CHRI 2019 Fair Trial Manual A Handbook for Judges and Magistrates Fair Trial Manual: A Handbook for Judges and Magistrates i COMMONWEALTH HUMAN RIGHTS INITIATIVE The Commonwealth Human Rights Initiative (CHRI) is an independent, non-profit, non-partisan, international non-governmental organisation working in the area of human rights. In 1987, several Commonwealth professional associations founded CHRI, since there was little focus on human rights within the association of 53 nations although the Commonwealth provided member countries the basis of shared common laws. Through its reports and periodic investigations, CHRI continually draws attention to the progress and setbacks to human rights in Commonwealth countries. In advocating for approaches and measures to prevent human rights abuses, CHRI addresses the Commonwealth Secretariat, the United Nations Human Rights Council members, the media and civil society. It works on and collaborates around public education programmes, policy dialogues, comparative research, advocacy and networking on the issues of Access to Information and Access to Justice. CHRI’s seeks to promote adherence to the Universal Declaration of Human Rights, the Commonwealth Harare Principles and other internationally recognised human rights instruments, as well as domestic instruments supporting human rights in the Commonwealth. CHRI is headquartered in New Delhi, India, with offices in London, UK and Accra, Ghana. International Advisory Commission: Alison Duxbury, Chairperson. Members: Wajahat Habibullah, Edward Mortimer, Sam Okudzeto and Sanjoy Hazarika. Executive Committee (India): Wajahat Habibullah, Chairperson. Members: B. K. Chandrashekar, Jayanto Choudhury, Maja Daruwala, Nitin Desai, Kamal Kumar, Madan B. Lokur, Poonam Muttreja, Jacob Punnoose, Vineeta Rai, Nidhi Razdan, A P Shah, and Sanjoy Hazarika. Executive Committee (Ghana): Sam Okudzeto, Chairperson. Members: Akoto Ampaw, Yashpal Ghai, Wajahat Habibullah, Kofi Quashigah, Juliette Tuakli and Sanjoy Hazarika. Executive Committee (UK): Joanna Ewart-James, Acting Chairperson. Members: Richard Bourne, Pralab Barua, Tony Foreman, Neville Linton, Suzanne Lambert and Sanjoy Hazarika. Sanjoy Hazarika, International Director ©Commonwealth Human Rights Initiative, 2019. Material from this report may be used, duly acknowledging the source. ISBN: 978-93-81241-74-5 CHRI Headquarters, New Delhi CHRI London CHRI Africa, Accra 55A, Third Floor Room No. 219 House No.9, Samora Machel Street Siddharth Chambers School of Advanced Study Asylum Down, Opposite Beverly Kalu Sarai, New Delhi 110 016 South Block, Senate House Hills Hotel Near Trust Towers, India Malet Street, London WC1E Accra, Ghana Tel: +91 11 4318 0200 7HU, United Kingdom Tel/Fax: +233 302 971170 Fax: +91 11 2686 4688 E-mail: Email: E-mail: [email protected] [email protected] [email protected] www.humanrightsinitiative.org Fair Trial Manual: A Handbook for Judges and Magistrates ii Fair Trial Manual A Handbook for Judges and Magistrates 2019 Second edition REVISED AND EDITED BY Mrinal Satish and Maja Daruwala RESEARCH AND WRITING (1st EDITION) Navaz Kotwal RESEARCH TEAM (1st EDITION) Sital Kalantary Sheila Chitran Richard Jamgochian FIRST EDITION EDITED BY Maja Daruwala Prepared by the Commonwealth Human Rights Initiative (CHRI) and the International Human Rights Clinic, Cornell Law School Second edition is revised by the CHRI and the Centre for Constitutional Law, Policy and Governance, National Law University, Delhi Fair Trial Manual: A Handbook for Judges and Magistrates iii ACKNOWLEDGEMENTS CHRI started its judicial reform programme in collaboration with INTERIGHTS, London in 2001. From holding judicial colloquia with judges across the Commonwealth, it narrowed down to colloquia with High Court judges in India. However, soon realising the need for training and sensitisation of the cutting-edge lower judiciary CHRI began a concentrated training and sensitisation programme on human rights in the administration of justice for district judges and magistrates. A series of workshops were held in Andhra Pradesh, particularly between 2006 and 2009. Specially designed for the subordinate judiciary, which is the backbone of the system and carries the heavy burden of fulfilling the public’s expectation of fair and speedy justice, the exchanges provided an opportunity for judges and judicial officers to discuss the problems they grapple with and listen to their experiences. This is the second edition of the Fair Trial Manual that was first published in 2010. The first edition was an outcome of several such exchanges which discussed at length the elements of a fair trial, the obstacles to justice and judges’ role in addressing inadequate remedies and poor court craft. The