is an
acknowledged authority on the subject,' personal liberty' means a personal right not
to be subjected to imprisonment, arrest, or other physical coercion in any manner that
does not admit of legal justification... this negative right of not being subject to any
form of physical restraint or coercion that constitutes the essence of personal lib-
erty.^
Neither Articles mention with regard to' Right to Life.' Article 21 simply says
that" no person shall be deprived of his life or personal liberty except according to
procedure established by law", therefore personal liberty guaranteed under Article 21
is a protected one but restricted since deprivation of it would be done only through
procedure established by law. Rather Right to Life and Personal Liberty which in its
contents is not an absolute right but a limited right having its ambit circumscribed by
the risk of its being taken away by following procedure established by law made by
appropriate authority. ^ \nA. K. Gopalan v. State of Madras,^ the majority took the
view that as the word 'law' was not preceded by any of the articles like 'a', 'the', 'any;
or 'air, it should not be confined to State made law but it should mean a just law
including the principles of natural justice.^^ It is submitted that the minority opinion is
incorrect. Firstly, law is preceded by the word 'established' which does not indicate a
law with changing contents, but the enacted law. Secondly, the word 'due' does not
find any place in the personal liberty clause, so the principles of natural justice can not
be brought within the term 'law'. And lastly the term cannot be given any expanded

349. Ibid; see also B.S.Rao Badami v. State of Mysore, AIR 1969 SC 45
350. Supra note 9. (AIR 1976 SC 1207)
351. AIR1950SC27.
352. Ibid, pp 96-97.
353. A K Gopalan v. State of Madras, AIR 1950 SC 27 at p 118.
354. AIR1950SC27
355. \bid. p. 58-60.
 84

meaning as it has been defined in Article 13. It will be interesting to note that the word
'law" has been defined in Article 13 so as to include any ordinance, order, by law, rule,
regulation, notification or usage having in the territory of India the force of law. It can-
not be said that this definition within its scope includes natural law or principles of
natural justice. Therefore, there seems to be no justification to give the meaning ofjus
to 'law'.^ The right secured by Article 21 is available to every person, citizen or non-
citizen. Thus, even a foreigner can claim this right.^^ Article 21 applies only to natural
persons. It has no application to corporate bodies. Liquidation of a society cannot,
thus, be equated to deprivation of life or personal liberty, ^Article 21 can be claimed
only when a person is deprived of his "Life" or 'personal liberty" by the "State" as
defined in Article 12. Violation of the right to personal liberty by a private individual is
not within the purview of Article 21 . ^

'Life' as observed by Field in Munn v. Illinois (1877) 94 US 113 (142) means

something more than mere animal existence and the inhibition against the depriva-
tion of the life extends to all those limits and faculties through which life is enjoyed.^
The right to life does not merely mean the continuance of a person's animal existence.
It means "the fullest, opportunity to develop one's personality and potentiality to the
highest level possible in the existing stage of our civilization." ^^ The right to life does
not mean the possession of his organs his-arms, legs etc. The right to life, thus means
right to live with full human dignity, without humiliation and deprivation, or denial of any
sort. ^2 Article 21 declares that no person shall be deprived of his life or personal
liberty except according to the procedure established by law. It is true that the Article
is worded in negative term but it is now well settled that Article 21 has both a negative
and an affirmative dimension. ^^ Right to live includes the right to live consistently with

356. Deshtas op.cit. p. 16.

357. Ibid; National Human R/ghte Commission v. State ofArunachal Pradesh, AIR 1996 SC1234.
358. SeethapathiNageshwara Rao v. State ofA.P, AIR 1978, AP .121
359. Vidya Venva v. Shivnarayan, AIR 1956 SC 108.
360. Kharak Singh v. State of UP ,AIR 1963 SC 1295:1963 (2) Cr.U 329; see also Krisha & others v.
State ofKamataka, AIR 1989 Kamakata, 291.
361. Kumar, Narender, op. c«f., p. 196; A note of Fundamental Rights by, B Shiva Rao, Framing of India's
Constitution, II; 1967,41 K.T.Shah ; supranote3^8
362. Kharak Singh v. State ofUPA\R^ 963 SC 1295.
363. UnniKrishnan v. State ofA.P, AIR 1993 SC 2187 para 133.
 85

human dignity and decency. ^ T h e definition of "life" has undergone a drastic change
in the history of mankind. In the beginning "life" was brutish and short as observed by
Hobbes. Then nutrition, clothing and shelter became its inseparable parts. The Su-
preme Court of India in Francis Coralie ^ U.T. ofDelhi,^ observed that, "the ques-
tion which arises is whether the right to life is limited only to protection of limb or faculty
or does it go further and embrace something more. We think that the right to life
includes the right to live with human dignity and all that goes alongwith it, namely the
bare necessaries of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading, writing and expressing oneself in diverse forms, freely mov-
ing about and mixing and commingling with fellow human beings".^ In Kharak Singh
V. State ofUP.^^ the Supreme Court quoted Field J.S. observation in Munn v. Illi-
nois and held:
By the term "Life" as here used something more is meant than mere
animal existence. The inhibition against its deprivation extends to all
those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by amputation of an arm or leg or the
pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.

Right to life includes the right to live with human dignity and all that goes alongwith
it, namely the bare necessities of life such as adequate nutrition, clothing and shelter
over the head and facilities for reading, writing and expressing one self in diverse
forms freely moving about, mixing and commingling with fellow human beings.^ In
A.K.Gopalan v State of/Wadras,"°the Supreme Court propounded the thesis that
"Personal liberty" in Article 21 was used as a compendious term to Include with in
itself all the varieties of rights which went to make up "personal liberty' of a man minus
the right guaranteed under Article 19(1). In Sunil Batra v Delhi Administration ^^^, the

364. Sunil Batra v. Delhi Admn., AIR 1987 SC 1675.

365. AIR 1981 SC 746.
366. \bid. ,p. 753.
367. AIR 1963 SC 1295.
368. (1877) 94 US 113.
369. AIR 1979 SC 146 p. 152 Para 5.
370. AIR1950SC27
371. AIR 1978 SC 1675
 86

Supreme Court held that the "right to life" prohibited the mutilation of the body or de-
struction of any other organ of the body through which the soul communicates with the
outer world. In another case^^^ the Court held that "the right to life is the most precious
right to human beings in civilised society. Article 21 has both the negative and posi-
tive contents. Positive aspect demands conditions and environment conducive for
living with dignity Its negative contents requires that none should be deprived of his
life- in its broader connotation, without a just, fair and reasonable procedure. The
right to life, does not mean the continuance of a person's animal existence but a right
to the possession of each of his limbs and faculties by which life is enjoyed."^'^ The
expression 'life' assured in Article 21 does not connote mere animal existence or
continued drudgery through life. It has a much wider meaning which includes right to
livelihood, better standard of life, hygienic conditions in work place and leisure facili-
ties. 374
Right to live is a fundamental right under Article 21 of the Constitution and it
includes the right of enjoyment of pollution free water and air for full enjoyment of life. If
anything endangers or impairs that quality of life in derogation of laws, a citizen has
right to have recourse to Article 32 of the Constitution for removing the pollution of
water or air which may be detrimental to the quality of life. ^^^

(i) ARE PRISONERS PERSONS?

The right to life and personal liberty is available to "person" and question arises
whether these rights are available to prisoners and are they persons? The Supreme
Court came up with the answer in Sunil Batra v Delhi Administration, ^^^ and ob-
served that "yes, of course. To answer in the negative is to convict the nation and the
Constitution of de-humanization and to repudiate the world legal order, which
recognises rights of prisoners in the international covenant on prisoners. Rights to
which our country has signed assent Thus in a democratic society governed by the

372. Francis Coralle v. UTofDeiiil, AIR 1981 SC 746.

373. Ibid.
374. Consumer Education and Researcti Centre v. Union of India, (1995) 3 SCC 42; see also
O.P. Gupta V. Union of India, AIR 1987 SC 2257; Deshta, Sunil, Deshta, Kiran, op.cit., p. 71
375. Subash Kumar v. State of Bihar, AIR 1991 SC 420.
376. AIR 1980 SC 1579.
 87

concept of Rule of law even the rights of accused are sacrosanct for though accused
of an offence he does not become a non person."^^ The duty of the authority is to give
effect to court sentence and "to give effect to the sentence means that it is illegal to
exceed it so it follows that a prison official who goes beyond mere imprisonment or
deprivation of locomotion and assaults or otherwise compels the doing of things not
covered by the sentence acts in violation of Art 19. Punishments of rigorous impris-
onment oblige the inmates to do hard labour, not harsh labour and so a vindictive
officer victimising a prisoner by forcing on him particularly harsh and degrading job,
violates the laws' mandate."^^ Human dignity is a clear value of our Constitution not to
be bartered away for mere apprehensions entertained by jail officials.^^^The Supreme
Court while rejecting the contentions of jail authorities and emphasising rights of pris-
oners observed that "we cannot agree that either the Section or Rules can be read in
the absolutest expansionism the prison authorities would like us to read. That would
virtually mean that prisoners are not persons to be dealt with at the mercy of the prison
echelons. This country has no totalitarian territory even within the walled world, we call
prison. Articles 14,19and21 operate within the prisons in the manner explained in
Sunil Batra (1), by the Constitution Bench of this Court." ^
A prisoner remains a human being notwithstanding his imprisonment and would
be entitled to those minimum human rights which are inalienable from a human being.
But the court in its quest for fairness or reasonableness, would not question the "penal
policy" behind a law. ^^ To protect a citizen's liberty includes that of an accused, thus
making the right of an accused person as sacrosanct, for though accused of an of-
fence he/she does not become a non-person.^^ jhe founding fathers of the Indian
Constitution inserted in Article 21 that no person shall be deprived of his life or per-
sonal liberty except according to the procedure established by law, which meant fair

377. to/cf. ,at1590.

378. Sunil Batra v. Delhi Admn. ,AIR 1980 SC 1579 p. 1594.
379. Kishor Singh v. State ofRajasthan, AIR 1981 SC 625 at p.630
380. \bid.
381 Ray, Alok , "The Human Rights of Undertrial Prisoners Under International and National
Nornis", Central India Law Quarterly, Vol X, III (1997), p-296 at p 306.
382. Cr.L.J 1980 Journal section page 17.
 88

legal procedure.^ The protection of this Article is available to citizens as well as non
citizens, and extends even to a convict behind prison bars subject only to limitation
imposed by his conviction under the law. ^Convicts are not, by mere reason of the
conviction, denuded of all the fundamental rights which they otherwise possess
Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of
the Constitution that he shall not be deprived of his life or personal liberty except ac-
cording to procedure established by law. ^ Dr. Paras Diwan had rightly observed,
that, "The Supreme Court has dwelt length on all aspects of personal liberty which
gives reality and meaning to the right to liberty These relate to the full enjoyment of
personal liberty of an individual without any fetters and unreasonable and unfair re-
strictions. The remari^able feature of the development of the right to dignity is that the
Supreme Court has been upheld the dignity of a person who is behind the bars". ^
A person accused of a crime, historically speaking, at one time was consid-
ered as an evil and was condemned with all possible brutalities.^^ In the process of
implementing the sentence authorised by courts, jail authorities can not exceed the
limits and can't impose their own orders. It was held in Sunil Batra's c a s e ^ that for
example, a prisoner if forced to carry night soil, may seek a habeas writ. 'Hard labour'
in Sec. 53 (of Prisoners Act, 1900) has to receive a humane meaning. A giri student
or a male weakling sentenced to rigorous imprisonment may not be forced to break
stones for nine hours a day. The prisoner can't demand soft jobs but may reasonably
be assigned congenial jobs. Sense and sympathy are not enemies of penal asy-
lums.^ The prisoner or detenue, obviously cannot move freely by going outside the
prison walls nor can be socialise at his free will with persons outside the jail. But, as
part of the right to live with human dignity and therefore, as a necessary component of
the right to life, he would be entitled to have interviews with the members of his family

383 See Rao, B. Shiva , A Study, NM Tripathi Pvt. Ltd., Bombay, (1968), pp. 231-237;see C.A.
Debates, Vol. VII, pp. 843-5 ;see also Iyer, VR. Krishna, Of Law and life
384 Bhusar v. State ofA.P ,AIR 1974 SC 2092; Sunil Batra v. Delhi Administration, AIR 1978 SC
1875 (Para 53,57,164,212).
385. J .Y.V.Chandrachud in D.B.Patnaik v. State ofA.P. ,(1975), 2 SCR 24.
386. See Diwan, Paras ^ Consitution of India ( 1st edn. )
387. Chaturvedi, A.N., op.cit., p-8.
388. Sunil Batra v. Delhi Admn., AIR 1980 SC 1579.
389. Ibid., p. 1594.
 89

and friends and no prison regulation or procedure laid down by prison regulation regu-
lating the right to have interviews with the members of the family and friends can be
upheld as Constitutionally valid under Articles 14 and 21, unless it is reasonable, fair
and just. ^Thus, it is now clear law that a prisoner wears the armour of basic freedom
even behind bars and that on breach thereof by lawless officials the law will respond
to his distress signals through 'writ' aid. The Indian human has a constant companion
- the Court armed with the Constitution. The weapon is habeas, the power is Part - III
and projectile is Batra.^'^
Taking one's own life intentionally and voluntarily i.e. suicide, was objected by
Plato and Aristotle on the ground that the State loses a citizen. The verdict of the
Supreme Court holding that right to life under Article 21 of the Constitution does not
include 'right to die' or 'right to be killed' settles the debate on this issue by laying
down the law that one cannot take away one's own life and cannot also permit to
deprive him of it. The 'right of life' include the right to live with human dignity would
mean the existence of such a right upto the end of natural life. Therefore, 'right to life'
includes the right to be a dignified life upto the point of death including a dignified
procedure of death. In other words, this may include the right of a dying man to also
die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end
of life is not to be confused or equated with the 'right to die' an unnatural death curtail-
ing the natural span of life. ^

(ii) PERSONAL LIBERTY AND ACCUSED

Article 21 guarantees "Right to life and personal liberty". The personal liberty
of the individual was ensured even during Kautilya's time when the accused was kept
in Judge's prison house. Arthasastra provides "For hindrance of sleep, sitting down,
meals, answering calls of nature, or movement, putting fetters (in judge's lock up or in
prison house) the fine shall be three panas increased by three panas for him who

390 Francis Coralie Mullin v. The Administrator, UT of Delhi Aothers, AIR 1981 SC 746.
391. Ibid, p 1591; The Batra's case referred here is earlier case of Sunil Batra v. Delhi
Administration, AIR 1978 SC 1675: (1979) 4 SCC 494 at p 495.
392. Deshta, Sunil,Deshla .KIran, op. at., p. 7; Seeabo Krishna, Bal, "Whose Death isitAnywayT, TheHtxkJStan
Times, March 24,1996, p. 12.
 90
does it and for him who cause it to be done successively." ^^ The word liberty, derived
from Latin words liber and libertus, Is defined In Encyclopedia Britanica as a ''State
of freedom" which is "specially opposed to political subjection, imprisonment or sla-
very (emphasis added).3** Harold J. LaskI, argues that liberty Is essentially an ab-
sence of restraint, ^ and he further clarified that liberty Is a positive thing. It does not
merely mean absence of restraint. ^ Liberty is the right to do whatever the laws
permit. ^^ Right to personal liberty Is one of the most, if not the most important, of the
human rlghts.^The "personal liberty" was given narrow Interpretation by the Supreme
Court In A.K.Gopalan v. State of Madras.^ The Court held that word "liberty" was
qualified by the word "personal" which was a narrow concept and the expression "per-
sonal liberty" did not include all that was implied in the term "liberty". The expression
"Personal liberty" meant nothing more than the liberty of the physical body I.e. free-
dom from arrest and detention from false imprisonment or wrongful confinement. * "
The Constitution In Article 21 has used the words personal liberty which have definite
connotation in law. Personal liberty does not mean only liberty of that person but
means liberty or the rights attached to the person (jus personam).'^'^ According to
Kania, C.J., 'Personal liberty' would pnmarily mean liberty of the physical body'"^
Patanjall Santri J. also described that' personal liberty' meant 'freedom from bodily
restraint' ^ In Kharak Singh v. State ofUP,^ the Court while abandoning restrictive
view, held that "personal liberty" Is used in Article 21 as a compendious term to in-
clude within itself all the varieties of rights which go to make up the personal liberty of
a man other than those dealt with in the several clauses of Article 19(1). While Art

393. Kautllya , Arthashastra, Book (Iv) Chapter 9 Section 21.

394. Enclylopaedia Britanica (1966) Vol. 13 p. 1029.
395. Laski, Harold, J., Liberty in the Modem State (1954), p. 48.
396. Laski, Harold J., Grammar of Politics (fourth edition),p.142
397. Montesquieu.
398. Khanna,J,,KLJ1978,Vol.4p. 133.
399. AIR1950SC27.
400. Ibid.
401. A.K. Gopaian v. State of Madras, AIR 1950 SC 27.
402. ibid p. 37.
403. \bid p. 69.
404.. AIR 1963 SC 1295.
 91
19(1) deals with particulars species of attributes of that freedom, 'personal liberty' in
Article 21 takes in and compromises the residue. *°^ "Personal Liberty" includes many
freedoms like freedom to move freely, freedom from physical restraint, freedom to
speak, write, worship etc. It also includes right to livelihood. ^°^ Justice Mukherjee
held*"^ in A. K. Gopalan's case that "In ordinary language 'personal liberty' means
liberty relating to or concerning the person or body of the individual and personal
liberty' in this sense is the anti-thesis of physical restraint or coercion". While refer-
ring to Dicey's definition of personal liberty, he said"... It is in my opinion this negative
right of not being subjected to any form of personal restraint or coercion that constitute
the essence of personal liberty and not mere freedom to move to any part of the Indian
territory. '*°^ In A.K.Gopalan v. State of Madras, ''"^he court held that personal liberty
inter alia includes the right to eat or sleep when one likes or to work or not to work as
and when one pleases and several such rights. The Supreme Court struck down the
U.P. Police Regulation under which Police was resorting to domiciliary visits and sur-
veillance was held as violative of personal liberty of the petitioner. The Court laid
down that an unauthorised intrusion into a person's home and the disturbance caused
to him thereby violated his right to "personal liberty" enshrined in Article 21 .''^°While
identical matter came before Supreme Court in Gov/nd v. State ofM.P.^^^ In this case
impugned Regulation No 855 and 856 were held to have force of law and it was also
held that they were not violative of Article 21 as framed by Govt. Of Madhya Pradesh
under Section 42(2)(c) of Police Act and the Kharak Singff^^ was overruled. How-
ever the domiciliary visits were held Constitutionally valid in GovindM. StateofMP*^^
after 12 years. The horizons of 'personal liberty' were expanded and scope was
broadened by assigning new and dynamic meaning to the right 'personal liberty' in

405. \bid.
406. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 at p. 180
407. Supra note 66-A p. 96.
408. Ibid. p. 97.
409. AIR 1950 SC 27.
410. Ibid.
411. AIR 1975 SC 1378.
412. AIR 1963 SC 1295.
413. AIR 1975 SC 1379.
 92

the case of Maneka GandhN. Union oflnaia. '*^''The Court held that the expression
'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of a man and some of them have
been raised to the status of distinct fundamental rights and given additional protection
under Article 21 .''^^The Court also held that "The law must, therefore, now be settled
that Article 21 does not exclude Article 19 and that even if there is a law prescribing a
procedure for depriving a person of personal liberty, and there is consequently no
infringement of the fundamental right conferred Article 21 such a law in so far as it
abridges or takes away any fundamental right under Article 19, would have to meet
the challenges of that Article.''^^
In Francis Coralie Mullin v. Administration UT of Delhi, "^^ the petitioner a
British national detained under C.O.F.E.P.O.S.A. in Tihar Central Jail was experienc-
ing considerable difficulty in having interview with her lawyer and members of her
family. To have interview with the petitioner prior appointment of District Magistrate,
Delhi was required and interview could be held in the presence of Custom Officer
nominated by Collector of customs and that too once in a month. These restrictions
on interview were imposed by prison authorities by virtue of clause 3(b) of sub clause
(i) and (ii) of the condition of detention laid down by Delhi Administration. These re-
strictions were challenged and the court observed:
The right of a detenu to consult a legal adviser of his choice for any
purpose not necessarily limited to defence in a criminal proceeding but
also for securing release from preventive detention or filing a writ peti-
tion or prosecuting any claim or proceeding, civil or criminal, is obvi-
ously included in the right to live with human dignity and is also part of
personal liberty and the detenu cannot be deprived of this right nor can
this right of the detenu be interfered with except in accordance with
reasonable, fairandjustprocedure established by a valid law. A prison
regulation may, therefore, regulate the right of a detenu to have inter-
view with a legal adviser in a manner which is reasonable, fair and just
but it cannot prescribe an arbitrary or unreasonable procedure for regu-

414. AIR 1978 SC 597

415. Ibid.
416. Ibid
417. AIR 1981 SC 746; 'COFEPOSA' means the Conservation of Foreign Exchangeand Prevention of
Summugling Act.
 93
lating such an interview and if it does so, it would be violation of Articles
14 and 21 ""^^ (emphasis added).

