CONSTITUTION LAW OF INDIA

ILS LAW COLLEGE, PUNE

LONGISH TERM PAPER

CONSTITUTION LAW OF INDIA

TITLE: CRIMINAL JURISPRUDENCE UNDER

ARTICLE 21

SUBMITTED TO:

TANUSHI SHARMA MS. SAMPADA KANGANE

ROLL NO. 741

LLM I

1
 CONSTITUTION LAW OF INDIA

INDEX

1. Introduction………………………………………………….…………………...3

2. Research Question……………………………………………..………...……….5

3. Literature Review……………………………………………...…………………5

4. Objective of the Study……………………………………………………………6

5. Research Methodology…………………………………………………………...6

6. Scope of Study……………………………………………………………………6

7. Significance………………………………………………….…………………...6

8. Chapter I – Introduction to Key Concepts…………………………………………..8

9. Chapter II - Basic Principles of Traditional Criminal Justice System……...…..14

10. Chapter III – Indian Perspective………………………………………….………....20

11. Chapter IV – Conclusions & Suggestions ………………………………………21

12. Bibliography………………………………………………………………………22

2
 CONSTITUTION LAW OF INDIA

CHAPTER 1: INTRODUCTION

Article 21 reads as: “No person shall be deprived of his life or personal liberty except
according to a procedure established by law.”

This Article reminds us of one of the famous clauses of the Magna Carta:

“No man shall be taken or imprisoned, disseized or outlawed, or exiled, or in any way
destroyed save . . . by the law of the land.”

It means that no member of the Executive shall be entitled to interfere with the liberty
of a citizen unless he can support his actions by some provisions of law. In short, no
man can be subjected to any physical coercion that does not admit of legal justification.
When, therefore, the state or any of its agents deprive an individual of his personal
liberty, such action can be justified only if there is a law to support such action and the
procedures prescribed by such law have been “strictly and scrupulously” 1 observed.
The word “law” which figures in Art. 21 of the constitution would mean a validity
enacted law and in order to be a valid law it must be just, fair and reasonable.2

According to Justice Bhagwati, Article 21 “embodies a constitutional value of supreme

importance in a democratic society.” Justice Iyer, has characterized Article 21 as “the
procedural magna carta protective of life and liberty. This right has been held to be the heart
of the Constitution, the most organic and progressive provision in our living constitution, the
foundation of our laws. Article 21 can only be claimed when a person is deprived of his “life”
or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private
individuals is not within the preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a procedure
established by law. Article 21 applies to natural persons. The right is available to every person,
citizen or alien. Thus, even a foreigner can claim this right. It however, does not entitle a
foreigner the right to reside and settle in India, as mentioned in Article 19(1)(e).

1
Introduction to the Constitution of India, Dr. Durga Das Basu, Lexis Nexis Publications 21st Edition, P.115.
2
Introduction to the Constitution of India, Dr. Durga Das Basu, Lexis Nexis Publication 21 st Edition, P. 115.

3
 CONSTITUTION LAW OF INDIA

There is no society that is not confronted with problem of criminality. Crime is eternal-as
society itself is. It is best to face the fact that crime cannot be totally abolished except in a
Utopia. Criminal law is essential in a society for maintaining law and order. The question of
the efficacy of the criminal justice system and protection of rights of the people are interrelated
and need constant scrutiny. When the rule of law collapses, it is replaced by matsya nyaya,
which means the law of jungle.3 Criminal law reflects contemporary social consciousness and
faithful mirror of a given civilization, reflecting the fundamental values on which the latter
rests. Criminal law is concerned with the right to life and personal freedom and the restrictions
placed on those rights. Ultimate goal of criminal law is crime-free society.

3
Justice, Markandey Katju, “Individual Liberty and Criminal Law”, Cri LJ Journal, 2010, p.45.

4
 CONSTITUTION LAW OF INDIA

RESEARCH QUESTION
The following question will be answered by the researcher during the proposed research:
How does Criminal Jurisprudence perceive the “Right to Life”?

