Models of Criminal Justice System

1
Due Process Model
Introduction
The ultimate goal of a legal system is the realization of justice or freedom, which is long and
complicated, which plays a vital role in society. Plato and Marx have urged that law is an evil thing
which mankind would do well to rid itself1. Law is one of the great civilizing forces in human
society, and that the growth of civilization has generally been linked with the gradual development
of system of legal rules together with machinery for their regular and effective enforcement. Man
is rational and would like to live in the society as social being.
State and law are essential conditions to have peaceful and organized society. Therefore, whatever
may be imperfections and flaws in the law, the law is indispensable. Most of the Democratic
Constitutions have been drafted on the principles of Rule of Law and respect for human rights.
Rule of Law embodies the doctrine of supremacy of law. As expounded by Dicey, Rule of Law
envisages “the absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power and excludes the existence of arbitrariness of prerogative, or even wide
discretionary authority on the part of government.”2 The necessary element of rule of law is that
the law must not be arbitrary or irrational and it must satisfy the test of reason. 3 One of the
important components of rule of law is the doctrine of due process of common law and fifth and
fourteenth Amendment of United States Constitution.
1
Dennis Lloyod, The Idea of Law, (Landon: Penguin Books, 1991), p.7.
2
A.V. Dicey, Introduction to the study of the Law of Constitution, 3rd edn., (London: Macmillan and Co, 1889),
p.181.
3
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
2
History of Due Process
Rule of law is the unique characteristic of the English Constitution which suggests 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 other words, the
rule of law is contrasted with every system of government based on the exercise by persons in
authority of wide, arbitrary, or discretionary powers of constraint. Dicey’s rule of law is nothing
but the due process of a law which has emerged from the customary rules of common law. Due
process has ancient history which is traceable to the Magna Carta. During the 13th century there
was struggle between the barons and the King of the England which led to issue of Magna Carta
of 1215. Magna Carta was not a statute but was merely a personal treaty between King John of
England and the enraged upper classes.4 The Charter of 1215 had contained Sixty-three chapters
which granted feudal rights to barons of Runnymede and Section 39 had used the words with ‘law
of the land.’ There was no unanimous among the historians in respect of the words used in the
Section 39 of the Magna Carta.5 However Mott has quoted the Section 39 of Magna Carta of 1215
which has laid the foundation for the terminology of Due Process in the following manner:
“No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed, nor will
we go upon him nor send upon him, except by the lawful judgment of his pears and by the law of the
land.”6
The terminology, ‘law of the land’ used in the Section 39 of Magna Carta is replaced by the word
“due process of law” in the 1354 Charter re-issued by King Edward III. Magna Carta was
successively reissued by the Monarchy of British.7 Henry III who re-issued the Charter 1216 of
Magna Carta reduced the chapters from sixty-three to thirty nine and clause related to per legem
terrae shifted from the Section 39 to 29 which was commonly referred in the later writings even
including Sir Edward Coke in the seventeenth century.8 King Edward III who re-issued Magna
Carta in 1354 officially used the word “Due Process of law.”9 Magna Carta becomes the basic
symbol of British Constitutionalism which was originally applied to the free barons against
Monarchy but later it was applied to every Englishman.
4
Rodney Mott, Due Process of Law, (New York: DA CAPO PRESS., 1973), p. 4.
5
Mott has quoted the different version of section 39 of Magna Carta given by Barrington which stated that “No
free-man’s body shall be taken or imprisoned, nor disseized, nor outlawed, nor banished, nor any way damaged, nor
shall the King send him to prison by force excepting by Judgment of his peers and by the law of land.” Further Mott
comments that wordings of section 39 were differed in the Law of Henry. See, Rodney L. Mott, Due Process of
Law, (New York:DA CAPO PRESS,1973), pp. 2-3.
6
Magna Carta Art. XXXIX (1215), quoted in Rodney L. Mott, Due Process of Law (New York: DA CAPO
PRESS, 1973), p.3.
7
King Henry III reaffirmed the Charter in 1216 which was the first reaffirmation among the thirty reissues of the
Charter by the successive British Monarchy during the 14th and 15th century. See, Charles Miller, “The forest of
Due Process of law: The American Constitutional Tradition”, in NOMOS XVIII, Due Process, Roland Pennock and
Johan Chapman, (ed.), (New York: New York University Press, 1977), p.5.
8
Ivor Jennings, “Magna Carta and Constitutionalism in the Commonwealth,” in, The Great Charter, William
Dunham, et al., (ed.), (New York: Pantheon Books, 1965), p. 75.
9
Statute 28 of Edward III stated that “That no man of what estate or condition that he be, shall be put out of land or
Tenement, nor taken, nor imprisoned, nor deinherited, nor put to Death, without being bought to Answer by Due
Process of the Law.” This statute is called as “the statute of Westminster of the Liberties of London. See, Rodney L.
Mott, Due Process of Law, (New York: DA CAPO PRESS,1973), p. 4.
3
The United States of America adopted its Constitution on September 17, 1787 which contained no
Article guaranteeing the due process of law to its subjects. However, under the leadership of James
Madison twelve proposals were passed for Amendments to Constitution in 1789 but only ten
Amendments were ratified by States in December 1791 which are known as Bill of Rights. The
Fifth Amendment contains the clause of due process of law.10 The new Federal Government was
constituted under the American Constitution which was not having any clause in respect of human
right which can limit the power of Federal Government. Therefore, drafter of the Bill of Rights
was designed the amendments as check on the new national Federal Government. Obviously the
Supreme Court of USA has held that Bill of Rights historically applicable to newly formed Federal
Government but not to state legislatures.11 Therefore, the Fourteenth Amendment of US
Constitution which contained due process clause is made applicable to states legislature.12
10
V Amendment of US Constitution states that “No person shall … be deprived of life, liberty, or property, without
due process of law …”
11
Barron v. The Mayor and City Council of Baltimore, 32 US (7 Pet) 243 (1833).
12
Section 1 of XIV Amendment of US Constitution states that “… No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of United States, nor shall any State deprive any person of life,
liberty, or property, without due process of law ….”
4
Meaning and Kinds of Due Process of law
It is very difficult to provide complete definition and meaning of ‘due process of law’ because it’s
meaning and scope is far from settled in spite of the great amount of research that has been made
by various authors. Moreover, there is no unanimity among the authors on the content, scope,
limitation and meaning of due process. Further the word ‘due process of law’ is ambiguous and
has been interpreted and reinterpreted by the courts in different sense under different circumstances
at different points of time. Due process unlike some legal rules is not a technical conception with
a fixed content unrelated to time, place and circumstances.13 Thus, due process can be said to be
relative term rather than absolute which is dynamic and flexible. Therefore, the content and
meaning of due process is much related to time, territory, the nature of legislation and nature of
right to be deprived.
The Due Process is a legal principle which has been shaped and developed through the process of
applying and interpreting written Constitution of America. Due procedure seems to be a right to a
procedure, a right to have one’s treatment determined according to some prescribed method and
the moral basis of such legal or constitutional right which is rested upon the idea that citizens have
a right to be treated justly. The concept of due process provides criteria for assessing the justice of
procedure. Sense of justice requires due process because due process is a means for achieving the
purpose of a just legal system. Rodney Mott has viewed the due process as a specific prohibition
aimed at a specific abuse. Due Process makes the state subservient to rule of law. Therefore, it
prohibits or restricts the government of misusing or abusing its power against its people. It is
limitation on the power of state. The Due Process obligates the state to respect the rights of people
which are owed to them and any deprivation of such right shall not be arbitrary, unreasonable and
capricious. Due Process of law balances the interest of individual rights and power of state to
regulate such rights. Due Process in question is historically sanctioned, or even that it also be fair,
it must also be a legal process, one that confirm to the ideal of law, government by rules, and non-
arbitrariness.14
The right to due process is a principle rather than a right; a principle which is used to generate a
number of specific rights, procedure and practice. This principle is grounded in a common and
public sense of justice which itself is open to philosophic reflection and analysis.15 Story, J., said
“when life and liberty are in question there must, in every instance be judicial proceedings and that
requirement implies an accusation, a hearing before an impartial tribunal and with proper
jurisdiction and a conviction and judgment before the punishment can be inflicted.”16 Due Process
ideas evolved both in and out of courts and are fused into new ideology of higher law. The due
13
Durga Das Basu, Constitution of India, 8th edn., Vol. 3, (Nagpur: LexisNexis Butterworths Wadhwa, 2009), p.
3084.
14
Ronald Pennock, “Introduction”, in, Nomo’s XVIII Due Process, (ed.) Roland Pennock and Johan Chapman,
(New York: New York University Press, 1977), p.xvi.
15
David Resnic , “Due Process and Procedural Justice”, in, Nomo’s XVIII Due Process, (ed.) Roland Pennock and
Johan Chapman, (New York: New York University Press, 1977), p.208.
16
Fraklin Russel, “Due Process of Law”, available at http//www.jstor.org/stable/782385. Accessed on June 25,
2013.
5
process phrase, which had sprung from and had usually, been considered in the context of specific
legal rights, acquired philosophical force.17
It is the judiciary not the legislators who are empowered by due process clause to decide whether
law enacted by the State is fundamentally fair, in accordance with the Constitution and the
principles of due process. Due process is often equated with the concept of natural rights which
has proven controversy. The word “due” in America has been interpreted as ‘reasonable’, ‘just’,
and ‘proper.’18 The elasticity and potential breadth of the words ‘due process of law’ have provided
the judiciary with countless opportunity for its interpretation and re-interpretation in the light of
value of the incumbent society. Supreme Court of America first examined the meaning of due
process in Lessee v. Hoboken Land & Improvement Co.19 Benjamin, J., per curium stated that the
phrase ‘due process of law’ were undoubtedly intended to convey the same meaning of as the
words ‘by the law of the land’ used in Magna Carta. Honorable judge further noted that:
[A]lthough the Constitution did not define ‘due process of law,’ provided no description of those
process which are intended or forbidden and did not declare the principles to be applied: It is a
restraint on the legislative as well as on the executive and judicial powers of the government, and
cannot be so construed as to leave Congress free to make any process “due process” by its mere will
. . . We must examine the Constitution . . . to see whether this process be in conflict with any of its
provision.20
Frankfurter, J., had provided a very comprehensive analysis of due process which is as
under:
“Due process” unlike some legal rules, is not a technical conception with a fixed content unrelated
to time, place and circumstance. Expressing as it does in its ultimate analysis respect enforced by law
for that feeling of just treatment which has been evolved through centuries of Anglo-American
constitutional history and civilization. “Due process” cannot be imprisoned within the treacherous
limits of any formula. Representing a profound attitude of fairness between the individual and
government, “due process” is compounded of history, reason, the past course of decisions, and stout
confidence in the strength of the democratic faith which we prefer.21
Content of due process are not fixed which has led to different interpretation by different judges
at different point of time. The American judiciary failed to evolve the objective test to determine
the just, reasonability, and fairness of substitutive of law which has created uncertainty in the
American Legal system.
Kinds of Due Process
Procedural Due process
17
Charles Miller, “The Forest of Due Process of Law”: The American Constitutional Traditions, in, Nomo’s XVIII
Due Process, (ed.) Roland Pennock and Johan Chapman, (New York: New York University Press, 1977), p.14.
18
M.P. Jain, Indian Constitutional Law, 5th edn., (Nagpur: LexisNexis Butterworths Wadhwa, 2005), p.1080.
19
59 U.S. 272 (1856)
20
Ibid.
21
Joint Anti- Fascist Refugee Committee v. McGrath, 341 US 123 (1951).
6
American legal system has divided the due process into ‘Substantive due process’ and ‘Procedural
due process.’ Whenever judiciary adjudicates the matter related to the fairness of procedure of law
is called the procedural due process. Procedural due process protects the individual that process
adopted by the state to deprive the rights of individual should be fair and non-arbitrary. For
example, the procedure of law must accommodate the provision in respect of sufficient notice,
impartial tribunal, opportunity to produce evidence and cross examine the adversary evidence, etc.
Procedural due process is limited in scope. Procedural due process only guarantees that there is a
fair decision making process by State. In general procedural due process means that in dealing
with individuals, the Government must proceed with ‘settled usages and modes of procedure’, e.g.,
that there should be no conviction without hearing.22 This kind of due process clause does not
protect against the use of unjust laws on which the decision of state is based. It only ensures that
process of decision making should be just. However, it does not ensure that ultimate law on which
process of decision is based upon need not be just.23
Substantive Due Process
Substantive due process is developed in America. Substantive due process ensures that government
power of law making must be compatible with constitutional spirit. Under due process of law, the
Court determines the justness of substance of law.
Therefore, every form of review other than involving procedural due process is a form of
substantive due process.24 In a democratic country judicial review of legislations is always
considered to be fundamental to legal system.25 Judicial review of the legislation under the specific
provision or Amendment of the Constitution is not subject matter of debate because Constitution
provides specific indication through specific language that certain subject matter of legislation is
beyond the power of the legislator or executive. But the court’s ability to determine
constitutionality of legislation under the due process of law has been subject matter of heavy debate
and criticism. The court employs due process clause to control the substance of legislation that
certain subject matter of legislation is beyond any proper sphere of government activity. In
nutshell, it means that certain legislations are incompatible with democratic system of government
and individual liberty. Thus, the court opinion is based upon the premises that any deprivation of
life, liberty and property without due process of law is never granted by the Constitution.
Due Process in England
In England the due process of law is mainly referred to the procedural due process rather than
substantive. Section 39 of Magna Carta of 1215 gave protection to the free barons that they will
not be imprisoned by the King except by the law of the land. The King’s arbitrary power of
22
Acharya Dr. Durga Das Basu, Commentary on the Constitution of India, 8th edn., Vol. 3, (Nagpur: LexisNexes
Butterworths Wadhwa, 2008), p. 3084.
23
Johan Nowak, et al., Constitutional Law, (St. Paul Minnesota: St. Paul Minn. West Publishing Co. 1978), p.381.
24
Ibid.
25
Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461
7
imprisonment of his subject was very much restricted by this clause. The Law of the land had
assured the barons and free men that their imprisonment shall be subject to the trial by their peers
according to the law of the land. The phrase “the law of Land” were not defined in the statute. The
nature of Section 39 of 1215 charter was understood in three senses. First, it was aimed at specific
prohibition of specific abuse. Second, that specific abuse which Section wanted to curb is that of
execution before judgment. Third, the law of the land is quite generally understood in the sense of
legality. However, the ‘law of the land’ was replaced by the ‘due process of law’ in the charter of
1354 by King Edward III which widens the scope of due process. Moreover, the protection of due
process which was provided to only ‘free men’ is made available to every man.’26 The ‘law of the
land’ was capable of conveying the meaning of the positive law. It means that procedure prescribed
by the King through law. But it was held that the law of the land meant to be customary laws of
the Kingdom.27
During the medieval period in England due process was very much related to the procedure of
imposition of fines, seizing of land, forfeiture or outlawry. The Courts were used to invalidate the
decision of the King which is based upon the summary proceedings by observing that those
proceedings were not in accordance with the law of the land. Law of the land has been equated
with custom of the realm or established procedure under custom of England. By the end of fifteenth
century, it was firmly established in England that no one should lose neither his life nor property,
without regular trial before the impartial tribunal according to the law of the land which is
considered to be greatest contribution of due process of common law to the criminal jurisprudence.
The phrase ‘law of the land’ used in the 39th Section of Magna Carta of 1215 had suggested that
limitation could be applied to only King. However, the word ‘due process of law’ used in the
Charter 1354 issued by King Edward III constrained even the courts also. Further the due process’s
scope is wider than law of the land because it does not assure guaranteed a particular procedure
but rather the procedure due to according to situation and circumstances. Thus, due process of law
in England meant to be a regular procedure for summoning people to trial and adjudicating their
liability.
The due process of law in England has not become subject matter of debate among the judges,
academicians and politicians because it is very much related procedural due process rather than
substantive due process. Therefore, in British’s legal system, due process of law does not put
restraint on legislative function of Parliament. The expression ‘law of the land’ used in Magna
Carta did bind the Crown not to deprive the rights of barons without the procedure including
hearing and judgment prescribed by valid law. The Magna Carta which becomes basic document
of English liberties never intended to limit the authority of the Parliament of England because the
Parliament was not in existence at the time of issue of Magna Carta. But great English
26
Edward III made changes to Magna Carta that this protection should apply to every ‘man of what estate or
condition that he be.’ Even certain of the American States before the civil war had applied due process protection
only to the free man but not to the black slaves. However, the Thirteenth and Fourteenth Amendment of US
Constitution removed that discrimination. See Mott, Due Process of Law, (New York, DA CAPO PRESS, 1973), p.
37.
27
Joseph Story, Commentaries on the Constitution of the United States, Ronald & John Nowak, (ed.), (New York:
Carolina Academic Press 1987), p.923.
8
Commentator Sir Edward Coke opined that the Acts of Parliament too were subject to ‘the law of
the land.’ In Dr. Bonham’s case,28 Sir Edward Coke, who was Chief Justice of the Court of
Common Pleas declared, “that in many cases, the common law will control Acts of Parliament,
and sometimes adjudge them to be utterly void.”29 Sir Edward Coke said that “Statutes to be
legitimate, must conform to the fundamental law, and merely because a declaration is an Act of
Parliament is no guarantee that it is according to the principles of the English common law and
custom.” Even Rodney Mott had said that there were a considerable number of acts, awards, etc.,
which were declared void as being against Magna Carta or the Fundamental Law. But the British
legal system is firmly built upon the theory of omnipotence of Parliament which is propagated by
Sir Blackstone that is the major premises why due process does not limit the Parliament in England.
The authority of England Parliament is infinity because England does not have written
Constitution. Hence the British Parliament is supreme and judiciary does not enjoy the power of
ultra vires of legislation. The English attitude towards Parliament is explained by Blackstone as
follows,
[The British Parliament] “... has sovereign and uncontrollable authority in making, confirming,
enlarging, restraining, abrogating, repealing, reviving and expounding of laws concerning matters of
all possible denominations.’30
Nevertheless, the opinion of Sir Edward Coke was short lived. Captain Johan Streater who had
been imprisoned by the order of Parliament, pleaded that his imprisonment was illegal because it
is contrary to the Law of the Land. The Court answered that it must bow to legislative supremacy.31
Even Walter Bagehot, the famous British economist and journalist, has commented that “there is
nothing the British Parliament cannot do except transforms a man into a woman and woman into
a man.”32
The British courts are revered and esteemed as necessary concomitants of the democratic process,
but not the degree of being ultimate guardians of the Constitution as are the American courts.33
Even the Human Rights Act, 199834 which promotes Human rights in U.K. has acknowledged the
supremacy of the Parliament. The Human Rights Act, 1998 empowers Court to interpret other
legislation with compatibility of human rights35.
28
8 Co. Rep. 114a, 77 Eng. Rep. 646 (C.P. 1610).
29
Lowell Howe, The Meaning of “Due Process of Law” Prior to the Amendment of the Fourteenth Amendment, 18
Cal. L. Rev. (1930). p, 583. Available at:http//scholarship.law. barkeley.edu/ californiala review /vol18/iss6/1.,
Accessed, on March 17, 2013.
30
Blackstone, Commentaries.
31
The charge against streater was “publishing seditious phamplates against the State” he argued that Parliament
could not make such law as the law of the land. Justice Garmond and Nichols refused to listen to his argument and
dismissed it summarily with the remark: “If the Parliament should do one thing, and we do the contrary here things
would run round.” It is very evident that the whole trial was entirely political in nature and that there was
determination to keep Streator in prison to prevent his spreading propagandas against the revolution. As soon as
Parliament was dissolved, he was released without trial. See, Rodney L. Mott, Due Process of Law, (New York: DA
CAPO PRESS,1973), p. 44.
32
Henry J. Abraham, The Judicial Process, 4th edn., (New York: Oxford University Press,1980), p.311.
33
Ibid.
34
Act No. (c42).
35
Section 3 (1) provides that Primary Legislation and Subordinate Legislation must be read and give effect in a way
which compatible with Human Rights.
9
However, if the legislation is incompatibility with Human Rights, it can declare legislation is
incompatible but cannot invalidate the legislation.36 It means supremacy of the Parliament of U.K.
kept intact even in 21st Century.
Due Process in United States of America
America’s independence is considered to be a symbol of victory for civil and political rights of
human beings. But irony is that the federal Constitution of United States of America as first
