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being registered about the commission of a crime registers F.I.R and conducts
investigation as to trace the offender. The offender is then taken into police custody
as to further investigate. Then within 24 hours from the time of arrest, the accused
is produced before the concerned judicial magistrate and the latter remands the
accused to judicial custody that is sending the accused to prison. This period of
every time. Sec.167 (2) (a) of Criminal Procedure Code asserts that no magistrate
shall authorise the detention of the accused person for a period exceeding (i) 90
days where the offence is punishable with death, imprisonment for life or
imprisonment for a term not less than 10 years (ii) 60 days for other offences.
materials near the scene of crime, locating the weapon used, sending materials for
and examination of the injured persons; recording statement from the victims and
investigation the police files a final report alleging the offences committed by the
accused person. Then magistrate or the sessions judge frames the charges listing
out the offence alleged to have been committed by the accused person. When the
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accused denies the charge or charges, the trial commences and the Public
Prosecutor or the Assistant Public Prosecutor representing the State conducts the
trial. Since the State takes up the case and accuses the accused person of having
main aspect is that the burden of proving the accusation lies on the State through
the prosecutors and the police. The accused is defended by a lawyer of his choice.
investigation is done by the police and the role of the court is that of an impartial
umpire between the prosecution and the defence. In inquisitorial system the
Public Procurator is aided by the judicial police. The Public Procurator refers the
cases to the investigating magistrate and latter investigates the case with the help
The main feature of the inquisitorial system that is applied in France and
investigates serious crimes and conducts complex inquiries. Being member of the
judiciary this judge is independent and not controlled by the executive wing.
and investigates. His role is not to prosecute the accused, but to gather facts, and
as such his duty is to look for any and all evidence (àchargé à dechargé),
incriminating or exculpatory. Both the prosecution and the defense may request
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the judge to act and may appeal the judge’s decisions before an appellate court.
The scope of the inquiry is limited by the mandate given by the prosecutor’s office:
the examining judge cannot open a criminal investigation on his own accord.
In the past examining judge could order committal of the accused, this
power being subject to appeal. However, this is no longer the case, and other
If the examining judge decides there is a valid case against a suspect, the
accused is sent for adversarial trial by jury. The examining judge does not sit on
the trial court which tries the case and is in fact prohibited from sitting for future
cases involving the same defendant. The case is tried before the court in a manner
seeks the conviction of accused, the defense attempts to rebut the prosecution
claims, and the judge and jury draw their conclusions from the evidence presented
at trial.
Examining judges are used for serious crimes, e.g., murder and rape, and
for less serious but complex crimes, such as embezzlement, misuse of public
The judge of the liberties and freedom is vested with the power of
remanding the accused, and extending the remand period. When any serious crime
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has been committed it is referred by the public procurator to the examining
magistrate who will investigate the case and send it to the trial court.
Chambre de l'Instruction:
Tribunal de Police:
This court is vested with the power of judging minor offences and impose
certain restriction.
Tribunal Correctionnel:
This court has the power of judging persons who have committed crime
Courd’Assises:
This court has the power to judge most serious crime as murder or rape
Courd'Appel:
way of an appeal.
Cour de Cassation:
The decision by the cour d’ Appeal is challenged before this court by way
of second appeal. This court is known as Supreme Court of appeal. This court will
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6.4 LAW OF REMAND AND LAW OF BAIL IN THE FRENCH JUSTICE
ADMINISTRATION
The French police have the power to arrest the accused persons and report
the same to the Public Prosecutor and the latter will decide the future course of
action. Under the French Law a person is presumed innocent till proved guilty and
usually they remain free. However judges have the power to remand a person to
the accused has violated the condition imposed in bail. For delits the maximum
period of remand is 4 months under certain conditions. This period of remand can
be renewed for another 4 months. In drug trafficking offences the maximum period
of remand is 2 years which can also be extended by another 4 months. For other
crimes the maximum period of remand is 1 year and extendable by another six
months. When the crime carries with it a punishment of 20 years the remand period
is for 2 years and if the punishment is more than 20 years the remand is for 3 years
and 4 years. The JLD has the power to remand the accused and he has to record
reason for refusing the bail. Before passing orders the JLD has to hear the Public
Prosecutor and the defence lawyer. The order of remand by JLD can be appealed
before the chamber de l' Instruction within 10 days and the appellate court must
pass orders within 10 days. The accused has to remain in custody till the remand
order is cancelled.