LITERATURE REVIEW
The rights of a man such as social right and cultural right, natural right as well as right to live
death sentenced condemns or curtails most of these rights. The human rights organization as
improve the quality of life rather than finish life. Death Penalty is not necessary, no person is
never a born criminal and everyman is born good but some circumstances or fanatism compel
him to commit crime. In criminal jurisprudence said “Hate the crime and not the criminal”.
There are many reasons in death penalty against the human rights as well as the abolition of
the death penalty, “Every saint has his past and every sinner has his future”. Offence of death
penalty is murder, highway dacoit, robbery, atrocities on women and child gang rape internet
obscenity and economical offences or white-collar offences. The first sentence will be to award
life imprisonment and not death sentence. India has retained the capital punishment in certain
cases but the basic human right to life is well protected under the constitution.
V.B. Malleswai had written in his book ‘Criminal Justice and Sentencing a Critical Study’,
about the “role of theories of punishments” in the policy of punishment after a trial where the
accused is convicted for wrong doing. The state having responsibility to punish wrongdoers or
not the victims. There are three types of sentencing structure first (indeterminate sentencing
second determinate sentencing and third presumptory sentencing). The punishment should be
pronounced as per the seriousness of the offence. It is based upon aggrading and the mitigating
circumstances. The sentencing legislation sets out principles and commissions.
Some countries are playing role to develop sentencing guidelines, educating the judicial
officers and advising the legislatures and courts on sentencing issues. There is a need of a
uniform policy to ensure certainity in providing protection to the society.
H.L.A Hart had written, “Punishment and responsibility, criminal punishment and justice
system requires money, time and energy, the punitive measures of punishing the society by
deterrence, by incapacitation, by rehabilitation.” The guilt and innocence can figure principles
for the criminal punishment. The punishment of nature involves guilt as well as suffering. The
punishments are made for the wrong that are committed. The punishment is awarded by
vicarious and collative punishment, the punishments as represented punishment and
responsibility. The punishment carries heavy burden to justice it is a considered and intended
response to wrong doers. The punishment that seeks restitution, reparation or apology from the
wrong doers is the rule of law distinction between intended effects and the side effects of the
actions. It is foreseen as certain, foreseen as probable and foreseen as possible. The Latin
maxim actus non fait reum nisi means sit area (retroactive, secret and vague laws).

5
 CONSTITUTION LAW OF INDIA

OBJECTIVES OF THE RESEARCH

The researcher aims at mapping the legal framework of components of criminal justice system
keeping in view the normative and social perspective of the system of criminal justice. The
Constitution of India reflects the quest and aspiration of the humankind for justice when its
preamble speaks of justice in all its forms:- social economic and political. New dimensions
from time to time have been added to the scope of Article 21. The object of the fundamental
right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life
except according to the procedure established by law. It clearly means that this fundamental
right has been provided against state only. If an act of private individual amounts to
encroachment upon the personal liberty or deprivation of life of other person, such violation
would not fall under the parameters set for Article 21. In such a case the remedy for aggrieved
person would be either under Article 226 of the constitution or under the general law. But,
where an act of private individual supported by the state infringes the personal liberty or life
of another person, the act will certainly come under the ambit of article 21. Article 21 of the
constitution deals with prevention of encroachment upon personal liberty or deprivation of life
of a person. A person deprived of life or personal liberty would be against the provisions of
Article 21 of the Constitution.

RESEARCH METHODOLOGY

The researcher has undertaken Doctrinal Method of research due to limitation of time. It is
descriptive and analytical in nature. The researcher will rely on various primary source
(legislation, judgements, regulations and guidelines, etc.) and secondary source like (articles,
journals and websites etc.)

SCOPE OF RESEARCH

To prevent encroachment on and loss of life. Deprivation of personal liberty or to intrude on

another person's life is an act of private individual amounts. Such violations would not fall
under Article 21 for the set parameters. The right to life, meaningful and dignified means
complete. Does not mean it is restricted. It is something more than being alive or animal. The
principle of natural justice is also a part of this study as, “Justice should not only be done but
it should be seen to have been done’ which means that those who receive justice must feel it
has been done with them.

SIGNIFICANCE

Human Rights have always traditionally hailed to have been on a higher pedestal when
compared to other state sanctioned rights. These are universally regarded and considered to be
sacrosanct in their essence. It is for this reason, that their presence is warranted in any branch
of the societal sanction of law. Perhaps it is more so in criminal jurisprudence as this dimension
of the law presents one too many opportunities where human rights may be blatantly

6
 CONSTITUTION LAW OF INDIA

disregarded. These safeguards are important protections against abuses of power which affect
the life, liberty, and physical integrity of individuals. Without these protections and limitations
on the potential abusive exercise of power by the State, democracy could not exist.