adopted did not contain due process clause. Nevertheless, that important omission was rectified in
the year 1791 by the Fifth Amendment. But eight States of America had already contained the due
process clause in their Constitution before the adoption of Fifth Amendment of the federal
Constitution.37 However, the Fifth Amendment did not apply to states. Therefore, the Fourteenth
Amendment of USA Constitution obligated the states to adopt due process clause. The American
legal system was highly fused by the philosophy of Sir Edward Coke that the concept of due
process clause even restrained the Parliament also. The greater body of common law rights lies in
the realm of custom, practice and justice which are the strength of due process. Further, American
Constitution is highly influenced by the Locke’s philosophy of Natural Rights.38
Locke said, “The great and chief end … of men uniting into commonwealth, and putting
themselves under governments, is the preservation of their property.” He used the preservation of
property in the broader sense as common good. “The power of the society or legislative constituted
by them can never be supposed to extend farther than the common good”39 Mr. Madison who was
the father of the American Constitution in drafting and introducing the Bill of Rights had reasoned
that restriction in the form of due process is necessary not only on the executive but also on the
legislative power of federal government. Rodney Mott concluded that the philosophy is developed
in America that Fifth Amendment is expected to limit arbitrary abuses of the powers of government
from whatsoever sources abuse might come. Thus the due process provision is intended to serve
as a general limitation on tyranny of any kind of government is undisputable.
Two fundamental differences exist between the due process clause of USA and England. Unlike
in England, due process in USA puts limitation not only on executive but even on the legislative
power of state. It was argued that due process requires only that the process be in conformity with
statutes enacted by legislative bodies and put no restrictions on legislative power. However, the
Supreme Court of United State of America rebutted the argument and held that:
36
Section 4 authorizes the Court to declare any legislation as incompatible if it is inconsistent with Human Rights
Act, 1998. However, section 3 (2) does not empower the court to declare such incompatible legislation null and void.
37
These were: Maryland (1776) Article XXI, Pennsylvania (1776) Article VIII, North Carolina (1776) Article XII,
Virginia (1776) Article VIII, New York (1777) Article XIII, South Carolina (1778) Article XLI, Massachusetts
(1780) Article XV, and New Hampshire (1784) Article XV.
38
Great political philosopher Locke who propagated the idea that person’s “Property Rights” were inalienable and
cannot be deprived by the government without the consent of the person. The property rights are the gift of nature,
therefore government should make effort to promote property rights rather than its restriction and destruction. The
concept of “Property Right” includes life, liberty and property. See, Edgar Bodenheimer, Jurisprudence, (Delhi:
Universal Law Publishing Co.Pvt.Ltd, 2001) .p.50
39
Edgar Bodenheimer, Jurisprudence. (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2001), p.8.
10
“That the warrant now in question is legal process is not denied. It is issued in conformity with an
Act of Congress. But is it ‘due process of law’? The Constitution contained no description of those
processes which it was intended to allow or forbid. It does not even declare what principles are to be
applied to ascertain whether it be due process. It is manifest that it was not left to legislative power
to enact any process which might be devised. The article is restrain on the legislative as well as on
the executive and judicial powers of the government, and cannot be constrained as to leave Congress
free to make any process ‘due process’ by its mere will.”40
Further due process concept in USA is interpreted in such sense that it puts limitation upon the
legislative powers which are not explicitly enumerated in the Constitution.41 Cooley commented
that due process was limitation upon all branches of government. First, it is limitation not only on
judicial actions, executive actions but even it embraces the legislative actions. Second, he observed
that the three organs of Government must co-operate to secure liberty of individual according to
the settled maxims and well embellished principles of law. Third, he tried to shift the focus of due
process from individual liberty to property rights. Until that period due process of property rights
were considered to be subservient to rights of liberty. The due process of law in England is intended
to provide protection to individual against arbitrary arrest and imprisonment in criminal matters.42
But the due process concept in United State of America is extended to even civil matters including
taxation and domain.
Due Process before the Civil War
The elastic scope and potential breadth of ‘due process of law’ has provided a number of
opportunities to the Supreme Court of USA for its interpretation. However, the due process of law
of Fifth Amendment was largely irrelevant till the middle of the Nineteenth century. In fact it was
in 1850 that the Supreme Court of USA first examined due process clause in Murray’s Lessee v.
Hoboken Land & Improvement Co.43 The Court had no difficulty in holding that the Fifth
Amendment Due Process Clause restrained Congress as well as the executive and judicial branches
of government. Congress was held to be not “free to make any process ‘due process of law,’ by its
mere will.” The Supreme Court adopted twin tests to determine whether process escribed by the
law is due process of law or not. First, it looked to those “settled usages and modes of proceedings”
under English Law that were applicable American society. Second, the Court examined the
whether Common Law practice be conflict with Constitution of USA. Thus due process was
defined in terms of historically accepted practice of common law. The Court noted due process
generally implied regular allegations, opportunity to answer and trial according to some settled
course of judicial proceedings. Murray’s Lessee case principle is worthy to be appreciated because
40
Facts of the case are, an auditor for the federal treasury found that a collector of the customs for the port of New
York owed over a million dollars to the government. The solicitor of the treasury issued a distress warrant as
authorized by federal statute, which placed a lien on the collector’s property. The collector was not provided the
opportunity of being heard, when the property was sold to satisfy the obligation. Murray’sLessee v. Hoboken Land
& Improvement Co. (1855) 59 US (18 How.) 272 at 276.
41
Available at:http//scholarship.law.barkeley.edu/californialawreview/vol18/iss6/1. Accessed on March 17, 2013.
42
Sir Edward Coke said that the word ‘law of the land’ meant to be due process of law that is without the
presentation or indictment and being brought in to answers thereto, by due process of the common law. So that this
clause in effect affirms the right to trial according to process and proceedings of the common law. See, Mott, Due
Process of Law, (New York: DA CAPO PRESS,1973), p. 180.
43
(1855) 59 US (18 How.) 272.
11
due process is not analyzed only from the historical point but also due process is extended beyond
criminal jurisprudence and applied to protect the private property rights. The Courts repeatedly in
unambiguous manner have held that determination of what is due process is the function of
judiciary and not of legislature. The Court findings are based on the following reasons:
To Say … that “the law of the land,” or “due process of law,” may mean the very act of legislation
which, deprives citizens of his rights, privileges, or property, leads to a simple absurdity. The
Constitution would then mean that no person shall be deprived of his property or rights unless the
legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely
away.44
The Due Process clause of the Fourteenth Amendment was the least discussed provision in the
Amendments which has failed to specify particular procedural safeguard in the Amendment. Thus
the Amendment has authorized state to prescribe procedural rules which have to be just and not
necessarily confined to the procedure of common law.
Procedural Due Process in the Post-Civil War Period
In Hurtado v. California,45 the state of Californian charged Jospeh Hurtado with murder. Rather
than convene a grand jury to indict him, the district attorney filed information against him pursuant
to state law. Upon conviction and imposition of death sentence, Hurtado argued that due process
required an indictment or presentment by a grand jury and the procedure employed violated the
Fourteenth Amendment. The Court held that due process clause did not require grand juries in
state criminal proceedings. Court further elaborated the general meaning of due process; new
procedures that were not part of the inherited common law might nevertheless qualify as due
process. Court held that a process of law, which is not otherwise forbidden, must be taken to be
due process of law, if it can show that sanction of settled usage both in England and in America;
but it by no means follows, that nothing else can be due process of law. Citing the common law
“flexibility and capacity for growth and adaption”, the Court concluded that the due process of law
had a “fixed definite and technical” meaning is untenable. Thus, historical precedent is no longer
a necessary condition of due process, instead fundamental fairness of a challenged procedure is
vital for determination of due process. Stanley Mathew, J., held due process must be determined
by a “gradual process of judicial inclusion and exclusion”, drawing on “the best ideas of all systems
and of every age.” Due Process, he said was like the common law, its inspiration coming “from
every foundation of justice.”56 Thus the court admitted that there may be procedure outside
common law according to the law of each state which can be recognized as due process.46
Substantive due process in United States of America
44
Wynehamer v. People, 13 N.Y. 378 (N.Y. 1856)
45
110 U.S., 516 (1884).
46
Missouri v. Lewis 101 U.S. 22 (1879), see also Walker v. Sauvinet, 92 U.S. 90 ( 1875).
12
The written Constitution which defines the different branches of government and their duties,
postulates limitations upon the legislative body and if such limitations are disregarded in the
enactment of a statute it becomes the duty of the judiciary, when adjudicating the rights of litigants,
to treat the statute as void.47 But when judiciary tries to declare a statute as void on the grounds
that are not explicitly enumerated in the Constitution under the due process clause, certainly it
leads to a controversy and becomes subject matter of hot debate in the legal system. Cooley has
commented that legislature cannot levy taxes arbitrarily, nor for any but a public use, and that it
cannot take property from one person and give it to another.48
Chase J., in Calder v. Bull49 laid the foundation for substantive due process in America through
his judgment which deserves to be quoted at length:
“I cannot subscribe to the omnipotence of a state legislature or that it is absolute and without control:
although its authority should not be expressly restrained by the constitution, or fundamental law of
the state. The people of the United State erected their constitutions or forms of government to
establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their
persons and property from violence. The purpose for which men enter into society will determine the
nature and terms of the social compact: and as they are the foundation of the legislative power, they
will decide what the proper objects of it are. The nature and ends of legislative power will limit the
exercise of it. This fundamental principle flows from the very nature of our free republican
governments, that no man should be compelled to do what laws do not require; or to refrain from
acts which the laws permit. There are acts which federal or state legislature cannot do, without
exceeding their authority. There are certain vital principles in our free republican governments, which
will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize
manifest injustice by positive law; or to take away that security for personal liberty, or private
property, for the protection whereof the government was established. An act of the legislature (for I
cannot call it a law), contrary to the great first principle of the social compact, cannot be considered
a rightful exercise of legislative authority. The obligation of a law, in government established on
express compact, and on republican principles must be determined by the nature of power on which
it is founded.”50
Hence Chase J. went outside the written Constitution for a criterion to test the validity of a
legislative act. What he meant was that the scope of the power of the legislature, or any
governmental body is determined by the purpose for which it is brought into existence. However,
this idea is not new but akin to the idea of Johan Locke which influenced the American society to
great extent and that has become source of substantive due process of law in American legal
system. The arguments of Chase J. are substantially based upon the foundation of ‘social compact’
doctrine. Social Compact doctrine means that peoples enter into contract with each other and
transfer their power to form the government with a condition that the government should secure
47
Marbury v. Madison (1808) 5 US (1 Cranch) 137.
48
Thomas M.Cooley, Constitutional Limitations, 1st edn. (Boston: Little, Brown, & Co.,1868), p. 174.
49
3 U.S. 386 (1798)
50
Further Justice said legislature has no power to enact law to punish innocent action of individual (for an act, which
when done, was in violation of no existing law), a law that destroys or impairs the lawful private contracts of
citizens; a law that makes a man judge in his own cause; or a law that takes property from A and gives it to B; it is
against all reasons and justice, for people to in trust a legislature with such powers; and therefore it cannot be
presumed that they have done it. See in, Calder v. Bull, (1798) 3 US (3 Dall.) 386.
13
liberty and justice of people.51 The chief principle of this doctrine is that civil rulers hold their
powers not absolutely but conditionally, government essentially is a moral trust and that moral
trust is to promote liberty and justice,52 if these conditions are not fulfilled by trustees, they would
forfeit their trust. In nutshell, social compact theory limits power of American Government and it
cannot take from any person life, liberty and property except when such a taking is necessary to
secure life, liberty and property to the individuals generally who compose society. It means that
life, liberty and property of people can be taken only for the legitimate end of government or
compelling reason which justifies deprivation of life and liberty of American citizen.
The social compact theory has led to formation of Doctrine of Vested Rights and the Doctrine of
Police Power under due process clause. Thus, these two doctrines have set up extra constitutional
and unwritten basis for judicial review which is equated with “natural justice” or “law of nature.”
Interpreting the Doctrine of Vested Rights in the light of ‘law of nature’ and ‘nature of sprit of
government’ may lead to practical difficulties because it can be sued for any other purpose than
protecting vested rights. Sound legal system ensures that judge’s discretion power is limited by
written statute. But conferring discretionary power to the judiciary to determine the validity of law
on unwritten specification in the constitution is nothing but conferring veto power to judiciary.
The courts on the basis of “liberty of contract” have struck down laws which try to regulate
industry. This liberty was based on the presumed parity of bargaining power between employer
and employee, buyer and seller, guaranteeing both parties substantive due process “liberty” against
police power legislation.53 In Lochner v. New York, the Court struck down a legislation which
regulated working hours of workers in baking industry on the ground that it interfered with their
contract of liberty.54 The Supreme Court of USA has struck down many legislations of New Deal
era for violation of due process clause during 1930s.
The general position of the court in respect of due process is that when fundamental interest is at
stake involving life, liberty, or property, then the state must have a “compelling’ objective and its
statute must be narrowly tailored to achieve that objective. In case of non-fundamental interest,
the state must have a “legitimate” objective, and a statute must rationally relate to achieving that
objective. The Court thus determines what powers of state government are legitimate or
compelling, regardless of enumeration of powers in state’s constitution. The Court also determines
51
Johan Locke in his Two Treatises of Government wrote that “The great and chief end, therefore of men’s uniting
into common wealth and putting themselves under government, is the preservation of property.” Further he wrote,
“The supreme power cannot take from any man any part of his property without his own consent: for the
preservation of property being the end of government, and that for which men enter into society.” He said ‘property’
includes life, liberty and property and he called them as inalienable rights. See in Lowell Howe, The Meaning of
“Due Process of Law” Prior to the Amendment of the Fourteenth Amendment, 18 Cal. L. Rev. (1930). p, 583.
Available at:http//scholarship.law .barkeley .edu/californialawreview/vol18/iss6/1. Accessed, on March 17, 2013.
52
The people of America have created the United State Government to establish justice, to promote the general
welfare, to secure the blessings of liberty, and protect their persons and property from violence. See the object of
American Constitution.
53
In 1885, the New York Court held that legislation banning manufacture of cigar in tenement house is
unconstitutional because it interfered with freedom of worker to trade where they wished. In 1897, Justice Peckham
held that Louisiana insurance law violated the due process clause by depriving a local firm of its liberty to purchase
insurance which it wished to purchase. See, Allgeyer v. Louisiana, 165 U.S. 578.
54
Lochner v. New York, 198 U.S. 45 (1905).
14
what rights are fundamental, notwithstanding rights that may be enumerated in a state’s
constitution.
However, due process underwent changes since 1937 from protecting individual interest to
community interest because of Constitutional Revolution of 1937. The Court started to focus less
on substantial due process in social and economical reformative laws and more on procedural
aspect of such laws. Further the court relied on the doctrine of enumerated specific prohibitions
under the Constitution to decide the validity of legislations rather than on unremunerated
prohibitions. Therefore, the scope of substantive due process is narrowed down in US legal system.
Due Process in India
The expression ‘due process of law’ is not used in any provisions of the Indian Constitution.
However, the due process can be inferred through the Articles 14, 19, 20, 21 and 22 together. The
judiciary has played a creative role in this regard. It has interpreted the ‘procedure established by
law’ in Art.21 to be equivalent of the ‘due process of law.’ Article 21 in its draft form was Article
15. It provided that “No person shall be deprived of his life or liberty without the due process of
law.”55 But the Drafting Committee at a latter stage proposed the substitution of the expression
“except according to procedure established by law” for the words “without due process of law.”
The Drafting Committee justified the amendment because the word due process gives scope for
judicial supremacy to determine the content of law which is likely to create confusion and hurdles
in the social transformation. Their view was based upon the experience of due process in American
legal system. Frankfurter, J., of the United States Supreme Court had expressed that due process
clause is undemocratic and burdensome to the judiciary, because it empowered judges to invalidate
the legislation enacted by democratic majorities,56 The Supreme Court of India in A.K. Goplan v.
Union of India, held that Article 21 is complete code; procedure established by law need not
comply with the principle of natural ustice and reasonableness under Article 19.57 Court decisively
rejected the application of due process of law under Article 21 pointing out that as long as a person
was detained according procedure established by law, he could not challenge his detention.
However, the attitude of judiciary gradually shifted from the procedure established by law to
procedural due process. The 11 judges bench of Supreme Court in Bank Nationalization58
overruled the view of Goplan and opined that each fundamental right is not complete code but
interdependent which laid the foundation for due process clause in the Indian legal system. The
24th and 25th Amendments of the Constitution were dopted by the Parliament with an object to
nullify the decision of the Supreme Court given in the Bank Nationalization59cases respectively.
55
H.M., Seervai, Constitutional Law of India, 4th edn. Vol. 2, (New Delhi: Universal Law Publishing Co. Pvt. Ltd.
2010), p.970.
56
B.N. Rao had met Justice Felix Frankfurter of the United States Supreme Court for advice in the drafting of the
Indian Constitution. Frankfurter told him that he considered the power of judicial review implied in the due process
clause both undemocratic – because a few judges could negate legislation enacted by the representatives of a nation
and also burdensome to the judiciary. See, Granville Austin, The Indian Constitution Cornerstone of a Nation, (New
Delhi: Oxford University Press,2010), p103.
57
A.K. Goplan v. Union of India, AIR 1950 SC 27.
58
Rustom Cavasjee Cooper v. Union of India, (Bank of Nationalization), (1970), 1 SCC 248, 1970 AIR 1970 SC
564.
59
Ibid
15
Further the Parliament Amended Articles 13 and 368 gave unlimited power to Parliament to
amend, add, vary or repeal any Article of the Constitution which established omnipotent
Parliament that is based upon the philosophy of Austin’s unlimited sovereign. The worst was
insertion of Article 31-C in the Constitution which empowered the Parliament to enact a law with
mere declaration that it would give effect to Directive Principles of State Policy, which will
insulate that law from judicial scrutiny. Such law would not be challenged on the ground that it
would infringe the fundamental rights. The writing was clearly on the wall to the Supreme Court
that Parliament was supreme and could do what it wanted. Indeed these amendments destroyed
the separation of power and made the judicial review is mere illusory and myth.60 Even though 13
judges Bench of the Supreme Court in Kesavananda Bharati upheld these amendments, it laid
down the basic structure theory.61 Parliament’s power to amend the Constitution is permissible to
any extent with only limitation of not violating its “basic structure.” Thus justness of Constitution
is saved by the theory of basic structure which reflected the value of substantive due process of
law which is akin to the US substantive due process of law, which is based upon the philosophy
of natural law and justice. The concept of natural law and justice provides judiciary to determine
the validity of law on the grounds which are not explicitly enumerated in the constitution.
However, this kind of substantive due process is consistently followed in India in respect of
constitutional matter since Keshavananda Bharathi’s decision.
The Menaka Gandhi62 is now accepted as the starting point of the introduction of due process
clause in India after incorporating the concept of non-arbitrariness articulated in Royappa63 under
Article 21. The Court held that it was axiomatic that a law prescribing a procedure for deprivation
of life and personal liberty under Article 21 could not be any sort of procedure but it has to be one
that is neither arbitrary nor unfair or unreasonable.64 Justice Bhagawati observed:
“A law depriving a person of personal liberty and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand a test of one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation. Ex-hypothesi it must also be likely to be
tested with reference to Article 14. On principle, the concept of reasonableness must, therefore, be
projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on
Article 21.”65
Further the Supreme Court observed that:

