07-01-2025

Earlier, it was retribution, revenge, or compensation. There was no system as such.

Collective responsibility was seen in tribal times. This system was then transformed into
authoritarian and aristocracy and rule of law. Several schools are there- classical, pre
classical and neo classical- how CJS has evolved.

Pre-classical- school of demonology- someone is doing some sort of wrong, that person is
under the influence of some demon- no punishment aspect was there rather ordeals like
giving of concoction, throwing in water.

Classical school- if someone is doing wrong, they know the gravity of offence- Bentham
and Beccaria propounded this free will theory. But, no mens rea element was observed. Only
actus reus was observed.

Neo classical- Mental element started developing- Enrico Ferri.

Primitive Age

Justice was communal- it was also personal- Nordic tribes were there- Customs and
traditions were sources- focused on survival and community harmony. There was a lack of
any formal institution. Blood feuds, and collective responsibility was there. Theory of
retribution (Bible says- An eye for an eye) was in place. Trial was done through ordeals.
Other punishments- stoning, exile. All crimes are sins but all sins are not crimes.
Hammurabi code (focusing on civil disputes) introduced the element of mens rea and
marked the starting of medieval age.

Medieval Age

Emergence of feudal system- codification was started. For example- Canon law- developed
by the catholic church- it used to govern the issues like marriage, morality etc. There was a
division of classes. People from higher classes did not get severe punishment.

Law became codified and centralized under monarchies and religious institutions.
Dominated by divine law. Trial by combat started developing. Examples- Canon law, Sharia
law- codified Islamic law based on Quran and Hadis. It covered both criminal justice and
personal conduct.

Another example was Magna Carta (1215). This landmark document limited the powers of
kings, and introduced due process.

Contribution of thinkers- St. Augustine emphasized the role of divine justice and sin in
shaping human laws. Thomas Aquinas merged Christian theology with Legal philosophy
which later on influenced the natural law theories.
 Modern Age

Rule of law- and reformative justice- basically the modern period is considered to be an era
of enlightenment- Fair trial, appropriate justice, codification of laws as per needs of society-
retributive approach was nullified and reformative justice was promoted.

Emergence of Enlightenment era led to the privatization of individual rights, fair trials, and a
rational legal system. Karl Marx (Communism), John Locke (Social contract), and Bentham
(Utility model) were primary proponents.

For example- Napoleonic code (1804)- it unified French laws into a clear and consistent
framework and emphasized equality before law. It influenced legal systems in Europe and
beyond.

Another example is the IPC of 1860. Modern police forces were set up like the London
Metropolitan police (1829) which was established by Sir Robert Peel. Police forces were
known as Peelers. In USA, establishment of police forces started developing. In this age,
establishment of UN and international treaties was also there (UDHR 1948- A need for a
watchdog was realized so as to check corrupt officials.)

08-01-2025

Roman law

 More contribution to civil law rather than criminal. Only focused on property
matters.
 12 tables, 450 BC- the foundation of roman law providing a codified system
accessible to the public and it introduced the idea of written laws applicable to all
citizens.
 Need for gender equality was felt. Table 8 and 9 dealt with the criminal law. Roman
judges and jurists contributed significantly to the development of substantial and
procedural law.
 Corpus juris cibilis (6th century)- compiled by Emperor Justinian I and it became a
cornerstone for modern law systems and influenced criminal law practice by
systematizing legal principles and procedures.
 Theory of Agnates- Influence of patriarchy and tracing the descendants from the
male members of the family.
 English Law- Pre Norman (Primitive) period and Post Norman (Medieval) period
 Anglo Saxon people came into primitive phase- collective responsibility,
compensation, blood feuds.
 Norman Conquest- 1066- The Normans centralized the justice system; King
became the ultimate source of justice. Royal courts emerged; use of trial was
introduced which replaced the practice of ordeals.
  Wer (for grievous offences- assigning a particular worth to the deceased persons for
compensation purposes), Bot (Tort and property disputes-compensation on the basis
of present market value), Wite (Perpetrator needs to give some compensation to
the judges involved)- 3 Practices used to determine the compensation to be given.

