Introduction
The right to Fair Trial is one of the corner stones of a just society. Without fair trials, innocent people are convicted and the rule of law and public faith in the justice system collapses. It is a key role of any Government to maintain Law and Order on behalf of the whole society. In the battle against crime and delinquency, state and its Officers cannot on any account forsake, the decency of State behaviour and have recourse to extra legal methods for the sake of detection of crimes and even criminals.
In a Democratic society, even the rights of the accused are sacrosanct. The right to fair trial means that people can be sure that process will be fair and certain, it prevents Government from abusing their powers. The right to a fair trial is recognized internationally as a fundamental human right and countries are required to respect it.
In Zahira Habibullah Sheikh and ors. Vs. State of Gujarat and ors, reported in (2006) 3 SCC 374 at 395. The Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated.
The basic principle of the right to a fair trial is that proceedings in any criminal case are to be conducted by a competent, independent and impartial court. In a criminal trial, as the state is the prosecuting party and the police is also an agency of the state, it is important that the judiciary is unchained of all suspicion of executive influence and control, direct or indirect.
The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary in India. Right against self incrimination is an important principal of right to fair trial. In the determination of any criminal charge against him/her, everyone is entitled “Not to be compelled to testify against himself or to confess guilt”. Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a witness against himself. “This clause is based on the maxim nemo tenetur prodere accusare seipsum, which means that 'no man is bound to accuse himself.
The concepts of double jeopardy and the right against self incrimination have also been examined in the light of recent case laws such as Selvi v State of Karnataka, where the Hon’ble Apex Court concluded that a Narco analysis test violates this right.
Right to fair trial
Free and Fair Trial is sine qua non of Article 21 of the Constitution of India. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. During inquiry in such cases the courts have to follow the Principles of Natural Justice. Natural Justice is not a question of acting or being required to act judicially, but of being required to act fairly.
The principles of Natural Justice basically are of two kinds : i. no one should be condemned unheard (audi alteram partem) ii. no one should be a judge in his cause (memo debit esse dudex in propria causa).
The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the state and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata.
The trial of a case is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz., whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted.
The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. As per Article 20 of Constitution of India that 'No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Art. 20(2) deals with 'Double Jeopardy'. No person shall be prosecuted and punished for the same offence more than once.
Art. 20(3) further says that 'No person accused of any offence shall be compelled to be witness against himself.'
Art. 21 provides that 'No person shall be deprived of his life or personal liberty except according to procedure established by law.'
Art. 22(1) 'No person who is arrested shall be detained in custody 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 his choice.'
Art.22 (2) directs that 'Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 of hours of such arrest excluding the time necessary for the journey'.
These Articles are incorporated in Chapter III of the Constitution of India dealing with the Fundamental Rights guaranteed to the persons in India. Provisions of Criminal Procedure Code, Indian Penal Code, Evidence Act must be in consonance with these Articles. The procedure laid down in Cr.P.C. and Evidence Act have got to be followed while dealing with offences under Excise Act, Food Adulteration Act etc., unless otherwise barred specifically.
The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.i. giving a discretion to the Court to examine the witness at any stage and ii. the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court.
Though the discretion given to the Court is very wide, the very width requires a corresponding caution. As a principle of Fair Trial, the Accused should be provided free legal assistance at the cost of the state. It is a fundamental right. Failure to provide such assistance vitiates the trial. He shall also be entitled for all copies of documents filed in the case. At the time of framing charge it should be explained in the language known to him. The witnesses are to be examined in his presence or in the presence of his pleader. He should be given an opportunity to cross examine those witnesses. If the evidence is recorded other than the language known to him, it should be explained in the language known to him. It is not the accused alone must be fairly dealt with, but also the society at large includes the victims or their family members and relatives must also dealt with Fairly.
Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. It is a Team work and every member in the team should play their respective role sincerely, honestly, fairly by following the established procedure of law and their common goal should be to discovery, vindication and establishment of truth. There should not be any bias or prejudice for or against the accused, the witness, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence or induced, that also would not result in a fair trial. The failure to hear material witness is certainly denial of fair trial.
Prohibition Against Self Incrimination
According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a person or witness incriminates themselves either explicitly or implicitly is known as self-incrimination. In simpler words, it is the act of implicating or exposing one’s own self to criminal prosecution.
The accused has right to remain silent. Article 20 (3) of Indian Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply. As per Section 316 of Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter with in his knowledge.
In the case of Selvi Vs. State of Karnataka, (AIR 2010 SC 1974), the Apex Court held that “Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests are testimonial compulsions and are prohibited by Article 20(3) of the Constitution. It was further held that Lie Detector Tests can be done only with the consent of the accused in the presence of his Lawyer and Judicial Magistrate should record the consent of the accused.
In State of Bombay vs. Kathi Kalu - AIR 1961 SC 1808, the Hon'ble Supreme Court held that “to be a witness” is not equivalent to “furnishing evidence”. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing 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 knowledge. Compulsion means duress which includes threatening, beating or imprisoning the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise article 20(3) does not apply.
The Hon'ble Apex Court in Selvi v. State of Karnataka - AIR 2010 SC 1974 drew following conclusions: The taking and retention of DNA samples which are in the nature of physical evidence,
does not face constitutional hurdles in the Indian context. Subjecting person to narco- analysis, Polygraphy and Brain fingerprinting tests involuntarily, amounts to forcible interference with person’s mental processes, and hence violates the right of privacy as well as Article 20(3). A person administered the narco-analysis technique is encouraged to speak in a drug induced State and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation.
In Dinesh Dalmia v. State of Madras - 2006 Cr. LJ V-3, 2401 the Hon'ble Court held that the scientific tests resorted to by the investigating does not amount to testimonial compulsion. Hence, the petition was dismissed.
In M.P. Sharma v. Satish Chandra, it was held that a person whose name is mentioned in the first information report as an accused can claim protection under Article 20(3). The privilege against self-incrimination is available at both trial and pre-trial stage i.e. when the police investigation is going on and the person is regarded as an accused, or even if his name is not mentioned in the FIR as an accused.
In Nandini Satpathy v. P.L. Dani, the appellant, a former Chief Minister was called to the Vigilance Police Station for the purpose of examination for a case filed against her under the Prevention of Corruption Act, 1947. During the investigation, she was served with a long list of questions in writing which she denied to answer and claimed protection under Article 20(3).
The Supreme Court held that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and the right against self-incrimination is available to witness and the accused in the same manner, and it is applicable at every stage where information is furnished. The privilege under Article 20(3) is applied at the stage of police investigation when the information is extracted.
This right to silence is not limited to the case for which the person is being examined but further extends to other matters pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well. In the case of Balasaheb v. State of Maharashtra, it was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case. However, he may refuse to answer those questions which tend to incriminate him.
Conclusion
The right to self-incrimination first appears in medieval Roman church law in the Latin maxim ‘Nemon tenetur seipsum accusare’ which means ‘No one is obligated to blame himself.’ Back in the middle-ages in England, demonstrations against inquisitorial and manifestly unfair practices of questioning of convicted persons eventually evolved the right of common law.
This is one of the basic tenets of the British Code of penal jurisprudence, which the United States of America followed and introduced into their Constitution as “no person shall be compelled in any case to be a witness against himself”, and thereafter adopted in the Indian Constitution as under Article 20(3). This immunity is only applicable to criminal proceedings.
Although, the protection does not apply in case wherein an object or document is searched or seized from the accused's possession. For the same purpose, the provision would not exclude the accused from being examined, medically or having his thumbprint or specimen signature taken. However, the role of judiciary becomes more critical as the application of this protection varies from facts and circumstances of each case.
A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
Law is a living process, which changes according to the changes in society, science, ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles.