PRINCIPLES OF THE FAIR TRIAL

PRINCIPLES OF THE FAIR TRIAL

The Fair Trial is a neutral trial which is conducted to accord each party to the proceeding their due process rights. The right applies to both civil and criminal proceedings. Right to the fair trial also applies to the military disciplinary hearings. The right to a fair trial is concerned with the procedural fairness, rather than the substantive decision of the court or tribunal. Right to the fair trial is an international norm which is adopted by many countries in their procedural law.

 The Right to a Fair Trial ensures the people that processes will not be unfair or uncertain. It is one of the best tools which prohibits the government from abusing their powers.A fair trial is the best tool for i)separation of guilty from innocent, and ii)protection against injustice.The right to fair trial brings public faith in the judicial system.

Principles Of  the Fair Trial

• Adversary Trial System

This system is based on the accusatorial method and is adopted by Criminal Procedure Code, 1973. In this system, the prosecution is responsible for the production of the evidence and judge act as neutral referee.

• Presumption Of Innocence

In any criminal trial presumption of innocence is in favour of the accused, the prosecution is under the burden of proving the guilt of the accused. The burden of proof always lies on one who asserts not on who denies.

• Independent, Impartial And Competent Judges

The criminal proceedings to be conducted by independent impartial and competent judges are the basic principle of the right to fair trial.

• Autrefois Convict and Autrefois acquit

This doctrine says that a person cannot be tried twice for the same offence. If a person is tried and acquitted or convicted for the offence then he cannot be tried again for the same offence.

INTERNATIONAL PERSPECTIVE

• UDHR (Universal Declaration of Human Rights,1948)

The right to fair trial is the norm of international human rights law. It is adopted by many countries in their procedural law. In Universal Declaration of Human Rights, 1948 major features of the fair criminal trial are preserved.

Article 10 says that every person is entitled to a fair and public hearing by a competent, independent and impartial court or tribunal, in the persistence of his rights and obligations and of any criminal charge against him.

Article 11 of the UDHR talks about the presumption of innocence. Every person charged with the criminal offence has a right to be presumed innocent until guilt is proved. A person shall not be held guilty of any penal offence on the account of any act or omission which did not constitute a penal offence, under the international or national law, at the time when it is committed.

•  ICCPR (International Covenant on Civil and Political Rights)

 The objects of UDHR is acknowledged by the Article 14 of the International Covenant on Civil and Political Rights. Article 14 says that every person shall be entitled to a fair and public hearing by a competent, impartial and independent court or tribunal established by law. In certain cases, press and public can be excluded from all or part of the trial. That reasons can be morals, public order, national security etc.  Article 14(2) talks about the presumption of knowledge. Every person shall be equal before court or tribunal. Every person shall be presumed innocent until guilt is proved. Article 14(3) says that every person has a right to know the nature and cause of the charge against him. He should be informed properly and in the language which he understands. It also deals says that proper facilities and adequate time should be given for the preparation of the defence and it also guarantees his right to choose counsel of his own choice, if he has not sufficient means to engage a lawyer then legal assistance should be provided to him. He must be tried without undue delay. He has also right to examine or have examined the witnesses against him and obtain the attendance and examination of the witnesses. He has also a right to have the free assistance of an interpreter if he cannot understand or speak the language used in the court. No one can be compelled to confess his guilt. Article 14(7) prohibits double jeopardy. A person cannot be punished twice for the same offence. If a person is tried and acquitted or convicted for an offence then he cannot be tried again for the same offence. It is prohibited under Article 14 of ICCPR.

•  ECHR (European Convention on Human Rights)

Article 6 of the European Convention on Human Rights guarantees the minimum rights, access to legal representation, adequate time and facilities to prepare their defence, right to examine the witnesses, right to free legal aid to everyone charged with a criminal offence. This act provides the fair and public hearing within the reasonable period of time by the independent, impartial and competent court. The public hearing can be excluded on the basis of morality, public order, national security etc. it also deals says that free assistance of an interpreter if he cannot speak or understand the language caused in court. He can defend himself in person or by counsel of his own choice, if he has no sufficient means then free legal assistance should be provided to him. This also guarantees right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

• Sixth Amendment to the United States Constitution

This provides speedy and public trial before an impartial judge of the court or tribunal. This guarantees right to speedy trial, right to an impartial jury, right to defend by a lawyer of own choice Sixth amendment also guarantees defendants the right to be informed of the reason and nature of the accusation against them. It talks about notice of pending criminal charges. It protects individuals from double jeopardy. No person can be tried again for the same offence. It also deals with the confrontation of adverse witnesses. It guarantees the defendants the right to be confronted by witnesses who provide evidence against them”.

In the case of Strunk v. United States court held that delayed trial is the state action which infringes the rights of the defendant. A dismissal and reversal of a criminal case on the grounds of the speedy trial means that no further prosecution for the alleged offence can take place. It was held by the Supreme Court that if the reviewing court finds that the right of the defendant to a speedy trial was infringed, then the indictment must be dismissed.

In the case of Sheppard v. Maxwell, Supreme Court said that the right to a public trial is not absolute. It also said that limitation can be put on public access in certain cases.

In Barker v. Wingo Supreme court laid down the balancing test for determining whether the defendant’s speedy trial has been violated or not. First one is Length of delay, the court has never explicitly ruled that any absolute time limit applies. A delay of a year or more from the date on which the speedy trial right “attaches” was termed presumptively prejudicial.” The second one is the reason for the delay, to its own advantage the prosecution may not excessively delay the trial “for its own advantages. The trial may be delayed to secure the presence of an absent witness or other valid considerations. The third factor is time and manner in which the defendant has proclaimed his right. If for his own benefit defendant agrees to the delay then later he cannot claim that he has been unduly delayed. The fourth and important factor is a degree of prejudice which the delay has caused to the defendant”.

INDIAN PERSPECTIVE

In Indian legal system, the concept of the fair trial is reflected in the constitution as well as in its procedural law. The fair trial is an international norm and it is adopted by India in its procedural law. The concept of the fair trial is based on the principles of natural justice.

Constitution

The principles of natural justice are grounded in article 14 and 21 of the constitution. In the preamble of the constitution contains ‘justice Social, Economic and political’ liberty of thought, belief, worship and equality of status and of opportunity which ensures fairness in social and economic activities of the people and also acts as a shield to individuals liberty against the arbitrary action. Right to the fair trial is an international norm. UDHR and ICCPR contain a basic concept of the fair trial. The fair trial is the fundamental right to every citizen. Article 14 and 21 contains the essence of the fair trial.

The fair trial is based on the principle of ‘equality of arms’. Article 14 of the Indian Constitution guarantees the right to equality to every citizen of India. Right to equality is the fundamental right of every citizen. No person shall be discriminated on the basis of caste, sex, religion or place of birth.  Article 14 prohibits discriminatory laws and administrative action. It protects citizens from any kind of discrimination. Every person shall be treated equally before the court or tribunal established by law during the trial. Equality is the important element of a fair trial.”

Article 21 of the Constitution deals with the right to life and personal liberty. This Article of the Constitution is also known as the “heart” and “soul” of the constitution. The fair trial is an integral part of the article 21 and it is based on the principle of presumption of innocence. The right to fair trial safeguards the individual from deprivation of their human rights. It also safeguards the right to liberty and security of the person. Every person has a right to a fair trial by a competent court as article 21 talks about the right to life and personal liberty. Speedy trial is an integral part of article 21. Justice delayed is justice denied. Speedy trial is a concept which focuses on quick disposal of cases. It makes the judiciary more trustworthy.”

Article 22 of the constitution provides the accused right to be informed of the grounds of arrest, right to consult the legal practitioner, right to be produced before the magistrate within 24 hours and right to not to be detained beyond 24 hours in custody without the permission of the magistrate. This section safeguards the personal liberty of the person.”

In Article 32 and 226 of the Constitution, constitutional remedies for the violation of fundamental rights or any legal right is given. Under article 226 every high court is empowered to issue writs and even this cannot be suspended during the time of emergency.” Under article 32 supreme court can issue writs. Article 32 is a fundamental right and it can be suspended during emergency. It is the basic feature of the constitution. Writs are issued by Supreme Court under Article 32 only when fundamental rights are violated or threatened.

Under Article 311 of the constitution dismissal, removal or reduction in rank of the person who is employed in civil capacities under union or state is given. This prohibits them from misusing their power. They cannot be dismissed, removed or reduced in rank before the proper inquiry and  without a reasonable opportunity of being heard.”

Criminal Procedure Code

Section 304 of the Cr.P.C says that in every criminal case accused can choose counsel of his own choice, if he is unable to engage a counsel then he has a right to appoint a counsel at the expenses of the state. This is one of the essential parts of the fair trial. It also says that he will be presumed to be innocent until guilt has been proved. The absence of fair and proper trial is the violation of the fundamental rights and it also breaches section 304 of Cr.P.C.”

The apex court in the case of Sukh Das v. State of Arunachal Pradesh held that if accused is not provided with a legal aid in a trial then the conviction would be set aside as it violates Article 21 of the Constitution.

Section 300(1) of the Cr.P.C prohibits double jeopardy. It says that a person cannot be tried again for the same offence or on the similar facts of the another offence.If a person is tried and convicted or acquitted then he cannot be tried again for the same. In case the proceedings for which the accused is being tried is separate and distinct from the offence for which the accused has been already tried and convicted then the plea of double jeopardy is not applicable.

In the case of Kolla.Veera Raghav Rao v. Gorantla Venkateswara Rao the apex court differentiated between Article 20(2) of the Constitution and section 300(1) of Cr.P.C. section 300(1) of Cr.P.C says that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Article 20(2) of the Constitution only states that no one can be prosecuted and penalized for the same offence more than once.

 Section 479 of the code fulfils the criteria of fair trial i.e judge dealing with matter should be impartial. No judge or magistrate shall try the matter in which he is personally interested or party to it except with the permission of the court to which an appeal lies from his court.

Section 327of the code talks about the public hearing. If the judge or magistrate thinks fit, he can deny the access of the public generally or any particular person to the court during disclosure of indecent matter or any other reasonable cause. It also says that offences committed under section 376,376A,376B,376C,376D,376E of Indian Penal Code, inquiry or trial shall be conducted under the camera. In some cases, if the court thinks fit proceedings are conducted in the absence of media, public or a particular person.

Under section 309(1) of Cr.P.C, the provisions of the speedy trial are given. Speedy trial is an integral part of the constitution. Speedy trial is necessary to raise the confidence of the public in the judiciary. Delayed justice leads unnecessary harassment and also defeats the objective of re-socialization of the offenders too. Section 309(1) of Cr.P.C gives direction the courts with a view to having speedy trials and quick disposal”.

Section 389 of the code deals with the provisions of bail. In the case of bailable offences, the accused can claim it as a right as given under section 436, but bail under section 389(1) after conviction cannot be claimed as a right whether the offence is bailable or non-bailable. If charge sheet is not filed within a period of sixty days then the magistrate has the power to release on bail without notice to the other side in non-bailable offences”.

Section 46(4) of the code says that arrest of any woman cannot be made after sunset or before sunrise except in some exceptional cases by a woman officer with the prior permission of the judicial magistrate of first class within whose the local jurisdiction, where the offence is committed or arrest is made”.

Section 228,240,246,251of the code provides that when accused is brought before the court for trial he shall be stated particulars of the offence of which he is accused. This is one of the important parts of fair and public trial”.

Section 311 of the Cr.P.C gives power to the court to summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall or re-examine already examined the witness at any stage of any inquiry, trial or other proceedings”.

CONCLUSION

The basic element of the fair trial is to appear before independent, impartial and competent court or tribunal. The court should not be influenced by any party. The trust of people from the administration and judicial system will be shattered if the elements of the fair trial are not fulfilled.

The right to a fair trial ensures the people that processes will not be uncertain or unfair.It is one of the important tools which prevents the government from exploiting their powers. A fair trial is the best tool for separation of guilty from innocent and protection against the injustice. The right to fair trial brings public faith in the judicial system.

To ensure a fair trial of accused persons is the primary object of criminal procedure. Human life should be valued and no person should be punished for an offence unless he has been given a fair trial and his guilt has been proved in such trial.