7
 CONSTITUTION LAW OF INDIA

CHAPTER 1: INTRODUCTION TO KEY CONCEPTS

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

”Every person’s life, liberty and security is” undoubtedly the most fundamental of all rights.
In its original meaning Article 21 was interpreted as a fundamental right is not worth a mention.
Article 21 says, "life" is not only the physical act of breathing but it includes right to health,
right livelihood, right to live with human dignity, which includes in a very broad sense free air,
the right to unpolluted environment, protection of wildlife, forests, lakes, ancient monuments,
flaura & fauna, protection from noise, and maintenance of ecological balance. Francis Coralie
in Bhagwati. J Cram Kapra and house party slogan [food, clothing and shelter] increase in the
dimensions of Maneka4. Thinking and feeling full learned judge "to include faculties for life
concept of the right to elaborate, He added: Judge Learned "human dignity, basic needs"
include family and friends to socialize with members of the "right to live" interpretation. In the
above case Bhagwati.J., 'Right to life' through 'individual freedom' to bring in concepts related
to. This personal freedom is not free from criticism that this interpretation is presented. The
word 'life' separate 'personal liberty' in Article 21 is involved with. Makes such a huge sense
of personal freedom, the word "life" would be redundant. The Supreme Court jurisprudence
Indian independence brought the level of international standard. Francis ratio in the Asiad
workers’5 basic human dignity was implemented to develop. Then mix the new socio-economic
order thus produced was dissolved in constitutional goal. Court contract workers [Reg require
compliance with the provisions of 'individual freedom' in the interpretation of basic human
dignity & abolition] Act, 1970, and interstate migrant Workmen [Reg. Employment and
Conditions of Service] Act, 1979. The meaning of individual freedom and social welfare
benefits provided under the laws and protection provided to workers has come to include.
Livelihood under Article 21 so as to include the word "life" as an explanation of the question
again for the first time before the Supreme Court in Sant Ram6 came to the idea. Speaking
through court Sinha, Chief Justice, the language of art, worked on it. The question then fixing
the ceiling on agricultural holdings, land reform challenge was against the law where Begulla
Bapi Raju v Andhra Pradesh7 was raised in Sant Ram following the court again, "life and
personal liberty" in the "liveliness" of Maneka and Francis Coralie rejected and the decision

4
Maneka v. Union of India [1978] AIR, 1978 AIR 597 [para 54-56, 63-a seven Judge Bench]
5
PUCL v Union of India [1982] AIR, 1982 AIR 1473
6
Sant Ram v Unknown [1960] AIR, 1960 AIR 932
7
Begulla Bapi Raju v Andhra Pradesh [1983] AIR, 1983 AIR 1073

8
 CONSTITUTION LAW OF INDIA

was not examined in the light of the above claims. However, in the case of Olga Tellis v
Bombay Municipal Corporation8 relating to slum dweller it was laid down by the court that, (i)
the term “Life” includes right to livelihood because no person can live without means of living.
(ii) By “Life” is meant more than mere animal existence. (iii) The inhibitions against the
deprivation of life extends to all those limits and faculties by which life is enjoyed. Only one
person has the right to protect the livelihood of the standard. The court in Sankar Banerjee v
Durgapur Projects Ltd9 "decent housing" extended to include the right to live. The standard of
living of the petitioner was entitled. To ensure minimum standards of human dignity for women
and children and the fundamental right of every human to live with dignity free from all
exploitation was held laid down in the case of Bandhua Mukti Morcha v Union Of India.10

MEANING AND CONCEPT OF PERSONAL LIBERTY

Freedom of the individual to be protected by national courts is one of the oldest concepts. Until
1215, the English Magna Carta, No Freeman shall be taken or imprisoned, provided that, but
by the law of the land. Eighteen words short paragraph cherish the ideals of freedom, which is
of the greatest importance for those. What could be more important than freedom? 'Freedom'
concept in India has received a far more expansive interpretation. Surprisingly, the word "life"
in which the American Justice in Munn v. Illinois11 held the term "personal freedom" means
the trust of both majority and minority on the bench meant something more than mere animal
existence. The above statement has been repeatedly quoted by our honourable Supreme Court,
but has been further expanded in Francis Coralie Mullin v The Administrator, Union Territory
of Delhi & Othrs.12 It was laid down Right to Life includes right to live with human dignity
and all that goes along with it.

Procedure Established by Law, means that a law that is duly enacted by the legislature or the
concerned body is valid if it has followed the correct procedure. Following this doctrine means
that, a person can be deprived of his life or personal liberty according to the procedure
established by law. The wavelength of the Allahabad High Court raised an important question.
The court gave a positive answer to it. Article 21 sought to apply the shadow detail or fashion

8
OlgaTellis v Bombay Municipal Corporation [1986] AIR, 1986 AIR 180
9
Sankar Banerjee v Durgapur Projects [1987] AIR, 1986 AIR 136
10
Bandhua Mukti Morcha v Union of India [1997] AIR, 1997 SCC 549
11
Munn v Illinois, 94 U.S. 113, 4 Otto 113; 24 L. Ed. 77; 1876 U.S. LEXIS 1842
12
Francis Coralie Mullin v The Administrator, Union Territory of Delhi [1981] AIR, 1981 AIR 746

9
 CONSTITUTION LAW OF INDIA

icon status could be abused by people. Such a situation can be set right by the state, making it
the law on the subject, is presented.

