HUMAN RIGHTS ASSIGNMENT

R I G H T T O FA I R T R I A L

GROUP 2
 INTRODUCTION

RIGHT TO FAIR TRIAL

 A fair trial is an open trial by an impartial judge in

which all parties are treated equally. The right to
fair trial is one of the fundamental guarantee of
human rights and rule of law, aimed at ensuring
administration of justice. Fair trial includes fair and
proper opportunities allowed by law to prove
innocence. 
Sources of law
International Human Rights Law:
Article 14 of the international covenant on civil and political rights
 
*All persons shall be equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by law. The
press and the public may be excluded from all or part of a trial for reasons of morals, public order
(order public) or national security in a democratic society, or when the interest of the private lives
of the parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any judgment rendered
in a criminal case or in a suit at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of
children.
*Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.
 * In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against him; (b) To have
adequate time and facilities for the preparation of his defence and to communicate with counsel of
his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing; to be informed, if he does not
have legal assistance, of this right; and to have legal assistance assigned to him, in any case where
the interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him; 
Article 10 of the Universal
Declaration of Human
Rights

Everyone is entitled in full equality

to a fair and public hearing by an
independent and impartial tribunal,
in the determination of his rights
and obligations and of any criminal
charge against him. 
Principles of fair trial: the following are the principles
of fair trial:-
 i) Adversary trial system
 ii) Presumption of innocence
iii) Independent, Impartial and Competent judge
 iv) Knowledge of accusation
 v) Right to open trial
 vi) Right to free legal aid
vii) Right to free legal aid
viii) The trial in presence of accused
ix) Evidence to be taken in presence of accused
x) Protection against illegal arrest
 xi) Right to bail
xii) Prohibition on double jeopardy
 xiii) Right against self incrimination
 The Geneva Conventions (GC) and their Additional Protocols (APs)
require that any prisoners of war facing a judicial proceeding
receive a fair trial. For example, Articles 102–108 of the 1949 
Third Geneva Convention detail requirements for the fairness of
trials against prisoners of war. Other provisions require a "fair and
G E N E VA regular trial"; "safeguards of proper trial and defence"; an
CONVENTION "impartial and regularly constituted court respecting the generally
recognized principles of regular judicial procedure"; a "regularly
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples"; and "court
offering the essential guarantees of independence and impartiality."
Relevant Legal Instruments

 Universal Instruments 
 The Universal Declaration of Human Rights, 1948 
The International Covenant on Civil and Political Rights, 1966  The Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 
The Statute of the International Criminal Court, 1998
 ***** 
The Code of Conduct for Law Enforcement Officials, 1979  The Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, 1988 
 The Standard Minimum Rules for the Treatment of Prisoners, 1955  The Guidelines on the
Role of Prosecutors, 1990 
 The Basic Principles on the Role of Lawyers, 1990
  The Rules of Procedure of the International Criminal Tribunals for the former Yugoslavia
and Rwanda
Regional Instruments
 The African Charter on Human and Peoples’ Rights, 1981  The American Convention on
Human Rights, 1969  The European Convention on Human Rights, 1950
It is designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of their
basic rights and freedoms,the most prominent of which are the right to life and liberty of the person. 

 • TYPES OF OFFENCES

1) NON- COGNIZABLE OFFENCE 

    Non cognizable offences are those offences in which the police officer has to take permission from the
magistrate before investigating the offence and police has no authority to arrest without warrant .

2) COGNIZABLE OFFENCE 
      These are of serious nature such as murder , grievous hurt , kidnapping,etc. and therefore, the police
officer starts his investigation immediately without waiting for taking permission from the magistrate and
arrests the accused person.  
      
       • DIFFERENCE BETWEEN INQUIRY AND INVESTIGATION 
       1) Inquiry - which is conducted by Magistrate. It's a judicial proceeding .
       2)   Investigation - Non - judicial. It's a part of collecting the evidences . 
FIR is the basic document which informs about the happening of a cognizable offence . Section
154 provides the whole procedure in which such information is to be reported and recorded.  

• DIFFERENCE BETWEEN BAILABLE AND NON- BAILABLE OFFENCES. 

