Constitutional Perspectives Regarding Criminal Procedure Code

Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence.

Law cannot make men equal and the concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. Equality is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual and also the equal subject of all individuals and classes to the ordinary law of the land. Law can subject their rights and obligations to equality of treatment.

In every society, there exist groups of people with distinguishing characteristics among themselves pursuing certain ends. The principle of equality requires that the State should take cognizance of these differences, and, adjust its laws to enable men to achieve their ends.

The principle of equality requires that all persons subject to the State legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed, and, that no one should be singled out as an object of discriminatory or hostile legislation.

This means that the State has the power of classifying persons or groups of persons taking their distinguishing characteristics into consideration, but what is important is that, once a law is made, it must apply equally to everyone within the classified group irrespective of their rank, social status, wealth or other considerations.

The protection of Article 14 extends to both citizens and non-citizens and to natural persons as well as legal persons such as company, association or body of individuals. The equality before the law is guaranteed to all without regard to race, colour or nationality.

The rule of equality is not an absolute rule and there are number of exceptions to it. For instance, foreign diplomats are immune from the jurisdiction of courts. Article 361 of the Indian Constitution affords immunity to the President of India and the State Governors and they are not answerable to any Court for the exercise and performance of the powers and duties.

The laws made by the State for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14 and they are, thus, exception to Article 14.

Article 14 permits classification but prohibits class legislation. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.

Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be ‘arbitrary, artificial or evasive.’ Classification to be reasonable must fulfil the following two conditions:

(1) The classification must be found on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and

(2) The differentia must have a rational relation to the object sought to be achieved by the Act.

Equality is antithetic to arbitrariness where an act is arbitrary, it is implicit in it that it is inequal and is therefore violative of Article 14. The principle of reasonableness, which is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislation or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.

In the State of West Bengal v. Anwar Ali Sarkar, the Supreme Court has held that Section 5(1) of the West Bengal Special Courts Act, 1850 contravened Article 14 and was void since it conferred arbitrary power on the Government to classify offences or cases at its pleasure. The majority held that the procedure laid down by the Act for the trial by the Special Courts varied substantially from the procedure laid down for the trial of offences generally by the Criminal Procedure Code.

In Kathi Ranning Rawal v. State of Saurashtra, the Supreme Court has held that the Saurashtra Public Safety Measures (3rd Amendment Ordinance 1949) having been passed to combat an increasing tempo of certain types of regional crimes, the two-fold classification on the basis of types and territory adopted therein is reasonable and valid and the degree of disparity involved therein is in no way in excess of what the circumstances demanded within the meaning of Article 14 of the Constitution.

In Mithu v. State of Punjab, the Supreme Court struck down Section 303 of Indian Penal Code as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of the imprisonment and those who commit murders whilst they were not under the sentence of life imprisonment for the purpose of making the sentenco of death mandatory in the case of the former class and optional in the latter class was not based on any rational principle based on Article 14 of the Constitution.

In Revathi v. Union of India, the constitutional validity of Section 198(2) of the Code of Criminal Procedure and Section 497 of the Indian Penal Code which disables the wife from prosecuting her husband for the offence of adultery was challenged on the ground that it was violative of Article 14 of the Constitution as under these sections, the right to prosecute the adulterer is only given to the husband of the adultress but has not been given to the wife of the adulterer. The Supreme Court held that there was no discrimination based on sex and these provisions were valid.

(ii) Article 20 of the Constitution of India: Protection in Respect of Conviction for Offences:

Article 20 of the Constitution deals with the protection in respect of conviction for offences. It provides that:

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

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

The first part of clause (1) of Article 20 provides that ‘no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence.’ This means that if an act is not an offence at the date of its commission, it cannot be an offence at the date subsequent to its commission.

The protection provided by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention or demanding security from a person.

The second part of clause (1) of Art. 20 protect a person from ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence’. Accordingly, the enhanced punishment should not be applicable to the act committed earlier and punished according to the then law. However, an ex post facto law which is beneficial to the accused is not prohibited by clause (1) of Article 20.

The rule of beneficial construction requires that ex post facto law should be applied to mitigate the rigorous of the previous law on the same subject and reduce the punishment according to the latter law.

Article 20(2) of the Constitution provides protection against double jeopardy. The clause “no person shall be prosecuted and punished for the same offence more than once” embodies the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence.

Under Article 20(2) the protection against double punishment is given only when the accused has not only been prosecuted but also punished and is sought to be prosecuted second time for the same offence. The use of the word ‘prosecution’ limits the scope of the protection under clause (1) of Article 20. If there is no punishment for the offence as a result of the prosecution, clause (2) of Article 20 has no application.

Article 20(2) will have no application where punishment is not for the same offence. Thus, if the offences are distinct the rule of double jeopardy will not apply. In Leo Roy v. Superintendent, District Jail, it was held that where a person was prosecuted and punished under Sea Customs Act and was later on prosecuted under the Indian Penal Code for criminal conspiracy, the second prosecution was not barred since it was not for the same offence.