“The principle of reasonableness, which legally as well as philosophically, is an essential element of
equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with
Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive: otherwise it
would be no procedure at all and the requirement of Article 21 would
not be satisfied.”66
60
Abhinav Chandrachud, Due Process of Law, (Lucknow: Eastern Book Company, 2012), p. xxxvii.
61
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, AIR 1973 SC 1461.
62
Maneka Gandhi v. Union of India, AIR 1978 597; (1978) 1 SCC 248.
63
E.P. Royappa v. State of T.N., (1974) 4 SCC 3; AIR 1974 SC 555.
64
Kartar Singh v. State of Punjab, (1994) 2 SCR 375.
65
(1978) 1 SCC 248 at 252.
66
(1978) 1 SCC 248 at 284.
16
Thus, Court interpreted that “procedure established by law” meant to be “due process of law”
which is emphatically rejected the theory of original intent and embraced a more generic and
contemporaneous value of Indian Constitution. In Sunil Batra v. Delhi Administration, Krishna
Iyer J. explicitly conceded the presence of due process clause as under:
“[T]rue our Constitution has no ‘due process’ clause but in this branch of law, after Cooper and
Maneka Gandhi, the consequence is the same.67
Due process is considered to be limitation on the enactment of special laws because it makes
arbitrary classification of subject that is unacceptable and it is slowly gained the ground in the
legal system. Indian Constitution drafter had specifically enumerated the doctrine of equality in
the Constitution because there should not be any kind of confusion and uncertainty of equality.
Moreover, makers of Indian Constitution have not used the word “due process” in the Constitution.
Further, it has been held that any law which gives unguided arbitrary power to the executive is
likely to be abused by the executive by discriminating one person against another offends the
doctrine of equality.
Thus, in India due process concept can be perceived under the theory of basic structure, doctrine
of non-arbitrariness under Article 14 and ‘just, fair and reasonable’ requirement of Article 21.
Even Articles 19 (2) to (6), 20, and 22 also insulate the content of due process in the Indian legal
system.
Procedural prescriptions of Due Process
Due process holds the government subservient to law of the land and protects individuals from the
state. The due process is a command that the government shall not be unfair to the people.
Procedural due process determines whether government has taken an individual’s life, and liberty
without the fair procedure required by the statute. It may involve the review of the general fairness
of a procedure authorized by legislation. Various Nations have recognized some form of due
process under their legal system but specifics are often unclear. The process of government, which
deprives a person’s life and liberty, must comply with the due process clause.
Largely the following ingredients are considered as part of due process, both substantive and
procedural in respect of civil and criminal justice system.
a) Adversary process is fair method to adjudicate the civil dispute and criminal trial of
accused.68
b) Adequate notice of charges to the accused.69
c) Neutral or impartial Judges of Court or Tribunal.70
67
(1979) 1 SCR 392 at 428.
68
VI Amendment of USA Constitution.
69
Ibid
70
Ibid
17
d) Accused is presumed to be innocent until the prosecution proves his guilt beyond
reasonable doubt.71
e) Right to Jury Trial.72
f) Right to speedy and public trial.73
g) An opportunity to make oral representation before the Judges or Jury.
h) An opportunity to present evidence or witness.
i) Right to confront and cross-examine the witness.74
j) Right to compulsory process of witnesses.75
k) Right to pre-trial discovery of evidence.76
l) Right to transcript of the proceedings in the language of accused.
m) Right to be represented by an Attorney of an accused’s choice.77
n) Right not to deny the excessive bail and punishment shall not be cruel.78
o) No accused shall be a witness against himself.79
p) Right not to be punished twice for the same offence.80
q) Ex post facto law. Retrospective effect of criminal law.96
r) Decision of Court must be supported by the reasons, i.e. speaking order.81
s) Right to appeal against the error of judgment.
Indian legal system is akin to the American system except jury system. Even though the Indian
Constitution does not explicitly uses the word due process but through certain Articles and judicial
interpretation has been made due process is integral part of Indian legal system. India also follows
the adversary judicial system to adjudicate the civil dispute and criminal trial.82 Further the accused
has the right not to be held criminally liable unless it is offence at the time of committing act and
not to be punished more than what is prescribed at the time of commission of the act. This is known
as protection against Ex Post Facto Law.83 Accused has right not be punished twice for the same
offence and he cannot be compelled to give evidence against himself.84 Accused has right to know
his arrest and reason for his arrest.85 Further accused has right to speedy trial,86 right to be defended
by lawyer of his own choice87, right to bail,88 right to be presumed to be innocent and prosecution
71
Mullaney v. Wilbur, 421 U.S. 684 (1975).
72
V Amendment of USA Constitution. Duncan v. Louisiana, 391 U.S. 145(1968).
73
See, VI Amendment of USA Constitution. Klopfer v. North Carolina, 386 U.S. 213 (1967).
74
See, VI Amendment of USA Constitution. Pointer v. Texas 380 U.S. 400 (1965).
75
See, VI Amendment of USA Constitution. Washington v. Texas, 388 U.S. 14 (1967).
76
Jencks v. United States, 353 U.S. 657 (1957).
77
See, VI Amendment of USA Constitution. Powell v. Alabama, 287 U.S. 45 (1932).
78
See. VIII Amendment of USA Constitution.
79
See, V Amendment of USA Constitution. Malloy v. Hogan, 378 U.S. 1 (1964). Miranda v. Arizona, 384 U.S. 694
(1966).
80
See, V Amendment of USA Constitution. Benton v. Maryland, 395 U.S. 784 (1969).
81
See, Section 9 and 10 of Article 1 of USA Constitution. Lindsey v. Washington, 301 U.S. 397 (1937).
82
Report of the Committee on Reforms of Criminal Justice System, Vol. 1, (Ministry of Home Affairs, Government
of India, 2003), p.65.
83
Article 20(1) of the Indian Constitution.
84
Article 20(2) and (3) of the Indian Constitution.
85
Article 22(1) of the Indian Constitution, see further D.K.Basu v. State of W.B, AIR 1997 SC 610
86
Hussainara Khotoon (I) v. Home Secretary, State of Bihar, AIR 1979 SC 1360. Kadra Pahadiya v. State of Bihar
AIR 1982 SC 1167. Santosh v. Archana Guha, AIR 1994 SC 1229, (1994) Supp 3 SCC 735.
87
Article 22(1) of the Indian Constitution, Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349, Nandini
Satpathy v. P.L. Dani, AIR 1978 SC 1025. (1978) 2 SCC 424.
88
Sections 436 to 450 under chapter XXXIII of The Code of Criminal Procedure, 1973, Gudikanti Narasimhulu v.
Public Prosecutor, AIR 1978 SC 430.
18
should prove the guilt of the accused beyond reasonable doubt.89 Further the trial of accused should
be held open and in public place.90 Accused has right to be heard,91 by the independent and
impartial Tribunal, right to appeal,92 and accuse has one more right that the punishment awarded
by court should not be excessive.93 The certain ingredients of these rights are discussed in detail.
Adversary Judicial System
The adversarial system of law is the system of law, generally adopted in common law countries.
This system relies on the skills of each advocate representing party’s position and involves
impartial person to adjudicate the matter of litigation. The system followed in India for
dispensation of criminal justice is the adversarial system of common law inherited from the British
rulers. In the adversarial system truth is supposed to emerge from the respective versions of the
facts presented by the prosecution and the defence before the neutral judge.94 Judges in an
adversarial system are impartial in ensuring the fair play of due process. The judge acts like a
passive neutral umpire. The accused is presumed to be innocent. The prosecution has to prove the
guilt of the accused beyond reasonable doubt and any benefit of doubt always in favour of accused.
The trial of an accused is open, continuous and confronted. The parties use cross examination of
witness to discredit the opponent witness and to discover information the other side has not bought
out. The judge in his anxiety to maintain his position of neutrality never takes any initiatives to
discover the truth.95 As the Adversarial System does not impose a positive duty on judges to
discover the truth, he plays a passive role. The system is heavily loaded in favour of the accused
and is insensitive to the victim’s plight and right.96 Advantages of the Adversary System are as
follows.97
a) The judicial officers are highly qualified and having experience
b) Matters are adjudicated on the basis of established rules and procedures
c) The principles applied by the courts are clearly discernable and reasonable
d) Parties are represented by the qualified advocate
e) Natural justice principle is followed in the adjudication process
f) Courts have dignity, authority and attract public confidence
Protection against Ex Post Facto Law
89
Dahyabhai Chhaganbhai Thakkur v. State of Gujarat, AIR 1964 SC 1563, Kali Ram v. State of H.P, AIR 1974
SC 2773. Ashish Batham v. State of M.P., AIR 2002 SC 3206.
90
Naresh Sridhar Mirjakar v. State of Maharastra, AIR 1967 SC 1, (1966) 3 SCR 744.
91
T.Nagappa v. Y.R.Muralidhar, (2008) 5 SCC 633, Report of the Committee on Reforms of Criminal Justice
System, Vol. 1, (New Delhi:Ministry of Home Affairs, Government of India, 2003), p.65.
92
Sita Ram v. State of UP, AIR 1979 SC 745, M.H.Hoskot v. State of Maharashtra, (1978) 3 SCC 544.
93
Report of the Committee on Reforms of Criminal Justice System, Vol. 1, (New Delhi:Ministry of Home Affairs,
Government of India, 2003), p.65.
94
Government of India, 2003), p. 23.
95
96
97
P.C. Rao, and William Sheffield, Alternative Dispute Resolution, (New Delhi: Universal Law Publishing Co. Pvt.
Ltd, 2001),p.58.
19
The protection against ex- post-facto laws is a principle of common law which has emerged from
the due process of law. An ex- post-facto law imposes penalties retrospectively, that is, upon acts
already done, or which increases the penalty for the past acts. Prohibition of ex post facto laws is
regarded as a human right by the international community.98 The American legal system has
explicitly given statutory recognition to prohibition of ex post facto laws.99 Unlike America, the
Indian Constitution has not expressly used that phrase; however, the principle is incorporated in
Article 20(1).100 The object of this doctrine is to prevent the sovereign from abusing the authority
to make laws. Article 20(1) is designed to prevent a person from being punished for an act or
omission which is considered neutral or innocent when committed or omitted. The Supreme Court
of India opined that retrospective creation of offences is bad as being highly inequitable and
unjust.101 It means the accused can be convicted for only those acts which were offences under the
law at the time of their commission. Second part of Article 20(1) protects the accused from being
subjected to a penalty which is greater than that to which he might have been subjected at the time
of commission of the offence.
Protection against Double Jeopardy
Another important aspect of due process of law is contained in the common law principle of nemo
debet bis vexari pro una et eadem causa, which means that no person should be punished twice
for the same offence.119 The International Community has gradually acknowledged that the
principle is indispensable in protecting human beings in the legal system.102 The Indian
Constitution has enshrined this principle in Article 20(2) which prescribes that “No person shall
be prosecuted and punished for the same offence more than once.” In English Law, the scope of
this doctrine is wider; the person can take the defence not against only conviction but even for his
former acquittal that is technically known as plea of autre fois acquit or autre fois convict.121 Even
in the US, the protection is available against acquittal also in the previous trial.103 This maxim is
also incorporated in Section 300 of the Code of Criminal Procedure, 1973104 (herein after referred
as Cr.P.C.) and Section 27 of the General Clauses Act, 1897. However, the scope of Section 300
of Cr.P.C. is wider than the scope of Article 20(2) because it prescribes that a person cannot be
tried for the same offence for which he has already been tried by the competent court irrespective
of acquittal or conviction.
Right against Self Incrimination
98
Article 11 of Universal Declaration of Human Rights 1948. Article 15 of International Covenant on Civil and
Political Rights, 1966.
99
Section 9 and 10 of Article 1 of the Constitution of United States.
100
Article 20(1) states that “No person shall be convicted of any offence except for violation of 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.”
101
Rao Shiva Bahadur Singh v. State of U.P. AIR SC 394.
102
Article 14(7) of the International Covenant on Civil and Political Rights, 1966.
103
V Amendment of US Constitution states that “… nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb….”
104
Act No. 2 of 1974
20
The accused cannot be induced or forced to testify against himself is another notable feature of
due process of law. It is now fundamental to international105 and national legal systems. The Indian
Constitution has acknowledged it as a fundamental right under Article 20(3).106 Further this right
is protected by Article 21 of the Constitution, Cr.P.C. and Indian Evidence Act, 1872. Section
161(2) of Cr.P.C. confers a right on a witness to refuse to answer the questions of police which are
likely to incriminate him. Further an accused is not liable for refusing to answer or giving false
answer to the court under Section 313(3) of the Cr.P.C. Section 24 of Indian Evidence Act, 1872107
makes a confession inadmissible when it is affected by inducement, threat, and promise. Further,
a confession made to police authority or while in the custody of police is inadmissible.108 An
accused has a right to remain silent when questioned about the offence alleged against him. This
privilege is based upon the doctrine that an accused is presumed to be innocence until his guilt is
proved. At the Common Law, Blackstone said, “nemo tenebatur prodere seipsum:, and his fault
was not to be wrung out of himself, but rather to be discovered by the other means and other
men.”109 In the US, it is termed as the privilege against self-incrimination.110 In discussing the
rationality of this immunity, the American Supreme Court has observed:
“The maxim “Nemo tenetur seipsum accusare” had its origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused persons. The system was so odious that this right
of denial to answer became clothed in this country with impregnability of constitutional enactment.111
The person who claims this protection must be accused of an offence. Accused means the person
against whom the formal accusation of commission of an offence is made in the normal course of
prosecution.112 However, it is not necessary that actual trial or enquiry should have commenced
before the tribunal.113 In US, the privilege against self-incrimination is wider and not confined to
accuse only.114
Second, this protection is available only against compulsion “to be witness.” In M.P.Sharma v.
Satish Chandra,115 the Supreme Court interpreted the expression “to be a witness” very broadly to
mean, “furnishing any evidence” which could be rendered through “the lips or by production of a
thing or of a documents or in other modes”. The prosecution stage under Article 20(3) overs not
merely trial in the courtroom but also any process of collecting evidence including documents,
which is reasonably likely to support the prosecution case against the accused. Relaying on this
105
Article 11 of Universal Declaration of Human Rights, 1948. Article 14 (3) (g) of International Covenant on Civil
and Political Rights, 1966.
106
Article 20(3) prescribes that “No person accused of any offence shall be compelled to be witness against
himself.”
107
Act No. 1 of 1872.
108
See, Sections 25 and 26 of The Indian Evidence Act, 1872.
109
Glanville Williams, The Proof of Guilt, 3rd edn., (London: Stevens & Sons, 1963), p.37.
110
V Amendment of US Constitution states that “… nor shall be compelled in any criminal case to be witness
against himself…”
111
Brown v. Walker, (1896) 161 US 596.
112
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
113
Ibid.
114
Amendment V of the USA Constitution prescribes that “No person… shall be compelled to in any criminal case
to be witness against himself….”
115
1954 SCR 1077, at 1087.
21
construction, several High Courts held that even the taking of finger impressions and handwriting
samples would violate the rule against self-incrimination.116
However, the Supreme Court in State of Bombay v. Kathi Kalu Oghad,117 downplayed the phrase
“to be a witness” so as not to include the “wider sense of the expression” but merely the imparting
of knowledge in respect of a relevant fact, either orally or in writing “by a person who has personal
knowledge of the facts to be communicated to a court”. It held that “to be a witness” is not
equivalent to “furnishing evidence.”137 Rule against self-incrimination is applicable only to
information based upon the personal knowledge of the person giving information and cannot
include merely mechanical process of producing documents in court which may throw light on
any point in controversy, but which do not contain any statements of the accused based on his
personal knowledge.
Article 20(3) protects an accused who is forced or induced to give evidence against himself but
not one who voluntarily confesses. Thus truly voluntary confession is not violative of Article
20(3).118 The Supreme Court in Nandini Satpathy v. P.L. Dani,119 has considerably widened the
scope of word “compulsion” and has held that compelled testimony means evidence procured not
merely by physical threats or violence but by psychological torture, atmosphere of pressure,
environment of coercion, tiring interrogations, proximity, overbearing and intimidatory methods.
Therefore, confession to the police or during the police custody is conclusively presumed to be
obtained under duress or inducement.120
Further no influence by means of any promises or threats or otherwise, shall be used to an accused
person to induce him to disclose or withhold any matter within his knowledge.121 The accused shall
not be subjected to any sort of liability for refusing to answer the question or giving false
answers.122 Nevertheless, Indian Evidence Act, 1872 does not prohibit the admissibility of
voluntary confessions made by the accused to others.123 On the other hand, Cr.P.C. provides an
opportunity to police to obtain confession of accused during the investigation of offence. 124 Such
confession is subject to certain important conditions. Confession shall be recorded by Judicial
Magistrate in the absence of police after due warning to that the accused that the confession will
be used against him, that he otherwise has liberty not to make confession. An accused who refuses
to confess shall not be given to police custody; he should be sent to judicial custody. A Magistrate
shall not record confession unless he has reason to believe that the accused is making confession
voluntarily.125
116
Sailendra Nath Shina v. State AIR Cal 247. State of Kerala v. K.K. Sankaran Nair AIR Ker 392.
117
AIR 1961 SC 1808.
118
Ibid.
119
Section 24 of The Indian Evidence Act, 1882.
120
Sections 25 and 26 of The Indian Evidence Act, 1882.
121
Section 316, of The Code of Criminal Procedure, 1973.
122
Section 313(3), of The Code of Criminal Procedure, 1973.
123
Section 24, of The Indian Evidence Act, 1882.
124
Section 164 of The Code of Criminal Procedure, 1973.
125
22
Right to Fair Procedure
Concept of fair trial of an accused is at the foundation of criminal justice process and due process
of law. Further it is consolidated by the norms of domestic and international legal orders. The fair
trial is a device to protect individuals from the unlawful and arbitrary curtailment or deprivation
of basic rights and freedoms, particularly the right to life and liberty of the person.126 The fair trial
is a relative term. The terms of fairness are numerous, complex, and constantly evolving. Fair trial
must not be fair only to the accused but also be fair to the prosecution.127 The test of fairness in
a criminal trial must be evaluated on these two yardsticks.
Even though Article 21 of the Indian Constitution is described in negative sense, yet it has
guaranteed the right to life and personal liberty to every person. The scope of Article 21 is narrower
than the corresponding provisions in the V and XIV Amendments of the US Constitution.128 In
A.K.Goplan v. State of Madras,129 the Supreme Court has held that, right to life and personal liberty
means nothing more than mere animal existence and Article 21 provides protection only against
arrest and detention without authority of law. It held that law means lex not jus.130 Nevertheless,
the Supreme Court gradually down played the ratio of Goplan. Finally, in Maneka Gandhi v. Union
of India Bhagawati, J., observed,
“A law depriving a person of personal liberty and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand a test of one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation. Ex-hypothesi it must also be likely to be
tested with reference to Article 14. On principle, the concept of reasonableness must, therefore, be
projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on
Article 21.”131
Further the Supreme Court observed that:

