Right to a Fair Trial

Our country is one of the largest democracies in the world with unique diversity. But to have a society with law and order becomes even more necessary to handle the chaos. Our criminal law sees that the correct offender is punished and the victim gets justice accordingly. But human rights should not be violated in any case until a person accused of a crime is proven guilty by an impartial judge by a competent court of law. Not only that the trial must be speedy, to avoid delay injustice. A person cannot be a witness against himself, nor can he be punished twice for the same offense.


The principal objective of criminal law is to protect society from criminal offenders. A criminal trial needs to be fair and speedy. No one should be punished until he is tried impartially by a competent court of law in the land. Fair trial is also recognized internationally as a fundamental human right. Fair trial is an integral part of Article 21 of the constitution and rests on the basic principle of presumption of innocence. Hence there are numerous laws in India as well as internationally along with some basic principles which help ensure justice is provided and there is no gross human rights violation.

International Instruments of Fair Trial

  • The concept of a fair trial has been accepted as human rights jurisprudence in the Universal Declaration of Human Rights, 1948.
  • The major features of a fair criminal trial – Article 10 and 11 of the UDHR.
  • Article 10[i]- 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.
  • Article 11 – (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) in its Article 14(1)[3] provides 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……”

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 21 renders the fair trial a part of life and personal liberty.

In Maneka Gandhi v. Union of India[1], it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable, and just. “We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with the law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a council, there will be a violation of Article 21 of the Constitution.

Section 304 in The Code Of Criminal Procedure, 1973

Legal aid to accused at State expense in certain cases-
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules providing for-
(a) the mode of selecting pleaders for defense under subsection (1);
(b) the facilities to be allowed to such pleaders by the Courts;(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of subsection (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of subsections (1) and (2) shall apply to any class of trials before other Courts in the State as they apply about trials before Courts of Session.
The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a council and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. It is equally true that the absence of fair and proper trial would be a violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304.

Principles of Fair Trial:

(1)Adversary Trial System:

The system adopted by the Criminal Procedure Code, 1973 is the adversarial system. In this responsibility for the production of evidence is placed on the opposing party that is prosecution with the judge acting as a neutral referee between the parties. By contrast, the inquisitorial system responsible for the production of evidence at trial is the job of the trial judge and it is the trial judge who decides which witnesses will be called at trial.

  • Mohd. Hussain v. State Government of Delhi[2]

   It has been observed that in every criminal trial, the procedure prescribed in the Code has to be followed, the laws of evidence have to be adhered to and an effective opportunity to the accused to defend himself must be given.

  1. Presumption of innocence:
  • The Cardinal principle of criminal law is that everyone is presumed to be innocent unless his guilt is proved beyond a reasonable doubt in a trial before an impartial and competent court.
  • Every criminal trial begins with the presumption of innocence in favor of the accused. The burden of proving the guilt of the accused is upon the prosecution. (Exception)
  • In Kali Ram v. State of H.P[3]–  the Supreme Court observed and re-emphasized the necessity of having the principle of ‘presumption of innocence’ “it is no doubt that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse; however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot be felt in a civilized society.”
  • It is the duty of the prosecutor and defense counsel as well as all public authorities involved in a case to maintain the presumption of innocence by refraining from pre-judging the outcome of the trial.

(2) Independent, Impartial, and Competent judge:

  • 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.

Shyam Singh v. the State of Rajasthan[4] the court held 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.

 (3)Accused to Know of the Accusation

It is also one of the attributes of the fair trial that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him.

  • In case of serious offenses, the court is required to frame in writing a formal charge and then read and explain the charge to the accused person.
  • Art. 22(1) renders the right to be informed about the grounds of arrest as a fundamental right and Sec. 50(1) Cr.P.C – 50. A person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offense, he shall inform the person arrested that he is entitled to be Public Hearing in Open Court released on bail and that he may arrange for sureties on his behalf.

(4) Public Hearing in Open Court

  • Court to be open (S.327)

 The place in which any Criminal Court is held to inquire into or try any offense shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

(5)The trial in the presence of the accused

  • The general rule in criminal cases is that all inquiries and trials should be conducted in the presence of the accused person.
  • The underlying principle is that in a criminal trial the court should not proceed ex parte against the accused person.
  •  The reason is that it facilitates the accused to understand properly the prosecution case and to know the witnesses against him so that he can check their truthfulness in a later stage. 