HISTORICAL BACKGROUND OF RIGHT TO LIFE AND PERSONAL LIBERTY

Throughout the ages the complex laws, customs and religions deal with our society. Individual
rights are references to the codification of the law is the first example of a tablet of Hammurabi.
About 4000 years ago, Sumerian tablet was built by King Hammurabi. Considered barbaric by
today's standards, the 282 system of laws created a precedent for the legal system. This kind of
precedent and legally binding document that protects people from arbitrary harassment and
punishment. The concept of human rights, prevention of arbitrary persecution began to take
greater meaning than the one where it was in ancient Greece. Human rights, rights that have
become synonymous with natural rights spring from the natural law. Socrates and Plato,
according to Greek tradition, natural law is essentially the natural order of the universe, nature
reflects the will of the gods who control the law. Despite this theory, human rights, natural
rights contain fundamental differences between today and the past. The fundamental
philosophy of human rights arose from the idea of positive law. Thomas Hobbes (1588-1679)
vast differences of interpretation as being too vague and open hollow. So instead of being
wholly positive human rights law, they can be taken away, and modified by a society to suit
your needs. Jeremy Bentham, a legal positivist sums up the essence of the positivist view from
real laws come real rights, but from imaginary laws, from the "laws of nature," come imaginary
rights. Bentham quoted “Natural Rights are nonsense upon stilts.”

Dwelling in a body and life & liberty have existed in ancient times, the evidence to support that
approach, Rigveda, ancient texts like the Mahabharata, home life and the principle of individual
liberty deeply rooted in ancient Indian society are full of literature to that conclusion. The
British Era, The West Bengal State Prisoners Regulation, 1818, in the interest of peace and
security of the people of the detention of any person authorized by wanted at that time people
had the same rights and privileges enjoyed by the British. Indian people wish it was implicit in
the formation of the Indian National Congress in 1885. Heralds the dawn of the fundamental
rights of the Indian national movement demanded for Fundamental Rights Bill, between 1917
and 1919. Congress adopted a series of resolutions 1895 and also appeared in the Constitution.
With regard to the fundamental right to life and liberty Nehru Report a systematic approach,
started with 1928. This, says among other things, contained a chapter on fundamental rights:

10
 CONSTITUTION LAW OF INDIA

No person will be entering your home or property shall not be deprived of his liberty,
sequestered or confiscated, save in accordance with law. Over the people of India demand was
rejected by the British Government of India Act, 1935 contained no declaration of fundamental
freedoms. The protection from unlawful arrest and detention Criminal Procedure Code, 1898
is available under the writ of habeas corpus. As it was laid down in the case of Emperor v
Keshav Talpade13 in federal court. The rule was held ultra-virus. Privy Council, on appeal, the
governor personally in every order of detention must be satisfied that the federal court did not
agree with that view. To check the validity of the detention order that the court had no power
to dismiss the Crown's contention. The main question before the new ordinance, federal court
under the Criminal Procedure Code, Section 49, the power of the High Court denied the spring
Laxman Chandra Ghosh v. King Emperor14, was challenged. Federal Court of the High Court
Ordinance stripped neither the power nor does it rule out that Section 491 was repealed. In
India, frequent protests and attempts foiled courts. The mission of the Privy Council in the
hands of the federal courts on the ground of expediency deprived of his personal liberty that
every man to be in favor of the constitutionality of government action.

13
Emperor v Keshav Talpade [1944] 46 BOMLR 22
14
Laxman Chandra Ghosh v. King Emperor [1948] AIR, 1948 AIR 278

11
 CONSTITUTION LAW OF INDIA

CONTRIBUTION OF VARIOUS JURISTS TO THE NOTION OF HUMAN RIGHTS

There were many important people throughout history that contributed to the notion and
understanding of human rights. These are some of the pioneers of the concepts.

Plato

Plato believed in universal truth and virtue. This idea has continued on to become universalism,
that human rights are universal, and as such are above the laws of individual states.

Aristotle

Aristotle’s view of the world included the existence of different social classes, accepting that
there will always be an underclass, and even a slave class but it will be perfectly normal.

St. Thomas Aquinas

He saw that basic human needs such as self-preservation require fundamental human rights.

Thomas Hobbes and Jeremy Bentham

Positive law is the idea that law and human rights come from the state. Hobbes and Bentham
were positive law theorists who believed that human rights needed strong laws to protect them.
One difference from previous viewpoints is that these rights can be given and taken away by
the state, they are not universal. Bentham believed in utilitarianism, that there should always
be the greatest amount of good for the greatest number of people.

John Locke

The positive law view was changed to include the idea that the state’s law stemmed from a
constitution, the legal framework of the society. The constitution however, was itself based on
natural law, which includes a natural right to self-preservation. Therefore, the power of the
state was still subject to inalienable human rights. The state should protect individuals from the
actions of other that would impinge on their freedoms. Citizens should be empowered to revolt
if they felt that the state was abusing its power. This became the underlying idea behind the
French and American revolutions and their subsequent development of new nations.

