India

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INDIAN CRIMINAL DEFENSE MANUAL

  1. The Role And Responsibility of a Legal Aid Lawyer
  2. Rights of the Accused and Exceptional Circumstances
  3. Client Interview
  4. Other Pretrial Matters
  5. Theory of the Case
  6. Various Defense Strategies
  7. Questioning the Witness
  8. Plea Bargaining/Guilty Plea
  9. Evidence
  10. Arguments

CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background


The Republic of India is the largest democracy in the world and the second most populous nation in Southeast Asia. Beginning in the early 18th century, India was gradually annexed by the British East India Company. By the mid-19th century, India had fallen under the direct administration of the United Kingdom. India became an independent nation in 1947, following the protracted efforts of an India independence movement which took on a variety of forms and philosophies, the most widely recognized being the non-violent resistance led by Mahatma Ghandi.


India is comprised of 28 states and 7 union territories. While the states of India have their own elected governments, the union territories are directly ruled by the federal government, with the President of India appointing an Administrator or Lieutenant-Governor to act as the top official in each union territory. Delhi and Pondicherry are the only union territories which have been granted partial statehood, and each possesses an elected legislative assembly and an executive council of ministers. The powers of these bodies are limited, as certain types of legislation are reserved for the “consideration and assent” of the President of India.


India has a federal government divided into three branches; the executive, legislative and judicial. The Constitution of India serves as the supreme legal document. The principal authorities in the executive branch are the President, who serves as head of state and is indirectly elected by a national electoral college for a five-year term, and the Prime Minister of India, who is appointed by the President and exercises most of the executive power. The legislature is a bicameral parliament modeled after the parliamentary system of the United Kingdom, with powers divided between an indirectly elected upper house, the Rajya Sabha (“Council of States”) and a directly elected lower house, the Lok Sabha (“House of the People”). The judiciary is an independent, three-tiered body, with the power to declare the law and strike down union or state laws which contravene the constitution. The Supreme Court of India is the highest judicial authority and the ultimate interpreter of the constitution.


Type of System

A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.

Sources of Defendants' Rights

Defendants' rights are protected by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel[1], the right to silence [2], the right to a fair trial[3], the right to confront witnesses[4] and the right to a speedy trial[5]

Defendants' Rights


Pre-Trial

The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime[6]. Police may conduct a search upon probable cause and the issuance of a search warrant.

A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.[7]. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.

A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.

Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. [8]

The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.[9]

Trial

A defendant has the right to a fair trial in open court [10] as well as the right to confront witnesses [11]. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.

Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation[12]

Post-Conviction

The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.[13] The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.[14]

The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari [15]


See Criminal Justice Systems Around the World

QUICK FACTS

  • There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.

References

  1. Constitution of India, Art. 22(1)
  2. Constitution of India, Art. 20(3)
  3. Constitution of India, Art. 14
  4. India Evidence Act, Section 138
  5. Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98
  6. Criminal Procedure Code, Sect. 41
  7. Criminal Procedure Code, Section 50A
  8. Constitution of India, Article 22(2)
  9. State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521
  10. Criminal Procedure Code Sec. 327
  11. Indian Evidence Act Sec. 138
  12. Criminal Procedure Code, Sect. 164.
  13. Constitution of India, Art. 20(2).
  14. For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.
  15. Constitution of India, Art. 32(2)