Bail is granted by EM or JLD, the accused remains free till trial. He has to
pay surety sum demanded by the court and he should not violate the conditions
imposed by the court or else he will be put in custody. The foreign nationals
detained in France are not generally granted bail fearing that the accused would
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abscond if bail is granted. When a large amount of cash is deposited as a security
and the accused should remain in France still the close of trial then bail is granted.
When the accused is on remand he can move bail with details of his status, his
the court will take it into consideration the period of incarceration, the nature of
offence, the risk of absconding. Bail is filed before the EM and in case EM rejects
the application he has to forward it to the JLD who has to decide within 3 days. If
till trial and he has to be tried within 12 months. The person can remain in custody
the accused can ask for compensation for his emotional distress and loss of
earnings. Bail is the integral part of rights to defence granting bail the court
4. The dependent will not be able to work and his family will suffer
financially
While granting bail, it is done on personal bond, third party surety, cash bond,
personal bond, and property bond or surety bond the purpose of the bail is that one
should not be denied liberty before being found guilty. In most circumstances bail
is granted pending trial only when a person is danger to the society or he will flee
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6.6 CRIMINAL JUSTICE ADMINISTRATION IN INDIA:
Man is a social animal and the animal or the cruel instinct is inborn and
inherent in all human beings. This animal instinct has to be curbed, restricted and
controlled by man himself. Three institutions namely the family, the school and
religion that shape man should lead the man on the right path. But of late these
three institutions have failed miserably in their primary duty of shaping man to be
a polite member of the society in which he lives. In a-mad rush for materialistic
wealth, families have disintegrated into small units and even the divided family is
further fragmented where husband and wife live apart due to several reasons. The
child is deprived of the due love and affection and is exposed to the world of viles
where hatred, intolerance prevail. The educational institutions that took up as their
primary duty to impart, moral education and physical education have deviated
from their path, thanks to the modern society which demands education that would
produce an engineer, a doctor, a business administrator and what not. The religion
preaches but never practices. The religious leaders are sowing seeds of intolerance
and the concept of secular state may soon get buried. Under the name of religion
several wars were fought in the past and one fears history has to repeat. In such
an environment the animal, in man is let out and the crime rate is bound to escalate.
To maintain social order, crime control, demands wide and extensive powers to
maintaining law and order (social order) and the interest of individual liberty. The
state is vested with coercive powers to curb crimes, to bring the criminals before
law and the judiciary, to impose punishment if found guilty, at the same time ways
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and means are provided to prevent the arbitrary and capricious use of these
powers.
provides: Everyone alleged with a criminal offence shall have the right to be
constitution of India would read. Equality before law The State shall not deny to
person equality before the law or .the equal protections of the laws within the
and personal liberty. No person shall be deprived of his life or personal liberty
except according to procedure established by law. The apex court of India held
established by law must be right and just and fair and not arbitrary, fanciful or
human rights is related to the period one lives. In ancient times the social and
judicial functions were carried out by Village Panchayat or by the ruler himself.
emphasis on the rights of the accused. The Muslim concept of criminal justice
administration is based on the scriptures and tenets of the Quran. It believed in the
Then came the social change-, with advent of British common law which saw
several legislation made to curb the abuse of law. The Criminal Procedure Code
prescribed the rights of the accused also. The Universal Declaration of Human
Rights 1948 and the International Covenants that followed ushered in the new era
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75. Manaka Gandhi v. Union of India AIR 1978
S.C.597 166
of Criminal Justice Administration in which the rights of the accused played the
pivotal role. The guiding principle of the Universal Declaration of Human Rights
to which the municipal laws of all countries are bound to follow, provides for a
fair and just trial to the accused. The very preamble of the United Nations Charter
of 1945 states: to affirm faith in fundamental Human Rights and the equal rights
of men and women. The Geneva Convention of 1985 highlighted the mass
violations of the human rights of the under trials and convicted persons in about
India which plays a leading role in voicing Human Rights on the international
floor is also one of the offenders. Recent survey exposed that most of under - trials
were in custody for a period more than the maximum punishment they could get
if proved guilty.
The apex Court D.K. Basu v. State of West Bengal76, was forced to issue 11
1. The officer making an arrest should bear accurate, visible and clear
identification and name tag with the designations and his name
one witness, who may either be a member of the family of the arrested
4.––––––––––––––
76. D.K. Basu v. State of West Bengal 1997 SCC (Cr.) 92
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5. If the arrestee lives outside the district or town, police should notify the
time and place of arrest and the venue of his custody to the next friend
or relative through the legal aid organisation and the police station of
arrest.
6. The arrestee must be made aware of the right to have someone informed
of his arrest.
should also disclose the name of the friend who was informed of the
arrest and the names of police officials in whose custody the arrestee is.
