The concept of fair trial holds an important place in the Justice system of almost all the countries around the world. Without fair trials, innocent people are convicted and the rule of law and public faith in the justice system collapses. The right to a fair trial is recognized internationally as a fundamental human right and countries are required to respect it. Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. Every person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But it is not only about protecting suspects and defendants but also makes societies safer and stronger.
Fair Trials is the watchdog of the Criminal Justice system globally. The right to Fair Trial is one of the cornerstones of a just society. Without fair trials, innocent people are convicted and the rule of law and public faith in the justice system collapses. It is a key role of any Government to maintain Law and Order on behalf of the whole society. “Lex uno ore omnes alloquitur” is an important Latin maxim which forms the basis of judicial proceedings and rights of accused during trials across the world. It means that everyone is equal before the eyes of the law. In a Democratic society, even the rights of the accused are sacrosanct. The right to fair trial means that people can be sure that the process will be fair and certain; it prevents the Government from abusing their powers. The right to a fair trial is recognized internationally as a fundamental human right and countries are required to respect it.
Concept of a Fair Trial
The concept of a fair trial is an open trial by an impartial judge in which all parties are treated equally. The right to a fair trial is one of the fundamental guarantees of human rights and the rule of law, which is aimed at ensuring the administration of justice. Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. Without fair trials, victims can have no confidence that justice will be done and trust in government and the rule of law collapses. The right to a fair trial has been recognized by the international community as a basic human right and is defined in numerous regional and international human rights instruments. The right to a fair trial is one of the most litigated human rights and substantial case laws have been established on its interpretation. As a minimum the right to a fair trial includes the following fair trial rights in civil and criminal proceedings:
- the right to be heard by a competent, independent and impartial tribunal
- the right to a public hearing
- the right to be heard within a reasonable time
- the right to counsel
- the right to interpretation
States may limit the right to a fair trial or derogate from the fair trial rights only under circumstances specified in the human rights instruments.
The Rule of Law
In countries governed by the Rule of Law, every person is subject to the same laws, and no one, however rich or powerful, is above the law. This basic principle is crucial to the Right to a Fair Trial. In our country, the principle of Rule of Law holds an important place and is considered as a pious obligation to be abided by the judicial system,
This principle ensures equality and requires criminal laws to be enforced uniformly. For some suspects, this can mean that special measures are needed to give them a Fair Chance to Present a Defence. Impartial and independent courts are at the heart of the Right to a Fair Trial. This ensures that those deciding whether a person has committed a criminal offense are neutral and are making a fair assessment of the facts. The courts must themselves be created by and subject to the law to ensure independence and prevent arbitrariness.
Respect for the Right to Liberty and Humanly Treatment
Liberty is central to the life of an individual, as to what it means to be human and also is a basic human right in itself. The start of criminal proceedings is often marked by police arrest. This temporary loss of liberty may be entirely justified and authorized by law, but arbitrary arrests are an infringement of the liberty of human beings. To protect against this, people taken into custody must be given reasons for their arrest and be taken promptly before a court. The right for detainees to test the legality of their detention in court (sometimes known as “Habeas Corpus”) is also an important safeguard against torture.
People in detention are entitled to humane conditions where their essential needs are met and, except in extreme circumstances and for a limited time, have a right of access to the outside world, including the right to communicate with family and a lawyer. This is not only crucial to a person’s well-being but is an important safeguard against the maltreatment.
Principles of Fair Trial
Following are the widely accepted general attributes or principles of a fair trial of which some are traceable to the common law, to important Parliamentary reforms and others found set out in international treaties, conventions, human rights statutes and bills of rights:
1. Adversarial System
The Court proceedings in the countries which follow common law are adversarial. The right to equality is protected in this system as both parties have an equal voice of representation. The Code of Criminal Procedure, 1973 is based on an adversarial trial system. This system suggests that the onus of proving the guilt of the accused is on the prosecution and the judge acts as a neutral referee from both sides.
Difference between adversarial and inquisitorial system: In the former, the counsels of both the parties defend their parties and establish the facts which are supporting them. The Judge decides on the behalf of the facts mentioned, whereas in the inquisitorial system the involvement of judges is more. The court is actively involved in collecting evidence. In the inquisitorial system, the judges themselves might conduct the investigation and in certain scenarios, sometimes it can be biased. The inquisitorial system is mostly used in civil legal systems like France and Italy.
