Concept of Fair Trial

By- Radhika M

The concept of fair trial is a fundamental principle in every judicial system. The concept of fair trial in another way ensures justice. A trial in criminal jurisprudence is a judicial examination or determination of the issues at the hand of the Court to arrive at a conclusion whether the accused is guilty of the offence or not. As observed by the Supreme Court in various instances, there is no comprehensive definition for fair trial.

There can be no analytical, or comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted.^[1]

Even though no hard and fast rule can be laid out to find what makes a trial fair, the following elements influence in determining the fairness of a trial.

• Presumption of innocence of accused
• Right of accused to have a proper defence
• Right to legal aid
• Impartial judiciary
• Benefit of doubt
• Right against self-incrimination
• Right to speedy trial
• Right against double jeopardy

Concept of Fair Trial under International law

The principles in the concept of a fair trial prevailing in the modern countries have its origins from international statutes. The signatories of the conventions were compelled to enact the provisions in their municipal laws.

Article 10 of the Universal Declaration of Human Rights states that,

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11(1) further states that a person accused of an offence shall be presumed innocent until proven guilty. And he shall be declared guilty only at the end of a public trial in which he was provided with an opportunity to defend himself.

Article 11(2) speaks about the prohibition of ex post facto law in which no person shall be declared guilty of an offence which didn’t constitute a penal offence at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 14(1) of the International Covenant on Civil and Political Rights states that

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”

Article 11(2) of the Covenant mandates that an accused person shall be presumed to be innocent until proven guilty.

The covenant recognises the following rights of an accused person:

• To be informed about the charges levelled against him.
• To engage a counsel of his own choice and a time and space to communicate with him.
• To be tried without delay.
• To be tried in his presence and to defend himself in person or through legal assistance.
• To have legal aid from the State if he is unable to find legal assistance by himself.
• To examine, or have examined, the witnesses against him.
• To seek the assistance of an interpreter if he is unable to understand the language of the court.
• Not to be compelled to testify against himself or to confess guilt.
• In case of juveniles, a proper adjudication system and procedure matching their age.
• To prefer an appeal in a higher judicial tribunal.
• To be compensated in event of false accusation or imprisonment.
• Not to be tried or punished again for an offence for which he has already been convicted or acquitted.
• Not to be punished for an act which was not a penal offence at the time when it was committed.
• Not to be inflicted with a greater punishment than the one that was applicable at the time when the criminal offence was committed.

India is a party of Universal Declaration of Human Rights as well as International Covenant on Civil and Political Rights.

So naturally our Supreme law of the land ie, Constitution of India adheres to these principles.

Right to fair trial under Constitution of India

Constitution of India is the ultimate law of the land. It provides a basic framework for the running of criminal justice system.

Article 20(1) prohibits ex-post facto law. That is no one can be punished for an act which was not an offence at the time when he committed it. Also a person shall not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

Article 20(2) mandates that no one shall be prosecuted and punished for the same offence more than once.

Article 20(3) says that No person accused of any offence shall be compelled to be a witness against himself.

Article 21 prescribes that a person shall not be deprived of his personal liberty except according to a procedure established by law.

Article 22(1) no one shall be arrested or detained in the custody without informing the cause and he shall be intimated with his right including the right to consult a lawyer and bail at the time of such arrest.

Article 22(2) mandates that a person arrested shall be produced before the nearest Magistrate within 24 hours of his arrest.

Article 39A imposes duty upon the state to provide legal aid for the persons who are unable to afford them.

Under the Code of Criminal Procedure, 1973

Section 273 mandates that the all the evidence taken during a trial or any other proceedings shall be taken in the presence of the accused except as otherwise expressly provided.

Section.278 mandates that the evidence of each witness shall be read over to the witness in the presence of the accused or to his pleader. If the evidence was given in a language not understood by an accused, it shall be interpreted to him in an open court in a language understood by him.

Section 281 mandates that the substance of examination of the accused by a magistrate shall be read over to him in a language understood by the accused and it shall be signed by him.