8. The arrestee should be examined for major and minor injuries on his/her
body and this must be recorded and signed both by the arrestee and the
10. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout.
11. A police control room should be provided at all district and State
Headquarters, where information regarding the arrest and place of custody of
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The Apex Court of India, while delivering this Judgment, has insisted that
the demands of Art.21 and Art.22 (1) of the Constitution need to be strictly
also. Failure to comply with these directions will render the official concerned
liable for department action and further render him liable to be punished for
contempt of court and that such contempt proceedings may be instituted in any
People have surrendered their rights to the sovereignty in order that their
life and personal liberty are protected. The ancient man with zeal to protect his
person, family, his clan, their possession, was forced to use violence. Might
became right and weaker ones were unprotected. The State emerged as the
protector out of the social contract. To ensure peace and social order, laws were
enacted to prescribe the specific parameters of behaviour. Certain acts were named
as crime or offences by the State. The offences against individuals were deemed
as offences against the State. The State launched the prosecution to bring the
offender before law to be tried and if found guilty to be sentenced. The convicts
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Thus, the aim of the Criminal Justice System is to reform the deviant
Justice System has adopted the concept of due process which demands that the
accused be given fair and reasonable opportunities to defend the accusation and to
There are several safeguards in the Criminal Justice System to protect the Human
Right
The following are the areas in which the Human Rights are violated in the
1. Non-registration of cases;
3. Custodial violence;
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5. The appalling conditions of Indian Jails;
6. Delay of courts;
7. Abuse of power by the executives who are at the helm of affairs in the
Our criminal law and the criminal justice system was given to us by the British
but it is self-sufficient to safeguard the rights of the accused. But our police and
the judiciary still adopt the colonial rule and refuse to exercise democratic rule.
The trial courts have the hierarchy of Munsif Courts, Sub-courts and
District courts on the civil side and Judicial Magistrate courts, Chief judicial
Magistrate Court, Assistant Session judge and Session Judge on the criminal side.
These trial courts are flooded with civil suits and Criminal cases and the number
of judges is less to cope up with the number of cases. Nepotism, favoritism and
corruption are rampant in the trial courts and this has tarnished the image of the
judiciary. The former chief justice of India Justice Barucha while retiring stated
that 20% of the Indian judges are corrupt. He was probably modest in his comment
and further he has not deliberated what steps he has done to curb and weed out
The trial litigant and the accused are treated with scant respect. Most of the
courts do not have places for litigants to sit and they are made to stand outside the
courts for hours together. The accused are directed to sit on the floors. The litigants
huddle together anxiously waiting for the call of their cases only to be adjourned
to another date. People are fed up with the delays in the conduct of the cases.
171
In Criminal cases the accused are mostly brought on Fridays to the
intervening Saturday and Sunday being holidays, the accused has to wait until
The accused are lodged in the prison along with the hardened criminals.
The under trials are ill-treated by the convicts. Alarming reports have come out
Of late the Government and some private law colleges are producing legal
illiterates and that results in poor standard of advocates. This also reflects on some
of the judges who lack the proper knowledge of law. The police do not procure
and produce witnesses and the trial lasts for several years. Many cases end in
Some under trials languish in prison for several years sometime they complete
Indian Judiciary has an impressive record in the past. Last two decades the
performance of the judiciary is callous. The chronic delays paralyse the justice
delivery system. The nexus between the criminals, politicians and the police
cripples the administration of justice. The criminal justice system has undergone
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transparency and accountability in judicial appointments, deprives able,
upright, well equipped and men of integrity getting appointed as judges. “The
angles that are judicial accountability and the accountability of the justice delivery
system. The accountability of justice system means fair, impartial and independent
and people expect justice to be at reasonable cost and of easy access to everyone.
The government has to take all steps since judiciary is dependent on government
for its infrastructure, support, services and funds. The delay, inequalities in process
and treatment, heavy litigation cost requires to be set right. Judicial accountability
is concerned with the judges in terms of the professional duties and oath of office.
We currently find judges with lack of honesty and integrity, lack of judicial
competence, doing acts that is not expected from the post they hold. The judge
who has no humanity feeling is unfit to be a judge. Law is not an abstract thing; it
by a full code meeting of Supreme Court under the caption re-statement of values
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2. A judge should not contest the election to any office of a club or society
and he shall not hold such elective office except in a society connected
4. A judge should not permit any member of his immediate family, such as
to use the residence in which the judge actually resides or other facilities
of his office.
7. A judge shall not hear and decide a matter in which a member of his family,
8. A judge shall not enter into public debate or express his views in public on
political matters or on matters that are pending or likely to arise for judicial
determination.
