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The Constitution of India, in its Part III, guarantees a set of Fundamental Rights to citizens. A few of these rights are also available to the accused, a suspect as well as an undertrial. These rights are guaranteed under Articles 14. 19, 20, 21 and 22. Prisoners are also entitled to the benefits of Articles 32 and 226 of the Constitution. In addition to the fundamental rights, the accused, suspects and under trial prisoners enjoy certain other legal rights provided under the Indian Penal Code, 1860 (IPC): the Criminal Procedure Code, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA). The Supreme Court of India and High Courts have not only played a vital role in attaching constitutional significance to these rights but, through humane judicial interpretation and acumen, also expanded their contents. In this article an attempt is made to highlight briefly a few prominent rights of the accused, a suspect, an under trial and to offer some suggestions to ensure their promotion and protection.

Rowena Jones, 2002, Bail Law and Practice: Recent Developments In her paper says that bail is generally offered in New South Wales except when the accused is charged with murder rape or drug offences. In Australia there are bail hostels. The accused persons who have been granted conditional bail or whose trial is in progress are lodged in bail hostel.

Rajiv Dhavan, 2011, Don’t deny accused basic right to bail Rajiv Dhavan, columnist, India Today Magazine unfolds how India’s courts deny bail to the accused in a cryptic order “bail denied” When any judge uses discretion to deny bail, he has to write down one by one the reasons for denying bail. This is imperative because liberty has been granted by the Constitution of India and every judge snatching away liberty of a citizen must give reasons as to why liberty is being snatched away.

Max Taylor, 2010, Response by NSW council for civil liberties to review of NSW Bail Act 1978. Max Taylor says NSW Bail Act 1978 is not humanistic. Presumption in favor of bail has been removed from the act which must be restored then alone the council for civil liberties will give its opinion on the Act. All over the world presumption of innocence of the arrestee is eroding and judges are also swayed by the public opinion and articles published by the courts.

Jamila Pringle, 2012, Brooklyn Public Defenders Bail Fund Jamila Pringle is reporter of City Limits Magazine New York. She says that working class people who somehow meet their monthly expenditure on household figure high in arrest and detention. If breadwinner of such family is struck with misfortune that the he is arrested and needs a bail of $1000/- he cannot afford such an amount

Carolyn Raphaely, 2013, Denying paraplegic bail is 'torture' In this News Article The Reporter Carolyn Raphaely tried to bring in to the notice of general public that how the Rich and Well known personalities can easily access to provisions of law and the poor people are deprived of justice. In a case where a Paralympian Olympian athlete Oscar Pistorius against whom the crime of murder has been proved and he himself admitted that he shoot dead his girlfriend, was realised/granted bail, with this we can understand that special treatment is given to celebrity people.

According to Arslan (2018), the criterion for equality of arms is met if the accused has the opportunity to examine the witness or challenge him before the trial court with his version of the case, indicating his line of defense. While the right to defence is provided for in the CPC, but the CPC is silent as to when the defense should be raised in a trial and more importantly, what will be the legal implication if the defense is not raised during prosecution stage but only at defense stage?

1. Rights of the Accused-Some Reflections

1.1 Right to Life

Right to life is a natural right. It has been guaranteed as one of the fundamental rights under Part III of the Indian Constitution. The constitutional guarantee under Article 21 is that 'No person shall be deprived of his life or personal liberty except according to procedure established by law. One of the important rights of the accused (suspects and undertrial prisoners) is the right to life. In the Gopalan[1] case the Supreme Court has given a literal interpretation to the provisions of Article 21. was held by the Court that law meant a law made by the State and the courts were not competent to enquire the reasonableness or otherwise of that law".           

The issue of interpretation of 'procedure established by law' was again raised in Maneka Gandhi[2] case. The Supreme Court overruled the ruling given in Gopalan case and held that the procedure established by law means the right just and fair procedure that embodies the principles of natural justice and not an arbitrary, forceful or oppressive procedure. The procedure laid down must satisfy the test of reasonableness as envisaged under Article 19 of the Constitution. The court sowed the seeds for future development of the law enlarging this most fundamental of the fundamental rights.

The Supreme Court through the process of judicial activism has widened the scope of the right to life'. Right to life does not mean animal existence. It means something much more than physical existence of the individual. It means the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow beings[3].        

