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Updated: June 18, 2012 21:16 IST

When trial is punishment

Geeta Ramaseshan
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The role of the state in protecting the individual right is as important as in maintaining “order under law” rather than law and order

The criminal justice system relies heavily on the powers of arrest and detention. Denial of bail, long years of incarceration without trial, and trials that go on for decades are common features resulting in the process itself becoming the punishment. Additionally, the primary legislations that address these issues namely the Code of Criminal Procedure, the Penal Code and the Evidence Act have many outdated provisions that are not in keeping with the current times. This book explores the links between criminal law and constitutional law.

The book comprises four parts. The first part provides an analysis of various judgments of the Supreme Court under Article 19, 21 and 22 and the parameters within which arrest and detentions are constitutionally valid. The second and third provide a critique of some of the existing laws that provide for arrest and detention including preventive detention. The fourth part deals with punitive detention.

This is followed by an Appendix that provides some of the discussions of the Constituent Assembly during the making of Article 21, 22, Schedule VII, List 1, Entry 9 and Schedule VII, List III and entry 3 of the Indian Constitution.

Uma Devi echoes the view commonly held by those who study the criminal justice system that it is crumbling and makes a plea for the replacement of this structure with democratic norms. According to her, in a democracy the State and the individual are not two entities fighting each other. The role of the state in protecting the individual right is as important as in maintaining “order under law” rather than law and order.

Composite code approach

The author argues that there is a “composite code approach” in the Constitution that would obligate reading articles 19, 21 and 22 together. Such an approach would result in a detention being valid only in cases when it is made in the interests of sovereignty, integrity of India and maintenance of public order. There is no real incompatibility between these articles as otherwise it would mean that the precious guarantees of freedoms to citizens under Article 19 can be reduced to nothing even without the proclamation of emergency. However, the Supreme Court has been reluctant to read Articles 19 and 21 together while testing the validity of the concept of preventive detention. But whenever the issue before the court has not been detention per se but the rights of persons subject to the fact of detention the Court has read both the articles together and has fashioned an impressive set of rights.

Right to liberty

The strength of the book is in the second and third parts where the issue of arrests, investigations, trial, bail, remand and preventive detention are discussed. Tracing the history of bail from the pre Norman period to present day she makes a telling statement that at present the provisions of bail and remand cater more to the convenience of the State in conducting investigations and trials. Hence only the affluent can take benefit of these provisions while most of the persons languishing in prisons are drawn from the poorer and marginalised sections of society. She gives numerous examples and case studies when the right to liberty is put to naught, one such being by not showing arrests in police records. These two chapters critique the criminal justice system in many different ways. For instance the Supreme Court in Suk Das’s case observed “there may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State.” She assails this view and puts forth the point that what social justice requires is not depriving an indigent accused of heinous crime a fair chance to prove his innocence, but adequately punishing an accused once he is proved guilty.

However while debating the efficacy of detention as a punitive measure, she contends that the State must root out causes for crime, as “that would be a more lasting and reasonable method to control crime than punishment”. To support this, she advocates that “the State has a responsibility to take active steps by ‘preventive therapy’ for deviants before they turn delinquents.

As the State withdraws its functions from many core areas and responds by dealing with socio economic issues through the realm of criminal law, concerns of arrest, detention and its linkages to the criminal justice system need to be constantly critiqued. This book is a welcome addition in this area.

ARREST, DETENTION, AND CRIMINAL JUSTICE SYSTEM — A Study in the Context of the Constitution of India: B. Uma Devi; Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs. 895.

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