2. Presumption of innocence
This presumption of innocence is based on the Blackstone’s ratio, which is the idea that “It is better that ten guilty persons escape than that one innocent suffer”. “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to the law.” (ICCPR Art. 14(2)). The onus of proving that the accused is guilty is on the prosecutor. This principle flows from a Latin maxim, ‘ei incumbit probatio qui dicit, non quinegat’, which means the burden of proof rests on one who asserts and not on who denies.
This principle is also followed in various cases decided by the Indian Courts, in the case of Dataram Singh v State of Uttar Pradesh; it was held that the individual freedom cannot be cut off for an infinite period as long as the person is proved guilty. This freedom can only be affected when the guilt is proved. The apex court in the State of U.P. v. Naresh and Ors held that “every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”
The principle of innocence is a must in a trial to protect the accused from arbitrary and wrongful convictions.
Due to the presumption of innocence, a person cannot be compelled to confess guilt or give evidence against him/her. It is for the state to produce evidence of guilt, not for the defendant to prove innocence. In general, therefore, a suspect’s silence should not be used as evidence of guilt.
Because of the serious consequences of a conviction, the state must prove guilt to a high standard. If doubt remains, the defendant must be given the benefit of the doubt and cleared because the state’s “burden of proof” has not been met.
There are certain provisions in the Indian Evidence Act which provide exceptions to the presumption of innocence likes. 111 A, offense of dowry death, etc.
3. Independent, Impartial, and Competent Judge
The independence of the judiciary is an indispensable aspect of every fair trial. The separation of powers protects the independence of the judiciary. The competency of judges is an important factor that will decide the fate of the judiciary. If the judges appointed are incompetent then the whole process of trial is damaged. This principle can be said to emerge from the principle of natural justice ‘nemo judex in causa sua’ which means no one can be a judge in his cause. Thus, a trial is said to be fair if it is done before an independent, impartial, and competent judge. Independence of the judiciary is an essential part of the Indian Constitution. Section 479 of the Code of Criminal Procedure explicitly prohibits any judge or magistrate to trial any case in which he is a party or personally interested and also prohibits to entertain any appeal from any order or judgment made by him.
Trials are an inevitable aspect to bring out justice. Trials have to be conducted properly following all the procedures and steps so that it would be fair and free from influences. Trials are an examination of offense by the judicial bodies which have jurisdiction over it. Section 304 of the Code of Criminal Procedure, 1973 provides that the State must provide legal assistance to an accused if the Court feels that the accused has no sufficient means to appoint a pleader for his defense. This provision ensures that the trial is not biased as there is equal representation from both sides.
Rights during trials
i. Right of the Accused of Knowledge of Accusation
Article 22(1) of the Constitution provides that it is the fundamental right of every accused to be informed about the grounds of arrest. However, this right can only be exercised only if the accused is informed about the accusation against him. The grounds of accusation must be communicated to the accused in the language which he or she understands. It is important to convey the grounds of accusation to be defended. Section 211 of Cr.P.C incorporates the right to have a precise and specific accusation. Section 50 of the Code of Criminal Procedure also provides that it is the right of every accused to be informed about the various grounds of arrest. The police officer has to inform the person of the various reasons for arrest if the arrest is done without a warrant.
ii. Right to Open Trial
The openness of a trial is associated with fairness. A fair trial requires that trial must be in an open court. The openness of the court as per section 327(1) of Cr.P.C means in which not only parties but also, the general public have access to records of the court.
However, the rule laid down under section 327(1) is followed by an exception. Under section 327(2) the court is bound to observe the trial relating to rape offenses in camera. Cases relating to rape offenses require secrecy and thus, proceedings conducted in the camera are not a violation of the right to a fair trial.
iii. Right to Free Legal Aid
If to ensure a fair trial the accused is to be defended by a legal practitioner, it is also important to ensure that he has all the necessary means to engage a lawyer. This right is secured by Article 39A of the Constitution which provides for equal justice and free legal aid. Section 304 of Cr.P.C also provides for legal aid at the expense of State. Legal assistance to accused that has no means to defend him is crucial to protect his life and personal liberty.