Section 300 says that a person who was tried by a court of competent jurisdiction for an offence and was acquitted or convicted as the case may be, shall not be tried for the same offence again. Section 303 says that a person who has been accused of an offence in a criminal court has the right to be defended by a pleader of his choice. Section.304 mandates that an accused person who is unable to engage a pleader shall be provided with legal aid at the cost of the State.

Section 313 of the Code deals with the power of the court to examine the accused but no oath shall be administered to the accused when he is to be examined.

Also, as per section 313(3) of the Code, the accused shall not render himself liable to the punishment by refusing to answer questions put forward to him or by giving false answers to them.

Section 316 mandates that the accused shall not be influenced by way of promise or coercion or threat to disclose or withhold any matter within his knowledge.

Presumption of innocence

In India we follow adversarial system in which the prosecution adduces evidence to prove the accused guilty. So, the accused is presumed to be innocent until the prosecution proves him guilty. The judge is an impartial party in the trial who only evaluates the evidence brought before him.

So the burden of proof is upon prosecution in almost criminal cases of course with some exception in it. In certain cases, the accused is presumed to be guilty, and he needs to prove otherwise.

For example, in certain offences under Protection of Children from Sexual offences (POCSO) Act, the accused is presumed to be guilty until the contrary is proved. Such exceptions are provided after considering the prevailing social conditions and targeted victims.

In the case of Anukul Chandra Pradhan v. Union of India & Ors.^[2], it was held that;

“Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution.”

The court in the case of Babu v. State of Kerala^[3] while elaborating the concept of doctrine of innocence observed that presumption of innocence is a human right. It is a basic concept in criminal jurisprudence which can be taken away only by way of certain statutory exceptions.

And while dealing with such exceptions the court must look in to the nature of the offence, its seriousness and gravity. The Courts must be on guard to see that merely on the application of the presumption; the same may not lead to any injustice or mistaken conviction.

Right of accused to have a proper defence

It is an inalienable right that the accused shall have the proper opportunity to present his case. He shall be heard properly at every stage of the trial. He shall be provided with necessary documents to prepare his defence. The accused have the right to know about the charges arraigned against him and any evidence produced by the prosecution to support such claim shall be shown to the accused. He has the right to produce documents, witnesses etc to support his claim. He has a right to examine, cross examine and re-examine the witnesses.

In the case of Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi)^[4] which is famously known as Jessica Lal Murder case, the appellant was accused of the murder of Jessica by shooting her with a gun. The trial court acquitted the appellant and in an appeal by the State, the High Court reversed the order and convicted him.

In an appeal against the said order in the Supreme Court, the accused claimed that he was denied of the right of fair trial enshrined under Article 21. He claimed that the prosecution didn’t produce a ballistic report which was favourable to him in the court as well as he was denied of access to certain other documents which were necessary to place a proper defence.

Taking into consideration of the facts, the Court opined that the duty of a prosecutor is not to ensure the conviction of the accused at all costs. But rather a prosecutor shall help the court in finding the truth. More than a state engaged lawyer, he is an officer of the court. He shall ensure a fair play in the proceedings and bring all relevant matters before the Court for the determination of truth and justice for all parties including the victims.

The Court further observed that the expression `due process of law‘ shall deem to include fairness in the trial. It is a constitutional mandate as well as a statutory right of the accused to access the documents which prosecution relies upon.

In some cases, even documents which are not relied upon by the prosecution shall be provided to the accused if it is necessary for the fair play. The accused has a right to file an application before the Court, if the prosecution fails to do so.

The court observed that;

“However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to the accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.”

The court observed that the right of accused for a fair trial was not violated in the present case.

In the case of Shiv Kumar v. Hukam Chand and Anr^[5]., the court observed that “The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge”

In the case of Jayendra Vishnu Thakur v. State of Maharashtra^[6], the court observed that the right to cross examine is a natural as well as statutory right available to the accused. Every party has a right to cross examine a witness brought to the stand to give evidence against him.

The court observed that “An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication.”

Right to Legal aid

As we have already discussed, the right to legal aid is a Fundamental right. Any person whether that be an accused or not, shall be entitled to a legal assistance at the expense of the state if he is not in a position to engage one. The Cr.P.C also says that an accused person shall be engaged with legal aid, if he is not able to engage one by himself.

