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Report No. 273

Chapter - IV

Constitutional / Statutory Provisions

A. Constitutional Provisions

4.1 Article 20(3) provides that a person accused of any offence shall not be compelled to become a witness against himself. The accused has a right to maintain silence and not to disclose his defence before the trial.67 Test results of polygraph and brain finger printing tests have been held to be testimonial compulsions and thus have been held to be barred by Article 20(3). 68 Moreover recoveries under section 27 of the India Evidence Act, 1872 are not permitted to be procured through torture.69

4.2 Article 21 provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The Supreme Court has consistently held that custodial torture violates right to life enshrined in Article 21 of the Constitution. It is settled legal proposition that Article 21 may also supplement various requirements laid down in Article 20.70

4.3 In Sunil Batra v. Delhi Administration, 71 the Supreme Court in crystal clear words held that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration."

4.4 Article 22 (1) & (2) provide for protection against arrest and detention in certain cases. It prohibits detention of any person in custody without being informed the grounds for his arrest nor he shall be denied the right to consult and to be defended by a legal practitioner of his choice.

"Every person who is arrested and detained in custody shall be produced before the nearest judicial magistrate within a period of twentyfour hours of such arrest..,..,.and no such person shall be detained in custody beyond the said period without the authority of a magistrate."

4.5 Similarly, a criminal trial which may result in depriving a person of not only personal liberty but also his right to life has to be unbiased and without any prejudice for or against the accused.72 It has also been held that a punishment which is too cruel or torturous is unconstitutional.73

4.6 Informing about grounds of arrest is mandatory under Article 22 (1)74 Right to consult and to be defended by legal practitioner of his choice is also mandatory.75 More so, production of the accused before the nearest magistrate is a mandatory constitutional requirement.76

Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation Back

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