“The principle of reasonableness, which legally as well as philosophically, is an essential
element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the test of reasonableness in order
to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary,
fanciful or oppressive: otherwise it would be no procedure at all and the requirement of
Article 21 would not be satisfied.”
The Court also held that it was axiomatic that a law prescribing a procedure for deprivation of life
and personal liberty under Article 21 could not be any sort of procedure but it has to be one that is
neither arbitrary nor unfair or unreasonable.132 Therefore, the Supreme Court’s interpretation in
126
Lawyers Committee for Human Rights, What is a fair trial? (New York, 2000), p.1.
127
Talab Haji Hussain v. Madhukar Mondakar, AIR 1958 SC 376.
128
Article V of US Constitution mandates that “No person … be deprived of life, liberty, or property without due
process of law” Article XIV provides that “… nor shall any State deprive any person of life, liberty, or property
without due process of law…”
129
AIR 1950 SC 27.
130
AIR 1950 SC 27.
131
(1978) 1 SCC 248 at 252.
132
(1978) 2 SCR 621, at 658 and 671. Kartar Singh v. State of Punjab, (1994) 2 SCR 375.
23
respect of Article 21 in various cases is that the “procedure established by law” is on par with the
“due process” clause of V and XIV Amendments of US Constitution.
In Sunil Batra v. Delhi Admistration, Krishna Iyer J. conceded the presence of due process clause
as under:
“[T]rue our Constitution has no ‘due process’ clause but in this branch of law, after Cooper and
Maneka Gandhi, the consequence is the same.133
Thus inclusion of procedural due process by the Supreme Court of India in Article 21 through
interpretation ensured so many rights to the accused, which are not explicitly mentioned in the
Constitution.
Right to know the fact of Arrest and Reasons for Arrest
Fair trial obligates the authority to inform the accused about his arrest and grounds of arrest. Hence
Article 22(1) provides that authority must reveal accused’s arrest and grounds of his arrest as soon
as possible. The world “as soon as may be” means as early as possible and reasonable in the
circumstance of the particular case. This creates confusion about the time within which the grounds
of arrest should be informed to the accused. Article 9(2) of the International Covenants on Civil
and Political Rights, 1966 (herein after referred as ICCPR) mandates that arrested person shall be
informed of his arrest at the time of his arrest and grounds of arrest shall be informed promptly.
The Apex Court in Jogindar Kumar v. State of U.P. has opined that the authority ought to inform
the arrest of accused to one of his relatives. Further the accused should be informed of his arrest
when he is bought to the police station and it must be recorded in dairy.134
In D.K.Basu v. State of W.B.135 the Supreme Court further streamlined these norms and observed
that the police has to maintain a memorandum of arrest that must reveal who arrested the person,
where he was arrested and the time of his arrest and it must be attested by at least one of his relative
or any other respectable person form the same locality. The same information must be
communicated to a relative of the arrested person within 8 to 12 hours from the arrest. The arrest
shall be made with due diligence after an accurate, visible and clear identification of arrested
person.
Right to Speedy Trial
“Justice delayed is justice denied” is a trite saying which emphasizes the importance of speedy
justice. The procedure of law which does not ensure speedy trial to an accused is denial of human
right recognized under international law.136 Unexplained delay in conducting trial of accused has
133
(1979) 1 SCR 392 at 428.
134
(1994) 4 SCC 260.
135
AIR 1997 SC 610. The National Human Rights Commission has similarly issued extensive guidelines on the rights
to be provided at the time of arrest. NAT’S HUMAN RIGHTRS COMM’N OF INDIA, GUIDELINES ON ARREST,
NOV 22 1989, http//www.nhrc.nic.in/Documents/sec-3.pdf. Accessed on March 22, 2012.
136
Article 14(3) (c) of International Covenants on Civil and Political Rights, 1966.
24
the ramification of long detention in jail and affects the ability of accused to defend himself due to
non-availability, disappearance or death of witnesses. 137 Further, such delay also frustrates interest
of the community that the criminal trial should come to an end within time schedule which is one
of the pre requisite criminal justice systems. Clauses (1) and (2) of Article 22 mandate the authority
to produce the arrested person before a Magistrate within 24 hours from his arrest and any
detention beyond that period without the order of Magistrate is illegal. However, this clause does
not guarantee a speedy trial to an accused. Unlike the US Constitution, the Indian Constitution
does not explicitly enumerate speedy trial as a fundamental right.138
Nevertheless, the Indian Judiciary taking note of pathetic condition of under trial prisoners
languishing in jails for indefinite period waiting for their trial, held that ‘right to speedy trial’ is a
fundamental right implicit in the right to life and personal liberty guaranteed under Article 21 of
the Constitution.139 The Supreme Court observed that speedy trial is imperative of fair trial under
Article 21; otherwise people’s confidence in criminal justice system would be eroded.140 Law
Commission of India has suggested a bench mark of six months for conclusion of a criminal
trial.141 Section 167 of the Code of Criminal Procedure, 1973 obligates the authority to complete
the investigation of crime within certain period.142 Further, the investigating authority has statutory
obligation to complete the investigation of an offence without unnecessary delay. 143 Presiding
officers of criminal courts are under a statutory duty to complete the trial as expeditiously as
possible.144 Even the Supreme Court has tried to ensure speedy trial to accused by laying down
detailed guidelines for speedy trial. However, it declined to fix any time limit for trial of offences
because it would leads to rigidity. Obviously, the burden lies on the prosecution to justify and
explain the delay because there are various factors responsible for the delay of trial like nature of
cases, delay tactics used by the accused, etc.145
Right to be represented by a Legal Practitioner
The process of justice has to be transparent. Therefore, justice not only to be done but it seen to be
done is the cardinal principle of natural justice. The doctrine of natural justice seeks not only to
secure justice but also to prevent injustice. The audi alteram partem rule ensures that no one should
be condemned unless he is heard. It is imperative rule of just society that a person against whom
any action is sought to be taken should be given a reasonable opportunity to defend himself.146 The
137
Abual Rehaman Antually v. R.S. Nayak, AIR 1992 SC 1630.
138
VI Amendment of US Constitution.
139
Hussainara Khotoon (I) v. Home Secretary, State of Bihar, AIR 1979 SC 1360. Kadra Pahadiya v. State
of Bihar AIR 1982 SC 1167.
140
Santosh v. Archana Guha , AIR 1994 SC 1229, (1994) Supp 3 SCC 735.
141
79th Report of the Law Commission of India on Delay and Arrears in High Courts and other Appellate Courts,
(New Delhi: Ministry of Law, Justice and Company Affairs, Government of India,1979), p.9.
142
Section 167(2) (a) (i) and (ii) of The Code of Criminal Procedure, 1973 prescribes that the investigation related
to offence punishable with not less than 10 years shall be completed in 90 days otherwise accused is entitled to get
bail, (ii) prescribes that the investigation related to other offence shall be completed in 60 days otherwise accused is
entitled to get bail
143
144
145
Raghubir Singh v. State of Bihar (1986) 4 SCC 481
146
Powell v. Alabams, 287 U.S. 45 (1932). See, Article VI Amendment of US Constitution and Article 14(3) (d) of
The International Covenant on Civil and Political Rights, 1966.
25
right to be heard would not be fruitful unless it includes right to be heard through counsel. An
arrested person has been given right to consult and be defended by an advocate of his own choice
under Article 22(1) of the Constitution. Similarly, Section 303 of Cr.P.C. provides a statutory right
to an accused to be defended by a pleader of his choice. The right of an arrested person to consult
a lawyer privately is inherent in Articles 21 and 22(1) of the Constitution.147 The Supreme Court
has further expanded the scope of right to consult lawyer in Nandini Satpathy148 by observing that
Article 22(1) does not mean that a person who is not under arrest can be denied the right to consult
an advocate of his choice.
Right to Legal Assistance
Fair trial encompasses that an accused who seeks justice from the court should be given the service
of lawyers. Judicial process is complex and cumbersome process which requires assistance of
experts because it involves the legal submissions and cross examination of evidence; otherwise
accused is likely to incur injustice.149 Obviously a professional advocate is the appropriate person
to defend the accused in a criminal trial. An accused requires the guiding hand of the counsel at
every step in the proceedings against him. Without it, though he is not guilty, he faces the danger
of conviction because he does not know how to establish his innocence. Thus a procedure which
does not ensure legal services to an accused person who has no means to appoint advocate on his
own is not just, fair and reasonable procedure”.
Most of the litigants in India are uneducated and economically not sound who cannot afford to
appoint efficient lawyers. Under such circumstances, it is imperative on the part of State to ensure
legal aid to such needy persons.150 Assistance of lawyers to an accused is a universally
acknowledged right.151 Section 304 of the Code of Criminal Procedure, 1973 obligates the state to
provide legal assistance to those accused who have insufficient means to appoint an advocate in a
trial before the Sessions Court. However, the right provided under Section 304 of Cr.P.C. is narrow
and restricted one. Nevertheless, the Parliament enacted the Legal Services Authorities Act, 1987152
that provides for legal assistance to all those persons who cannot afford to appoint lawyers.153
The Supreme Court in M.H.Hoskot v. State of Maharashtra154 held that the component of fair trial
ensures that the poor among the accused must have service of lawyers at the cost of state
exchequer. The right to be defended by a counsel is a basic component of fair trial. The trial which
fails to meet this minimum standard would definitely amounts to prejudice to an accused. The
147
Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349.
148
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025. (1978) 2 SCC 424.
149
Mohamd Hussain v. The State (Govt of NCT), AIR 2012 SC 750 at 763.
175 Act No. 39 of 1987.
176 Section 12 and 13 of The Legal Services Authorities Act, 1987.
150
Article 38(1) and 39-A of the Indian Constitution.
151
Article 14(3) (d) of The International Covenant on Civil and Political Rights, 1966.
152
Act No. 39 of 1987
153
Section 12 and 13 of The Legal Services Authorities Act, 1987.
154
AIR 1978 SC 1548.
26
Supreme Court in M.H. Hoskat v. State of Maharashtra155 held that the component of fair trial
ensures that poor among the accused must have service of lawyers at the cost of state exchequer.
Further, the right of an accused to seek legal assistance at the cost of state commences from the
movement he is produced before the magistrate, not from the stage of trial. It is elementary that
the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a
magistrate. The entitlement to free legal aid does not dependent upon the application of accused,
but it is other way round. It is the court which has to inform the accused that he is entitled to have
free legal service at the cost of state and the same should provided by the court to such an accused.
Further, the Supreme Court has consolidated the right of an accused to have free legal service by
holding that lack of financial resources is not a justification for not providing legal services. The
State may have its financial constraints and its priorities in expenditure but “the law does not permit
any Government to deprive its citizens of constitutional rights on a plea of poverty”.156
Right to Bail
The Right to bail is the basic feature of the accusatorial system that generally provides that an
accused person shall not to be confined to jail unless he is found to be guilty. The Cr.P.C. has not
defined bail. Nevertheless Black’s Law Lexicon has defined bail as “security for the appearance
of the accused person on giving which he is released pending trial or investigation”.157 The primary
purpose of arrest is to secure the presence of an accused during the trial and make sure that he has
to undergo the punishment in case he is found to be guilty of an offence. If his presence can
otherwise be secured, there is no need to arrest him. Sir James Stephen has observed in respect of
an accused’s right to be released on bail that “It is as old as the law of England itself and is
explicitly recognized by our earliest writers”.158
It is a well-accepted norm of 20th century legal system that right to bail is a human right of an
accused. Thus, the Universal Declaration of Human Rights, 1948 impliedly endorses the accused’s
right to bail.159 Further Article 9(3) of ICCPR explicitly mentions that an accused is entitled to be
released on bail subject to the guarantee of appearance during the trial. The US Constitution
explicitly acknowledges the right of an accused to have bail.160 However, unlike US Constitution,
Indian Constitution does not contain any Article that explicitly provides right to bail. Nevertheless,
the Apex Court has read the right to bail of an accused under Article 21.161 The Supreme Court in
Hussainra Khatoon (I) v. Home Secretary, State of Bihar,162 observed “... denying bail to the under
trials who are in jail without trial, because of their poverty is a violation of right to life under
Article 21. The present law of bail thus operates on what has been described as a property oriented
155
Ibid
156
Mohammad Hussain v. The State (Government NCT), AIR 2012 SC 750 at 763.
157
Black’s Law Dictionary, 4th edn., p.117.
158
Pollock, Sir, F, & Maitland, F.W. The History of English Law before the time of Edward I, Vol.2 (Cambridge:
Cambridge University Press, 1968), p.584.
159
Article IX prescribes that, “No one shall be subject to arbitrary arrest, detention, or exile.”
160
See, the VIII Amendment of US Constitution.
161
Babu Singh and others v. State of Uttar Pradesh, AIR 1978 SC 527.
162
AIR 1979 SC 1360, AIR 1979 SC 1369, and AIR 1979 SC 1377.
27
approach. Thus, the need for a comprehensive and dynamic legal service programme is required
to make bail system equitable, responsive to the needs of poor prisoner and not to just the rich.”
V.R.Krishna Iyer J. observes on bail as under:
“Bail or jail at the pre-trial or post conviction stage belongs to the blurred area of the criminal justice
system and largely hinges on the hunch of the Bench. Personal liberty is deprived when bail is
refused. The power to negate it is great trust exercisable, not casually but judicially, with lively
concern, after all personal liberty of an accused is fundamental”.163
The Cr.P.C. has categorized offences into bailable and non-bailable. Further Cr.P.C. mandates the
investigating authority to complete the investigation within stipulated period and submit the charge
sheet to the court. Otherwise the accused is entitled to bail.164 In case of bailable offences the
accused can seek bail as a matter of right but in other cases it is the discretionary power of the
court to grant bail which has to be exercised judicially subject to such conditions as the Court may
deem fit.165
Presumption of Innocence
The basic tenet upon which criminal justice system is based is that an accused is presumed to be
innocent till guilt is proved. It is a rebuttable presumption in favour of accused which is based
upon the sound reasoning that most of the people are not criminals. This rebuttable presumption
is founded on the Latin Maxim El incumbit probatio qui dicit, non qui negat which means the
“proof lies on him who asserts, not on him who denies.” Further, this maxim is built upon another
Latin Maxim Cum per rerum naturam factum negates probation nulla sit that means, “Since by
the nature of things, he who denies a fact cannot produce any proof”. These principles are
expressed in the form that an accused is innocent until he is proved to be guilty during the 18th
century in England. Sir Blackstone further consolidated this principle by articulating further to the
effect “better that ten guilty persons escape than that one innocent suffer”.
In Roman law, the presumption was based on fairness, good sense, and practical utility166 that has
become part of Common Law. The principle of Common Law is that it is the duty of the prosecutor
to prove the guilt of accused beyond reasonable doubt which is known as the “Golden thread of
Criminal Law.” Lord Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions
lucidly restated that principle in the following words:
“Throughout the web of the English criminal law, one golden thread is always to be seen that it is
the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to
defence of insanity and subject also to any statutory exception. If at the end of, and on the whole of
the case, there is reasonable doubt created by the evidence given by either the prosecution or the
163
Gudikanti Narasimhulu v. Public Prosecutor , AIR 1978 SC 430
164
Section 167(2) (a) (i) and (ii) of The Code of Criminal Procedure, 1973 prescribes that the investigation related to
offence punishable with not less than 10 years shall be completed in 90 days otherwise accused is entitled to get bail,
(ii) prescribes that the investigation related to other offence shall be completed in 60 days otherwise accused is
entitled to get bail.
165
Sections 436 to 450 under Chapter XXXIII of The Code of Criminal Procedure, 1973.
166
Report of the Committee on Reforms of Criminal Justice System, Vol. 1, (New Delhi: Ministry of Home Affairs,
Government of India, 2003), p.65.
28
prisoner, as to whether the prisoner killed the deceased with a malicious intention the prosecution
has not made out the case, and the prisoner is entitled to acquittal”.167
In US Constitution there is no express provision about the doctrine of presumption of innocence.

