TITLE OF THE PAPER: LEGAL PROTECTION OF FEMALE ACCUSED

- MeghaBorana and Rashi Bhatia

“Every Saint has a past; Every Sinner has a future.”

Oscar Wilde

The intention of the legislature in laying down these principles has been that hundreds of
guilty persons may get scot free but not even one innocent person should be punished. The
paper would like to explicit that one of the basic tenets of our legal system is the benefit of
the presumption of innocence of the accused till he is found guilty. The Indian Constitution
provides some basic rights to the female accused which are to be followed by the authorities
during the process of criminal administration of justice. The Criminal Procedure Code deals
with the procedural aspects of arrest of a female accused person and provides various rights
to female prisoners. Special Care of women’s as present inmates as essential for their
protection of the Human Rights. There is need for custodial safety and gender justice. The
State must secure for her this dimension of social justice while she is in peril or under the
process of being custodialsed in a manner detrimental to her womanliness. This research
paper is an analysis of provisions related to the Female accused under Constitutional law,
Criminal Procedure law and Human rights which tries to look at the concept of right to life
under the Indian Constitution from the aspect of prison rights and tries to find out special
rights if any guaranteed to the women accused in India.

KEYWORDS: Constitution, Human Rights, Prisoner’s rights, Women.

INTRODUCTION

“Human dignity is a clear value of our constitution not to be bartered away for mere
apprehension entertained by jail officials”.

The Constitution of India and criminal system code gives some fundamental rights to the
individual being captured. One of the fundamental precepts of our legitimate framework is
the advantage of the assumption of guiltlessness of the charged till he is discovered
blameworthy toward the finish of a trial on lawful proof in a popularity based society even
the privileges of denounced are consecrated, the blamed in India are managed sure rights, the
most essential of which are found in the Indian constitution.

The notion of justice evokes the rule of law, of the resolution of conflicts, of institutions that
make laws and of those that enforce it Justice implies fairness and the implicit recognition of
the principle of equability. 1The preamble to the Indian Constitution invokes Justice — social,
economic and political as a core principle.

Access to justice inheres in the notion of justice. Two basic purposes which are intended to
be served by providing access to justice are:

1. To ensure that every person is able to invoke the legal processes for redressal, irrespective
of social or economic status or other incapacity, and

2. That every person should receive a just and fair treatment within the legal system. 2

“Human rights” as the expression goes, means certain rights which are considered to be very
basic for an individual's full physical, mental and spiritual development. Human rights
encompasses the fundamental principles of humanity and these are the rights which every
human being is entitled to enjoy on the basis of the fact of being born human.

RIGHTS OF FEMALE ACCUSED UNDER CRIMINAL PROCEDURE

The criminal justice process has to deal with the citizen at several stages. Arrest is the first
stage. At this stage the freedom of the citizen is restrained to safeguard public interest.
Different purposes are served by arresting a person. Sometimes, it saves him/her from
retaliatory assault from the public. Sometimes, he/she is prevented from committing further
crimes. And surely arrest helps him/her to be presented before the appropriate court to stand
trial. It is to serve the third purpose that usually a suspect is arrested by the police.

Even during an arrest where the accused is a Woman, her safety is a priority for fair trial of
the accused and to ensure that, an amendment in 2005 to the Criminal Procedure Code, 1973
made a very significant point related to the safety of woman.

1
John Rawls, A Theory of Justice, 11, 1971.
2
S. Murlidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, 1, 2004.
According to Section 46(4) of the Criminal Procedure Code, 1973 which governs the arrest of
women, It is specifically mentioned that “Save in exceptional circumstances, no woman can
be arrested after sunset and before sunrise, and where such exceptional circumstances exist,
the woman police officer shall, by making a written report, obtain the prior permission of the
Judicial Magistrate of the first class within whose local jurisdiction the offence is committed
or the arrest is to be made.