The rights relating to the criminal justice are not only ensured to the citizens of
India, but ensured to foreigners also. The Supreme Court decided that the rights
guaranteed under the Articles 20,21 and 22 of the Constitution can be claimed even
by foreigners.'•^^
(iii) RIGHT TO PRIVACY AND ACCUSED
The "right to privacy" is not specifically provided in the Constitution of India. In
Rajgopal v. State of Tamil Nadt/^°, the scope of "right to privacy was explained by
the Supreme Court and it was held to be implicit in the "right to life and personal
//berty"guaranteed under Article 21 of the Constitution. The Court held that the "right
to privacy" meant a "right to be let alone" The Court observed that "A Citizen has a
right to safeguard the privacy of his own, his family, marriage, procreation, mother-
hood, child bearing and education among other matters. None can publish anything
concerning the above matters without his consent - whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of
the person concerned and would be liable in an action for damage.""^^ The court fur-
ther held that there would be no violation of right to privacy if person concerned "volun-
tarily thrusts himself into controversy or voluntarily invites or raises a controversy" The
court also recognised the exception to the rule where publication is based on public
record the right to pnVacy would no longer be available. However, court held that a
female, who was victim of sexual assault, kidnapping, abduction or a like offence
should not be further subjected to indignity by publishing her name in press/media. *^

Privacy is a confusing and complicated idea. It denotes the seclusion or with-

drawal of an individual from public affairs. The temn "privacy" defined as an outcome
of a person's wish to withhold from others certain knowledge as to his past and present
experience and action and his intention for the future : a desire to be an enigma to

418. Ibid. 754.

419. Anwar v. State ofJammu and Kashmir, AIR 1971 SC 337.
420. AIR 1995 SC 264.
421. Ibid.
422. Ibid.
 94
others or to control others perceptions and beliefs about the self. "^3 The right to pri-
vacy is not envisaged in particular Article of the Constitution but envisaged in Part-Ill
of the Constitution. Justice Mathew observed in Govind's case '^^'•that "Rights and
freedoms of citizens are set forth in the Constitution in order to guarantee that the
individual, his personality and these things stamped with his personality shall be free
from official interference except where a reasonable basis for intrusion exists. "Lib-
erty against government", a phrase coined by Professor Corwin, expressed this idea
forcefully. In this sense, many of the fundamental rights of citizen can be described as
contributing to the right to privacy. "^^ The shield of privacy under Article 21 of the
Constitution was used for the first time in Kharak Singh v. State of U.P. ^^^ The Su-
preme Court discussed various aspects of right of privacy in the instant case. The
majority judges of Supreme Court held that Regulation 236 (b) of the UP Police Regu-
lations which authorised domiciliary visits was violative of Article 21 as there was no
law on which the same could be justified, it was unconstitutional. '•^^ In 1954 Justice
Jagannathdas observed that the Constitution of India did not recognise the right to
privacy and there is no justification to import it by some process of strained Constitu-
tion. "28 In Govind v. State ofM.P^^^ it was held that right to personal liberty, and the
rights to move freely and speech could be described as contributing to the right to
privacy. However, the right was not absolute and would always be subjected to rea-
sonable restrictions. The right would necessarily have to go through a process of
case by case development. *^ F.S.Nariman, while commenting upon Govind's case"^^
observed" the right to privacy had two rounds in court-first before a Bench of 8 then
before a Bench of 6. In both it had been buried - a more appropriately, burnt to a
cinder. But the ashes of lost freedoms are ever smouldering. In Govind the cherished

423. Sidney, M. Journard, Some Psychological Aspects of Privacy; Law and Contemporary
Problems (1966),p.307
424. Govind v. State ofM.P, AIR 1975 SC 1378
425. Ibid, p 1385.
426. AIR 1963 SC 1295
427. Ibid.
428. M.P. Sharma v. Satisti Ctiandra, AIR 1954 SC 306,307.
429. AIR 1975 SC 1378
430. Ibid; see also Kumar, Narender,op.c/f., p 207.
431. AIR 1975 SC 1378.
 95
right has arisen phoenix-like from the ashes . . . . Neatly side stepping the ratio of
larger benches the court has given the right a new base of life."''^^ In a recent case, '•^^
the Supreme Court held that even a woman of easy virtue was entitled to the "right to
privacy" under Article 21 and that no one could invade her privacy as and when he
liked.'^^The right to privacy has been upheld by several High Courts. "^^
James Madison's draft of Bill of Rights which later became Fourth Amendment
to Constitution of USA reads'*^^, "The right of the people to be secured in their per-
sons, houses, papers and effects, shall not be violated by warrants issuing without
probable cause, supported by an oath or affirmation, and not particularly describing
the place to be searched or the persons or things to be seized."*^^ Elbridge Gerry
modified draft of James Madison by changing "secured" to secure and inserted the
clause "against unreasonable searches and seizures" in the original draft. The words
"by warrants issuing" also changed to "and no warrant shall issue" by some other
delegate."*^^ Thus, the Fourth Amendment to the U.S.A. constitution which was finally
enacted, reads:
The right of the people to be secure in their persons, houses, papers
and efforts, against unreasonable searches and seizures, shall not be
violated and no warrants shall issue, but upon probable cause, sup-
ported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The basic purpose of this amendment, as recognised in countless decisions
.... is to safeguard the privacy and security of individuals against arbitrary invasion by

432. Nariman, F.S., "The Right Tobe Let Alone-A Fundamental Right",{1979). XVII, Thelndian
Advocate, 1180-81.
433. State ofMaharastra v. MadhulkarNarain, AIR 1991 SC 207; Re Ratanmala AIR1962 Mad. 31
434. Ibid.
435. Ganesti Lai v. Smt. Rasool Fatima, AIR 1977 Alii 18; Kaur Sain v. Bibi Birender Kaur,
AIR 1971 P&H 489; SyedHabib Hussain v. Kamal Chand, IR1969 KeshaoSahu v. Dasaratti
Sahu, AIR 1961 On, 154; Gulab Chand Goppa Lai Sarawgi v. Manik Chand Gulab Chand Sarawgi,
AIR 1960 MP 263; Bhaijgovind Chunilal Sewak v. Heera Lai Gordhandas Sevak, AIR 1942
Bom.217.
436. Elliot, Jonathan; (ed) The Debates In The Several Conventions On The Adoption Of The Fedral
Constitution, (New Yord: Burt Franklin, 1974), pp. 448-49; This draft was later modified by
Elbridge Gerry.
437. Ibid.
438. Landynsl^y W. Jacob, Search and Seizure and the Supreme Court, (Beltimore, John Hopkins
press, 1966), p 14.
 96
government officials. The Fourth Amendment thus gives concrete expression to a
right of people which is basic to a free society."^^
The quality of nation's civilization can be largely measured by the methods is
uses in the enforcement of criminal law."^" In India "Criminal Procedure Code pennits
search and seizure, while the Indian Constitution guarantees specifically neither the
right to privacy nor right against search and seizure."'^^ The Supreme Court of USA
recognised that" the security of one's privacy against intmsion by police is....basis
for a free society and is implicit in the concept of ordered liberty." '^^ Plato had laid
down centuries ago the procedure for searches that" If a person wishes to find any-
thing in the house of another, he shall enter naked or wearing only a short tunic and
without a girdle having first taken an oath by the customary goods that he expects to
find it there; he shall then make his search and other shall throw open his house and
allow him to search things both sealed and unsealed." ^^ The Supreme Court of U.S.A.
has held that any evidence secured as a result of the illegal search is inadmissible in
a criminal prosecution. Hence, all the lawful searches are, permissible and unlawful
searches are prohibited. The Supreme Court of U.S.A. once again declared that, it
must always be remembered that what the Constitution forbids is not all searches and
seizures, but unlawful searches and seizures. *** A search is inevitable in case of an
arrested person. The policemen are empowered by law to enter the premises, by
force if necessary to search for possible evidence. Search and seizure is an impor-
tant part of the pretrial process of case. But, it encroaches upon a person's privacy
and sanctity of his home. It has beenrightlyobserved that an intrusion of one's privacy
is demanding to individuality and is an affront to personal liberty. '"^

439. US Supreme Court in Canara Municipal Court Case.,(i) 387 US 523(1967); see also See v.
City of Seattle 387 US 541 (1967).
440. Schaefer, Prof,, Federation and State Criminal Procedure, 7 Har L, Re -1,26, (1956).
441. Hydervaii, B., "The Constitution of India and the Accused", Indian Bar Review, Vol.16 (3&4)
1989p372.
442. Wolf V. Colorde.. 338 US 25 (1949) at pp 27-28.
443. Plato, quoted in Symposium, "Constitutional Problem in the Administration of Criminal Law"
59 North Western University Law Review, 6n {^ 984/85).
444. Etkin v US 364 US 206, 222 (1960)
445. Bioustein, Edward. J., "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser",
39, New York University Law Review. 970 (1984).
 97
Indian legal system prohibits intruding life and dignity of anyone. A police of-
ficer should not proceed to anyone's house without knocking the door otherwise it
constitute misuse of police powers. ^^ The search of places or persons can be car-
ried out by police officer or any other person under various provisions of Cr.P.C. *^^
while upholding validity of Section 96 of Cr.P.C. 1898 (Section 93 of Cr.P.C, 1973)
the Court held that" the power of search and seizure is in any system of jurispaidence
an overriding power of the State for the protection of social security and that power is
necessarily regulated by law. ^^ There is no law that the search officer and witness is
required to give their personal search before entering into a house or a place to be
searched. However, this must be done in every case as the judiciary hold established
principle that personal search avoids the chances of implanting the alleged article. '"^
Unlike the Constitution of U.S.A., the Constitution of India does not guarantee right
against unreasonable search and seizure and law provides for a procedure where
under search can be effected by police officer or other person under a warrant. ^^ The
policy of the law is that each individual accused included, by virture of his guaranteed
dignity, has a right to a private enclave where he may lead a free life without overbear-
ing investigatory invasion or even crypto-coercion.''^^An Indian citizen's house, it
must always be remembered, as his castle, because next to his personal freedom
comes the freedom of his home. Just as a citizen cannot be deprived of his personal
liberty except under authority of law, similarly no officer of the State has a prerogative
right to forcibly enter a citizen's house except under the authority of law.... ."^^
The privacy of communication during marriage is also protected. "No person
who is or has been married, shall be compelled to disclose any communication made

446. T Jacob V. State of Kerala, AIR 1971 Ker 166,

447. See Chapter VII CrPC. Sees., 91 to 101; See also Sees. 47, 51 & 100 Cr.P.C.. 1973.
448. M.P. Sharma v. Satish Chandra, AIR 1954 SC 306,307.
449. Jul Mohan Ram v. the State, AIR 1981 CrLJ Noc 223 (Delhi); See also State of Bihar v. Kapil
S/ng/?,1969CrLJ278(SC); Cherian Lukose v. State, 1968Cr.U 171 (Kara),
450. See chapter VII Cr.PC, 1973 ; also see Sections 91 to 101, 47, 51 & 100 Cr.PC 1973.
451. Nandini Satpathy v.. PL Dani, AIR 1978 SC 1045.
452. State v. Bhawani Singh, AIR 1968 Del, 208, at p 211 (F,B); see l\/felicio Fernandes v. Mohan,
AIR 1966 Goa 23 at p 32; Emperor v. Mohammad Shah, AIR 1946 Lah. 456 at p 458.
 98

to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication, under the person who made it or
his representative-in interest consents except in suits between married persons or
proceedings in which one married person is prosecuted for any crime committed
against the other.""^^ Similarly, no barrister, attorney, vakil or pleader can be permit-
ted to disclose professional communication between him and the client."^

(iv) PROCEDURE ESTABLISHED BY LAW

Article 21 provides that no person shall be deprived of his life or personal
liberty except according to procedure established by law.''^^ The term "procedure es-
tablished by law" has been a subject matter for interpretation in the catena of cases."*
"On the plain reading of this Article, the meaning seems to be that you cannot deprive
a man of his personal liberty, unless you follow and act according to the law which
provides for deprivation of such liberty, the expression 'procedure' means the man-
ner and form of enforcing the law.''*" Das J, observed that the temri 'procedure' refers
to some step, manner or method of proceeding to the deprivation of life or personal
liberty.'*^^ But it does not give any vested right to any particular fomn of procedure. *^^
Procedure established by law in Article 21 meant the law prescribed by Pariiament at
any given point of time. Pariiament has the power to change the procedure by enact-
ing a law or amending it, and when the procedure is so changed, it becomes the
procedure established by law.'*®" No law can deprive a person of his life or personal
liberty unless it prescribes a procedure which is reasonable, fair and just and it would
be for the court to determine whether the procedure is reasonable, fair and just and if

453. See Section 122 of Indian Evidence Act, 1872.

454. ibid.
455. See Art. 21; The expression 'procedure established by law' has been borrowed from Article
31 of the Japanese Constitution of 1946.
456. A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Jagmohan Singfi v. State of UP, (1973)
ISCC471., R WA/fa//can/V. State of Maharastitra, AIR 1973, SC 157; Maneka Gandhi v. UOI,
AIR 1978 SC 597; M.H. Hoskot v. State of Maharastitra, AIR 1978 SC 1539.
457. A K Gopalan v.. State of Madras, AIR 1950 SC27; This is the observation of Justice B K
Mukherjee.
458. Ibid.
459. Abdul Khadar v. State of Mysore, AIR 1951, Mys. 72 (F.B.)
460. AIR 1967 SC 1639 (1642): AIR 1951 SCR 621.
 99
it is not, the court will strike down the law as invalid. "^^ The Supreme Court in another
case observed that no person shall be deprived of his life or personal liberty except
according to fair, just and reasonable procedure established by a valid law."''^^ But the
mere prescription of some kind of procedure cannot ever meet the mandate of Article
21. The procedure prescribed by law has to be fair, just and reasonable not fanciful,
oppressive or arbitrary/^^The principle of reasonableness, which legally as well as
philosophically is an essential element of equality or nor arbitrariness pervades Ar-
ticle 14 like a brooding omnipresence and the procedure contemplated by Article 21
must answer the test of reasonableness in order to be conformity with Article 14. It
must be "right and just and fair" and not arbitrary, fanciful or oppressive, othenwise it
would be no procedure at all and the requirement of Article 21 would not be satisfied.
^^ Again the court reiterated Maneka Gandhi's case "^^in C. Ramkonda Reddy v.
State ofAP'^ that "though our Constitution did not adopt the words "due process of
law" and choose to employ in their place, the words "procedure established by law",
the distinction if any, between the two expressions has become academic, in view of
the decision of the Supreme Court in Maneka Gandhi."^^ It is held in Maneka Gandhi
that the procedure contemplated by Article 21 should be fair and reasonable; that it
should be "right and just and fair" and not arbitrary, fanciful or oppressive othen^/ise it
was held, it would be no procedure at all, and the requirements of Article 21 is so
fundamental and basic that no compromise is possible with this right. It is 'non nego-
tiable'. This is the minimum requirement which must be guaranteed to enable a citi-
zen to live with human dignity. The State has no right to take any action which will
deprive a citizen of the enjoyment of this basic right except in accordance with a law
which is reasonable, fair and just.""^^ When, in a matter arising under Article 21, the
person aggrieved is found to have been totally deprived of his personal liberty or is
being deprived of his right to life, the burden of proving that the procedure established