Nonetheless, the US Supreme Court has read it under “Due Process” clause of the Fifth
Amendment of the Constitution.168 Further the Court has held that charges alleged against an
accused have to be proved beyond reasonable doubt. An accused is presumed to be innocent is
universal rule and it has been accorded the place of in ICCPR.169
The Indian Constitution like US Constitution is silent on the doctrine of presumption of innocence
of an accused. The Supreme Court has read that principle as part of the Indian criminal justice
system in Dahyabhai Chhaganbhai Thakkur v. State of Gujarat.170 The Apex Court has often
reminded that “[O]ne of the cardinal principle which has always to be kept in view in our system
of administration of justice for criminal cases is that a person arraigned as an accused is presumed
to be innocent unless the presumption is rebutted ….”171 Further the Section 101 of Indian
Evidence Act, 1872 strengthens this principle by providing that the party, who seeks a judgment
from the Court about any legal right or liability that is dependent on the existence of certain facts,
must prove those facts exist. Throughout the proceedings of the trial, the accused is always
presumed to be innocent; therefore, burden of proof of prosecution never shifts.
The presumption is so strong that even the accused need not disprove that he is guilty. The courts
have deliberately used the term “proof beyond reasonable doubt” because it requires higher
standard of proof. However, that does not mean the prosecution must prove the accused’s guilt
beyond all possible doubt. Equally, it is not enough to prove that the accused is probably guilty, in
criminal case; the proof of guilt must be stronger than that.
Public and Open Trial
Process of delivering justice must be transparent and open. Therefore the conduct of criminal trial
in public place is an indispensable character of fair trial in democratic countries which are based
upon the rule of law. The phrase, ‘open court’ means a Court to which the public have a right to
be admitted. Common man’s observance of process of justice undoubtedly enhances the people’s
confidence or respect for the judiciary in the administration of justice. Indeed it also ensures that
the judges act in an impartial manner. Open justice allows the people and media persons to be
present at the place of trial, further the media has a right to report the proceedings of judiciary to
public, even the public are entitled to know the names of judges, and witnesses, further public must
have right to scrutinize the documents produced in the process of justice, and lastly the trial should
167
(1935) AC 462 (HL).
168
Taylor v. Kentucky, 436 U.S. 478. (1945), Mullaney v. Wilbur, 421 U.S. 684 (1975).
169
Article 14 of The International Covenant on Civil and Political Rights, 1966 provides that, “Every one charged
with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
170
AIR 1964 SC 1563.
171
Kali Ram v. State of H.P, AIR 1974 SC 2773. Ashish Batham v. State of M.P., AIR 2002 SC 3206.
29
be conducted in the presence of the accused.172 Lord Shaw in Scott v. Scott emphasized the open
conduct of trials as a ‘sound and very sacred part of the constitution of the country and the
administration of justice’.173 Lord Atkinson admitted that public trial would cause some kind of
inconvenience to the parties and witnesses of the case “but all this is tolerated … because it is felt
that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient
administration of justice, the best means for winning for it public confidence and respect.” Great
utilitarian Jeremy Bentham has encapsulated it as follows: “By publicity, the temple of justice is
converted into a school of the first order, where the most important branches of morality are
enforced, by most impressive means …”174 Public justice is considered to be of highest importance
in the conduct of criminal trials.
Open justice is based upon sound logical principles.175 First, the society gets appropriate
opportunity to evaluate that laws are being properly enforced. Even the public convictions may
have deterrent impact because potential offender may be dissuaded from commission of crime.
Thirdly, the commission of a crime is considered to be offence against the community not against
individual. Therefore, public has a legitimate interest in observing the event at which the question
whether a transgression has taken place is determined authoritatively. The guilty should be
“publicly condemned”, and the innocent should be “publicly acquitted” and freed from suspicion.
Public Trial ensures the transparency and accountability of judiciary. Justice should not only be
done but it should also be seen to be done is a component of procedural due process. Obviously
the Public Trial has been acknowledged as human right of accused universally.176 The US
Constitution has an express provision for public trial.177 The Indian Constitution is silent about it.
However, the Section 327 of Cr.P.C. ensures that the trial of an accused is held in public places.
The unique feature of this Section is that in whatever place the trial is conducted, that place is
deemed to be public place. Therefore, its ramification is that even if the place of trial happens to
be private place, it is converted into public place. The Supreme Court in State of Punjab v. Sarwan
Singh178 observed that fair trial is an essential component of procedure established by under Article
21 which includes public and open trial.
In Naresh Sridhar Mirjakar v. State of Maharastra,179 a nine judge Bench of the Supreme Court
emphasized the importance of the public trial. Gajendragadakar C.J., speaking for the majority
held that:
172
Joseph Jaconelli, Open Justice: A Critique of the Public Trial, (New Delhi: Oxford University Press, 2002.), pp.
2-3.
173
Scott v. Scott, (1913), AC 417.
174
Quoted by Joseph Jaconelli, Open Justice: A Critique of the Public Trial, (New Delhi: Oxford University Press,
2002), p.43.
175
Section 313(3) of The Indian Evidence Act, 1882.
176
Article 10 of the Universal Declaration of Human Rights, 1948, Article 14 of The International Covenant on
Civil and Political Rights, 1966. Article 6(1) of The European Convention on Human Rights 1950
177
VI Amendment of US Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial ….”
178
VI Amendment of US Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial ….”
179
AIR 1967 SC 1, (1966) 3 SCR 744
30
“Public trial in open court is essential for the healthy, objective and fair administration of justice.
Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or
vagaries, and servers as a powerful instrument for creating confidence of the public in the fairness,
objectivity and impartiality of the administration of justice. Public confidence in the administration
of justice is of such great significance that there can be no two opinions on the broad proposition that
in discharging their functions as a Judicial Tribunals, Courts must generally hear causes in open and
must permit the public admission to the court-room.”180
Therefore, courts must hold their proceedings publicly. In Vineet Narian v. Union of India,181 the
Supreme Court emphatically reiterated that, requirement of public hearing in courts, is part of the
fair trial under Article 21 of the Constitution. However right of public trial is not absolute but
subject to limitations on the grounds of morality, public order and national security.182 Some time
there may be threat to the lives of witnesses, judges and even the proceedings of trial are likely to
be threatened. Therefore conducting trial in camera becomes imperative. Ray J. has pointed out
that though public trial or trial in open court is a rule, yet in cases where the ends of justice would
be defeated if the trial is held in public, the court has inherent jurisdiction to hold the trial in
camera.183 The Cr.P.C. also makes a provision for in camera proceedings where either party to the
case desires or if the court thinks fit to do so.214 It is mandatory to hold the in camera proceedings
in case of rape trial.184
Right of Hearing
Audi alteram partem component of natural justice is an essential component of fair trial. It ensures
an opportunity of being heard to an accused as a condition precedent for imposing punishment. In
other words no person shall be condemned unless he is heard. The audi alteram partem principle
has become a universal right. Article 14 of the International Covenant on Civil and Political
Rights, 1966 guarantees every accused a fair and public hearing. The procedure of determining the
guilt of an accused without opportunity of being heard would not satisfy test of procedural due
process.185 Krishna Iyer J. emphasised that the procedure envisaged under Article 21 has to be fair,
not foolish, and must rule out anything arbitrary, freakish or bizarre. On another occasion the
Supreme Court has held: “The principles of natural justice constitute the basic elements of a fair
hearing, having their roots in the innate sense of man for fair play and justice, which is not the
preserve of any particular race or country but is shared in common by all men.”186
The object of hearing is to see that justice is done to an accused, prosecutor and society and
prevents the miscarriage of justice. The Supreme Court has reiterated that the accused has a right
180
Ibid
181
AIR 1998 SC 889, (1988) 1 SCC 323.
182
Article 14 (1) of The International Covenant on Civil and Political Rights, 1966. Further, see, 198th Report of the
Law Commission of India on Witness Identity Protection and Protection Programmes, (New Delhi, Ministry of Law
and Justice, Government of India, 2006), p.4
183
Naresh Sridhar Mirajakar v. State of Maharashtra, AIR 1967 SC 1 (Para 106), (1966) 3 SCR 744.
184
Section 327(2) of The Code of Criminal Procedure, 1973.
185
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2006 SC 1367.
186
Union of India v. Tulsi Ram, AIR 1985 SC 1416, at 1456; Inderpreet Sing Kahlon v. State of Punjab,(2006) 11
SCC 356.
31
to fair trial, he has a right to defend himself as part of his human right as also fundamental right as
enshrined in Article 21 and the right to fair trial includes fair and proper opportunities allowed by
law to prove innocence.187 The right of hearing has important components which are as follows,
1. Notice of Allegations
2. Opportunity to defend
3. Testimony in the presence of accused
4. Summons to witnesses
5. Right to cross adverse witnesses
Notice of Allegations
Doctrine of natural justice ensures that an accused must have the notice of allegations to prepare
his defense before the commencement of trial.188 Notice is a sine qua non of fair trial. Further, the
notice of hearing should provide adequate or reasonable period to an accused to prepare his defense
otherwise formal notice of hearing would become a myth.189 Another important basic feature of
notice is that the content of notice must be given in the language which accused understands.190 VI
Amendment to US Constitution takes note of this principle and provides a constitutional right to
an accused that he has right to know the nature and cause of accusation. However, the Indian
Constitution does not provide explicitly the right of hearing to an accused. Nonetheless, such right
can be read under Article 21 of the Constitution. Moreover, the Cr.P.C. which regulates the process
of trial provides in unambiguous terms that when an accused is brought before the court for trial,
the particulars of the offence of which he is accused of shall be stated to him.191 The authorities
are under a statutory obligation to provide written copy of charge sheet which should be precise
and specific. Further it must mention the time and place where the charges are occurred. Charge
sheet also should mention the sections under which the accused is charged.192 A charge is not an
accusation in abstract, but a concrete accusation of an offence alleged to have been committed by
a person.193 Section 207 of Cr.P.C. obligates the Magistrate to furnish to the accused, free of cost,
a copy of the police report, the first information report recorded under Section 157, statements
recorded by the police under sub-Section (3) of Section 161 of all persons whom the prosecution
proposes to examine as its witnesses, and confessional statements if any recorded under Section
164 of Cr.P.C.
Opportunity to Defend
Fair trial commends that before an accused is condemned, he ought to be given opportunity to
defend himself. Obviously an accused can exercise this right through his advocate. Further there
are no fixed rules or modes of providing hearing because; hearing is a relative term which depends
187
T.Nagappa v. Y.R.Muralidhar, (2008) 5 SCC 633.
188
Paragraph 3(1) of Article 14 of The International Covenant on Civil and Political Rights, 1966.
189
Paragraph 3(b) of Article 14 of The International Covenant on Civil and Political Rights, 1966.
190
Paragraph 3(a) of Article 14 of The International Covenant on Civil and Political Rights, 1966.
191
Section 228, 240, 246, and 251 of The Code of Criminal Procedure, 1973
192
Section 211, 212 and 213., of The Code of Criminal Procedure, 1973.
193
Birichah Bhuian v. State of Bihar, AIR 1963 SC 1120.
32
upon facts of each case. Therefore, modes of hearing may be oral or written and it may be personal
or through his advocate.194 Section 303 of Cr.P.C. recognizes the right of any person brought before
the criminal courts to answer any charges or accusation through a lawyer of his choice.
Testimony in the presence of accused
The conduct of trial and taking of testimony in the presence of accused would certainly ensure that
trial would be transparent and impartial. Further it would enable the accused to understand the
prosecution case properly and he can make preparation to defend himself. Even the international
community has expressed explicitly that the conduct of trial in the presence of an accused is
imperative and it has been acknowledged as a human right.195 In Union of India v. Tulsiram Patel,
the Supreme Court has held that this rule in its fullest amplitude means that a person against whom
an order to his prejudice may be passed, has also inter alia, the right to have the witness, who are
to give evidence against him, examined in his presence and has the right to cross-examine them
and lead his own evidence, both oral and documentary.196 Even the Cr.P.C. also contemplates the
trial and decision of the court in the presence of an accused. The requirement of the presence of
the accused during his trial can be implied from the provisions that allow the court to dispense
with the personal attendance of the accused person under certain circumstances.197 Therefore,
taking the evidence in the presence of the accused is imperative. Failure to do so would vitiate the
trial and the fact that no objection was taken by the accused is immaterial.198
Section 273 of Cr.P.C. makes imperative for a judge to take evidence in presence of the accused.
The right is further strengthened by Section 278 of Cr.P.C.; it inter alia provides that evidence of
witness shall be read over to him after its completion in the presence of the accused. Wherever the
accused does not understand the language in which evidence is given, then it shall be interpreted
to the accused in open court in the language in which he understands.199 Nevertheless, the
Magistrate may dispense the personal attendance of the accused in the court if his behavior is
incompatible with the discipline of the court to conduct fair trial.200
Right to Cross-Examine and Summon Witnesses
It is the duty of prosecution to prove the guilt of an accused beyond reasonable doubt, not the duty
of accused to prove his innocence. Nevertheless, the accused has right to cross examine the
evidence produced by the prosecution to find out the credibility of evidence and prove before the
court that such evidence is not worthy. Cross-examination of witnesses is a very potent weapon of
an accused to bring out the truth and expose the falsehood of evidence.201 Therefore the Apex Court
194
Paragraph 3(d) of Article 14 of ICCPR.
195
Paragraph 3(d) of Article 14. of ICCPR
196
AIR 1985 SC 1416.
197
Sections 205, 273, and 317 of The Code of Criminal Procedures, 1973.
198
Ram Singh v. Crown, (1951) 52 Cri LJ 99. AIR 1951 Punjab 178.
199
Section 279 of The Code of Criminal Procedures, 1973
200
Sections 205, 293, 299, and 317., of The Code of Criminal Procedures, 1973.
201
Jawar Singh v. State of M.P., AIR 1981 SC 373.
33
in T.Nagappa v. Y.R.Muralidhar held that the accused has a right to fair trial which is a
fundamental right as enshrined in Article 21 and that fair trial includes fair and proper opportunities
allowed by law to prove innocence.202 The right of an accused to cross-examine the witness is the
norm of procedural due process which ensures fair justice.203 Unlike the U.S. Constitution, the
Indian Constitution does not explicitly guarantee the right to cross examines the witnesses.204
However, the judicial interpretation of Article 21 has provided right to an accused to cross examine
the opposite witnesses. The Supreme Court has unequivocally stated that failure to allow the
accused to cross-examine the witnesses called on behalf of the prosecution would definitely be
below the standard of fair and procedural due process.205 The cross- examination is an acid-test of
the truthfulness of the statement made by a witness on oath in examination-in-chief.206 The objects
of cross-examinations are:207
i. to destroy or weaken the evidentiary value of the witnesses of adversary,
ii. to elicit facts in favour from the mouth of the witnesses of the adversary party,
iii. to show that the witness is unworthy of belief by impeaching the credit of the witness.
Sections 137 and 138 of the Indian Evidence Act, 1872 prescribe that the witnesses are subjected
to cross-examination once the chief-examination by the prosecution is over. Though the burden of
proving the guilt of accused is entirely on the prosecution, yet a criminal trial in which the accused
is not permitted to give evidence to disprove the prosecution case, or to prove any special defence
available to him, cannot, by any standard, be considered as just and fair trial.208 The Cr.P.C.
authorizes the accused to take such defence and adduce any evidence in respect of such defence.209
The accused has right to produce his own evidence either to disprove or prove the fact. Obviously
the witness has to appear before the court. But if a witness refuses to appear, it would affect
substantially the right of accused unless law obligates witness to depose his testimonial before
court. Therefore, accused has right to testimony the witness through process of law which is
considered to be important component of fair trial.210
Right to an Impartial and Independent Tribunal
The entitlement of the accused to be heard by an impartial and independent tribunal established by
law is indispensable component of fair trial that is akin to the Nemo judex in causa sua principle
of the Natural Justice. Nemo judex in causa sua means the authority that is deciding the matter
202
(2008) 5 SCC 633.
203
VI Amendment of US Constitution explicitly provides that accused has right to confront witness which has
deposed against him, Article 14 (3) (e) of The International Covenant on Civil and Political Rights, 1966, also
incorporates the right of accused to cross-examine adverse witness.
204
VI Amendment of the US Constitution.
205
Zahira Habibullah Sheikh v. State of Gujarath, AIR 2006 SC 1367, H.K. Sathisha v. State, 2006 (4) Cri. LJ 3756
206
Mohd Hussain v State (Govt of NCT) Delhi, AIR 2012 SC 750 at 761
207
Kartar Singh v. State of Punjab, (1994) 3 SCC 569, Jayendra Vishnu Thakkur v. State of Maharashtra, (2009) 7
SCC 104.
208
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
209
Sections 233, 243 and 247 of The Code of Criminal Procedure, 1973.
210
Paragraph 3(e) of Article 14 of The International Covenant on Civil and Political Rights, 1966. VI Amendment
of US Constitution enables person, “… to have the compulsory process for obtaining witness in his favour…”
34
should be free from bias.211 The two requirements of independence and impartiality are
interlocked, and Courts often consider them together. The tribunal must be independent of both
executive and the parties. Independence of tribunal depends upon the manner of appointment of
presiding officers, the duration of their office, and the existence of guarantee against outside
pressures.212 Separation of the judiciary from the executive is a constitutional mandate.213 The
separation would ensure the independent functioning of the judiciary free from all suspicion of
executive influence or control. The appointment of the Sessions Judges and Judicial Magistrates
are made by the State government in consultation with the High Court; thereafter the judges come
under the exclusive control and supervision of the High Court.214 Section 479 of Cr.P.C. ensures
that no Judge or Magistrate shall preside over in a trial in which he is a party or has any interest.
The judges of High Courts and Supreme Court are appointed by the President with concurrence
and consultation of “a collegium of four senior-most judges of the Supreme Court” which gives
supremacy to the opinion of judiciary over that of the executive.215 Further, the Judges of Supreme
Court and High Courts are removed only on the ground of proved misbehavior or incapacity by
the order of President through impeachment process in the Parliament which is very rigid.216 These
Articles adequately ensure the independence of Judiciary.
In India the adversarial system is followed for dispensation of criminal justice. In the adversarial
system truth is supposed to emerge from the respective versions of the facts presented by the
prosecution and defence before a neutral judge. In the adversarial system, the Judges adequately
assure fairness of trial maintaining a position of neutrality and accord each party the full
opportunity of adducing evidence and cross-examining the witnesses.217
Right to Appeal
“Everyone convicted of a crime shall have right to his conviction and sentences being reviewed
by a higher tribunal according to law.”218 The right to appeal is aimed at ensuring at least two levels
of judicial scrutiny of a case, the second of which must take place before a higher tribunal. The
Supreme Court has held that a single right of appeal is more or less a universal requirement under
the right to life and liberty rooted in the conception that men are fallible, that judges are men, and
that making it necessary to be doubly sure before irrevocable deprivation of life or liberty is
effected, by a full-scale reexamination of the facts and the law is made an integral part of
fundamental fairness or procedure.219 The first appeal as provided in the Cr.P.C. manifestly
211
M.P. Jain, & S.N. Jain, Principles of Administrative Law, 6th edn., (Nagpur: LexisNexis Butterworth’s Wadhwa,
2010), p.283.
212
Nuala Mole and Catharina Harby, The Right to a Fair Trial, (Belgium: Directorate General of Human Rights
Council of Europe, 2006), p.30
213
See Article 50 of the Indian Constitution.
214
See Article 233 and 235 of the Indian Constitution.
215
S.C. Advocate-on-Record Association v. Union of India, (1993) 4 SCC 441. Re Presidential Reference, AIR
1999 SC 1.
216
Clause (4) and (5) of Article 124 of the Indian Constitution.
217
Report of the committee on Reforms of Criminal Justice Systems, Vol. I, (New Delhi:Ministry of Home Affairs,
218
Paragraph 5 of Article 14 of The International Covenant on Civil and Political Rights, 1966.
219
Sita Ram v. State of UP, AIR 1979 SC 745..
35
upholds the above value in Article 21.220 The review undertaken by tribunal must be genuine.221
Right to appeal is a constitutional and a statutory right in India. Chapter XXIX of Cr.P.C.
containing Sections 372 to 394 provide and regulate the right of appeal before various courts
including High Courts and Supreme Court. Article 134 empowers the accused to make an appeal
to the Supreme Court against the order of High Courts. Further, Article 136 also empowers the
accused to prefer special leave petition to Supreme Court against any order passed by any court or
tribunal. The accused may even file a writ petition under Articles 32 or 226 to correct the flaws in
the findings of the lower courts.
220
M.H.Hoskot v. State of Maharashtra, (1978) 3 SCC 544
221
Mayur Panabhai Shah v. State of Gujarat, AIR 1983 SC 66.
36
Crime Control Model
Introduction
There are two models of crime, the crime control model and the due process model. Crime control
tries to control crime whereas due process seeks to punish it.
The term "Crime Control" is a broad term which addresses any and all efforts made by legislators,
law enforcement and the courts, to have an impact on crime statistics. Crime Control Model of
Corrections is a model of corrections based on the assumption that criminal behavior can be
controlled by more use of incarceration and other forms of strict supervision. The due process
model are legal rights given to an individual that the state in which a person lives in abides by.
This right gives a person freedom to not be respected and not abused by the government.
Model of the criminal justice system and crime control assumes freedom is so important that every
effort must be made to repress (to keep undercontrol) crime it emphasize on efficiency, speed
finality and the capacity to apprehend, try, convict, and dispose of a high proportion of offenders.
Crime control model refers to a theory of criminal justice which places emphasis on reducing the
crime in society through increased police and prosecutor powers and. In contrast, the "due process
model" focuses on individual liberties and rights and is concerned with limiting the powers of
government. Crime control prioritizes the power of the government to protect society, with less
emphasis on individual liberties. Those who take a stance favoring tough approaches to crime and
criminals may be characterized as proponents of crime control, while those who seek to curb
government intrusions and harassment of suspects favor a due process control model. This model
places an emphasis and priority upon the aggressive arrest, prosecution, and conviction of
criminals.
Propounded of the Crime Control Model & Due Process Model?222
Herbert Packer, a Stanford University law professor, constructed two models, the crime control
model and the due process model, to represent the two competing systems of values operating
within criminal justice. The tension between the two accounts for the conflict and disharmony that
now is observable in the criminal justice system.
The following assertions are the key concerns of the crime control model:
1. The repression of crime should be the most important function of criminal justice
because order is a necessary condition for a free society.
2. Criminal justice should concentrate on vindicating victims' rights rather than on