Woman is prone to crime be it anywhere. Here the emphasis is given to protect woman while
making an arrest. Protection is given so that Police misdeeds can be prevented. There are
many ambiguities to this insertion out of which the most important one being the confusion
of arrest by a male police officer during day. The apex court of the country has made efforts
to come clean on the situation but there is a lot more to do.

Apart from the points mentioned above a woman who is being arrested for an offence has
following rights (Women’s Rights)

 Right to be informed of grounds of arrest which has been made Section 50(1) of
Criminal Procedure Code, 1973? (Cr.P.C)
 .Right to inform the relatives/ friends – Police officer making arrest has to
immediately give the information regarding such arrest and the place where the
arrested person is being held to any of his/her friends, relatives or such other persons
as may be disclosed or nominated by the arrested person. Section 50A of Cr.P.C.
 It is also the duty of the police officer to inform the person arrested of his/her rights.
 Right to be informed of right to bail. Section 50(2) of Cr.P.C.
 Right to be produced before a magistrate without delay – It is illegal to keep a person
in detention for more than 24 hours without the orders of the Magistrate. Section 56 of
Cr.P.C.
 Right of not being detained for more than twenty-four hours. Section 76 of Cr.P.C.
 Right to consult a legal practitioner – This right begins from the moment the arrest is
made.
 Manhandling and Handcuffing – It is illegal to manhandle a person at the time of
arrest.
 Search of arrested person – Only a female police can search another female. The
search should be carried out in a decent manner.
 A male police officer cannot search a female offender. He can however search a
woman’s house.
 Also there exists a right to be examined by a medical practitioner. Arrested person has
a right to legal aid and fair trial.

PROCEDURAL ASPECT OF LEGAL AID

Criminal Procedure Code provides that legal aid to accused at State expense has to be
provided, it further provides that where in a trial before the court of session, the accused is
not represented by a pleader and where it appears to the court that the accused has no
sufficient means to engage pleader the court shall engage a pleader, the court shall assign a
pleader for his defense at the expense of the State.3

The question, whether an accused who on account of his poverty is unable to afford legal
representation for himself in a trial involving possibility of imprisonment imperiling his
personal liberty, is entitled to free legal aid at State cost and whether it is obligatory on him to
make an application for legal assistance or Magistrate or Sessions Judge trying him is bound
to inform him that he is entitled to free legal aid and inquire from him whether he wishes to
have a lawyer provided to him at State cost. Civil Procedure Code provides for filing of suits
by indigent persons. It enables persons who are too poor to pay court fees and allow them to
institute suits without payment of requisite court fees. 4

Part III of The Indian Constitution guarantees fundamental rights to all citizens and
some of these rights, particularly the right to equality (Article 14) and the right to life (Article
21), to all persons. Both these articles are essential for understanding the nature and
scope of the right to legal aid as access to justice. The denial of access to justice to a person
on account of economic and social inequalities is a manifestation of the
violation of the right to equality5 as forming part of the scheme of Articles 14 and 21
had to await judicial interpretation in late 1970s. Prior to this, the Constitutional rights of an
arrested person to legal representation were seen as being contained in Article 22 of the
Constitution. 6

THE CONSTITUTIONAL PERSPECTIVE OF FEMALE ACCUSED

3
Criminal Procedure Code, 1973, Sections 303, 304.
4
Civil Procedure Code, 1908 — Order 33.
5
S. Murlidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, 1, 2004, at page 79.
6
S. Murlidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, 1, 2004, at page 79 at page 80.
The Constitution of India under Article 21 that is Right to Life & Personal liberty lays down
that, life and personal liberty of an individual can be deprived by a reasonable, fair and just
procedure established by law. Since the beginning of civilised society, human race has
always been conscious of justice and has frowned at efforts to interfere with individual
Liberty and dignity. Therefore to safeguard the rights of the person who are deprived of their
life and personal liberty and suffer an irreparable loss due to accusation or conviction are
constitutionally recognized under Article 20 of the Constitution. A person in custody of the
police, an under-trial or a convicted individual does not lose his human and fundamental
rights by virtue of incarceration. And these rights are so elemental in the imparting of justice
that almost all developed countries’ in world whether it is Constitution of USA, UK or
Australia have given recognition to certain rights constitutionally. As recognized
internationally Article 15 Para 1 of International Covenant on Civil and Political Rights says
“No person shall be held guilty of any criminal offence which did not constitute a criminal
offence, under national or international law, at the time when it was committed. Nor shall
there be any imposition of greater penalty or punishment than that was there when the
offence was committee.7