9. A judge is expected to let his judgments speak for themselves; he shall not
10. A judge shall not accept gifts or hospitality except from his family, close
11. A judge shall not hear and decide a matter in which a company in which
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12. A judge shall not speculate in shares, stocks or the like.
13. A judge should not engage directly or indirectly in trade or business, either
14. A judge should not ask for, accept contributions or otherwise actively
associate himself with the raising of any fund for any purpose.
15. A judge should not seek any financial benefit in the form of a perquisite or
16. Every judge must at all times be conscious that he is under the public gaze
high office he occupies and the public esteem in which that office is held.
The revocation of emergency made the Supreme Court rebound with full
vigor and vitality. Judicial Activism was spear headed by activists like Justice
Krishna Iyer, Justice Bhagawati and Justice Chinnappa Reddy. Article 21 saw the
new light and came to be interpreted in an expansive and liberal manner and
expounded to humanize the law relating to arrest, to define the rights of the
accused and the prisoners and the legitimacy and legality of death sentences.
work places. Socio-economic rights of weak and the deprived section of the
In Golaknath case the Supreme Court held that the Fundamental rights are
beyond the ken of amending power. The Indian Administration brought in new
amendments to counter this dictum. The matter came before the 13 Judge Bench
same Supreme Court during emergency in preventive detention cases ruled that
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the right of life is the gift of the constitution and the said right can be suspended
or taken away by the declaration under the emergency provision contained in the
constitution.
easily amendable as a normal statute and should give Judges the power to review
legal limitation of legislative supremacy, and the supremacy of human rights can
imposes legal limitations on the legislature and guarantees that human rights are
protected not only by the self-restraint of the majority but also by Constitutional
The founding fathers of our constitution took the lead from the words of the
great statesman the most remembered President of USA Abraham Lincoln. The
rule of the people, by the people, for the people, where human rights and rule of
law became sacrosanct instruments of Nation building. The very Preamble of our
constitution spells the Equality of Status and of opportunity and Fraternity among
the people, ensuring the dignity of the individual and the unity and the integrity of
the nation.
––––––––––––––
77. In the words of Justice Aahron Barak, formerly of the Supreme Court of Israel, from National Seminar
on Higher Judiciary – Constitutional perspectives Justice A. Seetha Ram Reddi page XVIII.
176
The rule of law, procedure established by law, the Fundamental Rights,
separation of powers judicial scrutiny and judicial review are the paramount
“the social philosophy of a judge influences his decisions, he was exploding a myth-
published under the title the Nature of the judicial process, ignited a jurisprudential
debate on the nature of judicial function, viz.., whether judges merely declare the
Once we accept the role of the judges as lawmaker, the question that
assumes relevance and significance are: (i) on what consideration and based on
what principles do judges make law? (ii) To what extent does the social philosophy
of a judge influence his decisions: and (iii) in a democracy, when people’s will
Judges are dominated by class hatred, class interest and class prejudices. When
evidence is balanced between a well-dressed pot-bellied rich man and a poor ill-
dressed and ill-literate person, judge instinctively favours the former. The
judiciary is weighted against the workers, peasants and other sections of the
working classes and the law and the system of the judiciary essentially serve the
exploiting classes79”.
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78. When Caradozo, a renowned jurist and judge of the American Supreme Court, told a gathering of
legal scholars and law students at the Yale University in 1921
79. In 1967, EMS Namboodiripad, the then Chief Minister of Kerala, while speaking at a press
conference, attempted to analyze the role of the judiciary from a Marxian perspective. Explaining the
class bias of the Indian judiciary has observed:
177
Justice H.R Khanna who had undaunted faith in human rights and rule of
law in his dissenting judgment described the attitude of the brother judges as
From Mohini v. State of Karnataka81 which emphatically asserted that the right
fundamental right, the court has moved to the other extreme in Pai Foundation
of the Indian Judicial process to make a study in contrast. They reveal how the
same constitutional provisions and the same social situations could be read and
philosophies.