Jean-Jacques Rousseau

Rousseau came up with the social contract theory, that stated that all individuals in a society
had entered into a contract to form a civilized society in exchange for the government giving
them equality.
12
 CONSTITUTION LAW OF INDIA

Immanuel Kant

In his book On Liberty, Mill strongly disagrees with utilitarianism, and sees it as a type of
tyranny by the majority. Liberties such as freedom of expression and association should not be
absolute, but that they should exist in such a way as not to deprive others of their ability to
achieve their own liberties.

Karl Marx and Friedrich Engels Marx and Engels

The fathers of communism, saw rights in an entirely different view, namely that they were
unconnected to the reality of the exploitation of the working class. Unlike Mills, Marx had
another definition for liberalism as something to be gained through government, rather than as
a freedom from interference. Equality was more important than liberty, especially in the
ownership of private property (fundamental tenet of communism). Only one fundamental right
existed under their system, that of revolution.

Ronald Dworkin

Dworkin’s philosophy disagrees with Bentham’s rejection of natural rights. He sees human
rights not as being absolute and universal, but as being a creation of politics that try to treat all
people equally. Therefore all members of society have the same voice, which is not dependent
on their social status. Utilitarianism, with its idea of ignoring the rights of minorities in the
name of the greatest good for the majority threatens to destroy the entire concept of individual
human rights.

13
 CONSTITUTION LAW OF INDIA

CHAPTER 2: BASIC PRINCIPLES OF TRADITIONAL CRIMINAL

JUSTICE SYSTEM

Liberty is the eager maintenance of that atmosphere in which men have the opportunity to be
their best selves.15 However, unrestrained freedom will result in conflict of interests and destroy
peace for no man stands alone; he lives with others and in others. This necessitates subjecting
of individual liberty to the authority of state to impose limitations that is also limited. Arbitrary
limitations on liberty are not tolerated. Due Process of Law guards the individuals against such
arbitrariness. The best description of the expression "Due Process of Law" would be to say that
it means in each particular case such an exercise of power of government as the settled maxims
of law permit and under such safeguards for the protection of the individuals’ rights as those
maxims prescribe. “Due” means, “what is just and proper”. In the field of criminal law, the due
process model is grounded on the idea of a confrontation between an individual and a state
whose interest are irreconcilable.16 The Due Process model is highly formal in structure. One
may be found guilty only if the facts are established according to fixed rules before a competent
tribunal. The presumption of innocence plays a decisive role. Certain of the evidence is not
admissible, the burden of proof is on the state, the accused at trial is guaranteed certain rights.
These are the only few aspects of the Due Process model. These protections serve two
overlapping and sometimes conflicting goals: truth determination and protection of the
individuals’ rights from encroachment by the state.17 That is protection of the innocent and
punishing the guilty. Procedural law is intended to facilitate and not obstruct the course of
justice. These basic principles of traditional Criminal Law were based upon old laissez faire
notions of individualism and theory of natural rights and were tilted in favor of the individual.18
The well-being liberty and security of the individual were the cornerstone of these principles.
“Law is a human institution created by human agents to serve human ends.”19 “Rule of law
must run close to the rule of life.”20 Indian traditional administration of criminal justice system
derived from the Anglo-Saxon Common rules neither serves human ends nor is close to rule of

15
Harold J Laski, A Grammar of Politics, 5th edition, (London: George Allen and Unwin Ltd, 1962), p.142.
16
Francois Tulkens, “Criminal Procedure: Main Comparative Features of the National Systems” in, The
Criminal Process and Human Rights: Towards a European Consciousness, Mirelle Delmas- Marty (ed.),
(Dordrech: Martinus Nijhoff Pub. 1995), pp, 10-11.
17
David M.Crowe, “Costs and Plea Bargaining Process: Reducing the price of Justice to the Non indigent
Defendant”, (1979) 89 Yale L.J. 333-352 at 334.
18
Mahesh Chandra, Socio-Economic Crimes, (Bombay: N. M. Tripati Pvt. Ltd. 1979), p.110.
19
Krishna Iyer, V.R., Perspectives in Criminology, Law and Social Change, (New Delhi: Allied Publishers Pvt.
Ltd, 1980), p.67.
20
Ibid.

14
 CONSTITUTION LAW OF INDIA

life. Following are the principles that constitute main structure of traditional criminal justice
system.

1. Doctrine of nellum crimen sine lege. (No act or omission is crime unless statue prohibits it.)

2. Doctrine of nulla poena sine lege, (Doctrines of Strict Construction).

3. Doctrine of et actus non facit resum nisi mens sit rea. (Mens rea and Actus reus both must
concur to constitute crime.)