 First time offender and Recidivists (repeated offenders) were categorized for the
purpose of determining punishment. (Bot and Botless crimes)

 Wer- How can you assign material value to a person. Example- Ford Pinto
compensated the affected people (due to default engines) on the basis of material
worth of the deceased person. A cost benefit analysis was done. In modern times, age
is a critical factor to determine the amount of compensation.

 Magna Carta- 1215- Right to fair trial, protection from arbitrary detention, and laid
the foundation for modern concepts like due process, habeas corpus etc.

 Principles of common law- Royal courts started compiling a book of precedents.

Justice system became more synchronized through this.

 18th century reforms- Industrial and rapid social changes were leading to crimes. It
is a movement from hard punishment to deterrence and reform.

 19th century- Establishment of formal institutions like professional police forces, law
enforcement improved, Prison act (Before this, prisoners died due to jails being
places of dumping and suffocation) came in 1877 which is again a step towards
rehabilitation. Prisoners were shifted to British colonies.

Training of prisoners was conducted so that after their jail term, they can make use of
these skills. Ticket on leave (similar to bail) were available for visitation rights (so
that they feel the importance of a lawful society).

 Modern Era- The 20th century saw reforms like Human rights act, ensuring fairness
and equality in the justice system.

09-01-2025

Codification was done in northern part of India. Vedic principles like dharma and Artha
shastra were more relevant in north. In southern India, temple authorities and literature
played the pivotal role. The northern India believed in deterrence and punitive measures
whereas in southern India, the focus was mainly rehabilitation like community service.
 Criminal justice in Ancient North India

 Sources of law- Dharma shastra (Manu smriti, Naradsmriti and Yajnavalkaya);

Customary Laws and Artha shastra (Chanakya / Kautilya).
 Administrative setup- King played the pivotal role and was the supreme authority.
His council of ministers, brahmins and scholars helped in appeal and reference
matters.
 Village level Justice- Panchayat and Sabha
 Types of crime- Against the state (espionage, treason, sedition), against the person
(murder, assault), moral and religious offences (adultery, blasphemy)
 Punishments- Class division was there, Corporeal punishments, fine, and public
shaming were common. Principles of Danda came into picture- it talked about
proportionality in punishments.
 Judicial process- Establishment and use of spies was done in gathering evidence,
public trials, often in royal courts were also conducted. Witness testimonies and
oaths were crucial in determining guilt or innocence. Ultimate aim was to restore the
dharma (righteousness). A shift from individualism to socialization was seen.

Criminal justice in Ancient South India

Sources- customs and traditions, they heavily relied upon local customs, Sangam
literature and oral traditions, religious texts (Hindu laws and Dravidian customs); edicts
and inscriptions. Kings issued royal decrees many of which were inscribed on temple
walls and pillars serving as public records of laws.

Administrative setup- Role of the king was similar to North Indian kings. Local
governance- Nadu sabhas were there. Temple administration was also there.

Chola, Chera, and Pandya- Dand Nayaka were the officials which had the
responsibility of counselling the king and to give punishment to offenders.

Types of Crime and punishment- Similar to North India and emphasis on offences
related to temple property and maritime trade. Punishment was usually fine and
imprisonment. For severe crimes, death penalty and mutilation were there.

Judicial Process- Precedents and traditions, and oral testimony were involved. Strong
reliance on witnesses, purpose was to integrate the offender back into the society
(Community reconciliation).
 10-01-2025

Medieval period

1. Legal framework

Pre Mughal-Era- Hindu Law (Dharmashashtra, Manu smriti), justice was tied to caste and
varna with different punishment for same crime.

Mughal Era (1526-1857)- Islamic or Sharia law- Continued to govern Muslim subjects and
cases involving moral and religious offences. Akbar’s reforms reduced the influence of
orthodox Sharia- secular justice was there. Aurangzeb codified Islamic law in Fatwa-e-
Alamgiri enforcing strict sharia practices.

2. Judicial structure

Pre Mughal-Era- Justice was decentralized. Panchayats played an important role in dispute
resolution. For serious crimes like murder or treason, king and royal courts used to be the
final authority of appeal.

