A Fair Crack of the Whip – Right to a Fair Trial, Trial Procedures, and Hurdles

Fair Trial

A fair trial is one in which all parties are treated equally by the judge and is conducted in front of the public. To secure the administration of justice, the right to a fair trial is a fundamental safeguard of human rights and the rule of law. The legal possibilities to prove one’s innocence must be fair and appropriate for there to be a fair trial. Everybody is given equal treatment before the courts and tribunals. In India, the idea of a right to a fair trial is guaranteed by the country’s Constitution and is further safeguarded by several laws and judicial rulings.

A fair trial is a fundamental right guaranteed by the Indian Constitution under Article 21, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” This includes the right to a fair and impartial trial. In addition to the Constitution, other legislative acts and court rulings also safeguard the right to a fair trial. As an illustration, the Code of Criminal Procedure (CrPC) establishes fair trial processes, such as the right to a quick trial, the ability to cross-question witnesses, and the right to interrogate parties in the case.

Principles of a Fair Trial

Fair Trial

Adversary trial system: The Criminal Procedure Code of 1973 introduced an adversarial system that is based on the accusatorial approach. “The sitting judge must stop acting like a bystander and merely a recorder if a Criminal Court is to be a useful tool in administering justice. By displaying intelligent, active curiosity, he must participate in the trial.

In Himanshu Singh Sabharwal v. State of M.P. and Ors the apex court made the following observation: If the parties are not given the fair trial that the Code provides for and the court has reason to believe that the prosecuting agency or prosecutor is not acting in the appropriate manner, it may exercise its authority under Section 311 of the Code or Section 165 of the Indian Evidence Act, 1872, to call in the relevant witness and to procure the relevant documents

Presumption of innocence: The Supreme Court said that “every accused is presumed to be innocent unless his guilt is proven” in State of U.P. v. Naresh and Ors Subject to statutory restrictions, the presumption of innocence is a human right. In India, criminal law is based on this idea.

It is undeniable that wrongful acquittals are bad and undermine public trust in the legal system, but what is much worse is the false conviction of an innocent person, the Supreme Court stated in Kali Ram v. State of H.P, a civilized community cannot experience the repercussions of an innocent person’s conviction because they are much more severe.

Independent, Impartial, and Competent Judges: It was noted by the court in Shyam Singh v. State of Rajasthan that the issue is not whether prejudice really impacted the decision. The fundamental question is whether there are any circumstances that would lead a litigant to rationally believe that a judicial officer’s prejudice must have worked against him in the case’s ultimate result. 

Trial: Trials are a necessary component to enact justice. Trials must be properly conducted in accordance with all rules and guidelines to ensure fairness and independence. Trials are investigations into crimes by the judicial agencies in charge of them. According to Section 304 of the Code of Criminal Procedure, 1973, the State is required to offer legal aid to an accused person if the court determines that the person lacks the resources to choose a pleader for his defense. Due to equal representation from all parties, this clause assures that the trial will be fair.

