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COMPARATIVE CRIMINAL PROCEDURE PROJECT

ON

“RIGHT OF AN ACCUSED IN INDIA & COMPARATIVE VIEWS ON ANALYSIS”

SUBMITTED TO:

MRS. PRIYANKA DHAR

FACULTY, CCP

BY:

HIMANSHU KUNJAM

ROLL NO. 60

SECTION C

SEMESTER IX, B.A. LLB(HONS.)

SUBMITTED ON:

OCTOBER 25, 2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA POST, ABHANPUR, NEW RAIPUR – 493661 (C.G.)


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Contents
ACKNOWLEDGMENT............................................................................................................ 3

INTRODUCTION ..................................................................................................................... 4

Research Methodology .............................................................................................................. 5

Scope of study ............................................................................................................................ 5

MEANING OF RIGHTS OF THE ACCUSED......................................................................... 6

RIGHTS OF ACCUSED IN ANCIENT INDIA ....................................................................... 7

DOCTRINE OF “AUTREFOIS ACQUIT” AND “AUTREFOIS CONVICT”........................ 8

PROHIBITION AGAINST SELF-INCRIMINATION ............................................................. 9

PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST ......................... 10

RIGHT TO BE DEFENDED BY A LAWYER ...................................................................... 10

INFORMATION OF ARREST TO A NOMINATED PERSON ........................................... 12

U.S.A........................................................................................................................................ 13

NOTICE OF ACCUSATION .................................................................................................. 14

CUSTODIAL INTERROGATION ......................................................................................... 14

ENGLAND .............................................................................................................................. 14

CONCLUSION ........................................................................................................................ 18

BIBLIOGRAPHY .................................................................................................................... 18

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ACKNOWLEDGMENT

I feel elated to work on the project “Right of an accused and comparative views on
analysis”. The practical realization of the project has obligated the assistance of many
Persons. Firstly I express my deepest gratitude towards, Mrs. Priyanka Dhar, Faculty of
Comparative criminal Procedure, to provide me with the opportunity to work on this project.
Her able guidance and supervision were of extreme help in understanding and carrying out
the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Himanshu kunjam

Roll No. 60

Section C, Semester IX

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INTRODUCTION

The three segments of Criminal Justice System viz., the police, the judiciary and the
correctional institutions ought to function in harmonious and cohesive manner. But in
practice, one often finds that it is not the case. The police, instead of protecting and
promoting human rights, are often found to violate them. The National Human Rights
Commission has been receiving reports of custodial deaths, non-registration of cases,
arbitrary arrests, custodial violence etc. A person in custody of the police, an under-trial or a
convicted individual does not lose his human and fundamental rights by virtue of
incarceration. The two cardinal principles of criminal jurisprudence are that the prosecution
must prove its charge against the accused beyond shadow of reasonable doubt and the onus to
prove the guilt of the accused to the hilt is stationary on the prosecution and it never shifts.
The prosecution has to stand on its own legs so as to bring home the guilt of the accused
conclusively and affirmatively and it cannot take advantage of any weakness in the defence
version. The intention of the legislature in laying down these principles has been that
hundreds of guilty persons may got scot free but even one innocent should not be punished.
Indian Constitution itself provides some basic rights/safeguards to the accused persons which
are to followed by the authorities during the process of criminal administration of justice. The
Criminal Procedure Code deals with the procedural aspects of arrest of an accused person and
provides various rights to accused/arrested persons. There are some provisions which
expressly and directly create important rights in favour of the accused/arrested person.

During medieval India muslim rulers, ruled the country and scriptures like 'Quran' and other
literature contained rights of accused person, rules of evidence and bail etc., also needs to be
examined. The British rule in India is also a flash point where under criminal law i.e. Indian
Penal Code, Criminal Procedure Code1, Evidence Act and other laws were codified and
enacted. These enactments provided plethora of rights for the accused person. This is a
coincidence that the Universal Declaration of Human Rights, 1948 was proclaimed when
Constitution of India was under preparation and its reflection is evident in Fundamental
Rights and Directive Principles of State Policy enshrined in Indian Constitution.