461. Maneka Gandhi v.. UOI, AIR 1978 SC 597.

462. Bachan Singh's case, AIR 1980 SC 384.
463. Chandrachud ,J. in IVIaneka Gandhi v. UOI A\R, 1978 SC 597 at 613.
464. Justice Bhagwati, P N., Justice in Maneka Gandhi v. UOI, AIR 1978 SC 597 at 624.
465. Ibid.
466. AIR 1989 AP 235.
467. AIR 1978 SC597.
468. Supra note 467 at p. 247.
 100

by law for such deprivation is just, fair and reasonable lies heavily upon the State.'^^
In Attorney General of India v. Lachma Devi, ^^° an order passed by Rajasthan
High Court for public hanging was set aside by the Supreme Court on the ground inter
alia, that public hanging is un-constitutional and violative of Article 21 of the Constitu-
tion. The Court held that even if the crime committed by the accused was barbaric,
disgraceful and a shame on any civilized society which no society should tolerate "a
barbaric crime does not have to be visited with a barabric pernalty such as public
hanging."'*^^
The term "procedure established by law" came before Supreme Court for in-
terpretation in A. K. Gopalan v. State of Madras. '•^^The petitioner, a communist
leader, detained under the Prevention Detention Act, 1950 contended that the Act
was violative of Article 21 since it did not prescribe the deprivation of his personal
liberty in accordance with procedure established by law which was the essence of
Article 21. That the term "law" in Article 21 should be understood as signifying the
universal principles of natural justice and not merely in the sense of an enacted
piece of legislation, He, therefore, argued that a law which did not incorporate the
principles of natural justice, could not be valid under Article 21. It was further argued
that the expression "procedure established by law" meant the same thing as the Ameri-
can phrase "due process of law" "^^ (emphasis added). The Supreme Court rejected
the above contentions and held that "procedure established by law" did not meant
"due process of law" under American Constitution. The Supreme Court while refer-
ring to Constituent Assembly debates held that framers of Constitution deliberately
adopted expression "procedure established by law". It was held by majority of Su-
preme Court that expression meant procedure prescribed by the law of the State. '*''''
The term 'law' used in Article 21 of the Constitution has wide meaning. The term is
explicitly defined in Article 13. In A. K. Roy v. Union of India "^^ the apex court ob-
served that" the contention that word 'law' in Article 21 must be construed to mean a

469. Deena v. UOI, AIR 1983 SC 1155(1169).

470. AIR 1986 SC 467.
471. Ibid.
472. AIR 1950 SC 27.
473. Ibid; see also Kumar, Narender.op.c/f., p.226.
474. Kumar, Narender, op c/f.,p.226; see also A K Gopalan v. State of Madras MR 1950 SC 27.
475. AIR 1982 SC 710.
 101
law made by the legislature only and cannot include an ordinance contradicts the ex-
press provisions of Article 123(2) and 367(2) of the Constitution. Besides ,it an ordi-
nance is not law within the meaning of Article 21 it will stand released from the whole-
some and salutary restraint imposed upon the legislative power by Article 13(2) of the
Constitution. ''^^The words 'except according to procedure established by law' sug-
gest that Article 21 does not apply where a person is detained by a private individual
and not by or under the authority of the State. By the use of words 'established by law"
our Constitution accepts the English principle of the supremacy of law, in preference
to Amercian doctrine of judicial review of legislation, so far as personal liberty is con-
cerned. Therefore, liberty according to this view, is a liberty which is controlled by law.
Law in this expression means State made law or enacted law and not the general
principles like that of natural justice. The procedure established by law thus means
procedure prescribed by legislature. '•^^
(v) HANDCUFFING.FETTERS AND PERSONAL LIBERTY
Handcuffs and fetters are instruments for securing the hands or feet of prison-
ers under arrest or as a means of punishment. "^^ In Sunil Batra v. Delhi Administra-
tion, "^^the Supreme Court laid down that "handcuffing is prima facie inhuman and
therefore, is over harsh and at the first flush arbitrary. Absent fair procedure and
objective monitoring, to inflict "irons" is to resort to zoological repugnant to Article
21"^° in putting bar fetters for an unusually long period without due regard for the
safety of the prisoner and the security of the prison would certainly be not justified. '*^^
In Sunil Batra v. Delhi Administration, "^^the Supreme Court "pronounced that under-
trials shall be deemed to be in custody, but not undergoing punitive imprisonment.
Fetters, especially bar fetters, shall be shunned as violative of human dignity, within
and without prisons. The indiscriminate resort to handcuffs when accused persons
are taken to and from court and the expedient of forcing irons on prison inmates are

476. Ibid, 722.

477. Deshtas, op. cit. p, 63.
478. Encyclopedia Britanica, Vol.11 (1973 Edn.) p.53
479. AIR 1978 SC 1675.
480. Ibid.
481. Ibid.
482. (1979) 1 SCR 392: (AIR 1978 SC 1675).
 102
illegal and shall be stopped forthwith save in small category of cases where an
undertrial has credible tendency for violence and escape a humanly graduated de-
gree of "irons" restraint is permissible if other disciplinary alternatives are unwork-
able. The burden of proof of the ground is on the custodian. Andif he fails, he will be
liable in law. Reckless handcuffing and chaining in public degrades, put to shame
finer sensibilities and is a slur on our culture.""^^ In Prem Shanker v. Delhi Adminis-
tration,'*^ the Supreme Court by majority struck down para 26.22 of the Punjab Police
Rules,, 1934 asviolativeof Articles 14,19 and 21. Para 26.22 provided that every
undertrial who was accused of a non-bailable offence punishable with more than three
years prison term would be routinely handcuffed. The Court ruled that handcuffing
should be resorted to only when there was "clear and present danger of escape" of
the accused undertrial, breaking out of police control. In extreme circumstances, the
application of iron is not ruled out. But, even in extreme circumstances where hand-
cuffs have to be put on the prisoner, it is required that the escorting authority must
record contemporaneously the reasons for doing so. It has been held to be implicit in
Article 21 which "insist upon fairness reasonableness and justice" in the very proce-
dure which authorises stringent deprivation of life and liberty. "^^ In Harbans Singti v.

State of UP, '^^ the Supreme Court has observed :

When undertrials are in jail no fetters are to be used and when they are
taken out of jail, no fetters are to be used and when they are taken out of
jail, extra guards can be posted for security reasons. The court ob-
served "we fail to understand why proper security arrangements cannot
be made in jail to guard these undertrials. Armed guards can be posted
to guard them if security reasons so demand but it seems inhuman to
keep them in fetters while they are awaiting trial wh'ch is delayed, not
withstanding the courts order to expedite them . We are therefore, of
the opinion that while they are in jail proper arrangements may be made
but it is not necessary to keep them in fetters all the time. It will how-
ever, be open to the authorities to place extra security restrictions of the
type they consider appropriate when these undertrials required to be

483. President Citizen for Democracy v. State of Assam, AIR 1996 SC 2193 p.2195: see also
Sunil Batra op. cit
484. AIR 1980 SC 1535.
485. Kumar ,Narencler,op.crf.,p. 216: see also Citizen's for Democracy v. State of Assam,
(1995) 3 s e c 743: AIR 1996 SC 2193.
486. AIR 1991 SC 531.
 103
taken out of jail for any purpose. We, therefore, direct that they will not
be kept in fetters in jail. "^^
In Sunil Gupta v. State of MP, ^««the petitioners who were educated and
social workers were remanded to judicial custody. The court directed the Govt, to
take appropriate action against erring escort party for handcuffing the petitioners
without giving reasons for so doing. '^^
In President Citizen for Democracy v. State of Assam, *8°seven ULFA detenus
were lodged inside the ward of Gawahati Medical Collage Hospital who were
handcuffed and on top of that tied with a long rope to contain their movement. "^^ It
was categorically held in Sukla's case "^^that handcuffing is prima facie inhuman,
unreasonable arbitrary and as such repugnant to Article 21 of the Constitution of In-
dia. To prevent the escape of an under trial is, no doubt, in public interest, but "to bind
a man hand-and-foot, fetter his limbs with hoops of steel, shuffle him along in the
street and stand him for hours in the Courts is to torture him, defile his dignity vulgar-
ize society and foul the soul of our Constitutional culture.""^^ Krishna Iyer J, had ob-
served in Shukla's case that "insurance against escape does not compulsorily re-
quire handcuffing. There are other measures where by an escort can keep safe cus-
tody of a detenue without the indignity and cruelty implicit in handcuffs or other iron
contraptions. Indeed, binding together either the hands or the feet or both has not
merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on
the human person and inflict humiliation on the bearer."^^The three components of
'irons' forced on the human person must be distinctly understood. Firstly to handcuff
is to hoop harshly. Further to handcuff is to punish humiliating and to vulgarize the
viewers also. Iron straps are insult and pain writ large, animalizing victim and keeper.

487. Ibid.
488. (1990) 3 s e c 119.
489. \bid.
490. AIR 1996 SC 2193.
491. The WP was filed by Sh. Kuldip Nayyer, an eminent journalist in his capacity as Presient
of "Citizens for Democracy" by writing letter dated December 22,1991 to the judge of Supreme
Court. The letter was treated as a writ petition under Article 32 of the Constitution.
492. Prem Shanker Shukia v. Delhi Administration, AIR 1980 SC 1535: (1980) 3, SCR 855.
493. Supra note, 489, p..2196.
494. Prem Shanker Shukia v. Delhi Administration, Al R 1980 SC 1535: see also President Citizen
for Democracy v. State of Assam ,AIR 1996 SC 2193 at p. 2197.
 104
Since there are other ways of ensuring security, it cannot be laid down as a rule that
handcuffs or other fetters shall not be forced on the person of an under-trial prisoner
ordinarily as necessarily implicit in Articles 14 and 19 that when there is no
compulsive need to fetter a person's limbs, it is sadistic, capricious despotic and
demoralizing to humble a man by manacling him. Such arbitrary conduct surely
slaps Article 14 on the face. The minimal freedom of movement which even a
detainee is entitled to under Article 19 ( see Sunil Batra supra) can't be cut down
cruelly by application of handcuffs or other hoops. It will be unreasonable so to do
unless the State is able to make out that no other practical way of for bidding escape
is available to prisoner being so dangerous and desperate and the circumstances so
hostile to safe keeping... But even here, the policeman's easy assumption of scary
apprehension or subjective satisfaction of likely escape if fetters are not fitted on
the prisoner is not enough. The heavy deprivation of personal liberty must be justifi-
able as reasonable restriction in the circumstances, ignominy. Inhumanity and afflic-
tion, implicit in chains and shackles are permissible, as not unreasonable, only if ev-
ery other less cruel means is fraught with risks or beyond availability. So it is that to
be consistent with Arts. 14 and 19 handcuffs must be last refuge, not the routine regi-
men. If a few more guards will suffice,then no handcuffs.lt a close watch by armed
policemen will do, than no handcuffs. If alternate measures may be provided, then no
iron bondage. This is the legal norm. "^^ In President Citizen for Democracy v. State
Assam, "^ the Court laid down following rules with regard to handcuffing:

i) The police and jail authorities are under public duty to prevent the escape of
prisoners and provide them with safe custody but at the same time the rights of
the prisoners guaranteed to them under Articles 14,19 and 21 of the Constitu-
tion of India cannot be infracted. The authorities are justified in taking suitable
measures, legally pemnissible to safeguard to the custody of the prisoners, but
the use of fetters purely at the whims of subjective discretion of the authorities
is not permissible. "^^^
ii) Handcuffs or other fetters shall not be forced on a prisoner - convicted or

495. Ibid.
496. AIR 1996 SC 2193.
497. Ibid., p. 2197.
 105
under trial -while lodged in a jail anywhere in the country or while transporting
or in transit from one jail to another or from jail to court and back. The police
and the jail authorities, on their own, shall have no authority to direct the hand-
cuffing of any inmate of a jail in the country or during transport from one jail to
another or from jail to court and back. "^^
iii) Where the police or the jail authorities have well grounded basis for draw-
ing a strong inference that a particular prisoner is likely to jump jail or break out
of the custody then the said prisoner be produced before the Magistrate con-
cerned and a prayer for permission to handcuff the prisoner be made before
the said Magistrate. Save in rare cases of concrete proof regarding prone-
ness of the prisoner to violence, his tendency to escape, he being so danger-
ous / desperate and the finding that no such practical way of forbidding es-
cape is available, the Magistrate may grant permission to handcuff the pris-
oner.-^^^
iv) In all cases where a person arrested by police, is produced before the
Magistrate and remand - judicial or non-judicial is given by the Magistrate the
person concerned shall not be handcuffed unless special orders in that re-
spect are obtained from the Magistrate at the time of the grant of the remand.^°
v) When police arrests a person in execution of a warrant of arrest obtained
from a Magistrate, the person arrested shall not be handcuffed unless the po-
lice has also obtained orders from the Magistrate for the handcuffing of the
person to be so arrested. ^°^ /
vi) Where is person is arrested by the police without warrant the police officer
concerned may if he is satisfied, on the basis of the guidelines given.... that it
is necessary to handcuff such a person, he may do so till the time he is taken to
police station and thereafter his production before the Magistrate. Further use
of fetters thereafter can only be under the orders of the Magistrate.... ^°^

498. /b/d.,p.2198.
499. Ibid.
500. Ibid.
501. Ibid.
502. ibid.
 106
An undertrial person should not be handcuffed and also be not taken into pro-
cession through the streets which would amount to violation of principles against
humanity. Recently.the Supreme Court held in State of Maharashtra v. RabikantS.
Patil, ^°^ that handcuffing of an undertrial and taking him in a procession through the
streets of the city is against the principles of humanity and Article 21 of the Constitu-
tion.^°^ The court further held thjat the undertrial concerned should be compensated
for such act. ^^

(vi) SURVEILLANCE AND PERSONAL LIBERTY

Surveillance means" vigilant supervision" or "spy like watching". It has been
defined as the covert observation of places, persons and vehicles for the purpose of
obtaining information concerning the identities or activities of subjects." ^"^Surveil-
lance is not the new concept in the police administration . Notwithstanding variation
in its methodology, it has been recognised as one of the basic police functions from
the earliest times. In ancient India, crime could be prevented and criminals could be
controlled timely by organising patrol and surveillance. The Arthasastra of Kautilya
refers to the existence of a network of spies to assist the police, ^°^ thereby leaving no
room for doubt that surveillance was quite effective during this period. This is further
confimried by seizure of criminals on suspicion or while committing crime.^°^ Article 21
of the Constitution ensure personal liberty and on the other hand police has to resort
to surveillance to check activities and movement of individuals to prevent commission
of offences and to safeguard the community. Surveillance may be pre-conviction or
post conviction and it is done by way of domiciliary visits, picketing or shadowing.
It was pointed out by some of the experts that the traditional methods of surveil-
lance led to infringement of freedom and personal liberty guaranteed in the Constitu-
tion. Despite this police continued to persist with the old system of surveillance in the

503. 1991 (2)SCJ,54:(1991)2SCC373.

504. ibid.
505. ibid.
506. Hara, Charles.E.O., Hara.G.L.O., Fundamentals of Criminal Investigation ,pp. 193-194.
507. Sastry R. Shama., Kautilya in Arthasastra, pp. 17-19.
508. \bid. p.243.
 107
absence of a more suitable alternative. ^°^The traditional method of surveillance was
challenged in Kharak Singh v. UP. ^^"Though surveillance was held to be lawful but
court also observed that this method should be adopted for those persons who are
clear cases of danger to community security and should not be adopted in routine
after every conviction . Kharak Singh was a history sheeter and he was kept under
surveillance while police made domiciliary visits to check his presence in the house at
odd hours as per regulations of U.P. police. This was challenged by him in Supreme
Court as violative of right to life and personal liberty. Supreme Court held that life does
not mean animal existence but to live with human dignity and interference in the per-
sonal liberty of individual violates fundamental right under Article 21 of the Constitu-
tion. ^" Later on the same question came before Supreme Court in Govindv. State of
Madhya Pradesh. ^^^Jhis time the similar Regulations of M.P. police were held Con-
stitutional and keeping the person under surveillance was held as per spirit of Consti-
tution as the regulation had statutory basis unlike U.P. police regulations and judge-
ment of Kharak Singh v. State of UP * " was reversed. The Court held that "depend-
ing upon the character and antecedents of the person subjected to surveillance as
also the objects and the limitation under which surveillance is made, it cannot be said
surveillance by domiciliary visits would always be unreasonable restriction upon the
rights of privacy. Assuming that the fundamental rights explicitly guaranteed to a
citizen have penumbral zones and that the right to privacy is itself subjected to restric-
tion on the basis of compelling public interest. As Regulation 856 has the force of law,
it cannot be said that the fundamental right of petitioners' under Article 21 has been
violated by the provision contained in it for what is guaranteed under that Article is
that no person shall be deprived of his life or personal liberty except by the procedure
established by law. We think that the procedure is reasonable having regard to provi-
sion of Regulation 853(c) and 857. Even ifwe hold that Article 19(1) (d) guarantees
to a citizen right to privacy in his movement as an examination from that Article and is

509. Jha, R.C., (Dr.), Police Surveillance and Community Security, New Delhi (1991), p. 55.
510. AIR 1963 SC 1295.
511. See ibid.
512. AIR 1975 SC 1378.
513. Supra nofe 510.
 108
itself a fundamental right, the question will arise whether Regulation 856 is a law im-
posing reasonable restriction in public interest on the freedom of movement falling
with in Article 19 (5); or even if it be assumed that Article 19 (5) does not apply in
terms, as the right to privacy of movement cannot be absolute, a law imposing rea-
sonable restriction upon it for compelling interest of State must be upheld as valid." ^^^
Though surveillance was held to be lawful but Court observed that this method
should be adopted only for those cases who are clear cases of danger to community
security and not in routine after conviction and expected the State to revise old police
regulation . The Court observed.
Regulation 855, in our view empowers surveillance only of per-
son against whom reasonable material exist to induce the opinion that
they show a determination, to lead a life of crime. Crime in the context
being confined to such as involve public peace or security only and if
they are dangerous security risks. Mere conviction in criminal cases
where nothing gravely imperils safety of society can (is involved can-
not?) be regarded as warranting surveillance under the Regulation.
Similarly domiciliary visits and picketing by the police should be re-
duced to the clearest cases of danger to community security and not
routine follow up at the end of a conviction or release of a person or at
the whim of a police officer. In truth, legality apart, these regulations ill
accord with the essence of personal freedoms and the State will do
well to revise these old police regulations verging perilously near un-
constitutionality^^^
In MalakRam v. State of Punjab, ^^^ the question came before the court where
police resorted to surveillance for the purpose of prevention of crimes and confined to
the limits prescribed by law, no person could complain against the inclusion of his
name in the surveillance register, but if it was excessive and went beyond the pre-
scribed limits, its validity could be challenged as violative of right to privacy of a
citizen as part of personal liberty guarantee under Article 21 and Article 19(1) (d). ^^^

