Trials are an inevitable aspect of achieving justice. Trials must be
conducted properly following all procedures and steps in order for them to be
fair and free from influences. A fair trial is a public trial by an impartial
judge in which all parties are treated equally. The right to a fair trial is one
of the basic guarantees of human rights and the rule of law, and aims to ensure
the administration of justice.
A fair trial includes fair and adequate opportunities permitted by law to
establish innocence. The right to a fair trial is a norm of international human
rights law and has also been adopted by many countries such as procedural law;
India too has adopted this law and it is enshrined in the Constitution of India.
The concept of a fair trial is a fundamental principle in every judicial system.
The concept of a fair trial in another way ensures justice. A trial in
jurisprudence is a forensic examination or determination of cases before the
court to reach a conclusion whether or not the accused is guilty of a crime. As
the Supreme Court has noted in various cases, there is no comprehensive
definition of fair trial.
The Principles of Fair Trial
Adversary Trial System: It is a system adopted by the Code of Criminal Procedure
of 1973 on the basis of the accusatory method, which includes an accusation by
the public prosecutor and a judgment reached by an impartial judge. In the case
of Himanshu Singh Sabharva v. Daula M. and Ors.
The Supreme Court has held that if the court has grounds to believe that the
prosecuting agency or the public prosecutor is not acting in accordance with
fair trial procedures as prescribed by law, then the court can exercise its
power under Section 165 of the Indian Evidence Act, 1872 to uphold the cause of
Presumption of innocence: This principle is considered one of the most important
principles of a fair trial, which protects the accused from arbitrary and
Independent, impartial and competent judges: Proceedings must be administered by
a competent, independent and impartial judge) / tribunal. Section 479 of the
Code expressly prohibits any judge or magistrate from trying any case in which
he or she is a party or personally interested.
Double jeopardy principle: Section 300 of the Code of Criminal Procedure talks
about the principle of "double culpability" which states that if a person is
tried and acquitted or convicted of a crime he cannot be tried again. This
doctrine is additionally included in Article 20 (3) of the Constitution of
Place of trial: In line with Article 177 of the Code of Criminal Procedure, each
offense must normally be investigated and tried by a court within its local
jurisdiction. In the case of Rajendra Ram Chandra Kavalekar v. State of
, it was noted that the territorial jurisdiction of the court in
relation to the criminal offense would be determined on the basis of the place
where the accident occurred. The provisions of Articles 179 to 189 are designed
to facilitate a fair trial.
Concept of Fair Trial under International law
The principles in the concept of fair trial prevalent in modern countries stem
from international laws. The signatories to the agreements were forced to enact
provisions in their municipal laws.
Article 10 of the Universal Declaration of Human Rights states:
"Everyone has, in full equality, the right to a fair and public trial by an
independent and impartial court, to determine his rights and obligations and any
criminal charge against him."
Article 11(1) further states that a person accused of an offence shall be
presumed innocent until proven guilty. And he shall be declared guilty only at
the end of a public trial in which he was provided with an opportunity to defend
Article 11(2) speaks about the prohibition of ex post facto law in which no
person shall be declared guilty of an offence which didn't constitute a penal
offence 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 offence was
Article 14(1) of the International Covenant on Civil and Political Rights states
"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.
The press and the public may be excluded from all or part of a trial for reasons
of morals, public order (order public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires,
or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children"
Right to fair trial under Constitution of India
The Constitution of India is the final law of the land. It provides a basic
framework for the administration of the criminal justice system.
Article 20(1) prohibits ex-post facto law. That is no one can be punished for an
act which was not an offence at the time when he committed it. Also a person
shall 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 offence
Article 20(2) mandates that no one shall be prosecuted and punished for the same
offence more than once.
Article 20(3) says that No person accused of any offence shall be compelled to
be a witness against himself.
Article 21 prescribes that a person shall not be deprived of his personal
liberty except according to a procedure established by law.
Article 22(1) no one shall be arrested or detained in the custody without
informing the cause and he shall be intimated with his right including the right
to consult a lawyer and bail at the time of such arrest.
Article 22(2) mandates that a person arrested shall be produced before the
nearest Magistrate within 24 hours of his arrest.
Article 39A imposes duty upon the state to provide legal aid for the persons who
are unable to afford them.
Under the Code of Criminal Procedure, 1973
Section 273 mandates that the all the evidence taken during a trial or any other
proceedings shall be taken in the presence of the accused except as otherwise
Section.278 mandates that the evidence of each witness shall be read over to the
witness in the presence of the accused or to his pleader. If the evidence was
given in a language not understood by an accused, it shall be interpreted to him
in an open court in a language understood by him.
Section 281 mandates that the substance of examination of the accused by a
magistrate shall be read over to him in a language understood by the accused and
it shall be signed by him.
Section 300 says that a person who was tried by a court of competent
jurisdiction for an offence and was acquitted or convicted as the case may be,
shall not be tried for the same offence again. Section 303 says that a person
who has been accused of an offence in a criminal court has the right to be
defended by a pleader of his choice. Section.304 mandates that an accused person
who is unable to engage a pleader shall be provided with legal aid at the cost
of the State.
Section 313 of the Code deals with the power of the court to examine the accused
but no oath shall be administered to the accused when he is to be examined.
The concept of a fair trial is undoubtedly the backbone of any judicial system.
The trial must be fair to the accused, the victim, and society as a whole.
Although the branches and elements of a fair trial change like any other aspect
of the law, it is nonetheless a basic principle that must be adhered to.
And nowadays, when an informational trial is more popular than a judicial trial,
it is very necessary for the courts not to ignore any of these principles. Court
staff remain neutral to influences from within and outside the institution. All
means must be provided for the victim as well as the accused to present their
"Equality, justice and freedom" is the fair trial trinity recognized in the
administration of justice in India wherein the rich and the "lowly and the lost"
have equal access to justice in the administration of justice in general and in
the criminal justice system specifically.