The U.S Court in the case of Rhem v. Malcolm.^[7] held that “The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty”

In the case of Khathri V. State of Bihar^[8], while considering a petition highlighting the blinded prisoners in the Bhagalpur Central Jail observed that;

“It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.”

The court observed that the failure of the Magistrates to direct legal assistance to the blinded prisoners because they didn’t ask for it is a blatant violation of Article 21.

In the case of Mohd. Hussain @ Julfikar Ali vs The State (Govt. Of NCT Delhi)^[9] where an illiterate Pakistani national was accused of a blast in Delhi in which four persons were killed and 22 others were injured, a counsel appointed by the State was made available to the accused. It was alleged that the counsel for the accused did not appear when the witnesses were being examined, there by missing the opportunity to cross examine and evaluate the evidence adduced against the accused.

The appellant claimed that the trial Court was ignorant of the fact that the accused was not properly represented by a counsel. It was claimed that the accused was deprived of the right to fair trial. While adjudging the issues the Supreme Court held that CrP.C mandates that in all criminal trials , the accused shall be aided with legal assistance. If the accused is unable to engage one, the duty is cast upon the State to provide one in its own cost.

The court observed that;

“Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. The necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of CrP.C.”

Impartial judiciary

The success of every Judicial system is a neutral yet opinionated Judges. A Judge cannot be a mute spectator when something unfair or illegal happens in the trial he sits upon. He needs to make sure that ends of justice are achieved while maintaining neutrality throughout the proceedings. He shall not be inclined towards any party.

In the case of Zahira Habibulla H Sheikh and Anr vs State Of Gujarat^[10], famously known as Best Bakery case, 14 persons were killed in a mob attack in the Best Bakery located at Gujarat. It was reportedly a retaliatory action taken by a community for the 56 deaths in the Sabarmathi Express. The appellant lost her family members in the spot and she was an eye witness in the case.

However, she turned hostile during the trial. The accused persons were acquitted by the trial Court. After the trial, she made an affidavit stating that she was coerced to change her witness statement in the Court. An appeal was filed before the High Court of Gujarat, which was dismissed.

The appellant alleged that prosecution witnesses were coerced to change their statements, relatives of accused persons were made witnesses, investigation agency was impartial, the prosecutor was inclined towards the accused persons and the trial court was a mute spectator during all this period. The Court observed that;

“If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.”

The Court also opined that the presence of large crowd during the trial and the failure of the court to conduct proceedings in camera affected the fairness of the trial. Also if the atmosphere prevailing in the state is of nature that it would affect the impartiality and calmness prevailing, the case must be transferred.

The Supreme Court held that both the High Court and Trial court failed to discharge its duties and transferred the case to Bombay. The Court also directed that accused persons shall go back to the custody and face a re-trial.

Benefit of doubt

It is a basic principle in the Indian criminal justice system that the prosecution shall prove its case beyond reasonable doubt. If the case is tainted even by slightest bit, the benefit shall go to the accused. This comes from the notion that;

‘Thousand culprits can escape, but, one innocent should not be punished‘

In the case of Kali Ram v. State of Himachal Pradesh^[11],the Supreme Court observed that if two views are possible on the evidence adduced in the case, one which points the guilt of the accused and other which points his innocence, then the view which is favourable to the accused must be adopted. This principle is a golden thread running through the administration of criminal justice.

In the case of Sharad Birdhi Chand Sarda v. State of Maharashtra^[12], the court observed that;

“Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt”.

Right against self – incrimination

Article 20(3) bars self incrimination. The same principle can be in seen in section 313(3) of the Code where it is provided that accused shall not be liable to punishment on the account of refusing to answer incriminating questions.

In the case of Nandini Satpathy vs Dani (P.L.)^[13] the court held that;

“The ban on self-accusation and the right to silence, while on investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter”.

Right to speedy trial

Justice delayed is justice denied. Right to speedy trial is a right of both victim as well as accused. It is expedient to the public interest also. The Courts burdened with never ending cases can render them ineffective.