Mughal Era- Same as the pre-Mughal era but more structured and organized. There was an
amalgamation of Islamic and customary law. Jehangir created a chain of justice whereas
Akbar used to appoint Hindu judges like Todarmal for Hindu people.

3. Nature of crime and punishments

Pre Mughal-Era- Severe punishments to deter the public and it also reflected caste and
gender hierarchy (women’s status started deteriorating in the post Vedic period).

Post Mughal Era- Common crimes as the pre-Mughal era and punishments were more
systematic. Certain rulers like Aurangzeb made this structure harsher. Akbar believed in
reformation, and penalties. Caste division in giving punishment seems to be not as
prominent as it was during the pre-Mughal era.

Virsa Singh v. State of Punjab- This case came way after Mughal era. It emphasized the
relevance of certain factors (like weapon used, body part on which it is used and the manner
of harm) in creating intention of a person.

(Include the ‘British Era’ PDF- 4 kinds of punishments in Mughal Era)

(Humanitarian element was present in Tazeer, no class-based punishments, brutal

and archaic, crime based)
 13-01-2025

Modern Age

East India Company- in case of severe hardships (offences against the state, treason,
atrocities against EIC people- hybrid law) action was taken by the company as per their
customs and not as per local customs. Settlement of property disputes (like robbery,
dacoity) was done through regulations (when company flourishes, other people also
benefit from it). Women who are lactating mothers and having children below 7 years
cannot perform sati. Another regulation completely abolished the sati practice with
punishment ranging from life imprisonment and corporeal punishment.

1st Law commission of 1834- codification of criminal laws- mens rea element started with
1837 draft. Concept of intentional (not exactly same as mens rea) and unintentional (self-
defense) acts- then, proportional punishment started. Culpability of minors is another issue-
theory of agnates (tracing the origin of family from father, patriarchy)- read theories like
‘status to contract,’ ‘social engineering’ given by Henry Maine, Hobbes, Roscoe Pound.
1857- Revolt took place- power was transferred from company to British crown.

15-01-2025

Pre codification phase (1757-1853)

Charter Act of 1773- it established the supreme court of judicature at Fort William
(Calcutta). It created conflict for application of laws.

Regulating Act of 1781- it aimed to resolve conflicts between Supreme court and local court.

Charter Act of 1813- first step towards codification of laws and it emphasized the
importance of legal reforms to establish a uniform legal system- brought the dual system of
law (Muslim law in criminal disputes and other local laws [Hindu, Muslim, customs of
party’s religion] in civil matters)

Charter Act of 1833 and the 1st law commission of 1834- it initiated legal codification in
India, it empowered the Governor General to centralize administrative and legislative
powers. It also established the 1st law commission in 1834 under the chairmanship of TB
Macaulay.

1st Law commission, 1834

First draft of penal code in 1837- it laid the foundation of IPC and it incorporated principles
of English criminal law and simplified it for Indian citizens. Concept of civilized and
uncivilized society came up and British imposed their customs upon Indian public.
 Codification of laws (1857-1875)

Revolt of 1857 marked the turning point leading to the British crown assuming direct control
over India. IPC 1860 included categories of offences and exceptions and punishments.
Offences were duly defined.

2nd Law commission- (1848-1853)- First IPC draft was given for revision- certain ambiguities
and unclear definitions were addressed.

CrPC- 1861- highlighted the trial procedures, powers of police, magistrates, provisions for
bail, appeals etc.

Indian evidence Act of 1872- Sir James Stephen- it provided comprehensive rules for the
admissibility of evidence in courts and introduced certain principles such as relevancy of
evidence, burden of proof, presumption of innocence, and rules for documentary and oral
evidence.

3rd law commission- (1861-1870)- Worked on CrPC, and also laid the ground for revision-
addressed the inconsistencies in law.

4th Law commission- 1879-1885- More focused towards CPC.

17-01-2025

Adversarial and Inquisitorial System

Roman and French law had inquisitorial while in common law systems, adversarial system
is followed. Best evidence rule is followed in adversarial system and judge acts as umpire
between 2 adversaries (opposite parties). It is based upon theory of contest or
competitiveness.

Adversarial system is less biased as most things are dependent upon evidence, judge plays a
passive role as opposed to an active judge in inquisitorial system.