In Pai foundation, the Supreme Court not only denied any fundamental
rights to education after the age of 14 years, but also extended a fundamental right
under Art.19 (1)(g) to those who wish to establish educational institutions. The
concern of the court has shifted from the right to education to the right to establish
occasions, when the argument that the right to establish educational institutions
must be recognized as a Fundamental right under Art. 19(1) (g) was canvassed
before the Supreme Court; the Court had refused to do so. In Pai Foundation it was
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80. Justice H.R Khanna Radhakrishnan Agarwal and others . State of Bihar AIR 1976
SC 1207
81. Mohini v. State of Karnataka 1992 (3 ) SCC 666
82. Pai Foundation V. State of Karnataka AIR 2003 SC 355
178
What is perplexing is the fact that the Solicitor General, who ought to have
opposed the argument, readily conceded the right thereby making the task of the
court very easy. It is well accepted by one and all that the Indian Judiciary is the
most powerful and the least accountable judiciary in the world. This organ
wielding enormous powers may not be kept free from accountability. Judges feel
that any attempt to ensure judicial accountability will result in crippling the
The constitution represents the highest level of positive law. Former Chief
“The beauty of the Indian Constitution is that the entire structure of the country is based
thereupon. It is the very pillar upon which the democracy of India stands 83”.
and 226. The power of judicial review ensures smooth functioning of the state.
Though the three wings of the government namely the legislature, executive and
judiciary are to uphold the Constitution, the judiciary alone is entrusted with the
task of interpreting and enforcing the Constitution. Under the banner of judicial
review the higher courts have started to legislate laws which power is exclusively
with the legislature, since it holds the popular mandate. We often find the judiciary
the legislature who make laws for the welfare and the control of the people.
Judicial activism in the hands of Justice Krishna Iyer, Justice Bhagawati, and
Justice Chinnappa Reddy was very useful to the people. Later, judicial activism
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83. Former Chief Justice of India V.N. Khare in Union of India v. Naveen Jindal. ( 2004) 2 SCC 510
179
The interpretation made by the judges are self-styled and bearing their own whims
and fancies. Now the tendency of the court is to issue direction to the legislature
Under the banner of independence of judiciary, the courts of law are trying
to believe that they are superior wings of the government. Montesque the great
French philosopher has given to the world the separation of powers as legislative,
executive and judiciary. He has made boundaries for each one of the organs and
one cannot overlap the other, the legislative is given the job of legislating laws,
the executive to execute the law and the judiciary can step in when the legislated
laws are against the fundamental rights and when the executives exceed the power
The contempt of courts act has been wrongly under stood by most of the
courts. The contempt of courts act provide for the proper functioning of the court
where the judge should not be insulted, the advocates should not be insulted and
most importantly the litigant should not be insulted . It is said that the judgment
“The basic principle in a democracy is that the people are supreme… the people
of India are the masters and all authorities (including the courts) are their
servants. Surely, the master has the right to criticize the servant if the servant
does not act or behave properly and that “in a democracy there is no need for
will come from the public confidence, and this, in turn, will be an outcome of
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84. Justice Markandey Katza at the Indian society of International Law at New Delhi on Jan. 17, 2000
180
“In a democracy, the ultimate political sovereignty vests in the people of the
controlling, disciplining and like functions. Therefore, there is a need for checks
and balances so that power vested anywhere may not be haywire and may
The people have an unfettered right to a pure justice system and the
judiciary would have to realize that it is this right of the customers of justice that
The Supreme Court of India has been conferred with powers exceeding that of any
other Apex court in this world. The republic of India had Judges of great learning
and impeccable integrity in its first few decades. The initial years produced
In Gopalan case the court refused to read clause (4) to (7) of Article 22 relating to
preventive detention in the lights of Article 19 and 21 holding the set clauses of
case the court refused to treat the directive principles of the state policy on the
same footing as the Fundamental rights. These approaches have been later
decanted by the court. In Golaknath case the court declared that the Fundamental
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85. Justice V.R. KrishnaIyer in Economic and Political weekly July 27, 1991 in page 1808 has observed
181
The court held that the right to life of an Indian citizen can be suspended
and taken away during emergency. When the emergency was revoked Justices like
role. Article 21 was interpreted in an expensive manner which humanized the laws
relating to arrest, the right of the accused, and the rights of the prisoners and the
health, hygiene conditions at work place and so on. Socio –economic rights of the
week and the deprived sections of the society received the attention of the court.
Of late all eyes are two main issues. The first issue is about the appointment of
Judges to the Supreme Court and the High Court. Confrontation is taking place
between the Chief justice of Supreme Court and the President of India over the
questioned along with the removal of judges of Supreme Court and High Courts.