Legal aid has its root not only in Constitution and Criminal laws but also in human rights. In Khatri v. the State of Bihar, the court held that the accused is entitled to free legal services not only at the stage of the trial but also when first produced before the Magistrate and also when remanded. In Madav Hayavadanrao Hoskot Vs. The state of Maharastra the apex court held that a person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal.
His Lordship Justice P.N. Bhagwati aptly stated that legal aid means providing an arrangement in the society which makes the machinery of administration of Justice easily accessible and in reach of those who have to resort to it for enforcement of rights given to them by law…
Access to a lawyer is crucial to this and this right starts from the point of arrest and through the trial itself. People need access to legal advice so that they can understand the case against them and have a Fair Chance to Present a Defence. If a defendant has the means to pay, he/she should be able to choose their lawyer. If the person cannot afford to pay for their lawyer, where the interests of justice require, the state should provide free legal assistance.
iv. Right to Speedy Trial
Speedy trial is an essential feature of a fair trial. Delayed justice leads to a denial of justice. A speedy trial is important not only to the victim but also to the accused. It prevents unnecessary harassment.
The concept of speedy trial flows from Article 21 of the Constitution. In Hussainara Khatoon v. the State of Bihar, the Supreme Court recognized that speedy trial is an essential ingredient of article 21 of the Constitution of India. And it’s the Constitutional duty of the State to set up such procedure as would ensure speedy trial to the accused.
In the case of Moti Lal Saraf v. Union of India, the court observed that the concept of a fair trial is an integral part of article 21 of the Constitution.
v. The trial should be held in the Presence of Accused
The general rule is that all proceedings related to the case should take place in the presence of the accused. The principle behind this is that the court is restricted from making an ex-parte decision. However, this is not an absolute rule and the court has the power to proceed with the case even in the absence of the accused. The court requires the presence of the accused if it feels necessary for the administration of justice.
vi. Evidence to be taken in the Presence of Accused
Indian judiciary places its reliance upon evidence and to ensure the fair and impartial administration of justice, it is just that evidence is taken in the presence of the accused. Section 273 of Cr.P.C provides that all the evidence and the proceedings should take place in the presence of the accused. This rule is backed by an exception under Section 299 of the Code of Criminal Procedure, 1973 which provides the conditions to record evidence in the absence of the accused. The court in the case of State of Maharashtra v. P.B.desai held that section 273 CRPC provides for dispensation from personal attendance. In such cases, evidence can be recorded in the presence of a pleader. The presence of pleader is thus, deemed to be the presence of the accused. Therefore, actual presence is not necessary; a constructive presence is also enough.
vii. Right of an accused person to cross-examine prosecution witnesses and to produce evidence in defense
The accused person has the right to cross-examine any number of witnesses so that it would ensure the fairness of the trial
- Protection against Illegal Arrest:
According to section 57 of the Code, no person arrested will be detained for more than 24 hours and will be produced before the Magistrate within 24 hours. It is also a fundamental right under Article 22(2) of the Constitution. Detention of a person over 24 hours without the permission of the Magistrate will be termed as illegal detention.
ix. Right to Bail
Bail simply refers to the release of a person from the custody of the police. When a person is arrested for a bailable offense, he is entitled to be released on bail. As per section 50(2) of the Code, the police officer must inform the arrested person of his right to bail and allow making arrangements for sureties.
x. Prohibition on Double Jeopardy
This principle is based on the rule of ‘nemo debet vis vexari’ which means no one shall be vexed twice. Prohibition on double jeopardy is a fundamental right protected by the Constitution of India under Article 20(2) which reads as ‘no person shall be prosecuted and punished for the same offense more than once.’ The principle of double jeopardy is based on the doctrine of autrefois convictandautrefois acquit. The principle autrefois convict means ‘formerly convicted’ and the principle autrefois acquit means ‘formerly acquitted’. Autrefois convict is a defense plea that is followed and accepted by the common law countries. This plea ensures that no person is convicted twice for the same offense.