LEGAL AID: INDIAN SCENARIO

Constitution of India is regarded as basic statute of the country. All statutes which get enacted
by the legislature find their sources in the Constitution. It contains provisions for citizens as
well as non-citizens. Indian Constitution promises equality, the concept of legal aid has its
roots in this very provision of the Constitution. The role of equality before law and equal
protection of law would only remain Constitutional shibboleth, if a person cannot secure legal
protection because of being poor . The Constitution treats all citizens as being equal and
provides them equal protection under law, yet common persons face “barriers to access to
justice”, illiteracy, lack of financial resources and social backwardness are major factors that
hinders the common person from accessing justice. If a person does not have the means of
obtaining access to a court, justice become unequal.

The denial of access to justice in criminal justice system impacts directly on the liberty of
victim or accused, who mostly belong to socially & economically weaker section of the
society. Selective application of the law and use of law as a tool of oppression against poor

7
The International Covenant on Civil and Political Rights.
violates the right to equality before law and equal protection of law because then the police
rather than the law determines what is right and what is wrong.

HUMAN RIGHTS RELATED TO FEMALE ACCUSED

Women are entitled to the equal enjoyment and protection of all human rights in the political,
economic, social, cultural, and civil and all other fields These rights include, inter alia, the
rights to life; equality; liberty and security of the person; equal protection under the law;
freedom from discrimination; the highest attainable standard of mental and physical health;
just and favourable conditions of work; and freedom from torture and other cruel, inhuman or
degrading treatment or punishment Violence against women may be physical, sexual or
psychological, and includes battering, sexual abuse, dowry violence, marital rape, harmful
traditional practices, non-spousal rape and violence, sexual harassment, forced prostitution,
trafficking in women, and exploitation-related violence Violence against women, in all its
forms, violates and impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms Police shall exercise due diligence to prevent, investigate and make
arrests for all acts of violence against women, whether perpetrated by public officials or
private persons, in the home, in the community, or in official institutions Police shall take
rigorous official action to prevent the victimization of women, and shall ensure that re-
victimization does not occur as a result of the omissions of police or gender-insensitive
enforcement practices Violence against women is a crime and must be treated as such,
including when it occurs within the family Arrested or detained women shall not suffer
discrimination and shall be protected from all forms of violence or exploitation Women
detainees shall be supervised and searched by female officers and staff Women shall be
detained separately from male detainees Pregnant women and nursing mothers shall be
provided with special facilities in detention Law enforcement agencies shall not discriminate
against women in recruitment, hiring, training, assignment, promotion, salary, or other career
and administrative matters Law enforcement agencies shall recruit sufficient numbers of
women to ensure fair community representation and the protection of the rights of female
suspects, arrestees and detainees.

Universal declaration of Human Rights: Art. 8

• Everyone has a right or an effective remedy by the competent national tribunals for acts
violating fundamental rights granted by Constitution or by law.
International Covenant on Civil and Political Rights, 1966

• The International Covenant on Civil and political Rights (I) was adopted by the United
Nations in 1966. The rights enshrined in the treaty are basic human rights that form a
foundation for freedom, justice, and peace in the world. 8 The rights in the ICCPR are
“designed primarily to protect individuals against arbitrary Government action and to ensure
individuals the opportunity to participate in Government and other common activities.” 9

Article 14, Section 3— ICCPR, 1966, guarantees the following rights to the accused in a
criminal trial:

(i) To be promptly informed of the charge against him in a language that he understands;

(ii) To communicate with a lawyer of his own choosing and have enough time to prepare for
his defense;

(iii) To be tried promptly;

(iv) To defend himself in court or have a lawyer defend him in court; to be informed of his
right to legal counsel if he does not know of that right;

and to have a lawyer assigned to his case if the accused cannot otherwise afford a lawyer;

(v) To question opposing witnesses and to call witnesses for his side of the case;

(vi) To have the assistance of an interpreter if he cannot understand or speak the language
used in court;

(vii) To refrain from making any self-incriminating statements.