514. Supra note 63 p. 1386.

515. Ibid., p. 1378.
516. AIR 1981 SC 761.
517. Ibid.
 109
(vii) SPEEDY TRIAL AND ARTICLE 21
The right to speedy trial dates from the Magna Carta in 1215 and guaranteed
that an accused cannot be held in jail without trial for an excessively long period of
time. 5^^ Although the right to speedy trial is not specifically mentioned as a fundamen-
tal right, it is implicit in the broad sweep and content of Article 21.^^^No procedure
which does not ensure reasonably a quick trial can be regarded as reasonable, fair
or just and it would fall foul of Article 21. There can , therefore, be no doubt that
speedy trial, and by speedy trial.... mean reasonably expeditious thai, is an integral
and essential part of fundamental right to life, liberty enshrined in Article 21. ^^^ When
undertrial prisoners are put behind the bars and the State forget that they are to be
speedily tried it attracts attendtion of the judiciary. In Mohammed Giasuddin v. State
ofAndhra Pradesh, ^^^ Justice Krishna Iyer observed :
The State will not hesitate, we expect, to respect the personality in
each onvict in the spirit of the preamble to the Constitution and will not
permit the clonial hangover of putting people behind the bars, and then
forget about them ^^2
If the judicial system does not provide effective redress for the wrongs, the
parties may in their despair, think of extra-judicial methods of seeking redress. Such
methods in their own turn, give rise to fresh problems of law and order and this add to
the load of Courts."^ Prolonged trial is a chronic disease in the administration of
criminal justice. It denies the important rights to the accused, it reduces the effective-
ness of prosecution, it weakens the criminal justice system's ability to deter crimes
and it frustrates citizen in their role as witnesses and victims.524The Supreme Court of

518. Felknen, GeorgeT, Constitutional Law and Criminal Justice (New Jersy: Prentice. Hall
lnc(1978),p.300.
519. Justice Bhagwati in Hussainara Khatoon v. State of Bihar, AIR 1979 SO 1365.
520. ibid.
521. AIR 1977 SC 1926.
522. /b/cf.,atp. 1934.
523. Khanna H.R., J., "Some Reflections On Criminal Justice", 17, JILi507 (1975).
524. Poul, Johan, Etal, Analysing Court Delay Reduction Programme, Why Do Some Succeed?",
65 Judicature, 58 (1981).
 no
India in the case of Sheela Barse v. Union of/nd/a,"^observed that the word trial in
the context of speedy trial includes the stage of investigation also. The concerned
departments are required to complete the prosecution within the legally allowed pe-
riod. The delay in prosecution affects to decide the case within reasonable period of
time.^^^ A speedy trial in a criminal prosecution includes within it both the police
investigation of the crime and later adjudication in court. ^^^ If an accused is not speed-
ily tried and his case remains pending before the Magistrate or S^sions Court for an
unreasonable length of time, it is clear that his fundamental right to speedy trial would
be violated unless the trial is held up on account of some interim order passed by the
superior court or the accused is responsible for the delay in the trial of the case.^^^ The
need for speedy trial is inevitable, otherwise the loss suffered by the accused will be
irreparable. The prolonged trial of case unnecessarily exposes the accused to the
hazardous experiences which is, of course, violation of the expanded meaning of
personal liberty to which accused is entitled. ^^^ Article 21 of the Constitution occupies
a higher place in the scheme of fundamental rights and virtually became a sanctuary
for human values. The right to life and personal liberty is not only available to a free
citizen but also to the person inside the prison walls. Justice Knshna Iyer opined that
Article 21 enshrines the high value of human dignity and the worth of human person. ^^°
Article 21 has also been held to be the sole repository of a right to life and personal
liberty against the State which embraces all aspects of the personal liberty. ^^^ The
right to speedy trial is also considered as one of the dimensions of the fundamental
right guaranteed bytheArticle21 of the Constitution. "^

The denial of speedy trial may with or without proof of something more led to
an inevitable interference of prejudice and denial of justice. It is prejudicial to a man to

525. AIR 1986 SC 1773.

526. Ibid.
527. Madheshwardhari Singh v.. State, AlR 1986 Patna, 334.
528. Sheela, Barse v. UOI, Al R 1986 SC 1773.
529. Deb, R." Rights of Accused Under The Indian Legal System," 1967 Cr. LJ. (Jour)M.
530. J G Varghese v. Bank of Cochin, AIR 1960 SC 475.
531. Justice Ray in ADM Jabalpur v. Shiv Kant Shukia, AIR 1976 SC 1241.
532. Dr. N V Raghava Reddy v. The Inspector of Police-ll Anti Corruption Bureau, 1991 Cr. LJ,
2144(Andhra).
 Ill

be detained without trial. It is prejudice to a man to be denied a fair trial. "^ Right to
speedy trial is a fundamental right and if trial is delayed it would amount to the denial
of justice. ^^^ In Hussainara Khatoon's Case, "^the Supreme Court suggested that"
in those cases where police investigations has been delayed over two years, the final
report or charge sheet must be submitted by the police within a further period of three
months and if that is not done the State government might well withdraw such cases,
because if after a period of over two years plus a additional period of three months,
the police is not able to file a charge sheet, one can reasonably assume that there is
no case against the arrested person." "^ So far as the child accused of an offence
punishable with imprisonment of not more than seven years is concerned, the court
would regard a period of three months from the date of filing of complaint or lodging of
First Information Report as the maximum time permissible for investigation and the
period of six months for the filing of charge sheet as reasonable period within which
the trial of the child accused must be completed. If that is not done, the prosecution
against the child accused would be liable to be quashed. ^^^

In Babu Lai v. State ofU.R, "^ the apex Court observed that "our judicial sys-
tem in grave cases, suffers from a slow motion syndrome, which is lethal to 'fair
trial', whatever the ultimate decision.""^ An accused person can approach Supreme
Court in exercise of writ jurisdiction of Supreme Court in case of denial of speedy
trial. ^° Expressing its concern at the "shocking state of affairs prevalent in some of
the High Courts" for delay in pronouncing judgements after conclusion of arguments,^^
Justice R. R Sethi observed that "it is policy and purpose of law, to have speedy
justice for which efforts are required to be made to come to the expectation of society
for ensuring speedy, untainted and unpolluted justice." ^^ J^Q judge further added
that "delay in disposal of the cases facilitates the people to raise eyebrows.

533. State of Matiarastra v. Champa Lai Punjaji Shah, AIR 1981 SC 1675, at p. 1677.
534. Gokul Singh v.. State of MP, 1999, CR. LJ, 3455 (MP).
535. Hussainara Khatoon v. State of Bihar, Al R1979 SC 1360.
536. Ibid, at 1367.
537. Sheela Barse v.. Union of India, Al R 1986 SC 1773 at 1779.
538. AIR 1978 SC 527.
539. Ibid. at p.528.
540. The Indian Express, 28 December, 1991.
541. The Hindu, Delhi, August7,2001 page 11 (col 5-7).
542. Ibid.
 112
sometime genuinely which, if not checked, may shake the confidence of the people in
the judicial system.... a time hascome when the judiciary itself has to assert for pre-
serving its stature, respect and regards forthe attainment of the rule of law. "^^ While
delivering the judgement in some criminal appeals against a verdict of Patna High
Court, Mr. Justice R. P. Sethi laid down the following guidelines:
1. The Chief Justices of the High Courts may issue appropriate directions
to the Registry that in a case where the judgement is reserved and is
pronounced later, a column be added in the judgement where, on the
first page after the cause-title date of reserving the judgement and date
of pronouncing it be separately mentioned by the Court Officer con-
cerned.
2. The Chief Justices of the High Courts, on their administrative side,
should direct the Court Officers/Readers of various benches in the High
Courts to furnish every month the list of cases in the matters where the
judgements reserved are not pronounced within the period of that month.
3. On noticing that after conclusion of the arguments the judgement is not
pronounced within two months the Chief Justice concerned shall draw
the attention of the bench concerned to the pending matter. The Chief
Justice may also see the desirability of circulating the statement of such
cases in which the judgments have been pronounced with in six weeks
from the date of conclusion of the arguments among the Judges of the
High Court for their information. Such communication be conveyed as
confidential and in a sealed cover.
4. Where the judgment is not pronounced within three months from the
date of reserving judgement any of the parties in the case is permitted
to file an application in the High Court, with prayer for early judgment.
Such application as and when filed, shall be listed before the bench
concerned within two days excluding the intervening holidays.
5. If the judgment, for any reason is not pronounced within six months any

543. Ibid.
 113
of the parties of the said list shall be entitle to move an application
before the Chief Justice of the High Court with a prayer to withdraw the
said case and to make It over to any other bench for fresh arguments.
It is open to the Chief Justice to grant the said prayer or to pass any
other order as he deems fit in the circumstances. ^
The "right to speedy trial'" has been interpreted to be a part of the fundamental
right to life and personal liberty enshrined in Article 21. Article 21 requires that a
person can be deprived of his liberty only in accordance with the procedure estab-
lished by law which should be a just, fair and reasonable procedure. ^^In other words,
such laws should provide a procedure which is fair, reasonable and just. Then alone,
would it be in consonance with the command of Article 21. Indeed whenever neces-
sary, such fairness must be read into such law. Now, can it be said that a law which
does not provide for a reasonably prompt investigation, trial and conclusion of a criminal
case is fair, just and reasonable? It is both in the interest of the accused as well as the
society that a criminal case is concluded soon. If the accused is guilty, he ought to be
declared so. Social interest lies in punishing the guilty and exoneration of the inno-
cent but this determination (of guilt or innocence) must be arrived at with reasonable
despatch- reasonable in all the circumstances of the case. ^ The common man un-
derstands that the "Justice delayed is justice denied.""^Justice R. P. Sethi has rightly
observed that "it is the policy and purpose of law, to have speedy justice for which
efforts are required to be made to come to the expectation of the society for ensuring
speedy, untainted and unpolluted justice.**® Delay in disposal of the cases facilitates
the people to raise eyebrows, sometime genuinely which, if not checked, may shake
the confidence of the people in the judicial system. ^^

In Hussainara Khatoon v. Home Secretary, State ofBitiar^^°{HoA), a large

544. \bid.
545. Kumar, Narender, op.cit, p.213.
546. A.R Antulay& other v.RSNayak& Others; 1992 (1) SCC 225.
547. See Pickles, James (Judge), Straight From Bench, (Melbourne: Phoenix House, 1987)
Chap.-V.
548. Supra note 89.
549. Ibid.
550. AIR 1979 SC1360.
 114
number of men, women and children found behind the bars for years awaiting trial for
trivial offences. Justice Bhagwati directed release of under trials and observed that
"they have in fact some jail term to their credit. We, therefore, direct that these under
trial prisoners... be released forthwith as continuance of their detention is clearly ille-
gal and in violation of their fundamental rights under Article 21 of the Constitution." ^^^
Another case identical to Hussainara Khatoon's ^^^came before the Supreme Court
in the matter of Kadra Pahadiya v. State ofBihar^^^ where persons were detained in
jail for 8 years without trial. The Court took the matter aggressively and observed that
it is a crying shame upon our judicial system which keeps men in jail for years without
a trial. The Judge observed that "we pointed out in Hussainara Khatoon's case that
the speedy trial is a fundamental right of an accused implicit in Article 21 of the Con-
stitution but we notice that in case of these four petitioners this fundamental right has
merely remained a paper promise and has been grossly violated."^^ When people
approach the courts for redress of their grievances, they do so in the fond hope that
relief would be granted to them at a reasonably early date. As it is, what we find is that
cases which on account of their very nature need an early disposal and call for pro-
moting relief .^^5 The utility of criminal justice system comes down to zero when speedy
trial is not attempted and affected persons languish in jail for years. The Supreme
Court while realizing the gravity came out with heavy words."® The court observed
"we are shouting from house tops about the protection and enforcement of human
rights. We are talking passionately and eloquently for maintenance and observation
of basic freedom. But, are we not denying human rights to these nameless persons
who are languishing in jails for years for offences which perhaps they might ultimately
be found not to have committed. Are we not withholding basic freedoms from these
neglected and helpless human beings who have been condemned to a life of

551. Ibid.
552. Ibid.
553. AIR 1981 SC 939.
554. Ibid.
555. Khanna, H. R. Justice,"Some Reflections on Criminal justice"' 17 JILI508 & 509 (1975)
556. (1980)1 s e c 84.
 115
imprisonment and degradation for years on end? Are expeditious trial and freedom
from detention not parts of human rights and basic freedoms? Many of these unfortu-
nate men and women must not even be remembering when they entered the jail and
for what offence? They have over the years ceased to be human beings. They are
mere ticket numbers. Law has become for them an instrument of injustice and they
are helpless and despairing victims of the callousness of the legal and judicial system

what faith these left souls can have in the judicial system which denies
them a fair trial for so many years and keeps them behind bars, not because they are
guilty, but because they are too poor to afford bail and courts have no time to try

(viii) RIGHT TO GO ABROAD

The Roman Empire has been fortunate enough to witness the inception of a
number of laws in their embryonic state. The history of passport also starts with the
same Empire, where for the first time a Passport was deemed necessary for free and
safe exit through foreign territories.^^^The First and Second World Wars made the
question of passport so effective as to attract the minds of the top authorities to give a
thought over it. The history of passport in India starts with the period of the First Worid
War. The Indian Passports Act of 1917 made it necessary to obtain a passport not
only for entering India but also for leaving her territory. However, the obligation to
obtain a passport to leave India was abandoned in the Indian Passsport Act, 1920.
Again in the year of 1950, the Indian Passport Rules were framed to lay down the
condition for the grant of passports. Rights to travel abroad is one of vital elements of
"personal liberty." It is also a human right. According to the Universal Declaration of
Human Rights, 1948.559

I n Maneka Gandhi v. Union of India, the Supreme Court observed that "in

557. Ibid.
558. Kailash Rai, The Right to Trvel Abroad under "The Constitution oUr\6\a," Allahabad Law Jour-
nal, Aug. 20, 1971, Vol. 69 No. 27. p. 24; see also Deshta, Sunil and Deshta, Kiran op. cit,
p. 115.
559. Deshta, Sunil and Deshta, Kiran op. cit., p. 116; see also Article 13, Para 2; see also Interna-
tional Covenant on Civil and Political Rights, 1966 Article 12.
560. AIR 1978 SC 597
 116

an interdependent world requiring for its future peace and progress an over-growing
measure of international understanding, it is desirable to facilitate individual contacts
between people and to remove all unjustifiable restraints on their movement which
may hamper such contacts. It was held in Satwant Singh v. Assistant Passport
Officer, New Deltii,^^thai "right to travel abroad" was included within the expression
"personal liberty" within the meaning of Article 21 .^^ In Maneka Gandhi v. Union of
india.^the passport of the petitioner was impounded under Section 10(3) (C) of the
Passport Act, 1967, as government was empowered to do so in the interest of gen-
eral public. The government explained that as the presence of petitioner before a
commission of Inquiry was necessary in connection with various complaints against
her; therefore passport was impounded to restrict her leaving the country. The peti-
tioner challenged the validity of the said order as violative of her fundamental right
under Articles 14 and 21. It was contended that Section 10 (3) (c) of the Act was
violative of Article 14 as it confers arbitrary power on the government to impound the
passport without affording an opportunity of hearing to the holder of the passport.
Secondly, right to go abroad being part of right to "personal liberty" the impugned
Section did not prescribe any procedure to deprive her of her liberty hence violative of
Article 21. Bhagwati J., (the then) upheld the constitutionality of Section 10(3) (c) of
the Passport Act, 1967 as not violative of Articles 14, 19(1) (a) or (g) or Article 21.
However, the court laid down the principles in respect of scope ofrightsconferred by
Article 14 and 21. The court observed:

a) Articles 19 and 21 are not water tight compartments on the other

hand the expression of personal liberty in Article 21 is of the widest
amplitude covering a variety ofrightsof which some have been included
in Article 19 and given additional protection. Hence there may be some

561. /ft/d.,atp. 657.

562. AIR 1967 SC1836.
563. Ibid.
564. AIR 1978 SC 597.
 117
overlapping between Article 19 and 21.
b) In the result, a law coming under Article 21 must also satisfy the
requirements of Article 19. In other words a law made by the State
which seeks to deprive a person of his personal liberty must prescribe
a procedure for such deprivation which must not be arbitrary, unfair or
unreasonable.
c) Once the test of reasonableness is imparted to determine the valid-
ity of laws depriving a person of his liberty; it follows that such law shall
be invalid if it violates the principles of natural justice.*^

The principle of reasonableness, which legally as well as philosophically is an

essential element of equality or non arbitrariness pen/ades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
arbitrariness in order to be conformity with Article 14. It must be "right and just and
fair" and not arbitrary, fanciful or oppressive; othenA^ise it would be no procedure at all
and the requirement of Article 21 would not be satisfied.
(ix) DOCTRINE OF WAIVER OF RIGHTS AND ACCUSED
The "Doctrine of Waiver" explains that a person entitled to a right or privilege
is free to waive that right or privilege.lt is voluntary relinquishment or abandonment of
567

a known existing legal right or privilege. Once a person has so waived his right.he
would not be allowed to claim aftenA/ards.lt thus means that an agreement in which a
person voluntarily waives his right.is enforceable against him,provided other require-
ments relating to enforceable agreements are complied with.The question arises as
to whether the "doctrine of waiver" is applicable to fundamental rights also.
The doctrine of waiver is based on the premise that a person is the judge and

565. Ibid.
566. ibid, at 624.
567. Baslieshar Nath v.Commissioner of faxes.AIR 1959 SC 149,quoted in Kumar, Narender,
op.cit, p.80.
568. ibid.
 118

that he has the liberty to waive the enjoyment of such rights as are confen-ed on him by
the State.the only requisite being that the person must have knowledge of his rights
569

and that the waiver should be voluntary. The doctrine is of American origin and can
this doctrine be adopted in Indian situations in toto.The Supreme Court observed that
"in our opinion.doctrine of waiver enunciated by some American Judges in construing
the American Constitution cannot be introduced in our Constitution without the further
discussion on the matter." Mahajan.C.J.,observed,"in a criminal prosecution it is
571

not open to an accused person to waive his constitutional right and get convicted."
He further said ,"we think that the rights described as fundamental rights are a neces-
sary consequences of the declaration in the preamble that the people of India have
solemnly resolved to constitute India into a sovereign democratic republic to secure
to all its citizensjustice.social.economic and poplitical, liberty of thought, expression,
belief, faith and worship;equality of status and of opportunity.These fundamental rights
have not been put in the Constitution merely for individual benefit,though ultimately
they came into operation in considering individualrights.They have been put there as
a matter of public policy and the doctrine of waiver can have no application to provi-
sions of law which have been enacted as a matter of constitutional policy. Reference
to some of the Articles,"/ntera//a'"Article 15(1), 20, 21 makes the proposition quite
plain.A citizen cannot get discriminated by telling the "State"you can diuscriminate",or
572

get convicted by waiving the protection given under Articles 20 and 21. The Su-
preme Court have thus expounded the following views:
(a) It is not open to a citizen to waive his fundamental rights conferred by
Part-Ill of the Constitution.The Supreme Court is the bulwari< of the fun-
damentalrightswhich have been for the first time enacted in the Consti-
tution and it would be a sacrilege to while down these rights.
(b) Whatever be the position in America, no distinction can be drawn here,
as has been attempted in the United States pof America,between the
fundamental rights which may be said to have been enacted for the

569. Behram Khurshid v. Somba/AIR 1955 SC 123.

570. /b/d.,atp. 146.
571 ibid.
572. ibid.
 119
benefits of the individuals and those enacted in public interest or on
grounds of public policy,
(c) Ours is a nacent democracy and situated as we are, socially, eco-
nomically, educationally and politically, it is the sacred duty of the Su-
573

preme Court to safeguard the fundamental rights.