 • A " bailable offense " is one which are categorised as less serious offences and therefore' bail
is right ' in such cases .
 • In " non - bailable offense" an individual can't claim bail as his right because then these are of
serious offences in nature. 
• Every information relating to the cognizable offence, whenever it is given orally to an officer -
in - charge of a police station ,it is his duty that he shall reduce the information in writing . But if
the information given to the police is vague then it can't be treated as the FIR .
• After the registration of the FIR ,the police officer shall enter the complainant in a book  
which is known as ' Daily Diary' according to sec 44 .
• That information must be related to commission of cognizable offence. 
• If the information made to woman police officer of acid attack ,rape etc.then such recording
shall be videographed. 

• High court is empowered to quash FIR to protect the accused from mala- fide intention to
harass the accused person.

Though every police station has its own jurisdiction . However, section 154 doesn't say anything
regarding that. 

 • RIGHTS OF ARESSTED PERSONS 

FIRST 
INFORMATION
• Right to know the grounds of arrest  REPORT
• Right to consult an advocate of his choice during interrogation.
• Right to free legal aid 
• Right to be taken before a magistrate without delay and within 24 hours of arrest . 
  IMPORTANT CASES ON FIRST INFORMATION REPORT 

1) In Surajit Sarkar case, the supreme court held that cryptic telephonic information cannot be treated
as an FIR. 
2) In J.K Devaiya case, Mysore High court held ,to consider a FIR ,two conditions are to be fulfilled :
firstly, what is conveyed must be an information and secondly that should be a cognizable offence .
3) In Lalita Kumari case ,the court made it clear that " Registration of FIR is to be done in a book
called FIR register. 
Moving ahead Article 21 of the constitution of India mentions ' fair and impartial investigation' and
there is a very strong presumption towards ' innocence ' of an accused which also be termed as his '
human right . A person has a right to know the nature of allegations so that he can take necessary steps
to safeguard his liberty.
4) sheela Barse vs. state of Maharashtra : 
The court issued specific directions in regard to women prisoners . The court directed for the creation
of four or five women police lock - ups for keeping female suspects ,which must be guarded by female
constables, and interrogation of females should be carried out only in the presence of female police
officers. 
 • Torture to accused is absolutely forbidden ia as much as torture is
violation of Human Right . It criminalizes torture during interrogation and
investigation for the purpose of extracting a confession of accused of
CrPc .

• Under section 50 A(1) immediately on arrest ,the arresting police officer

has no obligation to give information about the arrest and the place of
 FROM detention to any person nominated by the arrested person.
INVESTIGATION
TO THE TRIAL
STAGE •  Under section 172 ,a police officer shall maintain a day to day dairy . 

•  It is designed to protect individuals from the unlawful and arbitrary curtailment

or deprivation of their basic rights ,the most prominent of which are the right to
life and liberty of the person. The reporting of crime is one of the most important
edifices of democracy and one of the essential features of the rule of law that can
ensure peace in society .
INTRODUCTION:-
India has a highly developed criminal jurisprudence and prosecution
system and it is well supported by judicial precedents for judicial trials and our
penal laws are primarily governed by the Code of Criminal Procedure,1973.
The Indian Penal Code,1860 and Indian Evidence Act 1872. The basic purpose of
the criminal justice system in India among other things, is to ensure fair trial
without compromising the rights of the accused.
The word 'trial' is not defined anywhere in the Criminal Procedure Code.
In common parlance, a trial begins after the framing of charge and ends in
either conviction or acquittal. According to Stroud's Judicial Dictionary, Trial
means “the conclusion by a competent tribunal, of questions in issue in legal
proceedings, whether civil or criminal”. FROM TRIALS
Trial primarily aimed at ascertaining truth which has to be fair to all TO JUDGEMENTS
concerned which includes the accused, the victims and society at large. Denial
of a fair trial is as much injustice to the accused as it is to the victim and
society. Right to get a fair trial is a basic fundamental/human right under our
Constitution and also as per international treaties and conventions . The right
to defend himself as a part of his human right also fundamental right as
enshrined under Article 21 of the Constitution of India and even recognized by
the Parliament in terms of sub-section (2) of Section 243 of the Code of
Criminal Procedure,1973.
FROM TRIAL TO FINAL JUDGMENT
To say in short, a trial of a criminal case is a process by which a Court
decides on the innocence or guilt of an accused. The total trial process is
governed and underpinned by the principles laid down in the Constitution of
India. The duty of a judicial officer is to ensure that witnesses are examined
with great care and he has the duty to referee motions, weigh the facts and
circumstances, draw logical conclusions and arrive at a reasoned decision
about guilt or innocence.