The Law Commission of India, an executive body established by the Indian Government,
highlighted the principle of legal aid in its 48th report, while discussing safeguards against
overuse of State power in criminal proceedings. The Commission stated that “the accused
must be informed of his right to consult a legal practitioner of his choice, and the accused

8
Ronald B. Hurdle and Walter J. Champion Jr., The life and Times of Napole on Beazley: The Effective (if any)
of the International Covenant on Civil and Political Rights on Texas 17 and UP Execution Standard, 28T
Marshall L. Rev. 1 (2002).
9
Ibid.
must also be given an opportunity to consult such a legal practitioner before making the
confession.”10

The report further remarked that the Commission is “of the view that defense of the indigent
accused by a pleader assigned by the State should be made available to every person accused
of an offense (i.e. in all criminal trials) so that mere poverty may not stand in the way of
adequate defense in a proceeding which may result in the deprivation of liberty or property or
loss of reputation”11. The Commission thus recognized the right to counsel as a “basic
ingredient” of a criminal trial, and commented that the law should “go as far as possible” in
assuring that this ingredient is not absent.12

The right to legal representation has been expressed both in terms of the Constitution and the
statute governing criminal procedure.

"In regard to human rights in prisons," the learned former Chief Justice of India, J.S. Verma
has stated thus: "Special care of women as prison inmates is essential for the protection of
their human rights. There is need for custodial safety and gender justice. Women are
approximately 3 per cent of the prison population in India. The need is for separate jails for
women which is also emphasized by the Standard Minimum Rules for Treatment of
Prisoners. The Mulla Committee Report (1980-83) observed that the small number of women
in prisons is, quite likely, responsible for their needs being neglected. Special care is needed
of the women's health and preservation of their dignity. Article 51 A (e) of the Constitution of
India prescribes for every citizen the fundamental duty to denounce practices derogatory to
the dignity of women. In the case of a woman, she is not tbe viewed merely as an individual
person but as the pivot of a family whose protection is a matter of social concern. The
provisions of convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) must also be borne in mind."

CONCLUSION

Disregarding the different protects in the CRPC and in addition the in the constitution the
energy of capture given to the police is being abused till this day. It is the obligation of the
police to ensure the privileges of society. It must be remembered that this general public

10
Law Commission of India, 45 Report (Some questions under the Code of Criminal Procedure, July 1972, para
17).
11
Ibid.
12
Ibid.
incorporates all individuals, including the captured. The denounced are the captured
individual is made mindful of the rounds of his capture educated whether he is qualified for
safeguard and obviously created before a judge. Inside twenty four hours of his capture.

The above guidelines have been followed in various other cases. It may be suggested that
suspected person should be arrested after preliminary enquiry. A basic tenet of our criminal
justice system is: 'Let hundred guilty walk free but do not punish an innocent.' The police,
which is a part of criminal justice system, functions exactly the other way round. Liberty is an
important feature of civilized society and it should not be lightly transgressed. When we have
to enforce the criminal law in a fair and just manner, we must never give up our civil liberties
which were won by our founding fathers after great sacrifices, as these are essential for the
progress of nation.

The police and prosecutorial authorities have a professional duty under law to protect these
rights, as do the domestic judges who must at all times be alert to any sign that such
important rights as the right to freedom from torture, right to effective legal counsel, the right
not to be compelled to testify against oneself and the right to prepare the effective defense.