4. Doctrine of praesmptiones juris sed non de jure. (Accused is presumed to be innocent until
his guilt is proved)

5. Doctrine of nemo tenebatur prodere seipsum. (Rights against self-incrimination).

Doctrine of Nellum Crimen Sine Lege

Nullum crimen sine lege means no conduct shall be held criminal unless the statue prohibits
it.21 Statue is only source of creation of crime and custom does not enjoy this privilege. The
Roman jurisprudence strictly adhered to norm that crimes both offences and penalty be exactly
described in the statute.22 The various crimes should be clearly defined, so that persons know
what crime is and what is not. Vague laws may trap innocent by not providing fair warning.
Such laws impermissibly delegate basic policy matters to police officer and judges for
resolution on ad hoc and subjective basis, with the attendant danger of arbitrary and
discriminatory application. More uncertain and undefined words deployed inevitably lead
citizen to “steer far wider of the unlawful zone than if the boundaries of the forbidden areas
were clearly marked”.23 An act, howsoever reprehensible it may be is not a crime unless
prohibited by law.

Doctrine of Nulla Poena Sine Lege

Nullu poena sine lege has several meanings. In narrow connotation, no person shall be punished
except in pursuance of a statute. In addition, nulla poena sine lege has been understood to
include the rule that penal statutes must be strictly construed. The principle of legality (nullum
crimen sine lege), is the rule of construing criminal statute in favor of the subject.24 The Origin

21
Jerome Hall, Principles of Criminal Law, Indianapolis: (The Bobbs-Merrill Company Publishers, 1947), p.20.
22
Jerome Hall, op, cit., p.21.
23
Kartar Singh v. State of Punjab, [1994] 3 SCC 569 at 575.
24
47th Report of the Law Commission of India on The Trial and Punishment of Social and Economic Offences,
(New Delhi: Ministry of Law and Justice, Government of India, 1972), p.11.

15
 CONSTITUTION LAW OF INDIA

of nulla poena sine lege can be found in 39th clause of Magna Carta which latter developed
into the concept of “Due Process”. The V and XIV amendments of U.S. Constitution give
constitutional recognition to Due Process.25 This doctrine along with nullum crimen sine lege
provide basic constitutional safeguards of the individual against the oppressive government but
also act as cardinal principles of criminal law. According to the principles of interpretation of
statutes, a remedial statute receives a liberal construction, whereas a penal statute is strictly
construed. It is well settled that statute which imposes a term of imprisonment for what is a
criminal offence under the law must be construed strictly. Any doubt in the penal statute is
resolved in favor of the accused. If criminal statute is ambiguous, the construction that prefers
the liberty of the subject must be given effect. Pollock, C.B. has said, “I should say that in
criminal statute you must be quite sure the offence charged is within the letter of the law”.
Supreme Court’s five judges’ bench in Kartar Singh v. State of Punjab while upholding the
validity of Section 3 of Terrorists and Disruptive Activities (Prevention) Act, 198726 (herein
after referred as TADA, 87) cautioned that since provision of TADA 87 tend to be very harsh
and drastic containing stringent provisions they must be strictly construed. Therefore, when
law visits a person with serious penal consequences extra care must be taken to ensure that
those whom the legislature did not intend to be covered by the express language of the statue
are not roped by stretching the language of the law. Five judges Constitution Bench in Sanjay
Dutt’s case under TADA 87 observed that:

“…if there is a reasonable interpretation which will avoid the penalty in any particular case, we must
adopt that construction and if there are two reasonable constructions, we must give the more lenient one,
and if two possible and reasonable constructions can be put upon a penal provision, the court must lean
towards that construction which exempts the subjects from the penalty rather than the one which imposes
penalty.”27

Lord Esher observed, “If there is a reasonable interpretation which will avoid the penalty in
any particular case we must adopt that construction. If there are two reasonable constructions
we must give the more lenient one.” Supreme Court has said, “If two possible and reasonable
constructions can be put upon a penal provision, the court must lean towards that construction
which exempts the subject from penalty rather than one which imposes penalty. It is not
competent to the court to stretch the meaning of an expression used by the Legislature in order
to carry out the intentions of Legislature.” “Acts of Parliament,” said Coke C.J., “are to be so

25
V Amendment of US Constitution states … “No person shall … be deprived of life, liberty, or property,
without due process of law…” And XIV Amendment, “… nor shall any State deprive any person of life, liberty,
or property, without due process of law….”
26
Act 28 of 1987
27
Sanjay Dutt v State through CBI, Bombay, [1994] 5 SCC 410 at 445.