1
Verma R.S., Rights of an Accused, Delh

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Research Methodology
The method of research adopted is doctrinal & descriptive in nature. Secondary sources of
information have been used to give the research work a concrete structure. Websites & e-
articles have been extensively referred for relying on the data. Other relevant sources as
suggested by the faculty coordinator have been referred to. Footnotes have been provided
wherever required.

Objectives of study

• To study about the Framing of charges Under Crpc.

• To examine the legal provisions under Criminal Procedure Code,1973.

• To study various case-laws of Framing of Charges.

Scope of study
In this project, the author only discusses the Right of an accused under Criminal procedure
code 1973. Further provision with case laws has been discussed.

Mode of citation

The mode of citation of this project is bluebook 19th edition.

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MEANING OF RIGHTS OF THE ACCUSED


The term "accused is nowhere defined in the Code (Criminal Procedure Code) or in the
Constitution of India the word accused" connotes a person charged with Offence, when used
in terms of noun it connotes as defendant(s) in a trial." "Accused “used in the Code of
Criminal Procedure means an "accused person" or person accused of any offence. In every
administration of criminal justice, a trial revolves around the accused. The term "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 law2 In ancient times crime was
considered as a sin and people used to condemn and punish the accused with all sorts of
brutalities. During trial inquisitorial methods were used to discover the truth by applying all
sorts of torture and other inhuman methods against the dignity of human being.

Under the ancient criminal procedure which differed from modern criminal procedure,
persons after their arrest were kept in confinement more or less secret till their trials and
could not prepare for their defence as they had no information of the grounds of arrest and
detention and moreover of evidence against them." During the confinement they were
subjected to cruel treatments and tortures in order to extort admissions and confessions of
guilt justifying for their arrest. There is a presumption of innocence of the accused person till
his guilt is established beyond any shadow of doubt. Law believes that "It is better that ten
guilty persons escape, than that one innocent suffer." An accused is to be presumed to be
innocent unless the presumption is rebutted. In a criminal trial, the presumption of innocence
is a principle of cardinal importance and so the guilt of the accused must in every case be
proved beyond a reasonable doubt. Probabilities, however strong, suspicious and grave, can
never take place of proof .The surest and quickest way to reduce crime and achieve a more
humane and enlightened penal system is to increase the likelihood that the guilty will be
convicted3." It is not necessary that all persons arrested or facing trial are guilty as the guilt of
person is to be proved in the court therefore unless guilt is established the accused is
innocent. The object is to list out the rights available to accused under Indian Constitution i.e.
Part-Ill, fundamental rights, Part - IV Directive Principles of State Policy and provisions
relating to bail and legal aid under Cr.PC.

2
Amin v. State, AIR 1958 All 293
3
Mark, Robert Sir, Policing a Perplexed Society, 1977

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RIGHTS OF ACCUSED IN ANCIENT INDIA


In ancient times crime was regarded as a sin and people used to condemn it with all possible
brutalities. The primitive societies lacked the institution of government to enforce a
prescribed code of conduct that is now called law, but in the ancient civilized societies a
pervasive concept of "Dharma" was evolved. Dharma was not religion in the technical sense
but a code of conduct which regulated the whole expression of life. Further, the concept of
Dharma can safely be equated to the ‘Rule of Law".4

Under the Dharma there were many schools of thoughts. "The first is the Kautilya's
Arthasastra, the second is the Brihaspati school represented by the 'Kamandaka Niti Sara',
and third is the Ausana school embodied in the 'Sukra Niti Sara', and the fourth school is
represented by the Mahabharata. Incidentally Sukra is the most radical among Indiaq
thinkers. It was he who preached that the sovereign was the servant of the people and should
not act without discussion and advice from the ministers"5