People are losing faith in the judiciary. The current system of impeachment seems
to be impracticable and a new system is on the anvil to discipline the judges. The
last two decades has seen the deterioration in moral and ethical standards of society
which is reflected in the higher judiciary. The indiscipline among the bar also
The other issue is that people have begun to suspect the very credibility of
encroaching upon legislative and executive powers, public interest litigation filed
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correctional services and advocates, the inordinate delays, the high cost of court
litigation have spelt the dooms day for the judiciary. The active judicial activism
was initially accepted as it catered to the welfare of the people and struck down
the abuse of power. The legislators have surrendered the rights of the people to the
courts of law by referring all issues like Cauvery, Mullaperiyar and other issues of
national importance. It is no more rule of law it has become the rule of court under
the banner of Independence of Judiciary. The courts of law are making excessive
use of powers thereby abusing their power and laying not Ten Commandments but
legislative power to legislate laws that are totally away from the intent of
legislators and to interpret laws, thereby changing the color of the legislated laws.
The Supreme Court can only recommend modifications in the statutes and it has
Sec 3 of the Act: Power to make orders detaining certain persons.-(1) The
(a) if satisfied with respect to any person that with a view to preventing
him from acting in any manner prejudicial to the defence of India, the relations
(b) If satisfied with respect to any foreigner that with a view to regulating
his continued presence in India or with a view to making arrangements for his
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expulsion from India. It is necessary so to do, make an order directing that such
person be detained.
with respect to any person that with a view to preventing him from acting in any
prejudicial to the security of the State or from acting in any manner prejudicial
1980), and accordingly, no order of detention shall be made under this Act on
any ground on which an order of detention may be made under that Act.
in any area within the local limits of the jurisdiction of a District Magistrate or a
to do, it may, by order in writing, direct, that during such period as may be
Government under this sub-section shall not, in the first instance, exceed three
necessary so to do, amend such order to extend such period from time to time by
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(4)When any order is made under this section by an officer mentioned
in sub-section (3), he shall forthwith report the fact to the State Government to
which he is subordinate together with the grounds on which the order has been
made and such other particulars as, in his opinion, have a bearing on the matter,
and no such order shall remain in force for more than twelve days after the
making thereof unless, in the meantime, it has been approved by the State
Government:
communicated by the officer making the order after five days but not later than
ten days from the date of detentions, this sub-section shall apply subject to the
modification, that, for the words ``twelve days’’, the words ``fifteen days”, shall
be substituted.
(5) When any order is made or approved by the State Government under
this section, the State Government shall, within seven days, report the fact to the
Central Government together with the grounds on which the order has been made
and such other particulars as, in the opinion of the State Government, have a
not below the rank of a Joint Secretary to that Government, specially empowered
for the purpose of this section by that Government, or any officer of the State
empowered for this purposes of this section by that Government, may, if satisfied
185
him from acting in any manner prejudicial to the conservation or augmentation
smuggling of goods,
Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention
empowered by a State Government, the State Government shall, within ten days,
(3) For the purpose of clause (5) of article 22 of the Constitution, the
grounds on which the order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and in exceptional
circumstances and for reasons to be recorded in writing, not later than fifteen
This is an Act to provide for detention in certain cases for the purpose
connected therewith.
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Sec3. Power to make orders detaining certain persons.-(1) The Central
not below the rank of a Joint Secretary to that Government, specially empowered
for the purposes of this section by that Government, or any officer of a State
empowered for the purposes of this section by that Government, may, if satisfied,
him from engaging in illicit traffic in narcotic drugs and psychotropic substances,
(3) For the purposes of clause (5) of Article 22 of the Constitution, the
grounds on which the order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and in exceptional
circumstances and for reasons to be recorded in writing, not later than fifteen
This is an act to provide for detention in certain cases for the purpose
not below the rank of a Joint Secretary to that Government, specially empowered
for the purpose of this section by that Government, or any officer of the State
empowered for this purposes of this section by that Government, may, if satisfied
with respect to any person that, with a view to preventing him from acting in any
187
to the community it is necessary so to do, make an order directing that such
person to be detained.
(a) committing or instigating any person to commit any offence punishable under
the Essential Commodities Act 1955(10 of 1955) or under any other law for the
time being in force relating to the control of the production, supply or distribution
of, or trade and commerce in, any commodity essential to the community; or
(ii) with respect to which provisions have been made in any such
With a view to making gain in any manner which may directly or indirectly
defeat or tend to defeat the provisions of that Act or other law aforesaid.
(3) When any order is made under this section by an officer mentioned
in sub-section (2) he shall forthwith report the fact to the State Government to
which he is subordinate together with the grounds on which the order has been
made and such other particulars as in his opinion have a bearing on the matter,
and no such order shall remain in force for more than twelve days after the
making thereof unless in the meantime it has been approved by the state
Government:
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Provided that where under section 8 the grounds of detention are
communicated by the authority making the order after five days but not later than
ten days from the date of detention, this sub-section shall apply subject to the
modification that for the words’ ‘twelve days’’, the words `fifteen days’’ shall
be substituted.