16
 CONSTITUTION LAW OF INDIA

construed as no man that is innocent, or free from injury or wrong, be by a literal construction
punished or endangered”.28

Section 5 of the TADA 87 provides: ‘where any person is in possession of any arms and
ammunition specified in columns 2 and 3 of the category I or category III (a) of schedule 1 to
the Arms Rules, 1962 or bombs, dynamite or other explosive substance unauthorized in a
notified area, shall notwithstanding anything contained in any other law for the time being in
force, be punished with imprisonment for a term which shall not be less than five years which
may be extended to life imprisonment and shall also be liable to fine’. Section 5 requires three
ingredients: First, possession of any specified arms and ammunition etc. Second, unauthorized.
Third, in a notified area. The Section does not in terms provide that the accused can in any way
escape punishment if the aforesaid three ingredients are established. However, the Apex Court
held that possession of unauthorized arms in notified area raised the presumption the arms etc.
were meant to be used for a terrorist or disruptive act which was in effect the third ingredient.
Therefore, Court by way of construction of Section 5 facilitated the accused to disprove that
presumption by proving his unauthorized possession of arms was not related to terrorist and
disruptive activities and escape the punishment.26 There was possibility of interpreting Section
5 in accordance with letters of words used therein and enlarging its scope. However, the
Supreme Court decided in other way by adding qualification that possession of unauthorized
arms must be for terrorist and disruptive activity which had restricted its scope. Obviously that
interpretation was in favour of the accused. The Defence General Regulations, 1939, prohibited
the carrying out of certain work ‘except in so far as there is in force in respect thereof a license
granted by the minister’, and provided that in case of contravention of the regulation ‘the person
at whose expense the work is executed’, and the person undertaking the execution, shall each
be guilty of an offence. The Court of Appeal construed these regulations strictly and held that
the regulation was not contravened if the work executed was covered by a license although not
in the name of the person at whose expense the work was executed. The effect of the rule of
strict construction might be summed up by saying that, where an equivocal word or ambiguous
sentences leaves a reasonable doubt of its meaning which canons of interpretation fail to solve,
the benefit of the doubt should be given to the subject and against the legislature which has
failed to explain itself. The Supreme Court said there is more reason to construe strictly a
drastic penal statute which deals crimes of aggravated nature which could not be effectively
controlled under ordinary criminal law. Court observed that TADA 87 provisions cannot be

28
Glanville Williams, Criminal Law, 2nd edition, (London: Stevenson & Sons, 1983), p.929.

17
 CONSTITUTION LAW OF INDIA

restored to ordinary crimes which can be checked under ordinary criminal law because those
provisions are very stringent. Hence TADA 87 was strictly construed.

18
 CONSTITUTION LAW OF INDIA

CHAPTER 3: INDIAN PERSPECTIVE

Mens rea in Statutory Offences

Where an offence created by a statue however comprehensive and unqualified the language of
the statue, it is usually understood as silently requiring that the element of mens rea should be
imported into the definition of the crime unless a contrary intention is expressed or implied.
Nevertheless, that mens rea should be presumed to be implied in crime unless contrary
expressed was on decline trend. In 1990 Kennedy L.J., said that “There is a clear balance of
authority that in construing a modern statute this presumption as to mens rea does not exist.”
Later the judges became bolder, and placed their decisions not on the language of the statue
but on broad social ground, saying that the purpose of the legislation would be defeated if it
were held necessary for the prosecution to prove mens rea. Conduct so made punishable by
statute is often classified as “public-welfare offences” or “regulatory offences” or “offences of
strict liability”. There are, it is true, some of cases though they are few, where proof of
negligence would in practice be impossible, even though negligence is very likely. Mens rea
may be abandoned in respect of some element where it would be difficult to prove. Strict
liability prevents people getting away with dishonest defenses. Strict liability exempts the
prosecution from having to prove fault, but not from having to prove the act is done in breach
of statute. Once strict liability supported by raison d’état, it could readily be extended to penal
legislation in general. The Supreme Court in Kartar Singh v. State of Punjab, observed that:

“In a criminal action, the general conditions of penal liabilities are indicated in old maxim ‘actus
non facit reum, nisi mens sit rea’ i.e. the act alone does not amount to guilt, it must be
accompanied by a guilty mind. But there are exceptions to this rule and the reason for this is
that the legislature, under certain situations and circumstances, in its wisdom may think it so
important, in order to prevent a particular act from being committed, to forbid or rule out the
element of mens era as constituent part of a crime.”