Manu says: The King should protect and support all his subjects without any discrimination
in the same manner as the earth supports all living being. A King who punishes those who do
not deserve to be condemned and falls to punish those who deserve punishment, becomes
infamous and is ultimately doomed to hell." Ancient Hindu jurists suggested that by
committing a crime, the criminal comes to owe a debt towards the society and this debt can
be discharged when he suffers punishment at the hands of society. Thus Manu, the ancient
lawgiver observed: Men who are guilty of crimes and who have been punished by the King,
go to heaven becoming pure like those who performed mehtorious deeds.6

4
Mukharji, P.B., Civil Lit)erties Ramananda Lectures (1965) of the Calcutta University,
5
Deshta, Sunil, Deshta, Kiran, Fundamental Human Rights - The Right to Life and Personal
Liberty, Delhi
6
Mishra, S.N., Quoting from Manusmriti, Indian Penal Code, Allahabad, Law Agency(1983),
p.m.

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Provisions of Indian Constitution and Criminal Procedure Code

Following are some important provisions creating rights in favour of the accused/ arrested
persons:-

Protection against ex post facto law

Clause (1) of Article 20 of the Indian Constitution says that “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 offence. Article 11, para
2 of the Universal Declaration of Human Rights, 1948 provides freedom from ex-post facto
laws7. Ín Kedar Nath v. State of West Bengal8, the accused committed an offence in 1947,
which under the Act then in force was punishable by imprisonment or fine or both. The Act
was amended in 1949 which enhanced the punishment for the same offence by an additional
fine equivalent to the amount of money procured by the accused through the offence. The
Supreme Court held that the enhanced punishment could not be applicable to the act
committed by the accused in 1947 and hence, set aside the additional fine imposed by the
amended Act. In the criminal trial, the accused can take advantage of the beneficial
provisions of the ex-post facto law.

DOCTRINE OF “AUTREFOIS ACQUIT” AND “AUTREFOIS


CONVICT”
According to this doctrine, if a person is tried and acquitted or convicted of an offence, he
cannot be tried again for the same offence or on the same facts for any other offence. This
doctrine has been substantially incorporated in the Article 20(2) of the Constitution and is
also embodied in Section 300 of the Criminal Procedure Code, 1973. When once a person has
been convicted or acquitted of any offence by a competent court, any subsequent trial for the
same offence would certainly put him in jeopardy and in any case would cause him unjust
harassment. Such a trial can be considered anything but fair, and therefore has been
prohibited by the Code of Criminal Procedural as well as by the Constitution. The dismissal
of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this

7
Article 15 of International Covenant on Civil and Political Rights, 1966.
8
AIR 1953 SC 404.

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section. Constitutional provision to the same effect is incorporated in Article 20 (2) which
provides that no person shall be prosecuted and punished for the same offence more than
once.

PROHIBITION AGAINST SELF-INCRIMINATION


Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to
be a witness against himself. Thus Article 20(3) embodies the general principles of English
and American jurisprudence that no one shall be compelled to give testimony which may
expose him to prosecution for crime. The cardinal principle of criminal law which is really
the bed rock of English jurisprudence is that an accused must be presumed to be innocent till
the contrary is proved The guarantee extends to any person accused of an offence and
prohibits all kinds of compulsions to make him a witness against himself. Explaining the
scope of this clause in M.P. Sharma v. Satish Chandra9, the Supreme Court observed that this
right embodies the following essentials:

(a) It is a right pertaining to a person who is “accused of an offence.”

(b) It is a protection against “compulsion to be a witness”.

(c) It is a protection against such compulsion relating to his giving evidence “

Against himself.”