(4) When any order is made or approved by the State Government under
this section or when any order is made under this section by an officer of the
State Government not below the rank of Secretary to that Government specially
empowered under sub-section(1) the State Government shall, within seven days,
report the fact to the Central Government together with the grounds on which the
order has been made and such other particulars as, in the opinion of the State
person the order has to be communicated to the Advisory Board who would
months extendable by three months every time. The maximum period of detention
Since this detention is on suspicion the detainee can challenge the same
before the court of law. These detention laws provide detention initially for three
months, extendable by three months every time and maximum period detention
may extend to 1 year or 2 years. These laws strike the death knell to the principle,
Detention may extend to 60 days even without the approval of the Advisory
committee in certain cases. Under the prevention laws, the State has the power to
detain a person for the security of the state but why for 1 year or 2 years. These
acts require to in-corporate investigation and trial if the detention continues for a
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Declaration of Human Rights. Since these laws are harsh, the courts insist on the
strict compliance of the direction given under these laws and in case of any
CHENNAI: Teach them the dynamism of law. This was the message the Madras
high court sought to send across to the bureaucracy, which is used to a wasteful
ritual of passing preventive detention orders under the Goondas Act, National
Security Act and Cofeposa. Rapping authorities who continue to pass faulty
detention orders despite repeated reversals they suffer in the high court, the first
Tuesday said: "They should be informed about the development of law pertaining
to detention orders. Quashing detention orders on the very same grounds by the
court again and again would make the entire system a mockery...Specific
power so that the detention orders would not be passed as a matter of course in a
routine manner."Orders under the Goondas Act, National Security Act and
Cofeposa for the preventive detention of a person for one year are passed either by
petitions in the high court for quashing the detention orders, as there is no bail
provision available to them. About 96% of such detention orders are quashed by
courts. But usually on identical grounds, it is a fact that by the time the orders are
quashed, the detenue would have spent six to eight months in jail.
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86. A. Subramani, TNN / June 11, 2014, 02.43 A.M. IST
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Slamming this trend, the first bench said, "A detention order should not be
passed with a mindset that even if it is set aside by the court, the detenue would
have been under custody for a length of time...It is well known that most of the
detention orders did not stand the scrutiny of the court. A detention order cannot
required at every stage of passing detention orders, and said: "Apart from the
money from all sides. As a solution to end both passing of faulty detention orders
and delay in their disposals, the judges said the government could appoint an
officer exclusively to deal with habeas corpus petitions pending in the high court
by keeping track of their progress and collecting necessary documents from the
prosecutors ‘offices. The bench was passing order on a P.I.L filed by Prisoners’
Rights Forum director P. Pugalenthi, who sought judicial inquiry into the March
24 riots inside Puzhal central prison. He also sought action against prison officials
responsible for the riot that left 40 inmates injured. Acceding to advocate General
A.L Somayaji's submission that there were no untoward incidents and only
required amount of force was used to maintain peace behind the walls, the bench
concluded that there was no need for a judicial inquiry into the matter. There are
no eyewitnesses to the alleged riot and courts could not pass orders on the basis of
Global Warming and Terrorism are the main dangers that threaten to
extinguish the life on earth. A new class of criminals called terrorist want to teach
the world something they believe sacrosanct. They involve in mass destruction of
lives and property. In most cases innocent people are the victims, even women and
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children are not spared. Terrorists have claimed many lives that include our two
Prime Ministers. The need of the anti-terrorism law was felt in India. In 1984 the
Parliament enacted the "Terrorist Affected Areas (Special Courts) Act 1984. In
this Act Terrorist is defined as a person who indulges in wanton killing of persons
essential to the community or in damaging property with the view to (i)putting the
public or any section of the public in fear; or (ii) affecting adversely the harmony
violence is inherently in view of this definition putting the public, which means
even the minutest section thereof, in fear; thus he would apparently be a terrorist
to set up Special Courts for speedy trial. This Act enabled to amend Indian
May 1985. The Terrorist and Disruptive Activities (Prevention) Act 1985 was
enacted. This statute provides special or enhanced punishment. The Act was
restricted to a period of two years. The Act was to expire on 23rd May 1987. Since
both the Houses were not in session, the President promulgated the Terrorist and
Disruptive Activities Ordinance 1987 with minor changes. The Terrorist and
Disruptive Activities (Prevention) Act 1987 was introduced with drastic changes
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Since Terrorism continued unabated The Prevention of Terrorism
Ordinance (POTA) came in the year 2001. The prevention of Terrorism Act 2002
was enacted on March 28, 2002 to replace the above said Ordinance.