The concept of double jeopardy is also prevented by our Indian Constitution. Section 300 of the Code of Criminal Procedure, 1973 provides that the person once convicted or acquitted not to be tried for the same offense. Subsection (2) and (4) of Section 300 of the Code of Criminal Procedure, 1973 states that the person acquitted or convicted can be tried again if the prior trial was not done by a competent court. The person acquitted or convicted can be tried again with the consent of the State Government for any different offense for which a separate charge has been made against the accused in the formal trial.
xi. Right against Self – Incrimination
Article 20(3) of the Constitution reads, “No person accused of any offense shall be compelled to be a witness against himself.” Thus no person is bound to accuse himself. The right has been provided to ensure that an accused does not make any statement due to threatening, influence, or any other compulsion. However, where an accused himself admits the guilt without any inducement Article 20(3) cannot be invoked. According to this article, the accused is not required to make any statement against his will and the onus is on the prosecution to establish the guilt.
xii. Lawful Punishment
Article 20(1) of the Constitution protects ex-post-facto criminal laws. This implies that if an act is not an offense at the time of its commission it cannot be an offense at the date after its commission. A person can be lawfully punished only for acts that are charged as an offense at the time of their commission. An act charged as an offense at a later date does not make an act committed before such an act punishable.
Generally, a legislature has the power to make retrospective as well as prospective laws. But Article 20(1) prohibits the legislature to make retrospective criminal laws.
- Right to file Appeal
An appeal is initiated to review a judgment given by the lower court by a higher court. An appeal is an inherent right of every person in criminal cases. The appellate court under section 389(1) of the Code is empowered to suspend the execution of any sentence. The court is also empowered to release the convicted person on bail if he is confined if the appeal is pending. Section 374 of the Cr.P.C. provides the right to appeal against convictions to Supreme Court, High Court, and Sessions Court.
Sources of International Law on Fair Trials
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10 December 1948, was the result of the experience of the Second World War. Universal Declaration of Human Rights (UDHR) at global level recognizes the concept of a fair trial as the part of human rights
Article 10 of the Declaration 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 any criminal charge against him.”
Further Article 11 says: “(1) Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his defense.
(2) No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, 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 offense was committed.”
International Covenant on Civil and Political Rights(ICCPR)
Article 6 says “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life…
Article 9 provides for the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention and deprived of his liberty except on such grounds and by such procedure as are established by law.
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. He shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
Further, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Article 14 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…Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted by the law and penal procedure of each country.
Article 15 provides for “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offense was committed. If after the commission of the offense, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.”
The concept in the Indian Constitution on Fair Trial
The right to a fair trial is a concept which is essentially embodied in the Constitution of India. In a democratic country like India, even an accused cannot be denied his right to life and personal liberty. Indian Constitution through its Article 14, 20 and 21 renders the right to equality, rights of accused to a fair trial as a part of life and personal liberty, protection against double jeopardy, ex post facto law, and self-incrimination. These rights have been given a broader perspective and interpretation including in itself even the aspect of the claim of compensation in cases of certain infringements, denials, and abuse of procedures.
Concept of Fair Trial in other countries
Right to Fair Trial in Canada
The first part of the Canadian Constitution is the Canadian Charter to Rights and Freedoms. It is the Bill of Rights which offers a certain right to citizens of Canada. Section 11 of the Charter provides rights in criminal matters to secure a fair and impartial criminal justice system. The right to a fair trial is imparted under Section 11(d) of the Charter – “Any person charged with an offense has the right – to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.”
The Supreme Court of Canada in R v. Rose held that the right to a fair trial is guaranteed by S. 11(d). The obligation of a trial judge to ensure that an accused right to a fair trial is preserved has been enshrined in s.11 (d) of the Charter.
Right to Fair Trial in the United States
The Constitutional Sixth Amendment, 1791guaranteed right to a speedy and public trial by an impartial jury, right to be informed about the accusations and to be defended by a counsel, to the accused. The American Convention on Human Rights in its Article 8(2) recognizes the principle of presumption of innocence. In Coffin V. United States, the Supreme Court of America held that presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Right to a Fair Trial under European Convention on Human Rights
The European Convention on Human Rights is an international treaty in Europe to protect human rights. Article 6 of the Convention guarantees the right to a fair trial. Article 6 (1) provides that anyone who is charged with a criminal charge is entitled to a fair and public hearing by an independent and impartial tribunal. The clause also bars the press and the general public to be part of the trial in the interest of morals, national security, and public order. Clause 3 of the article gives certain rights to accused in the same manner as ICCPR.