Hence, the fundamental rights available to the accused person can't be waived
as these are embodied in our Constitution as a matter of Constitutional policy and the
citizen could no voluntarily get discriminated or waive his fundamental rights against
574

discrimination.
(VIM) PREVENTIVE DETENTION JURISPRUDENCE AND THE PHILOSOPHY
OF RIGHTS OF ACCUSED
It is well established that the greatest heritage of democracy to mankind is the
right to personal liberty and dignity. ^^^ According to Article 21, "no person can be
deprived of his life or personal liberty except according to procedure established by
law". This means that a person can be deprived of his life or personal liberty provided
his deprivation was brought about in accordance with the procedure prescribed by
law. "^Article 22 provides those procedural requirements which must be adopted and
included in any procedure enacted by the legislature. If these procedural require-
ments are not complied with it would then be deprivation of personal liberty which is
not in accordance with the procedure established by law. ^''''
Article 22 provides that" No person who is arrested shall be detained in cus-
tody without being informed, as soon as may be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be defended by, a legal practitioner of

573. See M/S Suraj Mall Mehto v.A. V. Vishvanath Sasfri,AIR 1954 SC 545; Muthiah v. Commis-
sioner of Income Tax, AIR 1956 SC269.
574. See M/S Omega Advertising Agency v. State Electricity Board, AIR 1982 Gau. 37.
575. Diwan, Paras., Abrogation of 42"^ Amendment, p.68 (1977); see also Mehta, Satinder Mohan,
"Preventive Detention Laws, Their Enforcement And The Judiciary vis-^-vis-Personal Lib-
erty", Kurukstietra University Law Journal, (1978) Vol.4 p. 116.
576. A. K. Gopalan v State of Madras, AIR 1950 SC 27.
577. Pandey.J.N., Constitutional Law of India, Delhi, (1984)p.159; see also Article 22 of the Con-
stitution.
 120
his choice." ^^^ Every person who is arrested and detained in custody shall be pro-
duced before the nearest magistrate within a period of twenty four hours of such
an-est excluding the time necessary for the journey from the place of arrest to Court of
the Magistrate and no such person shall be detained in custody beyond the said pe-
riod without the authority of a Magistrate. "^ Clause (3) of Article 22 of the Constitu-
tion is exception to clause (1) and (2) and it reads "Nothing in clause (1) and (2) shall
apply:
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for
preventive detention." ^^°
Clause (4) to (7) of Article 22 provides the procedure which is to be followed if
a person is arrested under the law of preventive detention. There is no authoritative
definition of the term 'preventive detention' in Indian law. The word 'preventive' is
used in contradistinction of the word 'punitive'. It is not a punitive but a preventive
measure. While the object of the punitive detention is to punish a person for what he
has already done, the objective of preventive detention is not to punish a man for
having done something but to intercept him before he does it and to prevent from
doing it. No offence is proved, nor any charge is fonnulated. The sole justification of
such detention is suspicion or reasonable probability ofthe detenu committing some
act likely to cause harm to the society or endanger the security ofthe Government and
not criminal conviction which can only be warranted by legal evidence. ^^^ Dr. Bakshi
Tek Chand member of Constituent Assembly observed during debates with refer-
ence to preventive detention (Articlel 5A), that" in no Constitution in the world such
preventive detention is provided for...'^^^ and Shri Jaspat Roy Kapoor another

578. Clause (1) of Article 22.

579. Ibid.,
580. Clause (3) of Article 22.
581. Supra note 12, p.91 (This was observation of Mukherjee, J. in the case).
582. CAD., Vol..9 p.1545; The Constitent Assembly was constituted for framing the Constitution of
India. The Assembly consisted of elected representatives of Provincial States and of the
Princily States who were choosen according to a formulate evolved in consequence of the
Cabinet Mission Plan of May, 16,1946.
 121

member observed that "this is very hard and strikes at the very root of fundamental
rights and personalliberty. The person detained may be kept in detention without the
sanction of the magistrate and for any length of time and without even reason for
detention being told to him. There shall be only one review of his case and there shall
be no periodical review."^^^
As a matter of fact , even to the introduction of Article 15-A in the Assembly,
the Home Affairs Ministry took 'very strong objections' to the powers provided for
Advisory Boards. ^^The Govt, categorically stated in its letter to the Assembly Secre-
tariat that ' it would not be possible for the executive to surrender their judgement to
an Advisory Board as a matter of Constitutional compulsion ^^ and the Ministry wanted
the details of detention to be left to the Legislature. It was on the face of this objection
of the Home Ministry; Ambedkar introduced in the Assembly Article 15-A,*^ which
was eventually passed by the members with all the reservations they had.
The power of preventive detention is qualitatively different from punitive deten-
tion. The power of preventive detention is a precautionary power exercised in rea-
sonable anticipation. It may or may not relate to an offence. It is not a parallel pro-
ceeding. It does not overlap with prosecution even if it relies on certain facts for which
prosecution may be launched or may have been launched. An order of preventive
detention may be made before or during prosecution. An order of preventive deten-
tion may be made with or without prosecution and in anticipation after discharge or
even acquittal. The pendency of prosecution is no bar to an order of preventive
detention. An order of preventive detention is also not a bar to prosecution. ^^^ Pre-
ventive detention is a precautionary measure and since no charge is made and there
is no conviction , no punishment is intended and so it is claimed it is not punitive and
588
therefore no objection is to be taken.

583. /6/d.,p.1543.
584. See letter from S.N., Mukerji (Assembly Secretary) to H.V.R. lyenger, Home Secretary,
dated 16th August, 1948 and the reply to it. Letter from H.V.R. lyenger to S.N. Mukerji,
dated 19-20 August, 1949, Law Ministry, Archives; See G.Austin., The Indian Constituion;
Cornerstone of a Nation, (1976), p. 110.
585. Ibid,
586. Ibid.; see also Deshta, Sunil and Deshta, Kiran, op.cit, p.57.
587. Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154 at p.2160.
588. Dhar, Panna Lai., Preventive Detention Under Indian Constitution, Delhi (1986), p.20.
 122

Clause (4) of Article 22 reads, "No laws providing for preventive detention
shall authorize the detention of a person for a longer period than three months unless:
(a) an Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as, judges of a High Court has reported be-
fore the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention:...".^^
When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order has been made
and shall afford him the earliest opportunity of making a representation against the
order. ^®° Under Article 22(6) disclosure of facts which are considered to be against
public interest may not be furnished to the detenu. Hence it follows that both the
obligations to furnish particulars and the duty to consider whether the disclosure of
any facts involved therein is against public interest, are vested in the detaining au-
thority not in any other. ^^^ Clause (7) authorise Parliament to prescribe by law -
(a) the circumstances under which, and the class or classes of cases in
which, a person may be detained for a period longer than three months
under any law providing for preventive detention without obtaining the
opinion of an Advisory Board in accordance with the provisions of sub-
clause (a) of clause (4):
(b) the maximum period for which any person may in any class or classes
of cases be detained under any law providing for preventive detention;
and
(c) the procedure to be followed by an Advisory Board in any inquiry under
subclause (a) of clause (4).^^^
Clauses (4) to (7) of Article 22 of the Constitution of India have provided some
safeguards against preventive detention but they are ""pale shadow of safeguards" ^^^

589. Clause (4) of Article 22.

590. Clause (5) of Article 22.
591. Puran Lai Lakhan Pal v. Union of India, AIR 1958 SC 163; Article 22(6) of Constitution; see
also Pandey, J. N. , op.cit. ,p.173.
592. Clause (7) of Art. 22 of Constitution.
593. Seervai, H.M., Constitutional Law of India, (2"" Edition), p. 527.
 123
(emphasis added).Preventive detention is a legacy of the British regime in which it
was first introduced as the Bengal State Prisoner's Regulation III of 1818 which was
extended to Bombay Presidency in 1827 and to the other parts of the British regime
between 1779 and 1829.^** Preventive detention has existed in India ever since,
1818 except 1977.^^^ The Government of India Act of 1935 empowered the Central
Legislature the exclusive power to enact laws on preventive detention in British India
for reasons related to Defence, External Affairs, or the discharge of the functions of
the Crown in its relation with the Indian States. ^^
The term "preventive detention" has not been defined in the Constitution or
any other Indian legislation. ^^^ However, it finds mention in entry 9 of list I which em-
powers the Central Legislature to pass law with regard to preventive detention. It also
appears in entry 3 of list III under Schedule VII which empowers both the Central and
the State Legislatures to make laws on preventive detention. ^^^ 'Preventive deten-
tion' means the detention of a person without trial in such circumstances that the evi-
dence in possession of the authority is not sufficient to make a legal charge or to
secure the conviction of the detenu by legal proof. ^^^ Kania, C.J , described preven-
tive detention in A. K. Gopalan v.. State of Madras,^ "as not a punitive but a precau-
tionary measure." He further observed that in preventive detention "no offence is proved
nor any charge is formulated" and that "the jurisdiction for detention is suspicion or
reasonable probability and not criminal conviction which will be warranted by legal
evidence."^°^ The word "preventive" is used in Article 22 in contradistinction to the
word "punitive". Preventive detention is thus a preventive measure, a precautionary
measure and not punitive one. The object is not to punish the person, but to intercept,
to prevent him from doing something prejudicial to the State. ®°2 A . N. Roy, C.J.,

594. Dhar, Panna Lai , op. cit.,p. 72.

595. Ibid,p. 74.
596. Dhar, Panna Lai. ,op. cit,. p. 72-73.
597. "Preventive Detention"has neither been defined in the Constitution nor in other Acts like,
Preventive Detention Act, 1950, MISA, 1971 and NSA, 1980.
598. Mehta, Satinder Mohan, op.crf., p.117.
599. Liversidge v. Anderson (1942) AC 206 (218) quoted by Basu, DD., in Commentaries on Con-
stitution of India, Cal. 1978, Vol. D, p. 153.
600. AIR1950SC27.
601. Ibid.
602. Kumar, Narender, op.cit, p. 233.
 124
explains the difference between preventive and punitive detentions by holding that
"the basis of preventive detention is the satisfaction of the executive of a reasonable
probability of the likelihood of the detenu acting in a manner similar to his past and
preventing him by detention from doing the same," whereas "a criminal conviction is
for an act already done which can be possible only by a trial and legal evidence
on proof of guilt.... beyond reasonable doubt." ^°^ The justification for preventive de-
tention is suspicion, reasonable apprehension of impending commission of an act
prejudicial to State. Sh.AlladiKrishnaswamiAyyar, a member of the Drafting Com-
mittee of the Constituent Assembly observed, "preventive detention, particularly in the
prevailing conditions in the country, was a necessary evil, since there were certain
undesirable people determined to undermine the sanctity of the Constitution, the se-
curity of the State and even individual liberty itself."^°^ Patanjali Sastri, J., while
explaining necessity of law of preventive detention in Gopalan's case, ^^ observed:
...This sinister-looking feature, so strangely out of place in a democratic
Constitution which insists personal liberty with the sacrosanctity of a
fundamental right and so incompatible with the promises of its preamble
in doubtless designed to prevent the abuse of freedom by antisocial
and subversive elements which might imperil the national welfare of the
infant Republic.
A detenu is not a convict... Power to detain primarily intended to be exercised
in those rare cases when the larger interest of State demands that restrictions shall
be placed upon the liberty of a citizen curbing his future activities. ®°^ The power to
detain is not the power to punish for offences which the executive authority in his sub-
jective satisfaction believes a citizen to have committed. ^°^
The first Preventive Detention Act was enacted by the Parliament on 26* Feb-
ruary, 1950. The object of the Act was to provide for detention, to prevent any person
from acting in a manner prejudicial to the defence of India, the relations of India with
foreign powers, the security of India or a State or the maintenance of public order, the
maintenance of supplies and services essential to the community. Section 3

603. See Haradhan Shaha v. State of West Bengal, AIR 1974 SC 2154 para 19.
604. Quoted in Rao, B Shiva., A study, p. 242.
605. A. K. Gopalan v. State of Madras, AIR 1950 SC 27.
606. Sampat Parkash v. State of J&K, Al R 1979 SC 1153.
607. Ibid.
 125
empowered the Central and the State Governments and some officers under them to
make orders of detention on the subjective satisfaction. ^°^ The Preventive Detention
Act, 1950 was enacted as purely a temporary measure and was to cease to have
effect on 1*' April, 1951. The Act was, however, extended from time to time till it
lapsed on December, 31,1969. The prominent features of the Preventive Detention
Act, 1950, were as follows:
(i) The authority ordering detention of a person was not bound to disclose
the facts pertaining to arrest to the detenu, the disclosure of which ac-
cording to detaining authority, was against public interest. ^°^
(ii) The Act authorised the government to continue detention of the person
for an indefinite period of time once it was confirmed by the Advisory
Board. ^^°
(iii) In special cases, a person could be detained for one year without ob-
taining the opinion of the Advisory Board. ^^^
(iv) The detention order was not to be disclosed to the court and any per-
son who disclosed the order including the jail authorities were punish-
able with imprisonment for a term which could extend to one year or
with fine or both .^^^
The new preventive detention law was revived in the name of the Maintenance
of Internal Security Act, 1971 (MISA) which continued in operation till 3"^ August 1977.^^^
The Supreme Court amplified the necessity of enacting MISA, 1971 in Mohd. Subrati
alias Mohd. Karim v. State ofWB ^^^ that "The act was brought on the statute book in
1971. Its enactmentwas necessitated because in view of the prevailing situation in
the country and the developments across border. It was considered necessary for

608.. Grounds of detention have been taken from entry 9 of Union list, entry 3 of List III concurrent
list of Seventh Schedule of the Constitution. "Public order" falls in the State list under entry
I, II of Seventh Schedule.
609. Sec. 7(2) The Preventive Detention Act, 1950.
610. Sec. 11 ibid.
611. Sec. 12(1)/Jb/d.
612. Sec. 14(1) and (2)/b/d.
613. The Maintenance of Internal Security Act broadly incorporated the provisions contained in the
Preventive Detention Act, 1950.
614. (1971) I sec 250; see also Barjahou Goreyv. West Bengal,{^973) 2 SCC 550.
 126
urgent and effective preventive action in the interest of national security to have pow-
ers of preventive detention to deal effectively with threats to the defence and the secu-
rity of India because the existing laws available to deal with the situation were not
found to be adequate."^^^ This Act contained many of the earlier provisions of Preven-
tive Detention Act alongwith new provisions such as Section 17A which made provi-
sion for detention under certain circumstances without reference to the Advisory Board.
But Section 17-A was struck down by the Supreme Court.^^^ In 1980, President
promulgated National Security Ordinance and later on National Security Act,, 1980
was enacted. The Central Government, State Government and some officers of State
Government can order detention on the grounds specified in Section 3 of the Act:
The Central Government or the State Government may:
(a) if satisfied with respect to any person that with a view to preventing him
form acting in any manner prejudicial to the defence of India, the rela-
tions with foreign powers, or the security of India; or
(b) if satisfied with respect to any foreigner that with a view to regulating his
continued presence in India or with a view to making arrangements for
his expulsion from India.
It is necessary so to do, make an order directing that such person be detained.^^''
The Central Government or State Government may also detain a person for
preventing him from acting in any manner prejudicial to the Security of State Govern-
ment, or maintenance or public order or supplies and services essential to the com-
munity. ^^^ The State Government may by specific written order may confer power to
detain persons under clause (2) of Section 3 to Distt. Magistrate or a Commissioner
of Police in their jurisdiction ^^^ and such order shall remain in force for not more than
twelve days unless approved by the State Government. ^^°

615. Ibid., Justice Dua's observation.

616. See Shambu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425.
617. See section 3(1) of National Security Act, 1980.
618. See clause (2) of Section 3 ibid.
619. See clause (3) ibid; The D.M. or Commissioner of Police may be conferred powers by State
Govt, onlyfor the purpose of clause (2) of Sec 3 of NSA, 1980 and powers for detention under
clause (1) of Section 3 can be utilised by Central or State Government and can't be further
delegated.
620. Clause 4 of Sec. 3 NSA; Where grounds of detention are communicated by officer detaining
within 5 days but not later than 10 days detention will remain in force for 15 days as provided
in orovisio to clause (4) of Sec 3.
 127
It has been held that It is necessary in each case to examine the facts to
determine not the sufficiency of the grounds, nor the truth of the grounds but nature of
the grounds alleged and see whether these are relevant or not for considering whether
the detention of detenu is necessary for maintenance of public order. In view of na-
ture of the allegation mentioned in the grounds, in the instant case, are not of such
nature as to lead to any apprehension that the even tempo of the community would be
endangered. Therefore, the detention ofthe detenu under Sec.3 (2) of the Act was
not justified. ^^^ A detention order may be challenged on the ground that the law under
which it is issued is invalid or It is contravention of the provision of law under it is
made or if it is made in contravention ofthe provision ofthe Constitution. ^^2
When a man has been detained, it Is unquestionably his right to know the
grounds upon which he has been arrested and detained. ^^^ The grounds, "means all
the basic facts and materials which have been taken into consideration by the detain-
ing authority in making the order of detention and on which the detention is based. ^^^
In another case the Court explained that "Grounds" means the conclusions drawn by
the authorities from the 'facts' or 'particulars' ^^^ which have led the authority to pass
the order of detention, ^^e i^ i^gg ^ggp i^gld that the grounds must be self-explanatory
and self- sufficient and the copies of documents referred to in the grounds, must be
supplied.^27 If the grounds are only verbally explained to the detenu and nothing In
writing Is left with him in a language which he understands, it has been held that the
purpose of Article 22(5) is not served.^^^ It was held in Surjeet Singh v. Union of