manual was originally developed along with the International Human Rights Clinic, Cornell Law School. CHRI felt the need to update the earlier volume following new developments in the law. This edition has benefited hugely from close collaboration with the Centre for Constitutional Law, Policy and Governance, National Law University (NLU), Delhi. We are grateful to Mr. Neeraj Tiwari, Assistant Professor of Law, NLU Delhi, who reviewed and provided inputs for the manual. We would also like to express our gratitude to the student coordinators Aradhana C. V. and Sanya Sud. Finally, we would like to thank the student research team consisting of Aarushi Mahajan, Anamika Mishra, Akshaya Parthasarathy, Aradhana C.V., Devanshi Saxena, Kavya Tangirala, Kuhuk Jain, Pritika Malhotra, Sanya Sud, Shruti Arora, Saumya Bhatt, Tishta Tandon and Yashika Jain for their help in updating the manual. As we bring out this second edition it would be remiss not to recall with thanks Sital Kalantary, Associate Clinical Professor of Law and Director of the Cornell International Human Rights Clinic who helped us develop the early concept and framework of the Manual. Our gratitude also goes to Sheila Chitran and Richard Jamgochian both at the time at the Human Rights Clinic of Cornell who conducted the research and structured the chapters. We remain grateful to Vrinda Grover, Hon’able Justice Ajit Bharioke and Hon’ble Justice Ramakrishna who took time out to advise on technical inputs and offered valuable suggestions to the first edition. Maja Daruwala Senior Advisor Fair Trial Manual: A Handbook for Judges and Magistrates v ABOUT THE CENTRE FOR CONSTITUTIONAL LAW, POLICY, AND GOVERNANCE (CLPG): The Centre for Constitutional Law, Policy, and Governance is a Research Centre at National Law University, Delhi. It focuses on foregrounding rights, rightslessness, and other vulnerabilities in understanding, critiquing, and reforming laws, legal institutions, and modes of governance, so that they reflect the constitutional ideals of justice. The Centre focuses on data-driven approaches to law reform, and has engaged in the past with the Executive, Legislature, the Judiciary, and civil society organisations. The Centre has worked on issues of gender, reproductive justice, prison reforms, the death penalty, criminal justice reform, amongst others. It has collaborated with the Delhi High Court Legal Services Committee (DHCLSC), the Center for Reproductive Rights, Daksh India, the Human Rights Law Network, and the Lawyers Collective Womens Rights Initiative on its projects. The Centre has also assisted the Law Commission of India in its work. Dr. Aparna Chandra is the Director of the Centre. Prof (Dr.) Mrinal Satish was the Executive Director of the Centre when this project was undertaken. Fair Trial Manual: A Handbook for Judges and Magistrates vi CONTENT Foreword xi Director’s Message xiii Introduction xv Chapter 1: General Principles of a Fair Trial Applicable at all Stages 1 Introduction 1 1.1 General Principles of Fair Trial 1 1.2 The Presumption of Innocence 2 1.2.1 Domestic Law 2 1.2.2 International Law 5 1.2.3 Guide for Judicial Enforcement 6 1.2.3.1 Shifting the Burden of Proof and the Presumption of Innocence 8 1.2.3.2 Media Trials – A Caution to the Bar and the Bench 8 1.3 Right to Equality before the Law and Equal Treatment by the Law 9 1.3.1 Domestic Law 9 1.3.2 International Law 10 1.3.3 Guide for Judicial Enforcement 11 1.4 Right to Remain Silent 14 1.4.1 Domestic Law 15 1.4.1.1 Protection with respect to Conviction of Offences/ Privilege Against Self-Incrimination 15 1.4.1.2 Examination of Witnesses by Police 15 1.4.1.3 Further Statements of the Accused to the Court 15 1.4.1.4 The Accused is a Competent Witness for the Defence 15 1.4.1.5 The Evidence Act and the Right to Remain Silent 16 1.4.1.6 Exceptions to the Right to Silence 16 1.4.2 International Law 17 1.4.3 Guide for Judicial Enforcement 17 1.5 Nullum Crimen Sine Lege: Principle of Non-Retroactivity 24 1.5.1 Domestic Law 24 1.5.1.1 Protection Against Ex-Post Facto Law 24 1.5.2 International Law 25 1.5.3 Guide for Judicial Enforcement 25 1.6 Double Jeopardy 26 1.6.1 Domestic Law 26 1.6.2 International Law 26 1.6.3 Guide for Judicial Enforcement 26 Chapter 2: Arrest and Pretrial Detention 29 Introduction 29 2.1 Right to Freedom from Arbitrary Arrest and Detention 31 2.1.1 Domestic Law 31 2.1.1.1 The Fundamental Protection of Life and Liberty Under the Constitution 31 Fair Trial Manual: A Handbook for Judges and Magistrates vii 2.1.1.2 Magistrate’s Powers of Arrest 31 2.1.1.3 Police’s Power to Arrest 31 2.1.1.4 Procedure for Arrest 34 2.1.1.5 Medical Examination of Arrested Person 35 2.1.1.6 Consequences of Non-Compliance with Provisions Relating to Arrest