Relief of granting bail to an accused criminal was taken up in Babu Singh v. State of U.P.[4]The court observed that refusal to grant bail in a murder case without reasonable ground would amount to denial of personal liberty to the accused person under Article 21. The court further stated that:          

"Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exerciable, not casually but judicially, with lively concern for the cost to the individual and the community--- After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of those human rights.[5]

1.2 Right to Speedy Trial

Speedy trial in criminal cases is considered an essential ingredient of the right to fair trial. Unnecessarily prolonged detention of undertrial prisoners would be considered by the Court as violation of fundamental right to life and personal liberty implicit in Article 21 and it would also be considered as an affront to all civilised norms of human liberty".           

The Supreme Court in HussainaraKhatoon (1) v. State of Bihar[6] has held that speedy trial is a part of fundamental right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. Continuous incarceration of undertrial prisoners without even commencement of trial would amount to violation of their fundamental right implicit in Article 21 of the Constitution.

Speedy trial is one of the cardinal principles of a fair judicial system. It is not to be neglected. Delayed trials of the under trial prisoners means denial of justice to them the court observed:

"No procedure which does not ensure a reasonably quick trial can beregarded as reasonable, fair or just' and it would fall foul of Article 21.

There therefore, be no doubt that speedy trial, and speedy trial we reasonably part the fundamental right life liberty enshrined Article 21.

The in HussainaraKhatoon (11) Home Secy. State Bihar[7] has highlighted the plight undertrial prisoners who were languishing for a period trial. court directed State Government to release forthwith the undertrial prisoners on their personal as an exceptional measure in of the fact that undertrial prisoners were jail without that several years and some cases offences for which the punishment be than period of their detention.

The Supreme Court again Pahadiya State Bihar[8] reiterated speedy trial fundamental right commented against the cases of several undertrial prisoners who were languishing in jail eight without proper this recalls sorry state affairs Court, exhibiting its displeasure, observed:

"It seems that once is lodged in jail everyone forgets about and no bothers care what happening to him becomes mere ticket number-cut off and alienated from society, unfortunate victim heartless legal and judicial consigns long unending years oblivion in jail.[9]

1.3 Right to Counsel

It is the right of an accused defends him a counsel. The International Commission of Jurists met Delhi 1959, stressing the importance of legal representation on behalf the accused, suspect under prisoners, observed:

"Equal access to law for rich and poor alike is essential to the maintenance of the Rule of Law. It is, therefore, essential to provide adequate legal advice and representation to all those threatened as to their life, liberty, property or reputation who are not able to pay for it."

It is essential that an accused person must be given an opportunity to call and examine witnesses in his defense. He should be permitted to exercise this right in person or through his counsel. Denial of counsel to the accused is tantamount to compel him to face unfair trial.

1.4 Right to Free Legal Aid

Accused persons do not have a fundamental right to free legal aid. Those accused persons who are charged with offences, which are bailable, do not apply for bail on account of their poverty and financial disability. They are also unaware of their right to obtain their release on bail. In such cases the State has a constitutional mandate under Article 39-A to provide legal aid to protect poor accused persons or undertrial prisoners against injustice and to secure to them their constitutional and statutory rights.

The court under Article 142 read with Articles 21 and 39-A of the Constitution can exercise its implied powers to assign counsel to the accused person provided he does not take objection to an appointment of a lawyer for his defence. In Suk Das v. Union Territory of Arunachal Pradesh[10] the Apex Court held that failure to provide free legal aid to an accused at the State's cost would vitiate the trial. The court had set aside the conviction of an accused on the ground that he was not provided with legal aid at the time of his trial and thus there was violation of Article 21 of the Constitution.

The court in HussainaraKhatoon case has given suggestions to the Central and State Governments for making comprehensive programmes for providing free legal aid to the poor accused persons and under trials. The court further declared that it is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him. Free legal service to the poor and its need is an essential element of a 'reasonable, fair and just procedure.

1.5 The Right to a Fair Trial

The right to a fair trial is a basic human right. The right is invariably enshrined in all democratic Constitutions which contain a Bill of Rights:  A noteworthy feature of the judicial system of a democratic country is the universal recognition of the presumption of the accused person's innocence until he is proved guilty. An accused person is in a much better position to prepare his defence if he is out on bail rather than when he is in custody. Bail is usually granted to the accused person while considering the gravity of bailable offences.

In matters of human rights the relevant laws are to be justly administered. "It is no use having just laws if they are administered unfairly-a country can. put up with laws that are harsh or unjust so long as they are administered by just judges ---but a country cannot long tolerate a legal system which does not give a fair trial. The right to a fair trial is an inherent right in the administration of criminal justice. In order to vindicate thoroughly the right of the accused courts must prepare to challenge the actions of the government if they come in the way of fair trial process.