621. Ajai Dixit v. State of Uttar Pradesh, AIR 1985 SC 18 at p 23 Quoted in NSA, 1980 Bare Act
published by Law Publishers, Allahabad, 2001, p. 3; see also, Ramveer Jatav v. State of
UP, AlR1987 SC 61, p.64; Anant Sakharam Rant v. State of Matiarastra, AlR1987 SC 137,
at p 138; Ombir Singh v. State of UP 1993(1) EFR, 482 at p 485 (All); Sunita Bhardwaj v.
State ofRajasthan, 1987 (1) WLC 377 at p .380 (Raj); Vijay Changdeo Patil v. Satish Saheny,
1997 (1) EFR 243 at p 248 (Bom).
622. Dhar, Panna Lai ,op. cit, p 85.
623. CAD, Vol. 9 p.1550 observation of Dr PK. Sen, member Constituent Assembly during de-
bates.
624. Khudiram Das v. State of West Bengal, AIR 1975 SC 550, para 6
625. State of Bombay v. Atmaram, (1951) SCR 167 at 179, Kania.C.J.
626. Basu D.D., Commentaries on Constitution of India, vol.1,1978,Cal. p. 169.
627. Abdul Aziz v. Delhi Admn., AIR 1981 SC 1389; Virendra v. Maharastra, AIR 1981 SC 1909;
M M. Patel v. State of Maharastra, AIR 1981 SC 510.
628. Kubic Darinsz v. Union of India, AIR 1990 SC 605.
 128
India,^^^ that service of grounds in English was no sufficient compliance with the re-
quirement contained in Article 22(5). Simply by reason that the detenu signed in En-
glish, did not mean that he could understand the grounds communicated in English
when he did not have working knowledge of English.^^" The non-furnishing the copies
of statements prevented the appellant from making effective representation against
detention and since the Constitutional safeguard in this behalf was clearly breached
the impunged detention order cannot be sustained."^ In case the particulars of the
grounds were not communicated and so detention order was set aside. There was
no question of subsequent communication of particulars and particulars of each of
the grounds were held required to be communicated.^^^The Supreme Court was not
happy with the label "supplementary grounds" and suggested that the Court should
look beyond the label to find if the particulars were supplementary grounds or support-
ing the existing grounds.^^^

In actual practice the grounds supplied as an objective test for determining

the question whether a nexus reasonably exists between grounds of detention and
detention order or whether some infirmities had crept in. A conjoined reading of the
detention order and the grounds of detention is, therefore, necessary. It is largely from
prior events showing tendencies or inclinations of a man that inference can be drawn
whether he is likely in future to act in a prejudicial manner. But such conduct should be
reasonably proximate and have a rational connection with the conclusion that the
detention order must be carefully considered. Though the possibility of prosecution
being launched is not an irrelevant consideration. Failure to consider such possibility
would not vitiate the detention order,^^ Where detention is made on the two or more
grounds such order of detention shall be deemed to have been made separately on
each of such grounds and such order shall not be deemed to be invalid or inoperative
merely because one or some of the grounds is or are vague, non existent.

629. AIR 1981 SC 1153.

630. Ibid; see also Lallubhai v. Union of India, AIR 1981 SC 728.
631. see Yamnam Mangibabu Singh v. State ofManipur, AIR 1983 SC 300 at p.302; 1983 CrLJ
445; see a\so Madan Gopalv. Union of India, 1993(1)AlllndiaCr.LR533(Delhi).
632. Ram Krishna v. State of Delhi, AIR 1953 SC 318.
633. Tarapada De v. State of West Bengal, AIR 1951 SC 174.
634. State of Punjab v. Sukhpal Singh,A\R 199. SC 231 at pp.236-37.
 129
non-relevant, not connected or not proximately connected with such person, or invalid
for any other reason whatsoever.^^^
When a person is detained in pursuance of a detention order, the authority,
making the order, shall as soon as may be, but ordinarily not later than five days and
in exceptional circumstances and for reason to be recorded in writing, not later than
ten days from the date of detention, communicate to him the ground on which the
order has been made and shall afford him the earliest opportunity of making repre-
sentation against the order to the appropriate authority. ^^The Authority, however may
not disclose the facts which it considers to be against the public interest to disclose.
^^^ On the issue of nondisclosure of document on the grounds of privilege, the Su-
preme Court held" The executive is not the organ solely responsible for public inter-
est. It represents only an important element in it but there are other elements. One
such element is the administration of justice .... When there are more aspects of
public interests to be considered the court will, with reference to the pending litigation,
be in a better position to decide where the weight of public interest predominates". ^^
In Kailash Pandey v. State of Uttar Pradesh,^^^\he grounds of detention were based
upon the confessional statements and the confessional statements were the very core
of the grounds. Yet copies of those statements were not furnished to the detenu
alongwith the grounds of detention. Thereby the detenue was denied the opportunity
of making a proper and adequate representation, therefore, the detenue was directed
to be released.^" Right to represent has been given not only by Art. 22(5) of the Con-
stitution, but also by Sec. 8 of the National Security Act. The right is, "therefore to be
treated as an extension of the Constitutional right already available to a detenue un-
der Art. 22(5). The Legislature has, in fact, given effect to the constitutional right by
providing in Sec 8 of the National Security Act that the detenue shall have the right of

635. Section 5A of NSA, 1980. This section was inserted by Sec 2 of Act No. 60 of 1984(w.e.f. 2 1 "
June, 1984) published in the Gazette of India, Extraordinary, pt.-ll Sec. 1, dated 1" September,
1984.
636. See 8(1) NSA, 1980.
637. Clause (2) of Sec.8, ibid.
638. State of UP v. RajNarain, AIR 1975, SC 865 (Para71).
639. AIR 1983 SC 317 at p.318:1983 Cr.LJ 452.
640. Ibid; see also State ofRajasthan v. Talib Khan, 1997(1) EastCr.C.193 at p.198 (SC).
 130
making a representation to the appropriate Government. Duty is cast on the detain-
ing authority to inform a detenue about his right to make a representation to the Cen-
tral Government. Failure to inform of his right invalidates the detention. The inevitable
conclusion is that non-intimation to detenue of his right to make representation to the
Central Government has in the case at hand made the order of detention invalid.""^
Article 22(5) requires that the detenue shall be afforded the earliest opportunity of
making representation against the order of detention. No avoidable delay, no short-
fall in the materials communicated shall stand in the way of the detenue in making an
earlier, yet comprehensive and effective representation in regard to all basic facts
and materials which may have influenced the detaining authority in making the order
of detention depriving him of his freedom. There are the legal safeguards enacted by
the Constitution makers against arbitrary or improper exercise of the vast powers of
preventive detention which may be vested in the Executive by a law of Preventive
Detention. ^2 Article 22(5) enjoins the detaining authority to afford the detenue the
earliest opportunity to make a representation against the order of detention. The right
to make a representation implies that the detenue should have such information as
will enable him to make a representation. All basic and material facts which influ-
enced the detaining authority to order detention must be communicated to the detenue.
Unless such information is furnished to him, it is not possible for the detenue to make
the representation. In that case, the right guaranteed under Article 22(5) will be illu-
sory but not a real at all. "^
In Pushpa v. Union oflndia.^ Desai J., followed John Martin's case and ruled:

641. Choudhary Dabasis Dash v. State of Orissa, represented by the Commissioner cum Secre
tary to Government Home Department, (1997) 83 C.L.T. 95 at pp. 100,101,103.
642. Hansmukh v. State of Gujarat, Al R 1981 SC 28; Ktiudiram Das v. State of W. B, A! R 1975 SC
550.
643. KirtiKumarv. Union of India, AIR 1981 SC 1621; Ana Carelina D'souza v. Union of India, AIR
1981 SC 1620; Ramchandra A. Kamat v. Union of India, AIR 1980 SC 765.
644. AIR 1974 SC 613; John Martin's case was followed in Narendra v. State of Gujarat, AIR 1979
SC 420 and B/?a/7war La/\^. State of Tamil Nadu; MR 1979 SC 545.
 131
1. The appropriate authority was bound to give an opportunity to the
detenue to make a representation and to consider the representation
as early as possible.
2. The detenue must be afforded an earliest opportunity of making a rep-
resentation against the order.
3. There should be no delay in consideration of representation.
4. The appropriate authority should exercise its opinion and judgement
on the representation before referring it to the Advisory Board.
5. The Consideration of representation of the detenue should be inde-
pendent of its consideration by the Advisory Board.
The N.S.A. provides for constitution of one or more advisory boards by the
appropriate government ^* which shall within three weeks from the date of detention
of detenue place before it grounds on which order has been made together with rep-
resentation of detenue, if any. ^ Article 22(5) permits the detenue to make a repre-
sentation. But the Constitution is silent as to the person to whom it has to be made or
how it has to be dealt with. A law of preventive detention which makes no provision on
these points is not, therefore, unconstitutional.®^^ The right to representation loses
both its purpose and meaning without expeditious disposal of the same."® When the
explanation is unsatisfactoryorthere is unexplained delay in considering detenue's
representation, the order of detention becomes invalid but the order is valid if the

645. See also Sec. 9 of NSA, 1980; one or more Advisory Boards can be constituted by Central or
State Government. Each such Board shall consist of 3 members who are or have been or are
qualified to be appointed as judges of High Court and one of them is to be appointed as
Chairman; The term "appropriate govemment" means Central or State Govt, as the case may
be as defined in Sec 2(a) of NSA, 1980.
646. Section 10, NSA; If detention is made on orders of an officer mentioned in sub Section (3) of
Sec. 3 of NSA, the report of such officer is also to be placed before Advisory Board.
647. A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Section 8 of NSA, 1980 provides for
affording an opportunity to the detenue to make representation to the appropriate Govemment
but Act is silent about its form and manner in which it is to be dealt by appropriate Govt.
648. Pankaj Kumar v. State of West Bengal, Al R 1970 SC 97; Jaynarayana Sukul v. State of West
Bengal, A\R^970SC675.
 132
delay is explained satisfactorily. ^^The duty of the government to cx)nsider represen-
tation without waiting for the opinion of the Advisory Board was affinned in Nagendra
V. Gujral.^^°\Uhe order of detention, becomes immediately invalid, and any subse-
quent reference to the Board for consideration and rejection will not validate deten-
tion. ^^ However, where the Government did not consider the representation but waited
for the opinion of the Board, the detention was held invalid. Therefore, the represen-
tation has to be considered without any delay. ^^^
Article 22 (4) provides for preventive detention and an Advisory Board is to
recommend as to whether "there is in its opinion sufficient cause for such detention"
This provision therefore presupposes that there will be no need for the detenues to
have access to Courts for redress when there is an Advisory Board to give such re-
dress. But redress cannot be done properly if the representation is not made prop-
erly. To make access to Court by detenues really unnecessary, it will be necessary
that main procedural rules regulating rights of accused in trial in courts of law should
be made available to detenues to make effective representation before the Advisory
Board. From the point of view the right ofthedetenue to make representation by his
own counsel assumes special significance. ®"A consideration of the representation
by the Board is an additional safeguard and not a substitute for consideration of the
representation by the Government which is required by Article 22 (5).^" In Jayanarain
Sukul V. State ofW.B.,^^^ the Supreme Court laid down four principles which are to be
followed with regard to representation of the detenue:

649. Nagendra Nath v. State of West Bengal, AIR 1972 SC 662; Baidya Natti v. State of West
Bengal, AIR 1972 SC 1198; RanjitDas v. State of West Bengal, AIR 1972 SC 1753; Abdus
Sukkur V. State of West Bengal, AIR 1972 SC 1915; S C Bose v. DM Burdwan, AIR 1972 SC
2481; Satybrata v. State of West Bengal, AIR 1973 SC 756; D.N. Goswamiv. State of West
Bengal. AIR 1973 SC 757; Sanibhu Kar v. State of West Bengal, AIR 1973 SC 959.
650. AIR 1979 SC 420.
651. S. K. Sekhawat v. State of West Bengal, AIR 1975 SC 64.
652. Harish Patiwa v. UP, AIR 1981 SC 1126; Saileti Motiammed v. Union of India, AIR 1981
SC111; Ashok Kumar v. J&K, AIR 1981 SC 851; Smt. Khatoon Begum v. Union of India, AIR
1981 SC 1077; Kamla v. Maharastra, AIR 1981 SC 814.
653. Dhar, PannaLal. .op.crf. p. 106.
654. K. M. Abdulla Kunhiv. Union of India, AIR 1991 SC 574; Sakawatv. State ofW.B., AIR 1975
SC64.
655. AIR 1970 SC 675.
 133
(1) The appropriate authority is bound to give an opportunity to the
detenue to make a representation and to consider the representation of the detenue
as early as possible.
(2) The consideration of representation of the detenue by appro-
priate authority is entirely independent of any action by the Advisory Board including
the consideration of the representation of the detenue by the Advisory Board.
(3) It is true that no hard and fast rule can be laid down as to the
measure of time taken by the appropriate authority for consideration but it has to be
remembered that the Government has to be vigilant in the governance of the citizens.
(4) The appropriate Govemment is to exercise its opinion and judg-
ment on the representation before sending the case alongwith the detenue's repre-
sentation to the Advisory Board. If the appropriate government releases the detenue,
the Government will not send the case along with the detenue's representation to the
Advisory Board. If the Government does not release the detenue, it will send the case
to the Board. If thereafter the Advisory Board will express an opinion in favour of
release of the detenue, the Government will release the detenue. If the Advisory
Board will express any opinion against the release of the detenue, the Government
may still exercise the power to release the detenue.^^®

The Advisory Board has to consider the material before it and any other further
infomnation from appropriate Government or any person through the appropriate Gov-
ernment and in any particular case if the person desires to be heard in person, after
hearing him the person, submit its report to the appropriate Govemment within 7 weeks
from the date of detention of such person.
Clause (4) of Section 11 of N.S.A. makes it clear that "nothing in this section
entitle any person against whom the detention order has been made to appear by any
legal practitioner in any matter connected with the reference to the Advisory Board."
However, the detenue's right to representation through counsel was conceded by the
Supreme Court in Francis Coralie v. Union oflndia^^^ and it was also concluded in

656. Ibid.; The principles laid down were reiterated by the Supreme Court subsequently in Moosa
HuseinSangharv. State of Gujarat, A\R 1994 SC 1479; K.M.AbduJJaKunhi v. Union of India,
AIR 1991 SC 574; Kubic Darinsz v. Unionof India, AIR 1990 SC 605.
657. Clause (1) of Section 11 NSA, 1980.
658. AIR 1981 SC 746.
 134
Hemlata v. State of Mahiarastra,^^thai only" in certain cases complicated" and it
cannot be claimed "as of right". In A. K. Roy v. Union of India, ^ t h e Court dismissed
the view. The Supreme Court, however, allows the detenue to consult a lawyer only to
prepare his representation or to file writ petitions to court for release but is not permit-
ted to appear before tlie Advisory Board ^^ (emphasis added). NandLal v. State of
662

Punjab, the validity of detention order made under Section 3 of the Prevention of
Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1982,
was challenged that the procedure adopted by the Advisory Board in allowing legal
assistance to the State but denying such assistance to the detenue was held arbi-
trary, unreasonable and violative of Article 21 read with Article 14 of the Constitution.
663

However, "without representation by legal counsel, the procedure of trial or consid-

eration of detention will not be fair and just" ^ a s was observed by Sutherland, J., in
American case of Ozie Powell v. State of Alabama,^ Vnai the "right to be heard by
counsel." ^ He argues that "even the intelligent and educated layman has small and
sometimes no skill in the Science of law. He is unfamiliar with the rules of evidence
and left with out the aid of a counsel, he may be put on trial without charge and con-
victed upon incompetent evidence or evidence irrelevant to the issue or othenvise
inadmissible."®^^ Secondly, "he lacks both the skill and knowledge adequately to pre-
pare his defence.... And without it (the aid to counsel) though not guilty he faces the
danger of conviction because he does not know how to establish his innocence.^ In
any case where the Advisory Board has reported that there is, in its opinion sufficient
cause for the detention of a person, the appropriate Government may confirm the
detention order and continue the detention of the person concerned for such pe-

659. AIR 1982 SC 8 Para 6.

660. AIR 1982 SC 710.
661. Ibid. , P.7A8.
662. AIR, 1981 SC 2041
663 Ibid.; see also Deshta, Sunil and Deshta, Kiran,op. cit. p. 18
664 Dhar, Panna La) ,op.cit., p.110
665. (1932) 77 LED, 158
666. Ibid; see also Dhar, Panna Lai, op cit., p.110.
667. Ibid.
668. Ibid.
 135
period as it thinks fit. ^ Where Advisory Board opines that there is no sufficient ground
for detention of the person appropriate Government shall revoke the detention order
and cause the person concerned to be released forthwith. ^''°
The maximum period of detention where detention is confirmed by Advisory
Board, shall be twelve months, ®^^ but appropriate Government is empowered to
revoke or modify the detention order at any time. ^'^^ The appropriate Government may
also release the detained person temporarily with or without conditions or after enter-
ing a bond with or without sureties. ^^^ The breach of conditions and failure to surren-
der himself in manner specified is punishable with imprisonment for a term which
may extend to two years with or without fine. ®^''
Hence, under the Constitution of India, ^^^ the National Security Act and other
laws ^^^ enacted by the States, a person can be detained if he is acting in a manner
prejudicial to the defence of India or relation of India or a foreigner with a view to
regulate his continued presence in India or expulsion from India. The person can also
be detained with a view to preventing him from acting in any manner prejudicial to the
security of the State Government or public order or from acting in any manner prejudi-
cial to the maintenance of Supplies and Sen/ice essential to the community. ^^ Detenue
has the right to know the grounds of detention and to make representation against the
detention order.^^^ The detenue's representation together with grounds of detention

