Report No. 198
Witness Identity Protection
Right to Fair Public Trial In Presence of The Accused Not Absolute
In most countries governed by democratic constitutions and rule of law, the position today is that the right to an open 'public trial' in the immediate presence of the accused is fundamental but is not treated as absolute. This is revealed clearly from the survey of the legal position in the various countries referred to in our Consultation Paper.
The right to public trial is specifically mentioned in Art 14(1) of the International Covenant of Civil and Political Rights' (ICCPR) to which India is a party. The ICCPR refers to the right of 'public, open, fair trial' to an accused and it also states in what manner it could be restricted. The restrictions on the rights as accepted in the ICCPR show that several competing rights require to be balanced. Such balancing provisions are incorporated in the Constitutions of some countries or are stated in detail in the respective Codes or Rules of Criminal Procedure.
Article 14 of the ICCPR reads as follows:
"Article 14: 1. All persons shall be equal before the Courts and tribunals. In the determination of any criminal charge against him, or of his right and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent and impartial tribunal established by law".
The same article, i.e. 14(1), however, refers to the restrictions and states:
"The press and the public may be excluded from all or part of a trial for reason of morals, public order (ordre public) or national security in a democratic society, or when the interests of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interest of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."
In addition, Art 14(3) of the ICCPR specifically refers to certain minimum guarantees
"in the determination of any criminal charge against the said person, in full equality:
(a) .... .... ....
(b) .... ... ...
(c) ... ... ...
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; .....
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) ... ... ... ..."
So far as freedom of expression and right to information are concerned, Art 19 of the ICCPR states as follows:
1. .... .... ....
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of position, either orally, in writing or in print, in the form of art, or through any other media of his choice."
But clause (3) of Art 19 permits restrictions to be imposed, "as are necessary, for the purpose of respecting the rights or reputation of others or for protecting national security or public order (ordre public) or of public health or morals."
Thus, the provisions of the ICCPR require that the trial of an accused must be 'fair', should be an "open, public trial" and declares that the accused has a right to a trial conducted "in his presence and to examine or have examined, the witnesses against him". The citizens, public and press have a right to know and to publish what they know, subject to restrictions in the interests of respecting rights or reputation of others or for protecting national security or public order or public health or morals.
The press and public may be excluded for the purpose of protection of the above rights, or where the interests of private lives so require, to the extent strictly necessary, in the opinion of the Court, in special circumstances where publicity would prejudice the interests of justice.