A new system has evolved unofficially- Adquisitorial system. There is no watertight

compartmentalization between the 2 systems now. In rape and juvenile matters, judges are
much more involved. Inquisitorial system- Parties and lawyers in aid are supporting the
active judge in coming to a conclusion. It is also known as civil law system.

The adversarial system is a legal framework where 2 opposite parties- prosecution and
defence present their cases before an impartial judge and the judge would acts as neutral
arbiter. The common law traditions, magna carta (1215) are its origins. It is followed in UK,
USA, India. Most things are pre-decided- definitions, role of authorities etc.
Inquisitorial system is a legal framework where the judge plays an active role in
investigating the facts, examining evidence, questioning witnesses etc.

Principle- it emphasizes truth seeking through judicial investigation rather than party driven
competitions. Origin and early evolution- Roman law (corpus juris Civilis), French
Napoleonic code. Examples- France, Germany (inquisitorial with modern procedural
safeguards), Japan (Adquisitorial) etc.

20-01-2025

Indian Legal Context- Adversarial

1. Section 311 of CrPC- Role of judge as neutral arbiter, fair trial- S. 348 of BNSS

2. Section 101 of IEA- Burden of proof etc.- S. 104 of BSA

3. Section 137 and 138 of IEA- Examination and cross examination done by parties- S. 142
and 143 of BSA

4. Section 303 of CrPC- Right to legal representation- S. 340 of BNSS

5. Section 225 of CrPC- Prosecution- S. 248 of BNSS

Indian Legal Context- Inquisitorial

1. Section 165 of IEA- Judges may pose certain questions- S. 168 of BSA

2. Section 156 (3) of CrPC- Magistrate may order for investigation by police- S. 175 of
BNSS

3. Section 202 and 203 of CrPC- Magistrate’s role in inquiry (different from investigation
and much more involved) (more active involvement of judge)- S. 225 and 226 of BNSS

4. Section 164 of CrPC- Recording confession by magistrate- S. 183 of BNSS

5. Section 167 of CrPC- Bail matters- ‘No abuse of power’ to be ensured- S. 187 of BNSS

6. Section 313 of CrPC- Examination of accused by the court- S. 351 of BNSS

General Principles of CJS

Principles of Individual autonomy, principle of welfare, principle of harm and minimalization.

Doctrine is different from principles- principles are much more general while doctrine is
quite specific. Principles are derived from moral and ethical concerns, and customary laws
and traditions. Doctrine is a subset of principles- sources are judicial decisions.
 Individual Autonomy

Classical school of jurisprudence- theory of free will- a person is free to do whatever they
feel but with certain limitations- Responsible and accountability. For e.g.- morality, security
of state etc. are restrictions are upon Art. 19 rights.

Application of this theory in CJS- actus reus with mens rea are combined as offence.
Codified law lists down the offences and their exceptions along with punishments. Rational
and reasonable judgement has to be made if a person is committing a wrong. People with
unsound mind, involuntary intoxication are given different treatment.

1. John Stuart Mill argued that individual should have absolute sovereignty over their
actions unless they harm others; he also propounded theory of harm.

2. Immanuel Kant- emphasized autonomy as central to human dignity and morality stating
that individuals should act out of free will guided by reasoning, and

3. Roscoe Pound- Sociological school- balancing the rights of individuals and society
interest or order. Many Indian case laws have incorporated this aspect- IT Rules, DPDPA,
KS Puttaswamy case and Navtej Singh Johar case (Section 377 was important for men who
face sexual harassment), Common Cause case and Aruna Shanbaug case.

22-01-2025

Principle of Welfare

Theorists- Jeremy Bentham and Utilitarianism (his principles are applicable in all 3
principles), Roscoe Pound highlighted the importance of social engineering. Society will pay
special attention to vulnerable sections of society. Examples- Welfare schemes during
Covid-19- vaccination and travel, decriminalization of certain offences under IPC for social
inclusion. Too many laws in the name of welfare may lead to authoritarianism. For example-
MC Mehta verdicts for environmental and child labour practices.