(a) TADA
Terrorist and Disruptive Activities (Prevention) Act was enacted in the year
1987. The intention of the Act was to make special provision for the prevention of
and for coping with terrorist and disruptive activities and for the matters connected
therewith or incidental thereto. Originally the Act was to remain in force for 2
years but it was extended up to 8 years. Section 3(1) of the Act defines terrorist
act as follows
Sec 3.Punishment for terrorist acts. — (1) Whoever with intent to overawe
the Government as by law established or to strike terror in the people or any section
of the people or to alienate any section of the people or to adversely affect the
harmony amongst different sections of the people does any act or thing by using
manner as to cause, or as is likely to cause, death of, or injuries to, any person or
persons or loss of, or damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community, or detains any person
and threatens to kill or injure such person in order to compel the Government or
any other person to do or abstain from doing any act, commits a terrorist act.
punishment not less than five years and also liable to pay fines. Section 4(1)
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prescribes the minimum punishment of five years extending, up to life
Sec 4(2) defines disruptive activity as follows Sec 4(2) For the purposes of
sub-section (1), "disruptive activity" means any action taken, whether by act or by
punishment for such persons mentioned in section 5 with intent to stop the terrorist
discusses the powers of the investigating officers to seize the property and attach
the same. Section 8 is about forfeiture of the property. Section 9,10,11 and 12 deal
Evidence Act by stating that confession made to a police officer not below the rank
protection to witnesses as to keep the identity arid the witnesses secret. Sec 19
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this act, the power of the Supreme Court and the Central Government to make
rules, the rules to be laid before the Houses of Parliament and repeal and saving.
(b)POTA: The Prevention of Terrorism Act 2002 was enacted on March 28, 2002
the act is to make provisions for the prevention of and for dealing with terrorist
Section 3(1) of the act defines what terrorist acts are. Section 3(2) provides
the punishments which include minimum 3 years and five year for life
imprisonment and death penalty and fine extending to Rupees Ten lakhs. Sec 5
substance of warfare in any area and the punishment extends to life imprisonment
and a fine extending to Rupees Ten lakhs. Sec 7 gives power to the police officer
attach properties. Sec 8 and 9 is about forfeiture of the proceeds of the terrorism
by giving notice before forfeiture. Sec 10 is appeal to High Court by any person
lists the offences relating to a terrorist organization. Section 22 and 23 terms funds
given to terrorist organization and raising funds for the terrorist organization as
offence. Chapter IV running from Sec 23 to 35 is about the special courts, place
prosecutors, procedure and powers of the special court, transfer of cases and appeal
to High court.
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What shocks everyone is Sec 32 which permits confession made to police
interception.
Code of Criminal Procedure, cognizance of offence only with the section of central
presumptions as to offence, bar of civil courts, saving clause, the overriding effect,
protection taken in good faith, about punishment and compensation for malicious
High Court and Central Government to make rules, orders and rules to be laid
organisation. The area of concern of this research is sec 32 which permits the
confession made to a police officer not below the rank of Superintendent of Police,
as admissible evidence. Evidence Act makes no definition about the police officer.
This act believes that the Superintendent of Police and the officers above this rank
are honest, fair, sincere, and reliable and will not use coercive methods. In reality
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these confessions too are recorded by sub-ordinate officers and higher officers
only affix their signature. This section violates law, not only violates the
provisions of the Indian Evidence Act but crucifies Article 20(3) of the Indian
compelled to be a witness against himself". The judiciary has not applied Article
This Act while defining code as Criminal Procedure Code 1973 has to
answer how this Criminal Procedure Code 1973 can be modified as per Sec 49 of
this Act, without effecting such modification in the Criminal Procedure code.
The modifications effected are in Sec 167(2) of the Code that fifteen days,
ninety days and sixty days shall be construed as thirty days and ninety days and
180 days by the Special Courts. Sec 268 has been modified to incorporate the
Sections 366,367 and 368 of the code which are about submission of Death
Sentences for confirmation, the words the court of sessions shall be modified as
Special court.
bail) is not applicable to person to any case under this Act. Sec49 (6), (7), (8)
imposes more restrictions on the grant of bail. Further painful is the modification
under Sec 49(9) -which states that no bail shall be granted to a person accused of
an offence punishable under this Act, if he is not an Indian Citizen but only under
very exceptional circumstances. The Private International Law has declared that
the personal laws of the foreigners are the law of their land and the Criminal law
is the law of the land where the crime is committed. This modification prescribes
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entirely a different procedure to a person who is not an Indian Citizen. This
land and the Universal Declaration of Human Rights. The only section praise
action.
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