(6) Prohibition on Double Jeopardy:

This principle is placed on the rule of ‘Nemo debet vis vexari‘ which means a man should not be put twice in peril for the same offense. Prohibition on double jeopardy is a fundamental right protected by the Constitution of India under Article 20(2) which reads ‘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 convict and autrefois acquit

Article 20–

  • No person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.
    • No person shall be prosecuted and punished for the same offense more than once.
    • No person accused of any offense shall be compelled to be a witness against himself.

(7) Expeditious Trial:

  • A speedy trial is necessary to gain the confidence of the public in the judiciary.
  • Delayed trial defeats the objective of the re-socialization of the offenders too.
  • Delayed justice leads to unnecessary harassment. Section 309(1) gives directions to the courts intending to have speedy trials and quick disposals.
  • But the real problem is how to make it a reality in actual practice seeing the pendency before the subordinate courts.

Section 309(1) of CrPC provides that ‘In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.’ The speedy trial is a right guaranteed by the Constitution and its denial is the violation of the right to a fair trial.

Hussainara Khatoon (IV) v. Home Secretary, State of Bihar [5]

Facts: The case dealt with the rights of the under trial prisoners on habeas corpus petitions which disclosed a shocking state of affairs regarding the administration of justice in the State of Bihar. An alarmingly large number of men and women, children including, were behind prison bars for years awaiting trial in courts of law. The offenses with which some of them were charged were trivial, which even if proved, would not warrant punishment for more than a few months, perhaps a year or two, and yet they remained in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial has commenced. The Court ordered the immediate release of these undertrials many of whom were kept in jail without trial or even without a charge.

Ruling: Fairness under Article 21 is impaired where procedural law does not provide speedy trial of the accused; does not provide for his pre-trial release on bail on his bond, when he is indigent and there is no substantial risk of his absconding; if an under-trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which could have been awarded on his conviction and if he is not offered free legal aid, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused.

  • Where the petitioner succeeds in establishing his case, the Court would grant him any relief which is necessary to afford proper justice or to prevent manifest injustice regardless of technicalities such as to issue directions to the Government and other appropriate authorities, as may be necessary, to secure to a prisoner his constitutional rights.
  • The Supreme Court held that the state cannot be permitted to deny the constitutional right of the speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus to improve speedy trial.

Khatri  v. State of Bihar[6]

Popularly known as the Bhagalpur Blinding case was the first case where the question of granting monetary compensation was considered by the Supreme Court. In this case, it was alleged that the police had blinded certain prisoners depriving them of their right to life and liberty.  The police had blinded 80 suspected criminals by puncturing their eyes by needles and dousing them by acid.

 The question posed before the Court was whether a person who has been deprived of his right to life or personal liberty by the State, could be compensated by granting monetary relief.

Bhagwati, J. (as he then was) answered it in the affirmative by raising a counter thus:

  • Why should the Court not be prepared to forge new tools and devise new remedies to vindicate the most precious of the precious fundamental right to life and personal liberty?”
  • If compensation was not to be granted, Article 21 would be reduced to a nullity.
  • Justice has finally caught up with the perpetrators of the blinding in Bhagalpur.
  • The three police officers who were involved in the shocking incident were finally convicted for taking the law into their own hands.


Fair Trial means a trial conducted by an impartial judge and where both the parties have equal opportunity to defend themselves. Everyone has a right to a fair and impartial trial undertaken by an independent judge. Fair Trial ensures that where a person who is being accused of an offense is not denied his rights necessary to defend and protect himself.

The state should not insist on good behavior from others when their behavior is blameworthy, unjust, and illegal. Thus, in a democratic society, even the rights of the accused are sacrosanct, though accused of an offense, he does not become a non-person. Constitutional, Evidentiary, and procedural laws have been made for safeguarding the rights of the accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trial.


[1] AIR, 1978, SC597

[2]Mohd. Hussain v. State Government of Delhi,(2012) 9 SCC  408

[3] Shyam Singh v. the State of Rajasthan 1973 2 SCC 808

[4] Shyam Singh v. the State of Rajasthan,1973 Crl. LJ 441, 443 (Raj).

[5] [(1980) 1 SCC 98]

[6] (1981) 2 SCC 493

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