protecting defendants' rights.
222
https://www.cliffsnotes.com/study-guides/criminal-justice/the-criminal-justice-system/which-model-crime-
control-or-due-process
37
3. Police powers should be expanded to make it easier to investigate, arrest, search, seize,
and convict.
4. Legal technicalities that handcuff the police should be eliminated.
5. The criminal justice process should operate like an assembly‐line conveyor belt, moving
cases swiftly along toward their disposition.
6. If the police make an arrest and a prosecutor files criminal charges, the accused should
be presumed guilty because the fact‐finding of police and prosecutors is highly reliable.
7. The main objective of the criminal justice process should be to discover the truth or to
establish the factual guilt of the accused.
Packer's due process model is a counterproposal to the crime control model. It consists of these
arguments:
1. The most important function of criminal justice should be to provide due process, or
fundamental fairness under the law.
2. Criminal justice should concentrate on defendants' rights, not victims' rights, because the
Bill of Rights expressly provides for the protection of defendants' rights.
3. Police powers should be limited to prevent official oppression of the individual.
4. Constitutional rights aren't mere technicalities; criminal justice authorities should be held
accountable to rules, procedures, and guidelines to ensure fairness and consistency in the
justice process.
5. The criminal justice process should look like an obstacle course, consisting of a series of
impediments that take the form of procedural safeguards that serve as much to protect
the factually innocent as to convict the factually guilty.
6. The government shouldn't hold a person guilty solely on the basis of the facts; a person
should be found guilty only if the government follows legal procedures in its fact‐
finding.
Evaluating the Crime Control & Due Process Models
To declare that one of these models is superior to the other requires one to make a value judgment.
The crime control model reflects conservative values, while the due process model reflects liberal
values. Political climate determines which model shapes criminal justice policy at a specific time.
During the politically liberal 1960s, the principles and policies of due process predominated in
criminal justice. From the mid-1970s to the early twenty‐first century, conservatism has held sway
38
as the dominant political philosophy, and conservatives have formulated criminal justice policies
in the image of the crime control model.
Differences Between the Crime Control Model and Due Process Model223
Crime control and due process are two theories of criminal justice that aim to provide a framework
for reducing crime and keeping people safe. These theories recommend different approaches based
on two separate value sets.
The Role of Law Enforcement
The crime control model supports the use of methods like detaining suspects, questioning, and
arresting individuals before they have been proven guilty. Law enforcement agencies have more
leeway in what they can do to gather evidence and information.
The due diligence model protects the rights of suspects and criminals. With this approach, a
criminal wouldn't be arrested if evidence is insufficient. There are strict guidelines regarding how
law enforcement can gather evidence and information to make sure that the individual's rights are
respected.
The Role of the Government
A government that adopts the crime control model will take on the responsibility of reducing
crime and will have more power accordingly. Due diligence aims to reduce the influence of the
government, and mostly defines the government's role as regulating what law enforcement
agencies do and protecting citizens' rights.
The Treatment of the Individual
Crime control puts an emphasis on protecting society as a whole. Punishing individuals is a