In the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar^[14], the Court held that; right to speedy trial is a fundamental right under Article 21 of the Constitution of India. Speedy trial is the essence of every criminal justice system therefore even though it is not specifically mentioned anywhere, becomes a part of Article 21 which guarantees fairness in legal procedures affecting personal liberty.

In the case of Sheela Barse and Ors. v. Union of India and Ors^[15] the Supreme court observed that the right to speedy trial is a fundamental right and any breach of such right may lead to the quashing of the prosecution itself.

Right against double jeopardy

Right against double jeopardy is provided in the Constitution as well as CrP.C.

In the case of Maqbool Hussain vs The State Of Bombay^[16]. the words of prosecution in the Article 20 means a proceeding before a court of law or judicial tribunal. Any proceedings taken by or penalty imposed by any other authority like Customs or other law enforcement agencies wouldn’t come under the definition of ‘prosecution’ meant in the Article. So a person who tried before such authorities cannot take up the protection of Article 20(3).

Trial should be fair to the victim also

As noted by the court at various instances the trial should be fair to accuses, victim and the society at large. The needs and injuries of the victims cannot be overlooked when a fiar treatment is provided to the accused persons.

In the case of Ag vs Shiv Kumar Yadav And Anr^[17] , prosecution case- the Respondent committed rape on the prosecutor while she was travelling in his taxi. The trial was commenced and legal aid was provided to the accused. When the examinations were over and section 313 was recorded, a new counsel was engaged by the accused. He further moved an application under s.311 for recall of all the 28 prosecution witnesses.

The application was rejected by the trial court and the High Court while considering an application under section 482 held that recall of some witnesses were necessary for ensuring a fair trial. The victim as well as state challenged the order in the Supreme Court.

The Court observed that a recall of witnesses cannot be allowed on the ground that his previous counsel was not capable enough. If its allowed, then every accused will seek a retrial on every change of counsel which will have serious impact criminal justice system. The Court further observed that;

Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily.

The Court observed that the trial should be fair not only to the accused but to the victim, witnesses and the society. Here the victim and witnesses were harassed by allowing the recall and application under consideration is thus nothing but an attempt to protract the trial and in fact seek an entire retrial.

Consequently , the Court dismissed the application.

In the case of Himanshu Singh Sabharwal v. State Of M.P^[18], a transfer petition was filed before the Supreme Court for transferring a case from the trial court at Ujjain to any other state. The petitioner alleged that the witnesses were coerced to turn hostile and the role of investigation agency and prosecution was impartial. He claimed that the trial court failed to ensure a fair trial by not taking notice of such events.

“Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.”

Fair trial means a trial which is fair not only to the accused but also to the victim and the society. The faith of public in the fairness of trial must be established.

Conclusion

The concept of fair trial is undoubtedly the backbone of any judicial system. The trial must be fair to the accused, victim and the society as whole. Even though the branches and elements of the fair trial are changing like any other aspect of law it is nevertheless the most fundamental principle to adhere on.

And nowadays when the media trial is more popular than the judicial trial, it is very necessary for the Courts to not to overlook any of such principles. The officers of the Court shall remain impartial to the influences coming from inside and outside of the institution. All means shall be provided to the victim as well as the accused to present their case.

1. Himanshu Singh Sabharwal vs State Of M.P (2008) 4 SCR 783 ↑
2. (1996) 6 SCC 354 ↑
3. (2010) 9 SCC 189 ↑
4. (2010) 6 SCC 1; ↑
5. (1999) 7 SCC 467 ↑
6. (2009) 7 SCC 104 ↑
7. 377 F. Supp. 995 (1974) ↑
8. 1981 AIR 1068 ↑
9. (2012) 9 SCC 408. ↑
10. [2004] 4 SCC 158. ↑
11. AIR 1973 SC 2773 ↑
12. 1984 AIR 1622, 1985 SCR (1) 88 ↑
13. 1978 AIR 1025, 1978 SCR (3) 608, ↑
14. 1979 AIR 1360, 1979 SCR (3) 169 ↑
15. [1986]3SCR562 , ↑
16. 1953 AIR 325, 1953 SCR 730 ↑
17. (2016) 2 SCC 402. ↑
18. (2008) 4 SCR 783 ↑