A trial conducted by a judge in an impartial way is said to be a Fair Trial. The question of whether a trial is fair or not depends upon the procedure as laid down by the Code of Criminal Procedure, 1973 and the prevailing system of criminal justice. In Zahira Habibullah Sheikh and Ors. v. State of Gujarat and Ors,the Supreme Court of India observed each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere judicial calm. A fair trial means a trial in which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated. Thus, in order to secure the right to fair and impartial trial all Indian criminal laws are well made to safeguard these rights.
Universal Declaration of Human Rights (UDHR) at global level recognizes the concept of a fair trial as the part of human rights. Article 10 of the UDHR provides that “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 of any criminal charge against him.”
International Covenant on Civil and Political Rights (ICCPR) in its Article 14(1)
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:
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. The Supreme Court in the case ofRattiaram v. State of Madhya Pradesh, observed that the fair trial is the heart of criminal jurisprudence. A fair trial is a fundamental right which flows from article 21 of the Constitution. Denial of the fair trial is the denial of human rights. Also, the Court in Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of Nct), stated that every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. Thus, right to a fair trial being a fundamental right cannot be refused to any person by the virtue of Constitution.
Principles of Fair Trial:
Adversary Trial System:
The Code of Criminal Procedure, 1973 is based on an adversarial trial system. This system suggests that onus of proving the guilt of the accused is on the prosecution and judge acts as a neutral referee from both the sides.
In Himanshu Singh Sabharwa v. State of M.P. and Ors., the apex court observed that if fair trial envisaged under the Code is not imparted to the parties and court has reasons to believe that prosecuting agency or prosecutor is not acting in the requisite manner the court can exercise its power under section 311 of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for the material witness and procure the relevant documents so as to subserve the cause of justice.
Presumption of innocence:
An accused is innocent until proven guilty. The onus of proving that the accused is guiltyis on the prosecutor. This principle has been originated from a Latin maxim, ‘eiincumbitprobatio qui dicit, non quinegat’, which means the burden of proof rests on the one who asserts and not on the one who denies.
Presumption of innocence is the fundamental principle and has its recognition in human rights. Article 11(1) of UDHR reads ‘Everyone charged with a penal offence 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 defence.’
The apex court in State of U.P. v. Naresh and Ors, held that “every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”
The principle of innocence is must in a trial in order to protect the accused from arbitrary and wrongful conviction.
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 own cause. Thus, a trial is said to be fair if it is done before an independent, impartial and a competent judge. Independence of the judiciary is the essential part of 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, the court held that the question is not whether a bias has actually 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.
Thus, a trial conducted by a biased judge leads to a miscarriage of justice.
Pre – Trial Rights:
Knowledge of Accusation:
As per Article 22(1) of the Constitution, it is the fundamental right of every accused to be defended by a legal practitioner. However, this right can only be exercised only if accused is informed about the accusation against him. Article 22(1) also renders right to be informed about the grounds of arrest as a fundamental right.
The grounds of accusation must be communicated to accused in the language which he or she understands. It is important to convey the grounds of accusation in order to be defended. Section 211 of Cr.P.C incorporates the right to have a precise and specific accusation.
Right to Open Trial:
The openness of a trial is associated with fairness. A fair trial requires that trial must be in an open court. The openness of the court as per section 327(1) of Cr.P.C means in which not only parties but also, the general public have access to records of the court.
However, the rule laid down under section 327(1) is followed by an exception. Under section 327(2) the court is bound to observe the trial relating to rape offences in camera. Cases relating to rape offences require secrecy and thus, proceedings conducted in the camera are not a violation of the right to fair trial.
In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra, the apex court held that the right to open trial must not be denied except in exceptional circumstances. High Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.
Right to Free Legal Aid:
If to ensure a fair trial the accused is to be defended by a legal practitioner, it is also important to ensure that he has all the necessary means to engage a lawyer. This right is secured by the Article 39A of the Constitution which provides for equal justice and free legal aid. Section 304 of Cr.P.C also provides for legal aid at the expense of State. Legal assistance to accused that has no means to defend himself is crucial to protect his life and personal liberty.
Legal aid has its root not only in Constitution and Criminal laws but also in human rights. In Khatri v. the State of Bihar, the court held that the accused is entitled to free legal services not only at the stage of the trial but also when first produced before the Magistrate and also when remanded.
Right to Speedy Trial:
Speedy trial is an essential feature of a fair trial. Delayed justice leads to denial of justice. A speedy trial is important not only to the victim but also to the accused. Speedy trial ensures that the accused is free from any unnecessary harassment.
The concept of speedy trial flows from Article 21 of the Constitution. In Husainara Khatoon v. the State of Bihar, the Supreme Court recognized that speedy trial is an essential ingredient of article 21 of the Constitution of India. And it’s the Constitutional duty of the State to set up such procedure as would ensure speedy trial to the accused.
In the case of Moti Lal Saraf v. Union of India, the court observed that the concept of a fair trial is an integral part of article 21 of the Constitution.