Likewise, clause (2) of Article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is merely continuation of the previous proceeding.

Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. The general principle of criminal jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. It is the duty of the prosecution to prove the offence. The accused need not make any admission or statement against his own free will. The right embodies in clause (3) of Article 20 contains the following essentials:

(1) It is a right pertaining to a person who is ‘accused of an offence’.

(2) It is a protection against ‘compulsion to be a witness’.

(3) It is a protection against such compulsion relating to his ‘giving evidence against himself’. However, he may voluntarily waive his privilege by entering into the witness-box or by giving evidence voluntarily on request. Request implies no compulsion; therefore, evidence given on request is admissible against the person giving it. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus, where the accused makes a confession without any inducement, threat or promise, Article 20(3) does not apply.

In Nandini Satpathy v. PL. Dani, the Supreme Court has held that the prohibitive scope of Article 20(3) goes back to the stage of police interrogation under Section 161 of the Code of Criminal Procedure, not commencing in Court only. Compelled testimony is not limited to physical torture or coercion, but extends also to techniques of psychological interrogation which cause mental torture, atmospheric pressure, environmental coercion, tiring interrogatives, proximity, over-bearing and intimidatory methods and the like in a person subject to such interrogation.

Art. 20(3) of the Constitution provide protection against testimonial compulsion: ‘No person accused of any offence shall be compelled to be a witness against himself. Formerly the expression ‘to be a witness’ was broadly interpreted to mean ‘to furnish evidence’. But, overruling this opinion, the Supreme Court has held in State of Bombay v. Kathikalu Oghad, that giving thumb impression or impression of foot or palm or fingers specimen writings or showing parts of body by way of identification are not included in the expression ‘to be a witness’. The blood of the accused may be taken for determination of the crime and it does not amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution. Sample of hair of accused may be taken for comparison.

(iii) Article 21 of the Constitution: Protection of Life and Personal Liberty:

Article 21 of the Constitution of India deals with the protection of life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

The 44th amendment Act, 1978 has amended Article 359 of the Constitution of India which now provides that the enforcement of the right to life and liberty under Article 21 cannot be suspended by the President Order.

In A.K. Gopalan v. State of Madras, the Supreme Court has held that ‘personal liberty’ means only liberty relating to, or concerning the person or body of the individual and in this sense it was anthesis or physical restraint or coercion and further limited to freedom from arrest and detention from false imprisonment or wrongful confinement.

In Kharak Singh v. State of U.P, the Supreme Court held that the ‘personal liberty’ was not only limited to bodily restraint or confinement to prison only, but was used as a compendious term including within itself all the varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1) of the Constitution.

In Maneka Gandhi v. Union of India, the Supreme Court overruled the meaning of personal liberty given in Gopalan’s case and observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

In Kharak Singh v. State of U.P., it was held that the expression ‘life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. The inhibition against life’s deprivation extends to all those limits and faculties by which life is enjoyed.

The expression ‘law’ in Article 21 has been viewed in Gopalan’s case not mere enacted piece of law but it incorporated the principles of natural justice. Later rejecting this meaning, the Court held that the ‘law’ in Article 21 must mean a law enacted by the Legislature and not the law in the abstract or general sense embodying the principles of natural justice. However, in Maneka Gandhi’s case, the Supreme Court has held finally that the word ‘law’ in Article 21 does not mean merely an enacted piece of law but must be ‘just, fair and reasonable’ law, i.e., which embodies the principles of natural justice.

In different cases, the Court has widened the scope of fundamental right of life and liberty guaranteed in Article 21 by including within itself the ancillary rights such as the right of privacy, right to travel abroad, right to live with human dignity, right to livelihood, right to medical aid, right to die, right to education, right to free legal aid, right against solitary confinement, right to speedy trial, right against handcuffing, right against inhuman treatment, right against delayed execution, right against illegal arrest, right against custodial violence, etc.

In Kishore Singh v. State of Rajasthan the Supreme Court held that the use of ‘third degree’ method by police is violation of Article 21. The Court also held that the punishment of solitary confinement and putting bar fetters on the prisoners in jail must be regarded as barbarous and against human dignity and violative of Articles 21, 19 and 14 of the Constitution.

In Prern Shankar v. Delhi Administration, the Supreme Court held that handcuffing is prima facie inhuman and, therefore, unreasonable, is overharsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21.

In Hussainara Khatoon (No. 1) v. Home Secretary, State of Bihar, the Supreme Court has held that ‘right to a speedy trial’ a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution.

In Suk Das v. Union Territory of Arunachal Pradesh/ the Court has held that free legal aid at the State cost is a fundamental right of a person accused of an offence and this right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.

In Babu Singh v. State of U.P, it was held that refusal to grant bail in a murder case without reasonable ground would amount to deprivation of personal liberty under Article 21.