necessity and it is better to imprison innocent individuals by error than to take the risk of letting
some criminals run free, as explained by Herbert L. Packer in his essay Two Models of the
Criminal Process.
In the due process model, criminals are seen as individuals who have rights. A criminal wouldn't
be punished if a law enforcement agency made a mistake when arresting them or gathering
information, and it is preferable to let some criminals unpunished than to take the risk of
arresting innocent citizens.
223
https://www.reference.com/government-politics/differences-between-crime-control-model-due-process-model-
3ea31f098dafc451
39
Reducing Crime
There are differences between the crime control model and the due process model regarding the
methods used to reduce crime. Crime control puts an emphasis on law enforcement and
punishments being strong deterrents for would-be criminals. This approach is mostly about
taking criminals off the streets to keep the public safe.
The idea that criminals can be reformed shapes the due process model. Criminals are punished in
this model, but there are efforts made to reform and rehabilitate them. Crime is reduced by
preparing criminals to become productive members of society instead of simply taking them off
the streets.
The Role of Punishment
The due process model regulates punishments. There needs to be an impartial judicial process
that determines whether an individual is guilty and decides on a fair punishment. This model
advocates for light punishments or even an absence of punishment in the case of victimless
crimes. A lot of crimes can be punished with fines rather than imprisonment. Suspects shouldn't
be detained before the trial, and their rights should be respected throughout this entire process.
Crime control takes a tougher approach when it comes to punishment. This model doesn't
support the idea that criminals can be reformed and sees punishment as a way of protecting
society. Imprisonment is the primary method of punishment and suspects can be detained before
their trial.
There are fundamental differences between the crime control model and the due process model
regarding how citizens and criminals are treated, and regarding the role of the government and
law enforcement agencies. In the U.S., law enforcement agencies tend to follow the crime
control model while the due process model is what shapes the judicial system.
40
BIBLIOGRAPHY
Acts
The International Covenant on Civil and Political Rights
The Constitution of India
Principles of Administrative Law, MP Jain
The Code of Criminal Procedure, 1973
USA Constitution
The Universal Declaration of Human Rights, 1948
Indian Evidence Act, 1882
The Legal Services Authorities Act, 1987
Books
Open Justice: A Critique of the Public Trial by Joseph Jaconelli
The History of English Law before the time of Edward I by Pollock, Sir, F, & Maitland, F.W.
Black’s Law Dictionary
The Proof of Guilt by Glanville Williams
Due Process of Law by Abhinav Chandrachud
Constitutional Law of India by HM Seervai
Reports/Magzines/Journals
Report of the committee on Reforms of Criminal Justice Systems
Websites
www.reference.com
www.cliffsnotes.com
scconline