669. Clause (1) of Section 12 ibid.

670. Clause (2), Ibid.
671. Section 13, NSA, 1980; Section 14-A was inserted in the Act for its application to the State
of Punjab and Union Territory of Chandigarh by National Security (Ammendment)Act, 1987
(27 of 1987), Sec.3 (wef. 9*^ June, 1987), published in Gazette of India, Extraordinary, pt. 11.1,
dated 31'' August, 1987; The maximum period of detention in terrorist affected and dis-
turbed areas is 24 months and person can be detained for six months without obtaining
opinion of Advisory Board; See Sec. 14-A.
672. Sec .14 NSA.
673. Sec. 15(1) and (2) of NSA.
674. Clause (3) and (4) of Sec. 15 NSA.
675. Article 22 of Constitution of India.
676. National Security Act, 1980; There are different laws enacted by State Governments.
677. See entry of list I of Schedule VII; entry 3 list ill Schedule VII of Constitution of India; see also
section 3 of National Security Act, 1980; The Supreme Court clarified the difference between law
and order, public order in the matter of Ram ManoharLohia v. State of Bihar, AIR 1966 SC 740.
678. Clause (5) of Article 22 of Constitution; See Sec 8 of NSA, 1980.
 136
are to be placed before the Advisory Board.^^^The detenue has right to be released if
in the opinion of the Advisory Board there is no sufficient cause.®^°On the query raised
by Sh H. V. Kamath during Constituent Assembly debates, Dr B. R. Ambedkar re-
plied that a writ of habeas corpus can be asked for and issued in any case but the
other writs depend upon the circumstances of each different man, because the object
of the writ of habeas corpus is very limited one. ^^^ Article 22 and the provisions of the
National Security Act, 1980 are not beyond the purview of Article 32 and 226 of the
Constitution and in case of non disclosure of grounds of detention and violation of
procedure, Supreme Court or High Court can be approached for release.
The procedural provisions contained in clauses 3 to 7 of Article 22 of the Con-
stitution relating to the scheme of preventive detention in India have come up for much
criticism as not confirming to the principles of natural justice. Denial of right of repre-
sentation by detenue's own counsel, denial of other rights like the right to speaking
order etc., are often sought to be tested on the anvil of natural justice... "^^^
The judicial attitude has varied fomi A K Gopalan v. State of Madras (1950)^^
to A. K. f?oy's case (1982)^^and Vijay Narain's case {^984)f^^\r^ Gopalan's case,^^^
the attitude of the Supreme Court reflected the mood of the government of the time to
maintain order and stability after the large scale communal bloodshed before and
687

subsequent to partition. Kania, C. J., observed with reference to validity of Preven-

tive Detention law:
If the legislature prescribes a procedure by a validly enacted law and
such procedure in the case of preventive detention does not come in
conflict with express provisions of Part-Ill or Article 22(4) to (7), the Pre-
ventive Detention Act must be held valid notwithstanding that the Court
may not fully approve of the procedure prescribed under such Act. ^^^

679. Sec. 10 NSA, 1980.

680. Sec. 12 Ibid.
681. C.A.D., Vol. 9. p. 1564.
682. Dhar, Panna La! ,op.cit., p. 102.
683. AIR 1950 SC 27.
684. A. K. Roy v. Union of India, AIR 1982 SC 710.
685. Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334.
686. Supra note 73,
687. Dhar, Panna La!,op. cit, p. 239.
688. A. K. Gopalan v. State of Madras, (1950) SCR 88 at 117.
 137
In State of Bombay v. Atma Ram,^^^both Patanjali Sastri and Das, J.J., gave
a restricted construction to clause (5) of Article 22 dealing with representation of the
detenue. According to Das, J., if sufficiency of grounds is not justiciable at the initial
stage when the order of detention made, it is wholly illogical to say that the sufficiency
of the same becomes justiciable as soon as they are communicated to the detenue
for representation. According to him there are provisions in clause (5) to supply par-
ticulars apart from the grounds already supplied. Patanjali J., also held the view that
clause (5) of Article 22 did not contain any provision to warrant the view that the grounds
of detention must be such that they are sufficient to make a adequate representa-
tion.^^" In A. K. Roy^^'^ the Court held that "Court has no power to judge the fairness
and justness of procedure established by law for the purposes of Article 21." In Vijay
Narain's case, ^^^the Court observed that, "the sufficiency of grounds is not for the
Court but for the detaining authority for the formation of his subjective satisfaction that
the detention of a person is necessary." ^^^ shri. H.V. Kamath observed in the Con-
stituent Assembly that personal liberty can't be absolute. He further said that,"No
man can have absolute personal liberty of he wants to live within the social framework.
If a man leaves the world and becomes an absolute sanyasi, not in the customary
sense of the temri but in the truest sense, the case is different. If any man was to live in
society, his personal liberty must be restrained. Liberty without restraint will become
licence."^^''

(IX) CONSTITUTIONAL MECHANISM FOR THE SAFEGUARD OF

RIGHTS OF ACCUSED
The Preamble^^* to the Constitution of India envisages a solemn form of all
ideals and aspirations for which the country had struggled during British regime. It

689. AIR 1951 SC 157.

690. Ibid; see para 26 and 38 of judgment.
691. A. K. Roy v. Union of India, AIR 1982 SC 710.
692. Vijay Narain Singh v. State ofBitiar, AIR 1984 SC 1334.
693. Ibid.
694. CAD, Vol. 9,p. 1518.
695. The preamble to the Constitution has been called "a key to open the mind of the makers and
shows the general purposes for which they made the several provisions in the Constitution,"
see Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845.
 138
declares to secure to all citizens: justice, liberty of thought and expression, belief, faith
and worship; equality of status and of opportunity. There is also a strong assurance to
protect the dignity of the individual, high or low. A reading of Part-Ill of the Constitution
reveals that a series of human rights have been guaranteed which are actually prohi-
bitions against the State.^^^
The talk of all human rights declaring them as fundamental rights in the Consti-
tution is meaningless unless the enforcement by effective machinery is provided. ^^''
Effective enjoyment of human rights calls for the establishment of a national infrastruc-
ture for their promotion and protection.^^^ The Constitution of India provides for two
tier system for ensuring enforcement and protection of fundamental rights which are
also human rights. The Apex Court in India i.e. Supreme Court and High Courts at
State level can be approached directly in the matters relating to fundamental rights.^^^
National Machinery is necessary for effective realization of human right as mere exist-
ence of laws is meaningless in the absence of a reformed vigilant mechanism. ^°°
Therefore," declaration of fundamentalrightsis meaningless unless there is
effective machinery for the enforcement of the rights. It is the remedy which makes the
right real. If there is no remedy there is norightat all. It is, therefore, in the fitness of
things that our Constitution- makers having incorporated a long list of fundamental
rights have also been provided for an effective remedy for the enforcement of these
rights under Article 32 of the Constitution. Article 32 is itself a fundamental right.
Article 226 also empowers all the High courts to issue the writs for enforcement of
fundamental rights."^°^
(i) SUPREME COURT AS GUARANTOR OF FUNDAMENTAL RIGHTS
Article 32 of the Constitution confers a guaranteedrightto move the Supreme
Court for enforcement of fundamentalrightsenshrined in Part-Ill of the Constitution.^°2

696. For details of fundamental rights see Part-Ill of Constitution from Article 12 to 35.
697. Article 32 pertaining to Remedies for enforcement of fundamental rights conferred by Part-Ill is
a fundamental right itself.
698. Singh, Gurjeet,"Role of National Institutions and Non-Govenmental Organizations." Sehgal,
B.P.S., (ed), Human Right in India, Deep and Deep Publication New Delhi( 1995), p. 588
699. See Articles 32 and 226 of the Constitution of I ndia.
700. Human Rights Newsletter, NHRC, New Delhi,Decemeber, 1997 p.4
701. Pandey, J.N.ponstitutional Law of India, Allahabad (1984), p. 202.
702. See Article 32.
 139
Article 32(1) provides "the right to move the Supreme Court by appropriate proceed-
ings for the enforcement of the rights conferred by this part in guaranteed. ^"^This right
has been held to be an "important and integral part of the basic structure of the Consti-
tution."^'^ The Supreme Court has been rightly held" as the protector and guarantor
of fundamental rights"^°^and Article 32 as the cornerstone of the democratic edifice
raised by the Constitution.^"® Dr. B. R. Ambedkar while commenting about the impor-
tance of this Article (Art. 32) in the Constituent Assembly observed:

If I was asked to name any particular article of the Constitution as the

most important an article without which this Constitution would be a nullity
- 1 would not refer to any other article except this one. It is the very soul
of the Constitution and the very heart of it. ^°^

The expression "appropriate proceedings" has reference to proceedings which

may be appropriate having regard to the nature of the order, direction or writ which the
petitioner seeks to obtain from the Court (Supreme Court). The appropriateness of
the proceedings would depend upon the particular writ or order which he claims and
it is not in that sense that the right has been conferred on the citizen to move this Court
by appropriate proceedings. ^°^
(ii) SUPREME COURT AS GUARANTOR OF RIGHTS OF ACCUSED
Clause (1) of Article 32 guarantees the fundamental right to move the Supreme
Court by "appropriate proceedings" for the enforcement of fundamental rights en-
shrined in Part-Ill of the Constitution.^"^The power of the Supreme Court under this
clause is very wide. Article 32 (1) makes a mention about 'appropriate proceedings"
and it means that the requirement of the appropriateness of the proceedings must be
judged in the light of purpose of proceedings.^^" In Mukti Morcha v. Union of India J^^
the Supreme Court clarified that the Constitution makers deliberately did not lay down

703. Clause (1) of Article 32 of Constitution.

704. Fertilizer Corporation Kamgar Union v. Union of India, AIR 1984 SC 344.
705. Romesh Tliapar v. State of Madras, Al R 1950 SC 124.
706. See Prem Ctiand Garg v. Excise Commissioner, AIR 1963 SC 996.
707. 1948, VII C.A.D. 953.
708. Daryao Singti v. State of UP, A\R^ 961 SC 1457.
709. See Article 32(1).
710. See supra note 708.
711. AIR 1984 SC 802.
 140
any particular form of proceeding for enforcement of a fundamental right nor did they
stipulate that such proceedings should conform to any right pattern or straight jacket
formula because they know that in a country like India where there was so much of
poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid
formula of proceeding for enforcement of a fundamental right would become self de-
feating. ''^'^ It was held in Ramesh Thapar v. State of Madras ^^Hhat Article 32 does
not merely confer powers on the Supreme Court, as Article 226 does on the High
Court to issue certain writs for the enforcement of the rights conferred by Part-Ill or for
any other purpose as part of its general iurisdiction. The Article provides "guaran-
teed" remedy for the enforcement of those rights and this remedial right is itself a
fundamental right by being included in Part-Ill. The Supreme Court is thus constituted
the protector and guarantor of fundamental rights and it cannot consistently with the
responsibility so laid upon it, refuse to entertain application seeking protection against
infringement of such rights, on technical grounds.
Even the stone walls and iron bars of the prison can't flout the protection avail-
able under Article 32. Explaining it in the matter of Charles Sobhraj v. Supdt. Cen-
tral Jail, ^^"the Supreme Court observed that Article 32 enshrines a very valuable
right. If a prisoner's fundamental right is flouted or legislative protection is ignored;
the Supreme Court writ will run, breaking through stonewalls and iron bars to right the
wrong and restore the rule of law. ^^^
Clause (2) of Article 32 reads "The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature of habeas corpus, manda-
mus, prohibition, quo warrants and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this part." ^^^ Clause (2) of Article 32
does not require the Court to observe all procedural technicalities which were

712. Kumar, Narendra, op. cit, p.287.

713. AIR 1950 SC 124.
714. AIR 1978 SC 1514.
715. Ibid.
716. Clause (2) of Article 32; "This part" referred in clause (2) means Part-Ill of the Constitution of
India pertaining to Fundamental Rights.
 141

relevant for the issuance of writs under English Law. ^" The language used in Article
32(2) is very wide. The power of the Supreme Court is not confined to issuing of writs
in the nature oi habeas corpus, mandamus, prohibition, quo-warranto, certiorari. ^'^^
The Supreme Court of India may not only issue the above writs but also directions,
orders or writs, similar to the above so far as to fit in with any circumstances peculiar
to follow the procedural technicalities of English law, but it has been held that in grant-
ing these writs it will follow the broad and fundamental principles. ^^^
Thus, the wording of Article 32(2) is so elastic that jt permits all necessary
adoption without legislative sanction from time to time so as to enable effective en-
forcement of the fundamental rights. Even if a proper writ has not been prayed for by
the petitioner in a case his application cannot be thrown out. Article 32 permits large
discretion to the Supreme Court to give the appropriate relief. The Court can frame
such writs as the exigencies of a particular case demand. ""Clause (2) of Article 32 is
of wide amplitude. It does not confine the power of the Supreme Court to the issu-
ance of the named writs, but the court may issue any direction or order whichever may
be appropriate for the enforcement of the fundamental rights. "^ In Ramesh Thappar
722

V. state of Madras the court observed that Supreme Court has been constituted as
a protected and guarantor of fundamentalrightsand once a citizen has shown that
there is infringement of his fundamental right the Court cannot refuse to entertain pe-
titions seeking enforcement of fundamental rights. "^
Therightto move Supreme Court is only available to those whose fundamental
rights are infringed. ""According to the traditional rule of locus standi, the right to
move the Supreme Court is available only to those whose fundamental right is in-
fringed. This rule has been considerably relaxed by the Supreme Court over a period

717. Rashid Ahmed v. Municiapal Board, Kairana, AIR 1950 SC 210; I C. Basappa v T. Nagappa,
AIR 1954 SC 440.
718. Rashid Ahmed v. Municiapal Board, Kairana, Al R1950 SC 163.
719. Pandey, J.N., op.cit, p. 202 ; These writs are of English origin.
720. ChiranjILal v. Union of India, AIR 1951 SC 41; see also Pandey, J.N.,op.cit, p. 206.
721. See Article 32 of the Constitution.
722. AIR 1950 SC 124 at p. 126.
723. Ibid.
724. In the matter of Madhu Limye, AIR 1969 SC 1014; Andhra Industrial Works v. Chief Controller,
imports, AIR 1974 SC 1539; see also Pandey, J.N.,op.c/f., p. 202.
 142

of time. The Court has taken a dynamic approach and public interest litigation at the
issuance of "public spirited persons", for the enforcement of fundamental rights of any
person, has been permitted ^^sjj^mphasis added).In A B. S. K. Sangh (RIy.) v. Union
of India, "^ it was held that Akhil Bhartiya Soshit Karamchari Sangh (Railway), though
an unregistered association can maintain a writ petition under Art.32 for the redressal
of a common grievance. Access to justice through 'class actions', 'public interest'
and 'representative proceedings' is the present Constitutional jurisprudence. ^^^^ Jus-
tice P. N. Bhagwati reiterated in a case ^^sand observed, "Where a legal injury is
caused to a person or to a determinate class of persons by reason of violation of any
constitutional or legal right and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially or economically disadvan-
taged position unable to approach the public can mention an application for an ap-
propriate direction or order or writ in the High Court under Article 226 or in case of
breach of any Fundamental Right... to this Court under Article 32'7^® There were some
apprehensions that 'public interest litigation' would create arrears of cases and there-
fore they should not be encouraged. ^^° Bhagwati J. had different observation and he
declared that "No State had the right to tell its citizens that because a large number of
cases of the rich are pending in our Courts we will not help the poor to come to the
Courts for seeking justice until the staggering load of cases of people who can afford
" 731

rich lawyers is disposed off.

In Simranjit Singti Mann v. Union of India, ^^^the Supreme Court held that in
criminal matters, as far a possible, the Court should be approached only by the ac-
cused. A third party who was a total stranger to the prosecution culminating in the
conviction of the accused, had no 'locus standi' to challenge the conviction and the
sentence awarded to the convict in a petition under Article 327^^J}r\e Supreme Court

725. Kumar, Narender, op.cit. p.287.

726. AIR 1981 SC 298.
727. Ibid, See also Pandey, J.N.,op.cit, p. 203.
728. S. P.Gupta and others v. President of India and other, AIR 1982 SC 142; This case is popu-
larly known as "Judges Transfer Case".
729. Ibid.
730. See People's Union for Democratic Rights v. Union of India, AIR 1980 SC 1579.
731. Ibid.
732. AIR 1993, SC 280; see also Janta Dal v. H.S. Chowdhary, AIR 1993, SC 892.
7r^.? Ibid.
 143
has considerably broadened the scope of Article 32 and Court is ready to interfere
whenever there is "injustice" being done to helpless persons, children in jail, protec-
tion of pavement dwellers in Bonnbay and payment of wages and other benefits to
workers and Court has issued appropriate orders and directions on the representa-
tive actions. ^^
The Supreme Court of India diluted the concept of Sovereign immunity and
evolved the right to compensation on case to case basis. In addition to awarding
other reliefs Court have been awarding monetary compensation in the nature of pal-
liative", ^^^ in "appropriate cases" as in the opinion of the Court "such a remedy is
not only salutary but essential for good governance'. ^^^
(iii) HIGH COURT AS PROTECTOR OF RIGHTS OF ACCUSED
Article 226(1) provides that "Notwithstanding anything in Article 32 every High
Court shall have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the
nature oi habeas corpus,mandamus, prohibition, quo-warranto, certiorari, or any
of them, for the enforcement of any of the rights conferred by Part -III and any other
purpose". ^^ Thus the jurisdiction of a High Court is not limited to the protection of the
fundamental rights but also other legal rights as is clear from the words "any other
purpose". These words make the jurisdiction of the High Court more extensive than
that of the Supreme Court which is confined to only for the enforcement of