In Nandini Satpathy v. P.L. Dani10, the Supreme Court has considerably widened the scope of
clause (3) of Article 20. The Court has held that the prohibitive scope of Article 20(3) goes
back to the stage of police interrogation not commencing in court only. It extends to, and
protects the accused in regard to other offences-pending or imminent, which may deter him
from voluntary disclosure. The phrase compelled testimony’ ‘must be read as evidence
procured not merely by physical threats or violence but by psychic (mental) torture,
atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing
and intimidator methods and the like. Thus, compelled testimony is not limited to physical
torture or coercion, but extend also to techniques of psychological interrogation which cause
mental torture in a person subject to such interrogation.

9
AIR 1954 SC 300.
10
AIR 1978 SC 1025.

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PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST

 Article 22 (1) of the Constitution provides that a person arrested for an offence under
ordinary law be informed as soon as may be the grounds of arrest. In addition to the
constitutional provision, Section 50 of Criminal Procedure Code also provides for the
same.
 According to Section 50(1) of Criminal Procedure Code, every police officer or other
person arresting any person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds for such arrest.

 When a subordinate officer is deputed by a senior police officer to arrest a person


under Section 55 of Criminal Procedure Code, he shall deliver to the officer required
to make the arrest an order in writing, specifying the person to be arrested and the
offence or other cause for which the arrest is made and the officer so required shall,
before making the arrest, notify to the person to be arrested the substance of the order
and, if so required by such person, shall show him the order. Non-compliance with
this provision will render the arrest illegal11.

The grounds of arrest should be communicated to the arrested person in the language
understood by him; otherwise it would not amount to sufficient compliance with
constitutional requirements.

RIGHT TO BE DEFENDED BY A LAWYER


It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution provides, inter alia, that no person who is arrested shall be denied the right to
consult and to be defended by a legal practitioner of his choice. The right of the accused to
have a counsel of his choice is fundamental and essential to fair trial. The right is recognized
because of the obvious fact that ordinarily an accused person does not have the knowledge of

11
Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau).

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law and the professional skill to defend himself before a court of law wherein the prosecution
is conducted by a competent and experienced prosecutor.

This has been eloquently expressed by the Supreme Court of America in Powell v.
Alabama.12 The Court observed that “The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence.

Section 303 of Criminal Procedure Code deals with the provisions relating to right of person
against whom proceedings are instituted to be defended, it provides that any person accused
of an offence before a criminal court, or against whom proceedings are instituted under this
court, may of right be defended by a pleader of his choice. The right begins from the moment
of arrest i.e. pre-trial stage21. The arrestee could also have consultation with his friends or
relatives. The consultation with the lawyer may be in the presence of police officer but not
within his hearing13

Person Arrested not to be detained more than twenty-four hours

Section 57 of Criminal Procedure Code provides that no police officer shall detain in custody
a person arrested without warrant for a longer period than under all the circumstances of the
case is reasonable, and such period shall not, in the absence of a special order of a Magistrate
under section 167, exceed twenty-four hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate Court. It may also be noted that the right has been
further strengthened by its incorporation in the Constitution as a fundamental right.Article
22(2) of the Constitution provides:

“Every person who is arrested and detained in custody shall be produced before the nearest
Magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the Magistrate and no such person shall
be detained in custody beyond the said period without the authority of a Magistrate”

12
287 US 45 (1932).
13
Sundar Singh v. Emperor 32 Cri LJ 339.