1.6 Right against Double Jeopardy

It is a common law principle that a person who has been convicted and punished for an offence shall not be punished again for the same offence. This right against double jeopardy has been guaranteed under Article 20(2) of the Indian Constitution. This constitutional guarantee is essential to the fair trial process.

There are other rights of the accused and of arrested persons. Right to be informed of the grounds for arrest is one of them. This right is provided to the accused under the provisions of Article 22(1) of the Constitution. Grounds for arrest are to be communicated to the accused person as soon as possible. Due to this provision the arrested persons are able to file a writ of habeas corpus or apply for bail. Another valuable right of the arrested person is that he should be produced before a Magistrate within twenty-four hours of his arrest under Article 22(2) of the Constitution.

1.7 Right against Self-incrimination           

No accused person shall compelled give evidence against himself. The motive behind compulsion brought police on person to extract confessional statement. The accused person presumed until proved guilty according to law. This presumption innocence is considered under the provisions Indian Evidence Act, 1872 is recognised principle that a hundred guilty men rather than one innocent person be found guilty, that without proof.

According to apex of India self-incrimination is less relevant and then confessional. The accused person cannot be compelled by the police answers their refuse to give answers self-incriminatory questions.

In NandiniSatpathi v. P.L. Danils,[11] Supreme Court has upheld right against self-incrimination right remains silent. Compelled testimony given by accused violative of right against self-incrimination. night widely violated by the police of the third-world countries including India captured, considers even an innocent person a criminal and technique torture used alleged though involuntary confession made before the police is inadmissible in court of law.[12]

1.8 Right 'Third-degree' Methods

Police authorities strongly feel that handcuffing of accused persons and suspects parading them on roads on way court or jail will minimise the crime rate But such a kind inhuman treatment given to accused persons is not fair permissible. Accused/suspected persons when paraded humiliated punished by police authorities without waiting for the

The adoption of 'third-degree' methods, torturesome treatment of solitary confinement and putting cross-bar fetters on prisoners was also condemned by the Supreme Court in Kishore Singh RavinderDev v. State of Rajastha[13]. TheCourt observed that:

"Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights.[14]

The apex court further directed that fetters put on prisoners should forthwith be removed and insisted that only in extreme cases of compelling necessity for security of other prisoners or against escape such fettering can be resorted to. Human dignity is dear value of our Constitution not to be bartered away for mere apprehensions entertained by jail officials.[15] Further, the court directed the Government to take necessary steps to re-educate policemen for giving respect to human rights. It also advised the Government to wipe off police cruelty. Otherwise, it declared, 'who will police the police?".

The question of treatment meted out to women in police lock-ups came before the Supreme Court in SheelaBarse v. State of Maharashtra[16]. It was held that ill-treatment meted out to women suspects in police lock-ups was considered to be violative of Article 21. The court gave detailed directions to the police authorities to improve conditions of police lock-ups and provide safety and security both to male as well as female inmates in police custody. It especially directed that female suspects be guarded by female constables.

In KadraPahadiya v. State of Bihar[17] the four petitioners who were languishing in jail for a long period without trial were found to be fettered with leg irons. They were also working outside the jail walls for fetching water and doing other duties. To guard against the possibility of their running away they were put in leg irons and even after doing outside work the leg irons were not taken off and they remained in leg irons even at lock-up time.

1.9 Right to Fair Treatment

Cases of death in police custody and deaths in fake encounters have posed a serious problem to State Governments. It has also been reported that the number of killings by extremists has decreased but the cases of deaths resulting in police custody or torture inflicted on the accused or suspects are increasing. The reason behind it is the unlimited powers that the police enjoy under the existing legal system of the country. Being custodians of law, they are themselves in possession of police records. Hence it is very difficult to establish their guilt in cases of police custodial deaths. Consequently they easily escape from criminal liability in such cases.[18]

The police or jail authorities do not have unlimited powers to protect the society from gangsters, habitual criminals, arsonists, terrorists and armed robbers. There is a strong feeling in society that the tendency of the police to act in a casual manner in matters of arrest of suspects and accused persons is growing Thus, the result is horrifying.

 Administrative and judicial actions are taken against the police in cases of custodial death of accused if the police are found guilty of committing unlawful acts. The Supreme Court observed:

"The State at the highest administrative and political levels, we hope, will organise special strategies to prevent and punish brutality of police methodology. Otherwise, the credibility of the Rule of Law in our Republic vis-à-vis the people of the country will deteriorate.[19]

Undesirable detention, torture and harassment of the accused is still continuing in spite of the landmark judgment delivered by Bhagwati, J. (as he then was) in SheelaBarse case. Police has a duty to give fair treatment to the accused in police custody. No accused should be put to unnecessary harassment in matters of investigation of a criminal case unless there are good and substantial reasons for holding a criminal liable for committing offences. Third degree methods, fabrication of evidence and inflicting torture on the accused have been condemned.

