Report No. 198

Position in India

(A) Constitutional Provisions and Interpretation:

The Indian Constitution does not contain any express provision that criminal trials must be open public trials nor does it contain anything like the First Amendment of the US Constitution which contains a confrontation clause. However, these crucial aspects relating to due process in criminal procedure have been derived by our Courts by way of interpretation of Art 21 of the Constitution. Art 21 reads as follows:

"Art 21: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law."

Though earlier decisions of the Supreme Court interpreted Art 21 as requiring merely a 'procedure established by law', whatever be its fairness there was a new turn in Maneka Gandhi's case 1978(1) SCC 240 where the Supreme Court held that the Constitutional mandate in Art 21 required a procedure which was 'fair, just and reasonable'. It has since been held in a number of cases that the procedure must be fair. (Police Commissioner Delhi v. Registrar, Delhi High Court: AIR 1997 SC 95). It has been held that the trial must be a public trial. Vineet Narain v. Union of India: AIR 1998 SC 889.

In addition, the right to a public trial is based on the right to 'freedom and expression' which is contained in Art 19(1)(a) of the Constitution of India which has been interpreted to include the freedom of press (Express Newspapers v. Union of India: AIR 1958 SC 578) and the right of the public to know (Dinesh Trivedi v. Union of India: 1997(4) SCC 306 and to publish the same.

Article 22 of the Constitution guarantees that the accused has a right to consult and to be defended by a legal practitioner of his choice.

(B) Code of Criminal Procedure, 1973:

The Code of Criminal Procedure, 1973 incorporates certain provisions of the ICCPR above stated, into our domestic law, in relation to open public trial.

In fact, such provisions were also there in the Code of Criminal Procedure, 1898 and have been replaced by similar provisions in the Code of 1973.

We shall refer to some of the important provisions of the Code of Criminal Procedure, 1973 to show that while the accused has a right to open public trial in his presence, that right is, however, not absolute.

(i) Section 273 prescribes that the 'evidence must be taken in the presence of accused'. It is, however, clear that this right is not absolute. Section 273 reads as follows:

"Section 273. Evidence to be taken in presence of accused:Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

Explanation: In this section, 'accused' includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."

(ii) Section 327 of the Code of Criminal Procedure, 1973 bears the heading: 'Court to be open'. It reads, in so far as it is material in the present context, as follows:

"Section 327: Court to be open: (1) The place in which any criminal Court is held for the purpose of inquiry into or trying any offence shall be deemed to be an open Court, to which the public generally have access, so far as the same can conveniently contain them."

But this right to open trial is not absolute. There are a number of exceptions. Some of the exceptions are detailed below.

(a) Under the proviso to subsection (1) of section 327 it is stated as follows: 27"provided that the presiding Judge or Magistrate may, if he thinks fit, order, at any stage of any injury into or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court."

(b) Subsection (2) of section 327 deals with exceptions (in case of sexual offences) from the provisions of subsection (1). It is provided therein that in the case of inquiry into or trial of rape (section 376) and other sexual offences (ss 376A, 376B, 376C, 376D) of the Indian Penal Code, 1860 the same shall be conducted in camera and in such inquiry or trials, the Court may permit any 'particular person' to have access to, or be or remain in, the room or building used by the Court.

(c) In regard to the in camera proceedings referred to in subsection (2) of section 327, it is declared that it shall be not lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court.

(d) Certain publications of identity of victim of rape punishable under the Code: Section 228A of the Indian Penal Code, 1860 prescribes punishment if the identity of the victim of rape is published.

(e) In Shakshi v. Union of India 2004(6) SCALE 15, the Supreme Court held that where a video screen is employed during recording of the evidence of a victim, the provisions of section 273 requiring evidence to be recorded in the presence of the accused is deemed to have been satisfied.

(f) Section 299 of the Code also indicates certain exceptions. It bears the heading 'Record of evidence in absence of accused'. This covers cases where accused has absconded or where there is no immediate prospect of arresting him.

(iii) Section 173(5) states that when the Police Report is filed under section 173 into the Court, the police officer shall forward to the Magistrate along with the Repor.-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely, other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

But there is an exception under section 173(6).

Under section 173(6) of the Criminal Procedure Code, 1973 which refers to the 'Report of Police officer on completion of investigation' (Chargesheet), there are certain exceptions statutorily recognized. The subsection (6) reads as follows:

"Section 173(6): If the police officer is of opinion that any part of any such statement (i.e. statement under section 161) is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request."

(iv) Under section 317 of the Code, inquiries and trials can be held in the absence of the accused in certain cases where the Judge or the Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in the Court.

(v) Procedure for examination and cross-examination of witnesses is specified in the Code. Section 231(2) of the Code provides that at the trial in the Court of Session, the prosecution may produce its evidence on the date fixed and the defence may cross examine or the date of crossexamination may be deferred. Section 242(2) permits cross-examination by accused in cases instituted on police report and trial under warrant procedure is by magistrates. Section 246(4) provides for cross-examination of prosecution witness in trials of warrant cases by Magistrates in cases instituted otherwise than on police report. But witnesses can now be examined by video conference procedure as per the judgment of the Supreme Court in Praful Desai's case 2003 (4) SCC 601.

Summary:

Thus, the above provisions of the Code of Criminal Procedure, 1973 would show that neither the right to an open public trial nor the right of examination of the prosecution witnesses in the immediate presence of the accused are absolute. There are a good number of exceptions as shown above.

There are some other special laws in force in our country which also provide exceptions to the right of the accused for open public trial as against the right of the victim for a fair trial. The State has also an interest in the fair administration of justice. That interest of the State requires that victims and witnesses depose without fear or intimidation and that the Judge is given sufficient powers to achieve that object. This is the overriding principle referred to by Viscount Haldane in Scott v. Scott (1913) AC 417.

In the case of special statutes concerning terrorist-trials, or unlawful activities, the Indian Parliament has already come up with some special procedures which perform the balancing Act. We shall refer to them in the next chapter (Chapter III).