- The Supreme Court in the case of Rattiaram v. State of Madhya Pradesh observed that the fair trial is the heart of criminal jurisprudence. A fair trial is a fundamental right which flows from Article 21 of the Constitution. Denial of the fair trial is the denial of human rights. 
- Also, the Court in Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of Nct), stated that every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. Thus, the right to a fair trial being a fundamental right cannot be refused to any person by the virtue of the Constitution. 
- In Zahira Habibullah Sheikh and ors. V. State of Gujarat and ors,  the Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor, and an atmosphere judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witness, or the cause which is being tried, is eliminated.”
- The apex court observed in Himanshu Singh Sabharwal V. State of M.P. Ors, that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court exercise its power under Section 311 of the Criminal Procedure Code or under Section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so subserve the cause of justice.
- In the case of Shyam Singh V. State of Rajasthan, the court observed that the question is not whether bias has affected the judgment. The real test is whether there exists a circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case.
- In X7 v Australian Crime Commission, French CJ, and Crennan J said:
The courts have long had inherent powers to ensure that court processes are not abused. Such powers exist to enable courts to ensure that their processes are not used in a manner giving rise to injustice, thereby safeguarding the administration of justice. The power to prevent an abuse of process is an incident of the general power to ensure fairness. A court’s equally ancient institutional power to punish for contempt, an attribute of judicial power provided for in Ch III of the Constitution, also enables it to control and supervise proceedings to prevent injustice and includes a power to take appropriate action in respect of contempt, or a threatened contempt, about a fair trial.
Dictators and authoritarian regimes are finding new ways of using criminal justice as a tool of oppression; and human rights face new threats from increasing cross-border cooperation to fight crime. The Right to a fair trial is not only an essential right of every accused but also an important part of Human Rights which needs to be respected by nations. It builds confidence in the Judicial system of a country and trust in the governance. It is necessary to follow every above-mentioned aspect to ensure that the trial is free from biases. Thus, various international conventions guarantee these rights and grant recognition to the same.
Frequently Asked Questions (FAQs)
- Principles of a fair trial
- The development of the concept of a fair trial
- Provisions under the Indian constitution related to a fair trial
- The concept of Rule of Law
- Provisions of International law and covenants on Fair trials.
- International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification, and accession by General Assembly resolution 2200A (XXI), of 16 December 1966, entry into force 23 March 1976, under Article 49; Office of the United Nations High Commissioner for Human Rights.
-  Dataram Singh v State of Uttar Pradesh, S.L.P. (CRL.) NO. 151 OF 2018.
-  State of U.P. v. Naresh and Ors, (2001) 4 SCC 324.
-  Khatri v. the State of Bihar, (1981) 2 SCC 493.
-  Madav Hayavadanrao Hoskot Vs. State of Maharastra (1978)3 SCC 544.
-  HussainaraKhatoon v State of Bihar, 1980 1 SCC 98.
-  Moti Lal Saraf v. Union of India, 2007 1 SCC [cri] 180.
-  State of Maharashtra v. P.B.desai, 2003 Cri.L.J.2033 S.C.
-  Constitution Act, 1982, Canadian Charter of Rights and Freedoms Section 11(d).
-  R v. Rose, (1998) 3 SCR 262.
-  Coffin v. the United States,156 U.S. 432 1895.
-  Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485.
-  Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of Nct), Criminal Appeal No. 1091 of 2006.
-  Zahira Habibullah Sheikh and ors. V. State of Gujarat and ors, (2006) 3 SCC 374.
-  Himanshu Singh Sabharwal V. State of M.P. Ors, MANU/SC/1193/2008
-  Shyam Singh Vs. The state of Rajasthan,1973 Crl. LJ 441, 443 (Raj).
-  X7 v Australian Crime Commission (2013) 248 CLR 92,  (French CJ and Crennan J).