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Due Process Model

History of Due Process

Meaning and Kinds of Due Process of law

Kinds of Due Process

Procedural Due process

Substantive Due Process

Due Process in England

Due Process in United States of America

Due Process before the Civil War

Procedural Due Process in the Post-Civil War Period

Substantive due process in United States of America

Due Process in India

Further the Supreme Court observed that:

Procedural prescriptions of Due Process

Adversary Judicial System

Protection against Ex Post Facto Law

Protection against Double Jeopardy

Right against Self Incrimination

Right to Fair Procedure

Further the Supreme Court observed that:

Right to know the fact of Arrest and Reasons for Arrest

Right to Speedy Trial

Right to be represented by a Legal Practitioner

Right to Legal Assistance

In US Constitution there is no express provision about the doctrine of presumption of innocence.

Public and Open Trial

Testimony in the presence of accused

Right to Cross-Examine and Summon Witnesses

Right to an Impartial and Independent Tribunal

Crime Control Model

Propounded of the Crime Control Model & Due Process Model?222

2. Criminal justice should concentrate on vindicating victims' rights rather than on

4. Legal technicalities that handcuff the police should be eliminated.

3. Police powers should be limited to prevent official oppression of the individual.

Evaluating the Crime Control & Due Process Models

The Role of Law Enforcement

The Role of the Government

The Treatment of the Individual

Crime control puts an emphasis on protecting society as a whole. Punishing individuals is a

The Role of Punishment

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