(Amrith. R, School of Excellence in Law)
PREAMBLE OF THE INDIAN CONSTITUTION
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY
assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
WHAT PROVISIONS CONSTITUTE THE ‘CONSTITUTIONAL FOUNDATIONS’:
The Constitution of India as the basic law of the land confers wide range of powers on the state officials to preserve the social peace and order and at the same time recognizes and guarantees certain rights and freedoms to the citizens, as well as non-citizens, including accused persons.The balancing of the apparently conflicting interests is reflected in the measures such as Article 372 that provides for the adaptation all the existing substantive and procedural criminal laws and other civil liabilities laws that confer powers on the state and its functionaries to criminalize behaviors and subject the suspects to the duly laid down procedure for guilt determination and award of punishments. Such wide and sweeping powers in the hands of the stats are counter-balanced by the Fundamental Rights enshrined in Part- III. In particular the basic balancing principle laid down in clause (1) and (2). Article 13(1) lays down that all the existing and enforced laws shall be subjected to a test for inconsistency with the Fundamental Rights and any such inconsistency shall render the law void to the extent of the inconsistency. Similarly Article 13(2) prohibits the state from making any law that tends to abrogate or abridge any fundamental right and by virtue of 13(2) that shall be rendered as void. Thus, the wide range of Fundamental Rights guaranteed in the Part III of the Constitution constitute the bulwark of individual freedoms. The following Fundamental Rights can be specially discussed in terms of their ‘foundational’ character:
PROPINQUITY BETWEEN MAN AND LAW:
All Indian citizens are guaranteed justice, equal right to life and personal liberty according to the constitution of India. All the Indian courts are bound by the constitution of India. So when there is a mutuality between law and the man, the society exists in peace. Justice is a constitutional mandate[1]. Any act which disturbs ones freedom as mentioned in the constitution of India in a harmful manner contributes to a crime. As per the constitution the rights are ensured to the people but the enforcement of it is through the judicial procedure. Unfortunately the justice system especially the criminal justice system is costly and also consumes time which makes it more complex for a common man.
SPEEDY JUSTICE TO ANYONE, EVERYONE:
The main aim of the justice system is to decide the cases in short duration. It is well settled that speedy justice is an ingredient[2]. Delayed justice is denied justice. It is high time to find an alternative to this problem so as to reduce the piling up of cases. The right to speedy justice as guaranteed under Article 21 of the Constitution is a clear manifestation of the judicial concern to minimize the infliction of anxiety and agony on an accused by the institution of a criminal case. it is essential to ensure speedy disposal of cases to secure that the operation of the legal system promotes justice[3]. For effective justice dispensation system at least three things are to be provided i.e. access to courts, effective decision-making by judges and the proper implementation of those decisions. Equal opportunity must be provided for access to justice. Delay results in witness being unable to testify correctly to events which may have faded in their memory. Right to speedy justice is extended under the right to life guaranteed by the constitution. Right to speedy trial is an important right in the UK and US. Justice Bhagwati observed “No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21 of the Indian Constitution[4].
ACCESS TO JUSTICE
The term access to justice implies two basic purposes of the justice system.
- The system must be equally accessible to all
- It must lead to the results that are individually and socially just[5]
People must have the access to justice in spite of economic disparities. Equal opportunity must be provided to all. Realizing that the poor and resource-less get a raw deal from the legal system, the constitution incorporated Article 39A which directs the State to ensure that the operation of the legal system promotes justice by providing equality of opportunity to all the persons to have equal access to justice[6]. Such equal access is denied when there are limited justice forums or the claimants of justice are resided in far-away places like hills, forests or desert areas.
CRIMINAL JUSTICE SYSTEM IN INDIA:
India follows the adversarial system of justice system. It was inherited from the time of britishers. The criminal justice system in India failed to give provide proper punishments and resulted in fearlessness towards the law. When the criminal justice system in a state fails to deliver proper justice, then militant organizations, private army, underworld gangs come into existence and solve the issues. There have been many amendments in the justice system including the criminal justice system, still the adversarial nature of justice exists till today from time immemorial. A person has the rights against indiscriminate arrest and lack of legal defense. Clauses 1 and 2 of the Article 22 of the Indian constitution expressly lay vital limitations on the power of state to arrest.
MAJOR ISSUES IN CRIMINAL JUSTICE SYSTEM AND RESOLUTION THROUGH ADR TECHNIQUES:
Generally the criminal justice system presumes an accused to be an innocent person and the burden of proof lies on the prosecution to prove beyond reasonable doubt that the accused is guilty for the act he committed. But the accused also has the right to remain silent. Also the judge has no force to discover the truth and so he is insensitive to the victims. It leads to the escape of the accused from conviction. Moreover, since the judge is forced to investigate the truth, the one who is able to convince better wins the argument. Basically, one who can afford a better lawyer has an edge. One of the solutions to the above mentioned problems is the ADR technique. ADR techniques do not only mean arbitration, mediation and conciliation but also include other various methods such as victim offender mediation, neutral fact finder method, early neutral evaluation etc. which are useful in resolution of criminal disputes.
[1] Justice S.B. Sinha, judicial reform in justice delivery system
[2] Purshottam Manohar Kamone V. State of Maharashtra
[3] S.C. Advocates-on-Record v. Union of India
[4]Hussainara Khatoon v. State of Bihar; AIR 1979 SC 1369
[5] Law commission India, 2009
[6] 42nd constitutional amendment, 1976
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