Rights during Trial

Justice for All
  • Knowledge of accusation: According to Article 22(1) of the Constitution, it is every accused person’s basic right to know the reasons behind their arrest. This privilege, however, can only be employed if the accused is aware of the charge against him. The accused must be informed of the charges in a language that they are familiar with. The accusation’s supporting evidence must be explained. The right to an accurate and particular allegation is included in Section 211 of the Criminal Procedure Code. Every accused person has a right to know the different reasons for their arrest, according to Section 50 of the Code of Criminal Procedure. If an arrest is made without a warrant, the police officer is required to explain the different grounds for the arrest to the subject.
  • Open Trial: Fairness and trial transparency are related. A fair trial necessitates an open courtroom setting. According to § 327(1) of the Criminal Procedure Code, the court is open if anybody may examine its records, not only parties. However, an exception follows the norm outlined in section 327(1). The court is required by section 327(2) to attend the trial for rape-related offenses behind closed doors. The right to a fair trial is not violated when proceedings are held on camera since cases involving sexual offenses demand concealment.
  • Free Legal Aid: If the accused is to be represented by a lawyer in order to ensure a fair trial, it is also crucial to make sure he has the resources necessary to hire counsel. Article 39A of the Constitution, which calls for equal justice and free legal representation, protects this right. Legal aid at the expense of the State is also provided under Section 304 of the Cr.P.C. Protecting an accused person’s life and individual freedom requires providing legal help if he has no means of self-defense. Human rights as well as the Constitution and criminal laws are the foundation of legal aid. The court ruled in Khatri v. the State of Bihar that the accused is entitled to free legal representation not only at the trial stage but also when they are initially brought before the magistrate and when they are detained. The Supreme Court ruled in Madav Hayavadanrao Hoskot v. The State of Maharashtra that a person who is allowed to appeal their sentence has the right to request legal representation to help them prepare and present their case.
  • Speedy Trial: A fair trial must include a quick trial as a key component. Justice is denied when it is delayed. A swift trial is crucial for both the accused and the victim. It stops pointless pestering. Article 21 of the Constitution provides the foundation for the idea of a quick trial. State of Bihar v. Hussainara Khatoon, the Supreme Court acknowledged that a fast trial is a necessary component of Article 21 of the Indian Constitution. Furthermore, the State is required by the Constitution to establish a process that would provide a swift trial for the accused. The court noted that the idea of a fair trial is an essential component of Article 21 in the case of Moti Lal Saraf v. Union of India.  
  • Trial in the presence of the Accused: The basic norm is that the accused should be present throughout all case-related sessions. This is based on the idea that the court is not allowed to make ex-parte decisions. This is not a hard and fast rule, and the court has the authority to continue the trial even in the absence of the accused. If the court determines it is essential for the administration of justice, the accused must appear in court.
  • Evidence should be taken in the presence of the Accused: The Indian legal system heavily relies on evidence; thus, it only makes sense that evidence be collected in the accused’s presence in order to guarantee the unbiased and fair administration of justice. According to Section 273 of the Criminal Procedure Code, the accused must be present during all hearings and during the presentation of all evidence. This provision is supported by an exception provided by Section 299 of the Code of Criminal Procedure, 1973, which lays out the requirements for recording evidence when the accused is not present. In the case of the State of Maharashtra v. P.B Desai, the court determined that section 273 CRPC allows for a waiver of personal presence. In certain circumstances, testimony can be recorded with the pleader present. As a result, the pleader’s presence is taken to constitute the presence of the accused. Thus, physical presence is not required; only being present might be sufficient.
  • Right to Bail: Bail simply means to get someone released from police custody. A person has a right to be released on bail after being arrested for a crime that is subject to bail. The police officer is required under section 50(2) of the Code to advise the individual who has been arrested of his right to bail and to permit the arrangement of sureties.
  • Prohibition on Double Jeopardy: Nemo debet vis vexari, or “no one shall be vexed twice,” is the basis for this tenet. The Indian Constitution’s Article 20(2), which states that “no person shall be prosecuted and punished for the same offense more than once,” protects the basic right against double jeopardy. The idea of autrefois convictandautrefois acquit serves as the foundation for the double jeopardy rule. The terms “formerly convicted” and “formerly acquitted” are both equivalent to the concept of autrefois. The common law nations adhere to and accept the defense plea of autrefois convict. This plea guarantees that no one will be found guilty of the same crime twice.
  • Right against Self – Incrimination: According to the Constitution’s Article 20(3), no one accused of a crime may be forced to testify against himself. Nobody is required to accuse themselves, thus. An accused person has the legal right to prevent coercion, threats, or other forms of pressure from leading them to give a statement. Nevertheless, Article 20(3) cannot be employed in cases when the accused voluntarily concedes guilt. This article claims that the burden of proof lies with the prosecution to prove guilt, and the accused is not compelled to make any statements against his will.
  • Lawful Punishment: The Constitution’s Article 20(1) safeguards ex-post facto criminal statutes. This means that if a crime was not committed at the moment it was committed, it cannot be committed at a later period. Only actions that were considered illegal at the time they were committed can legally result in punishment for a person. An act performed before such an act is not made criminal by an act that is subsequently charged as an offense. In general, a legislature has the authority to enact both prospective and retrospective legislation. However, Article 20(1) forbids the legislature from passing criminal legislation that is retrospective.

Barriers to the Implementation of Fair Trial Procedure


Only 16 out of 100 persons in India who are arrested for crimes are ultimately found guilty, which is causing an issue with public confidence in the country’s criminal justice system. The wait for a trial can occasionally be quite protracted for the accused. The costs and complexity of the legal processes are rising daily. According to NCRB data, inmates awaiting trial make up 67% of the entire jail population.

State authorities have harassed individuals and put pressure on the legal system because of out-of-date legislation. Approximately 3.5 crore cases are still outstanding in the courts, according to the Economic Survey 2018–19. Because of legal system flaws, many offenders in India escape punishment in a huge proportion of cases. Significant barriers to the swift and open administration of justice include corruption, a large workload, and police accountability. Since there is no coordination between the judiciary, prosecution, and police, India’s existing legal system takes years to administer justice. Usually, the affluent and powerful are not found guilty, and crime and politics have changed the criminal justice system in India

Approximately 30 million cases are pending in various courts, according to statistics. Many of these cases include an innocent individual who has spent years in prison as a witness against him. Mufti Abdul, the accused in the Akshardham terror attack case, was sentenced to 12 years in prison. Justices A K Patnaik and Venkate Gopala Gowda’s Supreme Court panel exonerated all six defendants, including those who had been given the death penalty, on May 16, 2014. The Gujarat Police received harsh criticism from the Supreme Court for the way it handled the case’s investigation. The bench reached the conclusion, concluding that the prosecution had not shown the accused’s guilt.

Second, the judicial system has a tremendous amount of work to do. In India, the police are regarded as the primary investigative body, and there are 138 police officers for every 100,000 residents. There are 229 and 505 people per 100,000 in other nations like the United States and Spain, respectively. According to Section 155(2) of the Criminal Procedure Code, a magistrate may instruct the police to look into a non-cognizable offense. A cognizable offense may be the subject of a police investigation under Section 156 of the CrPC. It is true that a police inquiry conducted inadvertently can alter the outcome of the case.


Undoubtedly, the foundation of any legal system is the idea of a fair trial. The accused, the victim, and society at large must all get fair treatment during the trial. Although the branches and components of a fair trial might change, just like any other part of the law, it is still a fundamental concept that must be upheld. And it is imperative that the courts uphold these norms in the present when informational trials are more common than judicial trials. The court personnel maintains neutrality in the face of both internal and external pressures. The accused and the victim must both have access to all necessary tools for making their cases.

Submitted by Abhinav Dubey.