Section 309(1) of Cr.P.C 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 fair trial.
The trial in Presence of Accused:
The general rule is that all proceedings related to the case should take place in the presence of the accused. The principle behind is that the court is restricted from making any ex-parte decision. However, this is not an absolute rule and court has the power to proceed the case even in the absence of accused. The court requires the presence of accused if it feels necessary for the administration of justice.
Evidence to be taken in Presence of Accused:
Indian judiciary places its reliance upon evidence and in order to ensure the fair and impartial administration of justice, it is must that evidence are taken in presence of accused. Section 273 of Cr.P.C requires that all the evidence and the proceedings should take place in presence of accused. This rule is backed with exceptions as well. The court may take evidence in the absence of the accused and the accused will appear through his counsel. The court in the case of State of Maharashtra v. P.B.desai, held that section 273 CRPC provides for dispensation from personal attendance. In such cases, evidence can be recorded in the presence of pleader. The presence of pleader is thus, deemed to be a presence of accused. Therefore, actual presence is not necessary, a constructive presence is also enough.
Protection against Illegal Arrest:
According to section 57 of the Code, no person arrested will be detained for more than 24 hours and will be produced before the Magistrate within 24 hours. It is also a fundamental right under Article 22(2) of the Constitution. A detention of a person in excess of 24 hours without the permission of the Magistrate will be termed as illegal detention.
Right to Bail:
Bail simply refers to the release of a person from the custody of police. When a person is arrested for a bailable offence, he is entitled to be released on bail. As per section 50(2) of the Code, it is the duty of the police officer to inform the arrested person of his right to bail and allow to make arrangements for sureties.
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 offence. 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 offence more than once.’ The principle of double jeopardy is based on the doctrine of autrefois convict and autrefois acquit. This doctrine implies that if a person is prosecuted and convicted or acquitted cannot be prosecuted again for the same offence. Section 300(1) of Cr.P.C also explicitly lays down the rule that a person once acquitted or convicted will not be tried for the same offence or for any other offence on the same facts.
Article 20(2) of the Constitution and section 300(1) differs from each despite the fact that their meaning is the same. The Supreme Court in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, differentiated between article 20(2) of the Constitution and section 300(1) of Cr.P.C. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offence more than once’, Section 300(1) of Cr.P.C states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Therefore, the second prosecution would be barred by Section 300(1) of Cr.P.C.
Right against Self – Incrimination:
Article 20(3) of the Constitution reads, “No person accused of any offence shall be compelled to be a witness against himself.” As per Article 20(3), no person is bound to accuse himself. The right has been provided to ensure that an accused do not make any statement due to threatening, influence or any other compulsion. However, where an accused himself admits the guilt without any inducement Article 20(3) cannot be invoked. According to this article, the accused need not require to make any statement against his will and the onus is on the prosecution to establish the guilt. In Nandani Sathpathy v. P.L. Dani, it was held that a person is required to truthfully answer all the question except those which admit his personal guilt.
Post – Trial Rights:
Article 20(1) of the Constitution provides protection against ex-post facto criminal laws. As per this article a person can be convicted only for violating the law in force. This implies that if an act is not an offence at the time of its commission it cannot be an offence at the date subsequent to its commission. A person can be lawfully punished only for acts which are charged as an offence at the time of their commission. An act charged as an offence at a later date does not make an act committed before such an act punishable.
Generally, a legislature has the power to make retrospective as well as prospective laws. But Article 20(1) prohibits the legislature to make retrospective criminal laws. In Om Prakash v. State of Uttar Pradesh, it was held that offering bribe was not an offence in 1948. Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It was held that the accused could not be punished under Section 165A for offering the bribe in 1948.
Right to file Appeal:
An appeal is initiated to review a judgement given by the lower court by a higher court. An appeal is an inherent right of every person in criminal cases. The appellate court under section 389(1) of the Code is empowered to suspend execution of any sentence. The court is also empowered to release the convicted person on bail if he is confined if the appeal is pending. Section 374 of the Cr.P.C. provides right to appeal against convictions to Supreme Court, High Court and Sessions Court.
Right to Fair Trial in Canada:
The first part of the Canadian Constitution is the Canadian Charter to Rights and Freedoms. It is the Bill of Rights which offer a certain right to citizens of Canada. Section 11 of the Charter provides rights in criminal matters in order to secure fair and impartial criminal justice system. Right to a fair trial is imparted under Section 11(d) of the Charter – “Any person charged with an offence has the right – to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.”
The Supreme Court of Canada in R v. Rose, held that the right to a fair trial is guaranteed by S. 11(d). The obligation of a trial judge to ensure that an accused right to a fair trial is preserved has been enshrined in s.11(d) of the Charter. Also, in the case of Selvey v. Director of Public Prosecutions, Lord Guest referred to the overriding duty of the trial judge to ensure that a trial is fair. He wrote that this duty: “Springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused”.