734. See Khatri v. State of Bihar, AIR 1981 SC928. The case is popularly known as Bhagalpur
Blinding case; Upendra Baxi v. State of UP, (1983) 2 SCC 308; The case is known as Flesh
Trade case in Protective Home in Agra; Upendra Baxi(ii) v. State of UP, (1986) 4 SCC 106;
Olga Tellis v. Bombay Municipal Corportation, (1985) 3 SCC, 545; Bombay Pavement Dweller
V. Bombay Municiapl corporation, Al R1986 SC 180; Peoples Union for Democratic Rights v.
Union of India, AIR 1982 SC 1473; Munna v. State of UP, AIR 1982 SC 806.
735. Rudal Shah v. State of Bihar, Al R 1983 SC 1086.
736. Bhim Singh v. State of J&K, Al R 1986 SC 494 p.449.
737. C. Ram Konda Reddy v. State ofAP, AIR 1989 AP 235.
738. Clause (1) of Article 226; Prior to the enactment of the Constitution of India only Presidency
High Courts of Calcutta, Madras and Bombay had the power to issue writs under Section 494
of Cr.P.C, 1898. The Section is repealed; see also Diwan, Paras , and Diwan .Peeyushi,
Human Rights and the Law, (1992), Delhi. p.20.
 144

fundamental rights. "^ Article 32 confers writ jurisdiction on the Supreme Court. How-
ever the writ jurisdiction conferred by Article 226(1) on the High Courts is wider, for a
High Court may issue writs not only for enforcement of fundamental rights (Article 32
confines it to fundamental rights only) but also for any other purposes. '^^ The words
"for any other purpose" refer to enforcement of a legal right or legal duty. They do not
mean that a High Court can issue writs for any purpose it pleases. ^*^
Article 226 thus provides important machinery for judicial review of adminis-
trative action in the country. It's scope can't be curtailed or whittled down by legisla-
tion. Even when the legislature declares the action or decisions of an authority final,
and ordinary jurisdiction of the courts is barred, a High Court is still entitled to exercise
its writ jurisdiction which remains unaffected by legislation. ^"^The expression "in the
nature of" in Article 226(1) explains that the Court is not obliged to follow all the proce-
dural technicalities of the English law relating to writs except that it may keep to the
broad and fundamental features of these writs as following under English Law. ^'•^
High Courts can also issue directions, orders or writs other than the prerogative writs.
It follows that the courts may mould the relief to meet the peculiar and complicated
requirements of our country. ^'^This remedy cannot be claimed as a matter of right.
The High Court must exercise its discretion on judicial consideration and on well es-
tablished principles unless the High Court is satisfied that the normal statutory rem-
edy is likely to be too dilatory or difficult to give reasonable, quick relief, it should be
loath to act under Art. 226. The High Court should be careful to be extremely circum-
spect in granting these reliefs especially during the pendency of criminal investiga-
tions. The investigation of a criminal case is a very sensitive phase where the

739. Pandey, J.N., op.cit, p.319: see also Harshankar v. Dy. Excise and Taxation Commr. AIR
1975 SC ^^2^•, DivsionalForest Officer V. Bistiwanatli Tea Co. Ltd., AIR 1981 SC 1368.
740 Kumar, Narender, op.cit, p. 440.
741. Tope, T.K, Constitutional Law of India, 1982 edn., p. 501.
742. See Sajjan Singli v. Rajasthan, AIR 1965 SC 845; Custodian Evacuee Property v. Jafri Begum,
AIR 1968 SC 169.
743. Kanu Sefigai v, District Magistrate, Darjeeiing, AIR 1973 SC 2684; see also T C. Basappa v
T. Nagappa, AIR 1954 SC 440; B D Narsitima Setty v. Dy CTO, AIR 1963 Mad. 166.
744. Bandtiua Mul<ti Mon:tia v. Union of India, Al R1984 SC 802; see also Narender Kumar, op cit,
p.440.
 145

investigating autliority has to collect evidence from all odd corners and anything that is

likely to thwart its course may inhibit the interest of justice. ^'*^
The Court "may refuse to grant any writ where alternative remedy is available
is only a rule of direction and not a rule of law."^"^ The power conferred by clause (1)
to issue directions orders or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories. '"•'' The scope of the power to enforce fundamen-
tal right (under Article 32 or 226) is both protective and remedial. Hence, to reject
such petition on the simple ground that it cannot be entertained because of a rule of
practice of the Court cannot be justified. '"•^
The temn "authority" used in Article 226, the context must receive a liberal mean-
ing unlike the term in Article 12. Article 12 is relevant only for the purpose of enforce-
ment of fundamental rights under Article 32. Article 226 confers power on the High
Courts to issue writs for enforcement of the fundamental rights as well as non funda-
mental rights. The words "any person or authority" used in Article 226 are, therefore,
not to be confined not to statutory authorities and instmmentalities of the State. They
may cover any other or body powering public duty. The form of the body concerned is
not very much relevant. What is relevant is the nature of duty imposed on the body, the
duty must be judged in the light of the positive obligation owed by the person or
authority to the affected party. ^*^ The makers of the Constitution having decided to

745. Assistant Collector, Central Excise v. J H Industries, AIR 1979 SC 1889.

746. A.V. Venkateswaram v. R S Wadhwani, AIR 1961 SC 1506; There have been numerous
instances where a writ has been issued in spite of the fact that aggrieved party had other legal
remedy; see State of UP v. Mohd. Nooh, AIR 1958 SC 86; Himmat Lai v. State of UP, AIR
1954 SC 403; Tafa Engineering and Locomotive Co. v. Assistant Commissioner, Commercial
Taxes, AIR 1967 SC 1401: Stiyam v. Municipal Corporation, (1993), 1 SCC22, Paragraph 45.
747. Clause (2) of Article 226 of the Constitution; The recommendation for amendments to the
contents of clause (2) was made by the Law Commission of India, Report XIV, 1956, 66
removal of limitations of jurisdiction of High Court, later on Amendment was made by the
Constitution (fifteenth amendment) Act, 1963.
748. Kiran v. Govt. of>AP(1990) 1 SCJ. 282, Paragraphs 13-15 and 20 quoted by Bakshi, PM.,
The Constitution of India, Delhi (1997), p. 154.
749. Subba Rao, Justice in Dwarkanath v I.T.O., AIR 1966 SC 81 at p. 84,85.
 146
provide for certain basic safeguards for the people in new set up, which they call the
Fundamental Rights, evidently, thought it necessary to provide also a quick and inex-
pensive remedy for enforcement of such rights and, finding that the prerogative writs
which the courts in England had developed and used whenever urgent necessity de-
manded immediate and decisive interposition, were particularly suited for the pur-
pose, they conferred in the 'States' sphere, new and wide powers on the High Courts
of issuing directions, orders or writs, primarily for the enforcement of Fundamental
Rights, the power to issue such directions, "for any other purpose" being also in-
cluded 7^° Thus, "the jurisdiction of the High Court is wider than that of the Supreme
Court because the Supreme Court under Article 32 cannot issue the writ against a
private person, while the High Court under Article 226 can issue it against a private
person also."^^^ It may, however, be noted that writ jurisdiction of Supreme Court of
India and High Courts under Article 32 and 226 respectively is supervisory and visito-
rial. It is never appellate, revisional, advisory or consultative. It may further be pointed
out that the writ jurisdiction is prospective and not retrospective/"
Clause (1) of Article 226 while conferring power upon the High Courts to issue
writs expressly provides that the writs may be issued against any person or authority
including in appropriate cases, any Government. Therefore, if the occasion demands,
the High Court will not be lacking in the power to issue writs against Government. Can
we say the same thing as regards the writ jurisdiction of the Supreme Court under
Article 32. Admitted by Article 32(2) which corresponds to Article 226(1) is differently
worded and makes no express mention as to whether Supreme Court can issue writs
against Government. But there is no prohibition in Article 32(2) that the writs cannot
be issued against Government. Being the highest Court of the land, it would be ab-
surd to hold that the Supreme Court cannot issue writs against Government although
the High Courts can, therefore, concluded that the Supreme Court equally with the
High Courts, possesses power to issue writs in appropriate cases against any gov-
ernment. ^^^The only difference between the writ jurisdiction of the Supreme Court and

750. Election Commissioner of India, v. Venketa Subha Rao, AIR1953SC210at212

751. PD Shamadasani v. Central Bank of India Ltd., AIR 1952 SC 59; Smt. Vidya Verma v. Dr
ShivNarain Verma, AIR 1959 SC 108.
752. State of UP v. Mohd Nooh, Al R 1958 SC 86.
753. Shukia, V.N., Legal Remedies (1986), p.67.
 147
High Courts is that one can move the Supreme Court only for the enforcement of
fundamental rights whereas in High Courts, it may be for the enforcement of funda-
mental rights or for any other purpose. From this point, the writ jurisdiction of the High
Court is wider in scope. However, one must remember that "the law declared by the
Supreme Court shall be binding on all courts with in territory of India."^^
The Supreme Court and High Courts have been entertaining public interest
litigations (P.I.L.) to provide access to justice through "class actions", "public interest
litigation" or "representative proceedings." Any member of the public having "suffi-
cient interest" can approach the court. ^^^ Public interest litigation or social action liti-
gation have also been entertained by the court where matter of public interest is in-
volved or where aggrieved party is unable to approach the court due to poverty, igno-
rance or disablement. In such circumstances "even a letter addressed to him (to the
Court) can legitimately be regarded as appropriate proceedings."''^Thus Supreme
Court and High Court have been active for enforcement and protection of
fundamental human rights in India.
(X) SUM UP
In the preceding Chapter it has been discussed that according to right to equal-
ity enshrined in the Constitution, ''"a person arrested, charge-sheeted or incarcer-
ated cannot be discriminated except the legal restrictions according to law of the
land. "^ A prisoner is not wholly stripped of Constitutional protections, when he is
imprisoned for crime, and there is no iron curtain drawn between the Constitution and
the prison of this country. ^^^ Convicts are not denied of all fundamental rights which
they otherwise possess except that when person is in prison he is deprived of

754. Jawal, P.S., Jaswal, Nistha, Environmental Law (1999), p.70; see also Article 141 of the
Constitution of India.
755. See A. B. S. K. Sangh (RIy.) v. Unionof India, AIR 1981 SC 296; S P Gupta v. Union of India,
AIR 1982 SC 149.
756. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802; see also the Times of India, New
Delhi, 18*^ April 2001, Page.1 Col.(5).
757. Article 14 of Constitution of India.
758. See Verma, R S., op.cit. , p. 105.
759. See Francis Coralie v. Union Tenitory of Delhi, AIR 1981 SC 746 at 751.
 148
fundamental freedom like right to move freely throughout the territory of India, right to
practice a profession etc. ^®° Right to equality under Article 14 is available to all
persons whether natural, artificial, citizen or aliens. ^^^ Two concepts are enshrined in
Right to equality i.e. (a) equality before the law and (b) equal protection of the laws.
"Equality before law" is negative concept and establishes the "Rule of Law" and State
is to treat all persons alike and not discriminate against them, ^^^jhe dominant idea
common to both these expressions is that of equal justice. ^^^The Right of equality
does not forbid reasonable classification based on intelligible differentia based on
rationality. ^^The guarantee of equal protection is available (to the accused) person
under substantive as well as procedural laws, ^^there cannot be separate procedure
for persons who have been committed same offence, ^^but there can be different
procedure for trial of a particular offence if provided by some special law. ^®^
The right to freedom of speech and expression is one of fundamental freedom
guaranteed to all citizens under Article 19 (1) (a) of the Constitution. ^^^ Reasonable
restrictions in the interest of security of State, friendly relations with foreign States,
public order, decency or morality, contempt of Court, defamation or incitement of an
offence can be imposed on this right. ^^^This right also includes freedom of thought
and expression and freedom of press is included in it. ^^° A detenue is not barred from

760. See D B Mohan Patanaik v. State ofAP, 1975 , 2 SCC 24: 1975 Cr. LJ 556.
761. See National Human Rights Commission v. State ofArunachal Pradesh, AIR 1996 SC1234;
MBNizami v. Dy. Custodian of Evacuee Property, A\R 1951 Mad 930; Charanjit l-al Chaudhary
V. Union of India, AIR 1951 SC 41; see also Kumar, Narender, op.cit., p.84.
762. See Dicey A.V., Law of Constitution, 10* Edn. pp.202-03; Pandey, J.N., op.cit, p.68; See
also Rubinder Singh v. Union of India, AIR 1983 SC 65.
763. Sheo Shanker v. State of MP,M R 1951 Nag. 53.
764. See Kathi Raning Rawat v. State of Saurastra, AIR 1952 SC 123, p.136.
765. See Shree Meenakshi Mills Ltd, Madurai and others v. A. V. Visvanatha Sastri & Others, AIR
1955SC13p.15.
766. State of WB v. Anwar All (^^52) SCR 284.
767. Special Courts Bill, 1878 in re AIR 1979 SC 478 para 74,78,80-84,87-89.
768. The right is available to 'citizens' and not to all persons as provided in Article 14. of Consti-
tution.
769. Clause (2) of Article 19.
770. See Seervai ,H.M., Constitutional Law of India, Bombay, Vol. I third Edn.(1983), p.491; f?P
Ltd V. Proprietors, Indian Express Newspapers Pvt. Ltd., AIR 1989 SC 190.
 149

publishing a book while being in jail ^^ as every citizen hasrightto air his views through
print or electronic media subject of course to permissible restrictions. '"'^
Article 20 (1) provides that "no person shall be convicted of any offence 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 in-
flicted under the law in force at the time of the commission of offence."^^ According to
this clause, the legislature shall not be competent to make a criminal law retrospec-
tively to declare an act to be an offence or to provide penalty for an offence to prejudi-
cially affect the persons who have committed such acts prior to enactment of that law.
''^"The first limitation is in respect of conviction and punishment of a person for an
offence which, when committed was not an offence by the law of the land. The sec-
ond is in regard to the imposition of a greater penalty than that which ought to have
been imposed under the existing law on the date of the commission of the offence. ^^*
The term 'penalty' used in Article 20 (1) indicates that the prohibition provided therein
applies to punishment imposed for offences and does not prohibit imposition of civil
liability. ^^

No person accused of an offence shall be compelled to be a witness against

himself, ^^^as provided by clause (3) of Article 20 of the Constitution. The clause is
based on maxim "nemo tenetus prodere accussare seipsum" which means that "no
man is bound to accuse himself." Hence the protection against self incrimination is
available (i) '1o a person accused of an offence (ii) It is a protection against compulsion
to be a witness; and (iii) It is a protection against such 'compulsions' resulting in his
giving evidence against himself."^^ Mere questioning of accused by police voluntarily

771. State of Maharastra v. Prabhakar Pandurang Sanzgiri, AIR 1986 SC 424.

772. Life Insurance Corporation of India v. Prof Manubhai D. Shafi, AIR 1993 SC 171.
773. Clause (1) of Article 20.
774. KedarNath v. State of Bengal, (1954) SCR 1150.
775. Chaturvedi, A.N., op.cit., p.336.
776. See Hathsing Manufacturing Co. v. Union of India, AIR 1960 SC 923; see also Jai Singh v.
State ofHaryana, AIR 1995 P&H 243.
777. Clause (3) of Article 20.
778. MPSharma v. Satisti Chandra, AIR 1954 SC 300; Delhi Judicial Service Association v. State
of Gujarat, AIR 1991 SC2176.
 150
and ultimately turning to be incriminatory is not 'cx)mplusion'. ^™ Magistrate may direct
the accused to give his specimen hand writing, signature, thumb impressions, finger
prints, foot prints for the purpose of comparison by police and it would not mean
compelling the accused to be a witness against himself. ^^The tape recorded
statement of the accused without his knowledge is admissible if relevant in the case.
However the accused has right to remain silent. Protection of 20 (3) does not, however,
extend to searches made in pursuance of a warrant issued under Section 93 of Cr.P.C.
Article 20 (2) provides for prohibition against double jeopardy that "no person
shall be prosecuted and punished for the same offence more than once" ™^ based on
common law maxim "nemo debet bis vexari." The object is that no one ought to be
punished twice for one and the same offence. It is to avoid the harassment caused to
a person for successive criminal proceedings where only are crime has been com-
mitted.^^2 In order to invoke "Article 20 (2) of the Constitution, there must have been a
prosecution and punishment in respect of the same offence before a Court of Law or
a tribunal." ^^^ Cr.P.C. also provides that a person once convicted or acquitted is not to
784

be tried for the same offence. However, a departmental enquiry is not a prosecu-
tion and the award of such proceeding is not a punishment, ^^^within the meaning of
Article 20 (2) of the Constitution.
Clause (4) to (7) of Article 22 of the Constitution provides for preventive detention
of a person and Article lays down the procedure to be followed after the person has
been detained. The term "preventive detention" is not defined in the Constitution,
however, it finds place in Schedule VII in List I (entry 9), List III (entry 3) and it is kept in
Union List as well as in the Concurrent List. Though the detention is to be resorted to
as preventive or precautionary measure but it depends on subjective satisfaction of
the Government. The justification for preventive detention is suspicion, or
apprehension.
779. See Per Majority in State of Bombay v. Kathi Kalu Oghad, 1961 (2) Cr. L.J 956 (SC) p. 864:
AIR 1961 SC 1808 at pp. 1816-17
780. See Chaturvedi, A.N.,op.cit.p.187
781. Clause (2) of Article 20.
782. See Kumar, Narender, op.ctf., p.187.
783. See Chaturvedi, A.N., op.cit, p.130
784. See Section 300 Cr.P.C. 1973
785. S A Venkataraman v. Union of India, AIR 1954 SC 375.
 151
The detenue has a right to make representation to the government against his
detention, ^^and grounds of detention are to be communicated to the detenue within
specified time. ^^^The Advisory Board examines the case including the material placed
before it by government, representation of detenue and hearing the detenue if he so
desires and make its recommendations to the appropriate government.^^ If confirmed
detenue can be detained in custody for one year and govt, can revoke or modify its
order at any time.^^^The detenue is not authorized to be represented by legal practi-
tioner before the Advisory Board.^^°
The Constitution of India provides for an mechanism under Article 32 and 226
for making fundamental rights as enforceable rights in Supreme Court and High Court.
The enforcement of fundamental rights are guaranteed by the Supreme Court under
Article 32 (1). The Supreme Court has been rightly held" as the protector and guaran-
tor of fundamental rights."^^^ In case of infringement of any fundamental right Court can
be approached by "appropriate proceedings"^^2and appropriateness of the pro-
ceedings would depend upon particular writ/^^ and Court has been taking cognizance
even on post cards ^*'and proceedings in certain cases by public spirited persons
have also been accepted by the Court.
The Power and jurisdiction of High Court under Article 226 is wide and court
may issue writ not only for enforcement of fundamental right but "also for any other
purposes".''^^ The concept of locus standi has also been relaxed to a great extent and
where due to poverty, ignorance or disablement person is unable to approach the
Court can be approached by any public spirited person.^^

786. See Sec. 8(1) of NSA, 1980.

787. Ibid.
788. See Section 11 (1) of NSA, 1980.
789. Sec. 13 NSA; As per Section 14A detention can be for 24 months in a disturbed/terrorist
affected areas; see also Sec. 14 of NSA.
790. Sec 11 (4) of NSA; see also A.K. Roy v Union of India, AIR 1982 SC 710.
791. Romesh Thaparv. State of Madras, AIR 1950 SC 124.
792. Clause (1) of Article 32.
793. Daryao Singt) v. State of UP, AIR 1961 SC 1457.
794. See Bhandhu Mukti Morcha v. UOI, AIR 1984 SC 802.
795. Kumar, Narendra, op.cit. p.440.
796. See Bandhua Mukti Morcf\a v. Union of India, AIR 1984 SC 802; see also the Times of India
NewDelhi. 18* April 2001 p.1 Col.(5).