DIFFERENT TYPES OF TRAILS

1. Trial before a Court of Session: Chapter XVIII of Cr.P.C., Sections 225 to
227.
2. Trial of Warrant Cases: Sections 238 to 243 provides the procedure for trial
of cases instituted on police report. Sections 244 to 247 deals with procedure
to be followed for trial of cases instituted otherwise than on police report.
Sections 248 to 250 of the code are applicable to both the categories of cases.
3. Trial of Summons cases by Magistrates:
4. Summary Trial: Sections 260 to 265 and 363(3) of the Code deals with
Summary trial.
 SETTLED PRINCIPLES IN CRIMINAL JUSTICE SYSTEM
1. An accused to be tried before a competent , independent and impartial
tribunal/court with presumption that accused is innocent and every accused
should be provided the opportunity to be defended by a pleader and free legal
aid to be provided in need (Articles 21 and 39A ) especially Under Trial
Prisoner.
2. The burden of proof tests on the prosecution and prosecution must
establish guilt beyond reasonable doubt.
3. High probability is not enough to convict – where there are several
possible accounts, the account supporting the accused should be upheld.
4. Accused has a right to remain silent and Judicial Officer must ensure
that the prosecution and the defence lawyer are being diligent, honest and
learned in their efforts to arrive at the truth.
5. Under section 479 of Cr.P.C, a Judicial Officer may not try or commit to
trial any case in which he has a personal interest or financial interest.
6. A significant legal maxim is that ‘’ Justice must not only be done, but
be seen to be done.’’
7. If a criminal court is to be an effective instrument in dispensing justice,
the presiding officer must not cease to be a spectator and a mere recording
machine and as per section 327 of the Code, trial judges to invariably hold the
trial of rape cases in camera, rather than in open court.
8. As seen from section 309 of Cr.P.C, it is known that the Code safeguards
the right to a speedy trial and accused should be furnished the copies of Police
report and other documents in a criminal case. See. Section 207 of Cr.P.C.
 Custodial death means the death of a person occurring during custody, directly or
indirectly caused by and substantially attributable to acts committed upon the
deceased
while in custody. It includes death occurring in police, private or medical premises,
in a
public place or in a police or other vehicle or in jail. It also includes death occurring
while
a person is being arrested or taken into detention or being questioned;
Data Related to Violence in Custody:
According to National Crime Records Bureau (NCRB) data, between 2001 and 2018,
only 26 policemen were convicted of custodial violence despite 1,727 such deaths
being recorded in India.
Only 4.3% of the 70 deaths in 2018 were attributed to injuries during custody due to

Custodial physical assault by police.

Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Odisha, no policeman
was convicted for such deaths across the country.
Death Apart from custodial deaths, more than 2,000 human rights violation cases were also
recorded against the police between 2000 and 2018. And only 344 policemen were
convicted in those cases.
Reasons for Low Conviction: Most of custodial deaths were attributed to reasons
other than custodial torture, which included suicide and death in hospitals during
treatment.
 Reasons Behind Custodial Violence:
Absence of Strong Legislation: India does not have an anti-torture legislation and is
yet to criminalise custodial violence, while action against culpable officials remains
illusory.
The Indian state either denies the existence of torture in the country or defends its
resistance to enact a law by claiming there are sufficient provisions in the domestic
legal framework to prohibit and penalise torture.
These claims however remain superficial and without any such protections.
Institutional Challenges: The entire prison system is inherently opaque giving less
room to transparency.
Prison access is not provided without prior permission such as depositing “Rs. 1 lakh
in the name of the superintendent of the concerned jail” before entry.
Excessive scrutiny is done of all recorded or documented material in the prison.

India also fails in bringing the much desired Prison Reforms and prisons continue to

Custodial De
be affected by poor conditions, overcrowding, acute manpower shortages and
minimal safety against harm in prisons.
Excessive Force: The use of excessive force including torture to target marginalised

ath​
communities and control people participating in movements or propagating
ideologies which the state perceives as opposed to its stature.
Not Adhering to International Standard: Although India has signed the United
Nations Convention against Torture in 1997 its ratification still remains.
While Signing only indicates the country’s intention to meet the obligations set out in
the treaty, Ratification, on the other hand, entails bringing in laws and mechanisms
to fulfil the commitments.
 Constitutional and Legal Provisions:

Protection from torture is a fundamental right enshrined under

Article 21 (Right to
Life) of the Indian constitution. The right to counsel is also a
fundamental right under
Article 22(1) of the India constitution.
Section 41 of Criminal Procedure Code (CrPC) was amended in
2009 to include
safeguards under 41A, 41B, 41C and 41D, so that arrests and
detentions for

Constitutional interrogation have reasonable grounds and documented

procedures, arrests are
made transparent to family, friends and public, and there is
and Legal protection through legal
representation.
Provisions:
 India should ratify the UN Convention Against Torture: It will mandate a systematic
review of colonial rules, methods, practices and arrangements for the custody and
treatment of persons subjected to any form of arrest, detention or imprisonment.
It will also mean that exclusive mechanisms of redress and compensation will be set
up for the victim besides institutions such as the Board of Visitors.
Police Reforms: Guidelines should also be formulated on educating and training
officials involved in the cases involving deprivation of liberty because torture cannot
be effectively prevented till the senior police wisely anticipate the gravity of such
issues and clear reorientation is devised from present practices.
Access to Prison: Unrestricted and regular access to independent and qualified
persons to places of detention for inspection should also be allowed.
CCTV cameras should be installed in police stations including in the interrogation
rooms.
Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory
which would act as a preventive measures against custodial torture which has also
been suggested by Supreme Court in its landmark judgment in the DK Basu Case in

Suggestions
2015.
Implementation of Law Commission of India’s 273rd Report: The report recommends
that those accused of committing custodial torture – be it policemen, military and
paramilitary personnel – should be criminally prosecuted instead of facing mere
administrative action establishing an effective deterrentCustodial death.
 R I G H T T O FA I R T R I A L I N
DIFFERENT COUNTRIES
Indian constitution on fair trial:
 Article 21 of the Indian Constitution: No person shall be deprived of his life and personal liberty except
according to procedure established by law. 
The right to defend oneself and for that purpose to adduce evidence is recognized by the parliament in terms
of sub-section (2)of section 243 of code of criminal procedure,1973.

EUROPEAN COURT OF HUMAN RIGHTS:

Under Article 6 of the ECHR, the right to a fair trial implies that accused and public must be able to
understand the verdict. Trials decided by jury, as they do not provide reasons for their decision, therefore do
not allow for this.[18] In Taxquet v Belgium[19] a violation of article 6(1) was found. The court also implied a
right to a reasoned verdict, irrespective of whether that was given by a judge or a jury.
Under ECHR case law, jury decisions can also be problematic in circumstances where juries draw adverse
inferences from trial judges' directions in contravention of Article 6(3) (b) and (c). [20]
 In the United Kingdom
Right to a fair trial in the United Kingdom is guaranteed by the Article 6 of the Human Rights Act 1998.[13]
Between 1971 and 1975, the right to a fair trial was suspended in Northern Ireland. Suspects were simply imprisoned without trial, and interrogated by the British army for
information. This power was mostly used against the Catholic minority. The British government supplied deliberately misleading evidence to the European Court of Human
Rights when it investigated this issue in 1978.[14] The Irish government and human rights group Amnesty International requested that the ECHR reconsider the case in
December 2014.[15] Three court cases related to the Northern Ireland conflict that took place in mainland Britain in 1975 and 1976 have been accused of being unfair,
resulting in the imprisonment of the Birmingham Six, Guildford Four and Maguire Seven. These convictions were later overturned, though an investigation into allegations
that police officers perverted the course of justice failed to convict anyone of wrongdoing.
The United Kingdom created an act – the Special Immigration Appeals Act in 1997, which then led to the creation of the Special Immigration Appeals Commission (SIAC).
[16]
 It allowed for secret evidence to be stated in court; however, it provides provisions for the anonymity of the sources and information itself. The judge has the power to
clear the courtroom of the public and press, and the appellant if need be, if sensitive information must be relayed. The appellant is provided with a Special Advocate, who
is appointed in order to represent their interests, however no contact can be made with the appellant after seeing the secret evidence. SIAC is mostly used for deportation
cases, and other cases of public interest.[17]
Secret evidence has seen increased use in UK courts. Some argue that this undermines the British criminal justice system, as this evidence may not come under proper
democratic scrutiny. Secret evidence can now be used in wide range of cases including deportations hearings, control orders proceedings, parole board cases, asset-
freezing applications, pre-charge detention hearings in terrorism cases, employment tribunals and planning tribunals.
In England and Wales, the origin of Right To Fair Trial & Right To Be Heard can be traced back in the Magna Carta Act, 1215. Art. 39 of the Act speaks about fair trial and
punishment by a competent court after the trial.