Right to Fair Trial in the United States:
The Constitutional Sixth Amendment, 1791 guaranteed right to speedy and public trial by an impartial jury, right to be informed about the accusations and to be defended by a counsel, to the accused. The American Convention on Human Rights in its Article 8(2) recognizes the principle of presumption of innocence. In Coffin V. United States, the Supreme Court of America held that presumption of innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Right to a Fair Trial under European Convention on Human Rights:
The European Convention on Human Rights is an international treaty in Europe to protect human rights. Article 6 of the European Convention on Human Rights (ECHR) guarantees right to a fair trial. Article 6 (1) provides that anyone who is charged with a criminal charge is entitled to a fair and public hearing by an independent and impartial tribunal. The clause also bars press and the general public to be part of the trial in the interest of morals, national security and public order. Clause 3 of the article gives certain rights to accused in the following matters:
- Right to be informed about the nature and cause of accusation in the language, the accused understands;
- Right to sufficient time and means for the preparation of the defence;
- Right to be defended through legal assistance of his own choice or if he does not have sufficient means to engage legal assistance, will be provided for free;
- Right to get the attendance and examination of witnesses against him;
- Right to have free success as an interpreter if in case he is unable to understand the language used in court.
The European Court of Human Rights has interpreted Article 6, every time in the new light. The Court in Karalevičius v. Lithuania, held that Article 6 is essentially concerned with whether an applicant was afforded ample opportunities to state his case and contest the evidence that he considered false, and not with whether the domestic courts reached a right or wrong decision.
- Where it has been alleged that A murdered B who is the daughter of C. C as the Magistrate, cannot judge the matter as he is personally interested in the case and he lost his impartiality.
- Where X has been charged with offences involving sexual assault he will be presumed to be innocent until proven guilty and will be given all necessary opportunity to defend himself. Merely because he is charged with the offences of sexual assault, he will be denied the opportunity of being heard.
- Where it has been alleged that B has committed murder of D and Y is the eyewitness. The statement of Y will be recorded in presence of B.
Frequently Asked Questions:
What is meant by fair trial in India?
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 fair and impartial trial undertaken by an independent judge. Fair Trial ensures that where a person who is being accused of an offence is not denied his rights necessary to defend and protect himself.
What is the speedy trial in India?
Speedy Trial means a trial to be concluded with minimal delay. It is an essential feature of Fair Trial. Right to speedy trial is guaranteed by Article 21 of the Indian Constitution. This right is based on, that, long-term trial proceedings paves way for unnecessary harassment of victim as well of accused.
What are the principles of Fair Trial in India?
Following are the principles of Fair Trial:
- Presumption of innocence
- The trial before an independent, impartial and competent judge
- Prohibition on Double Jeopardy
- Knowledge of Accusation
- Right to open trial
- Speedy Trial
- The trial in presence of Accused
- Evidence to be taken in presence of Accused
- Free Legal Aid
What is the Fair Trial under Constitution?
Right to fair trial flows from Article 21 of the Constitution. As per article 21 right to fair trial is the part of the right to life and personal liberty. Fair Trial is also recognized as one of the human rights. There are several provisions under Indian Constitution which secure the right to a fair trial. Article 20(2) provides protection from Double jeopardy, article 22(1) provides right to knowledge of grounds of arrest etc. is enriched in Constitution which are the essential features of Fair Trial.
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
 Zahira Habibullah Sheikh and ors. v. State of Gujarat and Ors, (2006) 3 SCC 374.
 Universal Declaration of Human Rights, 1948.
International Covenant on Civil and Political Rights, 1966.
Rattiaram v. State of Madhya Pradesh, AIR 2012 SC 1485.
Mohd. Hussain @ Julfikar Ali v. The State (Govt. Of Nct),Criminal Appeal No. 1091 of 2006.
Himanshu Singh Sabharwa v. State of M.P. and Ors., Transfer Petition (crl.) 175 of 2007.
Universal Declaration of Human Rights, 1948.
State of U.P. v. Naresh and Ors, (2001) 4 SCC 324.
Shyam Singh v. the State of Rajasthan,1973 Crl. LJ 441, 443 (Raj).
 Naresh Sridhar Mirajkar v. The state of Maharashtra, AIR 1967 SC 1.
 Khatri v. the State of Bihar, (1981) 2 SCC 493.
HusainaraKhatoon v State of Bihar, 1980 1 SCC 98.
 Moti Lal Saraf v. Union of India, 2007 1 SCC [cri] 180.
 State of Maharashtra v. P.B.desai, 2003 Cri.L.J.2033 S.C.
Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703.
NandaniSathpathy v. P.L. Dani, 1978 AIR 1025, 1978 SCR (3) 608.
Om Prakash v. State of Uttar Pradesh, Appeal (crl.) 629 of 2006.
Constitution Act, 1982, Canadian Charter of Rights and Freedoms Section 11(d).
 R v. Rose, (1998) 3 SCR 262.
Selvey v. Director of Public Prosecutions,  2 All E.R. 497.
Coffin v. the United States,156 U.S. 432 1895.
Karalevičius v. Lithuania, (2005).