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INFORMATION OF ARREST TO A NOMINATED PERSON


The rules emerging from decisions such as Joginder Singh v. State of U.P14. and D.K. Basu
15
v. State of West Bengal have been enacted in Section 50-A32 . Sub Section (1) of Section
50-A of Criminal Procedure Code provides every police officer or other person making any
arrest under this code shall forthwith give the information regarding such arrest and place
where the arrested person is being held to any of his friends, relatives or such other persons as
may be disclosed or nominated by the arrested person for the purpose of giving such
information. Sub Section (2) of Section 50-A of Criminal Procedure Code provides the Police
Officer shall inform the arrested person for the purpose of giving such information of his
right under Sub Section (1) as soon as he is brought to police station. Sub Section (3) of
Section 50-A of Criminal Procedure Code provides an entry of the fact as to who has been
informed of the arrest of such person shall be in a book to be kept in the police station in such
form as may be prescribed in this behalf by the State Government. Sub Section (4) of Section
50-A of Criminal Procedure Code provides that it shall be the duty of Magistrate before
whom such arrested person is proceed, to satisfy himself that the requirement of sub-section
(2) and Sub-Section (3) have been complied with in respect of such arrested person. These
rights are inherent in Article 21 and 22 of the Constitution andrequired to be recognized and
scrupulously protected.

Right to free legal aid

The ‘right to counsel’ would remain empty if the accused due to his poverty or indigent
conditions has no means to engage a counsel for his defence. The state is under a
constitutional mandate(implicit in Article 21 of the constitution, explicit in Article 39-A of
the constitution-a directive principle) to provide free legal aid to an indigent accused person.
Section 304 of the Code of Criminal Procedure also provides such a right to the accused.

14
(1994) 4 SCC 260
15
(1997) 1 SCC 416.

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In Khatri (II) V. State of Bihar16, the Supreme Court has held that the State is under a
constitutional mandate to provide free legal aid to an indigent accused person, and that their
constitutional obligation to provide legal aid does not arise only when the trial commences
but also when the accused is for the first time produced before the Magistrate as also when he
is remanded from time to time. However this constitutional right of an indigent accused to get
free legal aid may prove to be illusory unless he is produced before promptly and duly
informed about it by the court when he is produced before it. The Supreme Court has
therefore cast a duty on all Magistrate and courts to inform the indigent accused about his
right to get free legal aid.

U.S.A.
The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of
U.S.A. (1791) which declares as under:-

“No person shall be deprived of his life, liberty or property, without due process of law. The
Fourteenth Amendment imposes similar limitation on the State authorities. These two
provisions are conveniently referred to as the `due process clauses'. Under the above clauses
the American Judiciary claims to declare a law as bad, if it is not in accordance with `due
process', even though the legislation may be within the competence of the Legislature
concerned. Due process is conveniently understood means procedural regularity and fairness .
Some of the rights of accused which reflect the protection of life and liberty rights are as
follows:

16
(1981) 1 SCC 627: 1981 SCC (Cri) 228.

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NOTICE OF ACCUSATION
A criminal defendant has the right to be informed of the nature and cause of the accusation
against him. Therefore, an indictment must allege all the ingredients of the crime to such a
degree of precision that it would allow the accused to jeopardy if the same charges are
brought up in subsequent prosecution. The Supreme Court held in United States v. Carll , that
“in an indictment it is not sufficient to set forth the offense in the words of the statute, unless
those words of themselves fully, directly, and expressly, without any uncertainty or
ambiguity, set forth all the elements necessary to constitute the offense intended to be
punished.” Vague wording, even if taken directly from a statute, does not suffice. However,
the government is not required to hand over written copies of the indictment free of charge.

CUSTODIAL INTERROGATION
The Fifth Amendment limits the use of evidence obtained illegally by law enforcement
officers. Originally, at common law, even a confession obtained by torture was admissible. In
the eighteenth century, common law in England provided that coerced confessions were
inadmissible. The common law rule was incorporated into American law by the courts.
However, the use of brutal torture to extract confessions was routine in certain jurisdictions at
least until 1991, though the Supreme Court has repeatedly overruled convictions based on
such confessions, in cases like Brown v. Mississippi17.

ENGLAND
Life and personal liberty has been given prime importance in the United Kingdom. It was in
1215 that the people of England revolted against King John and enforced their rights, first
time the King had acknowledged that there were certain rights of the subject could be called
Magna Carta 1215. In 1628 the petition of rights was presented to King Charles-I which was

17
297 U.S. 278 (1936)

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the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the
Bill of Rights 1689.