The African Commission on Human and Peoples’ Rights;

Recalling its mandate under Article 45(c) of the African Charter on Human and Peoples’ Rights (the Charter) “to formulate
and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental
freedoms upon which African states may base their legislation”;
Recalling Articles 5, 6, 7 and 26 of the Charter, which contain provisions relevant to the right to a fair trial;
Recognising that it is necessary to formulate and lay down principles and rules to further strengthen and supplement the
provisions relating to fair trial in the Charter and to reflect international standards;
Recalling the resolution on the Right to Recourse and Fair Trial adopted at its 11th ordinary session in March 1992, the resolution
on the Respect and the Strengthening of the Independence of the Judiciary adopted at its 19th ordinary session in March 1996 and
the resolution Urging States to Envisage a Moratorium on the Death Penalty adopted at its 26th ordinary session in November
1999;​
Recalling also the resolution on the Right to a Fair Trial and Legal Assistance, adopted at its 26th session held in November 1999,
in which it decided to prepare general principles and guidelines on the right to a fair trial and legal assistance under the African
Charter;​
Solemnly proclaims these Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa and urges that
every effort is made so that they become generally known to everyone in Africa; are promoted and protected by civil
society organisations, judges, lawyers, prosecutors, academics and their professional associations; are incorporated into their
domestic legislation by State parties to the Charter and respected by them.
​

RIGHT TO FAIR TRIAL IN US

The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the 
right to a lawyer,  the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence
against you.  It has been most visibly tested in a series of cases involving terrorism, but much more often figures in cases that involve
(for example) jury selection or the protection of witnesses, including victims of sex crimes as well as witnesses in need of protection
from retaliation.
Relationship with other rights

The right to equality before the law is sometimes regarded as part of

the right to a fair trial. It is typically guaranteed under a separate
article in international human rights instruments. The right entitles
individuals to be recognised as subject, not as object, of the law. 
International human rights law permits no derogation or exceptions
to this human right.[9] Closely related to the right to a fair trial is the
prohibition on ex post facto law, or retroactive law, which is
enshrined in human rights instrument separately from the right to
fair trial and can not be limited by states according to the 
European Convention on Human Rights and the 
American Convention on Human Rights.[2]
 CONCLUSION
Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just
society. Every person accused of a crime should have their guilt or innocence determined by a
fair and effective legal process. However, it goes further than protecting suspects and defendants,
without fair trials, victims can have no confidence that justice will be done. Without fair trials,
trust in government and the rule of law collapses. 
The Right to a Fair Trial is recognised internationally as a fundamental human right and
countries are required to respect it. Despite this, it is being abused across the world with
devastating human and social consequences. We are working to put an end to these abuses,
towards realising our vision of a world where every person’s right to a fair trial is respected.
The right to a fair trial is not new, but the scale and nature of the challenge is. The number of
people directly affected by criminal justice is growing with new offences created every day and
increasing numbers being jailed. Countries are developing swifter ways of imposing punishments,
often without a trial; the global "war on terror" and flawed political talk of "rebalancing"
criminal justice systems to make us safer has had a corrosive effect; dictators and authoritarian
regimes are finding new ways of using criminal justice as a tool of oppression; and human rights
face new threats from increasing cross-border cooperation to fight crime.