Presumption of Innocence of Accused

Whenever a court is called upon to decide any question of fact, it may do either by obtaining
actual evidence or by prior presumptions. The doctrine praesumptiones juris sed non de jure
means inferences of facts hold good until evidence has been given which contradicts them.
Accused is presumed to be innocent until his guilt is proved. So strong is this presumption that,
in order to rebut it, the prosecution must prove accused guilty beyond reasonable doubt and the
graver the crime the greater will be the degree of doubt that is reasonable. The golden rule of

19
 CONSTITUTION LAW OF INDIA

evidence has emerged from the case of Woolmington v. D.P.P, wherein the House of Lords
asserted that accused presumed to be innocent is fundamental doctrine of criminal cases. Lord
Chancellor Viscount Sankey said, “If the jury is left in reasonable doubt whether act was
unintentional or provoked, the prisoner is entitled to be acquitted”. Further, the following
general statement of Lord Chancellor has affected the entire criminal jurisprudence.

“Throughout the web of 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 the defense of insanity and
any statutory exception. If at the end of the whole case there is a reasonable doubt, as to whether
the prisoner killed the deceased with malicious intention, the prosecution has not made out a
case and the defendant is entitled to acquittal.”

The burden of proof so placed upon the prosecution remains with them throughout the trial.
Obviously, it does not shift to the defendant merely because the prosecution makes out a prima
facie case. The burden of proof in criminal cases is heavier because in civil cases it is balance
of probabilities. There are several reasons for placing the burden of proof on the prosecution,
which is a universal rule. Firstly, the State has huge resources, network and work force to
collect the evidence compared to the position of accused. Secondly, criminal proceedings are
initiated and structured by the prosecutor before the court. Naturally, it is the duty of prosecutor
to answer the charges. Thirdly, proving the positive act of human being is easier than the
negative act. Fourthly, placing the burden of proof on accused results in serious injustice, that
is unfair, and unjust. Failure of the accused to convince the court of his innocence simply results
in his conviction. It is believed that this would give scope for negligence and abuse of State
power.

20
 CONSTITUTION LAW OF INDIA

CHAPTER 4: CONCLUSIONS AND SUGGESTIONS

There is an inseparable link between the protection of individual and collective human rights
and democracy, which assumes great significance in Criminal Jurisprudence. The famous
American lawyer Ramsey Clark once remarked “A right is not what someone gives you; it is
what no one can take from you.” Human rights, to put them in the simplest terms as to distance
from needless jargons, are those rights that one is entitled to, basically by the virtue of being a
human being. The protection that is offered to human rights has seen a significant increase in
the preceding century, owning to the fact that a majority of nations in the world have a common
edifice of legal values.

It would be wrong to suggest that the Indian Criminal System has been oblivious to the
protection of human rights; however, the truth still remains that in spite of widespread efforts
to uphold the protection of these rights, the implementation of this essential protection still
stays put to a very large extent and is questionable to say the least. Various human rights have
been enunciated in multiple cases decided by the Supreme Court, in addition to being statutorily
granted under the Code of Criminal Procedure of 1973.

Every Criminal trial begins with the presumption of innocence in favour of the accused and the
provisions of the Code are so framed that the criminal trial should begin with and be governed
throughout by this indispensable presumption.29 Some of the most important human rights that
have been recognised in Indian Criminal Jurisprudence can be summarised as follows: The
right to have a fair trial as held in Prabha Dutt vs. Union of India; the right against handcuffing
as in Prem Shankar Shukla vs. Delhi Administration; the right against torture and custodial
violence as a human right in DK Basu vs. State of West Bengal; the right against being
compelled to be a witness against oneself in the cases of Nandini Sathpathy vs. P L Dani and
Selvi vs. State of Karnataka; the right of access in the broadest possible terms, including access
to free legal aid and in an expedited manner as held in AR Antulay vs. RS Nayak. In State of
West Bengal vs. Committee for Democratic Rights, West Bengal, it was held that “under
Article 21, the State has a duty to enforce the human rights of a citizen providing for fair and
impartial investigation against any person accused of commission of a cognizable offence,
which may include its own officers. In certain situations even a witness to the crime may seek
for and shall be granted protection by the State.

29
Talabhaji Hussain vs. M.P.Mondkar [1958] AIR, 1958 SC 3

21
 CONSTITUTION LAW OF INDIA

BIBLIOGRAPHY

BOOKS:

• W. Friedman, Law in Changing society.

• An Introduction to the Study of The Law of the Constitution, 16th Edition, Universal
Law Publication.
• Paranjape, N.V., Criminology and Penology, VII Edition.
• S.N. Mishra, The Indian Penal Code.
• Dr. Durga Das Basu, Introduction to the Constitution of India, Lexis Nexis
Publications 21st Edition
• P.M. Bakshi, The Constitution of India, 13th Edition.

ARTICLES:

• D.P. Das, Discretion in the Sentencing Process: Case studies under the Indian Criminal
Justice System Cr.L.J. July (1996) p.65
• Bikranjeet Batra “Justice of Revenge” (Frontline, June 2010)
• Dr. K.S. Chhabra, Quantum of punishment in criminal Law in India. p.104-106

22