In D.K. Basu v. State of West Bengal,[20] the Supreme Court has dealt with the issue of 'custodial death', custodial violence and protection of fundamental rights and human rights of the criminal vis-a-vis duties of the police. The Court held that 'any form of torture or cruelty, inhuman or degrading treatment given to the detenu, convicts, undertrials and other prisoners would fall within the inhibition of Article 21 of the Constitution whether it occurs during investigation or interrogation or otherwise. Using any form of torture for extracting any kind of information would neither be right nor just nor fair and therefore the court declared that it would be offensive to the fundamental right to life and personal liberty. The Court further stated that the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by laws".[21]

The Supreme Court has observed that the object of Section 161, CrPC is to secure a fair investigation into the facts of the criminal case. No accused should be harassed in a criminal trial unless there are substantial grounds for upholding it. Police officers have to be trained for giving fair treatment to accused persons.

The practice of third-degree methods and fabrication of evidence has also been condemned in India. Y.V. Chandrachud, former Chief Justice of India, has condemned custodial deaths and adoption of third degree methods by the police. He has observed:

"---[W]e would like to impress upon the Government the need to amend the law appropriately so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reason of paucity or absence of evidence. Police officers alone and none else can give evidence, as regards the circumstances in which person in their custody come to receive injuries while in their custody. Bound by the ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth. The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are. The law as to burden of proof in such cases may be re-examined by the legislature so that handmaids of law and others do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection."[22]

1. A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88: (1950) 51 Cri LJ 1383. 2. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. 3. Francis Coralie Mullen v. Union Territory of Delhi, (1981) 1 SCC 608: 1981 SCC (Cri) 212at 753. 4. (1978) 1 SCC 579. 5. Babu Singh v. State of U.P., (1978) 1 SCC 529. 6. (1980) 1 SCC 81. 7. (1980) I SCC 91: AIR 1979 SC 1369 1370 8. (1981) SCC 671: 1981 SCC (Cri) 791: AIR 1981 SC 939 9. Ibid. at 940 (AIR). 10. (1986) 2 SCC 401. 11. (1978) 2 SCC 424. 12. R.S. Saini: "Custodial Torture in Law Practice with Reference to India", 36 JILI 166 (1994). 13. (1981) 1 SCC 503: 1981 SCC (Cri) 191: AIR 1981 SC 625. 14. Ibid. at 628 (AIR). 15. .Ibid. at 630 (AIR). 16. (1983) 2 SCC 96: 1983 SCC (Cri) 353 17. Supra n. 12. 18. See N.S. Kamboj: "Police Custodial Deaths: A Growing Abuse To Human Rights in India",36 JILI 372 (1994) 19. Raghubir Singh v. State of Haryana, (1980) 3 SCC 70: 1980 Cri LJ 801 (SC). 20. (1997) 1 SCC 416: 1997 SCC (Cri) 92. 21. D.K. Basu v. State of W.B., (1997) 1 SCC 416: 1997 SCC (Cri) 92. 22. State of U.P. v. Ram SagarYadav, (1985) 1 SCC 552: 1985 SCC (Cri) 127. 23. R.S. Saini: ((1994) Custodial Torture in Law Practice with Reference to India, JILI 166 24. N.S. Kamboj ((1994) Police Custodial Deaths: A Growing Abuse To Human Rights in India, JILI 372 25. Andrew S. Butler (2000))Legal Aid before Human Rights Treaty Monitoring Bodies, ICLQ 49 26. B. Shiva Rao (2008)The Framing of Indias constitution select documents, , Universal law publishing Co Pvt Ltd, Delhi PP 33 27. Bajpai, Rochana (June 2007) The Conceptual vocabularies of Secularism and Minority rights in India, Journal of Political Ideology 2,. 28. Basu,D.D, (1981)Constitution of India ( Prentice of India Pvt.Ltd.,New Delhi 29. Dr. N. R. Madhava Menon (1988) Legal Aid and Justice to the Poor in Upendra Baxi, ed., Law and Poverty (N. M. Tripathi 30. Mamata Rao, (2004) Public Interest Litigation, Legal Aid &Lok Adalat Eastern Book Co, Lucknow