In the Magna Carta, it is stated “no free man shall be taken, or imprisoned or seized or
outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him
to prison, unless by the judgment of his peers or the law of the land”.

Right to life is the most fundamental of all human rights and any decision affecting human
right or which may put an individual's life at risk must call for the most anxious scrutiny .
The sanctity of human life is probably the most fundamental of the human social values.

The relevance of the European Convention to the interpretation and application of Codes of
Criminal Procedure and comparable or related legislation arises both from provisions in the
former that explicitly set out requirements with respect to the operation of the criminal justice
system and from many others that give rise to a range of implicit requirements that will also
need to be taken into account

Arrest only on reasonable suspicion18: Fox Campbell and Hartley v. the United Kingdom ,
having a “reasonable suspicion” presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may have committed the
offence. What may be regarded as “reasonable” will however depend upon the circumstances
but arrest shall not be made without reasonable suspicion.

U.S.A.

The Body of Liberties enacted by the Massachusetts Assembly in 1641-was one of the first
codified statutes guaranteeing the right to legal counsel and trial by jury. Many of these rights
got later expressed in the U.S. Bill of Rights. Though the body of liberties contained various
provisions detrimental to the interest of individuals like legalization of slavery, yet its
contribution in securing due process is unprecedented.

The Due Process Clause in 5th and 14th amendment prohibits state and local governments
from depriving persons of life, liberty, or property without certain steps being taken to ensure
fairness. This clause has been used to make most of the Bill of Rights applicable to the states,
as well as to recognize substantive and procedural rights.

18
John Murray v. the United Kingdom, (1996) 22 EHRR 29

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In criminal cases, many of these due process protections overlap with procedural protections
provided by the Eighth Amendment to the United States Constitution, which guarantees
reliable procedures that protect innocent people from being executed, which would be an
obvious example of cruel and unusual punishment.

It is not left to the legislative power to enact any process which might be devised. The due
process clause is a restraint on legislative as well as executive and judicial powers of the
government and cannot be so construed as to leave congress free to make any process by its
mere will .

Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in
Lochner v. New York and struck down a minimum wage law in Adkins v. Children's
Hospital . In Hager v Reclamation District the court observed “by due process of law is
meant, it must be adopted for the end to be attained, whenever it is necessary for the
protection of the parties it must give them an opportunity of being heard, respecting the
justness of the judgment sought.

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CONCLUSION

All the above discussed chapters show a collective concern of all the countries towards the
preservation of humanitarian laws because after all it is the human life which is the reason for
existence of a state and consequently the entire legal system. The legal system devised by
him ought to provide him safeguards against arbitrary violations and deprivations otherwise
its existence would be futile.

Whereas the right to bail reflects the respect for individual liberty, rights such as legal aid and
speedy trial stress the idea of impartial justice. Rights such as protection against double
jeopardy and self-incrimination aim to protect the human life.

All these rights which appear to be human rights on account of being available to all the
individuals universally, irrespective of any differences are actually more than mere human
rights.The common notion of weak enforceability which is generally attached to the
humanitarian laws is not there in laws just mentioned in the above chapters as they have been
given the status of basic law in every country by constitutional enactments. And it is for this
constitutional backing, they can be truly termed as the Fundamental Human Rights.

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BIBLIOGRAPHY

 D.D.BASU,THE CONSTITUTION OF INDIA


 J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA 219, (CENTRAL LAW
AGENCY ALLAHABAD, 45TH EDN. 2008
 R.V. KELKAR, LECTURES ON CRIMINAL PROCEDURE 135 (EASTERN
BOOK COMPANY, 4TH EDN. 2006
 MORTON J. FRISCH AND RICHARD G. STEVENS (EDS.), AMERICAN
POLITICAL THOUGHT: THE PHILOSOPHIC DIMENSION OF AMERICAN
STATESMANSHIP 363 (TRANSACTION PUBLISHERS, 2011)

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