Principle of harm and minimalization

Examples- Wolfenden committee report, sedition laws (introduced through S. 124A much
after enactment of IPC).

The principle of harm asserts that criminal law should only intervene when an individual’s
actions cause harm to others. JS Mill argued that individual liberty can be restricted only to
prevent harm to others. HLA Hart also reiterated this in his work ‘Law, Liberty and
Morality-1963.’

Principle of minimalism suggests that criminal law should be used as a last resort. It
advocates minimal interference unless necessary to maintain order. It avoids the issues of
over criminalization and encourages alternative mechanism.

Important- Read Andrew Ashworth- Principles of Criminal Law. This principle boosts the
public confidence at large.

Presumption of Innocence

Theorists- Bentham-Utilitarianism- Ajmal Kasab terrorism case- Right to legal

representation, William Blackstone- In commentaries on laws of England, 1765-69, he stated
that it is better that 10 guilty persons escape than one innocent suffer.

Origin- Magna Carta and UDHR (Article 11).

Woolmington v. District Public Prosecutor- 1935- UK- ‘Golden thread of presumption of

innocence’ term was introduced. Burden of proof has to be met beyond reasonable doubt.

Principle of Standard of Proof

Reverse Onus of Proof

S. 102, 104, 105- on whom BOP lies, 108- burden of proving case of accused comes under
exceptions, 118-presumption as to dowry death, 120-presumption as to absence of consent in
certain cases of prosecution for rape of BSA.

Proportionality in Punishment

Retributive Justice- Immanuel Kant

Beccaria- ‘On crimes and punishment’

Jeremy Bentham- Utilitarianism

S. 4 of BNS- Punishment, S. 63-69 of BNS, S. 100-105 of BNS

Bachchan Singh, KM Nanavati, Mithu v. State of Punjab

 Module 2- Stakeholders

As per UN, for every 1 lakh of population, there must be 333 police officials. For US, it is
220 and for India, it is 131-135 officials for ideal districts.

National Police Commission- 1977-81: - How do we insulate policing system from

political agendas- Major recommendations- reducing the political interferences through state
security commissions, improvement in working conditions and counselling (because they
need to see distressing sights every day), community policing, accountability and
transparency, police complaint mechanism for grievances.

Ribeiro Committee- 1998-99: - States were quite reluctant to enact these central guidelines-
establishment of police performance and accountability commission to monitor police
functioning, district level police complaint authority. Separation of roles was advised-
fixation of tenure.

Padnabhaiah Committee- 2000- sophisticated or non-conventional crimes like those

coming under Information Technology Act- tech training and skill development was needed-
protection of HR in cybercrimes- modernizing the police forces- improving police and
public relations- rural policing was required.

Soli Sorabjee Committee- 2005- drafting the model police act- moving away from
redundant 1861 Act- accountability mechanisms like police complaint authorities and annual
performance reviews (APR)- community engagement- gender sensitivity was required-
many provisions were there involving female officers but there were few female police
officials.

KPS Gill judgement- The case involved charges of molestation against KPS Gill, who was
the Director General of Police in Punjab at the time.

Malimath Committee Report- 2003- on criminal justice reforms- emphasis on adopting

victim centric approach- setup of victim compensation fund and witness protection schemes-
strengthening investigation measures.

Prakash Singh v. UOI- 2006- Case filed by senior police officials after their retirement-
displeasure to government due to any step taken by officials results into shunting
(punishment) posting, less pay is there. Guidelines were issued for moral police code. 7
golden guidelines were framed which were (kind of) neglected by the states.
i) Establishment of state security commission

ii) Tenure and selection of DGPs- Job Security is a must- minimum 2 years tenure for DGPs

iii) Separation of functions- investigations, evidence, law, and order teams

iv) Police complaint authority- issues that the citizens faced

v) Police Establishment Board

vi) Minimum tenure of other officers- officers on field duty like SP, SSP- this might impact APR and connect with citizens

vii) National security commission- for appointment of DGPs, central government must be involved

DK Basu v. State of WB- DK Basu (advocate and part of many legal aid committees) filed
a PIL- Arrested person shall be duly informed, copies of warrant to be given, Read the
guidelines. Not following these guidelines will result in contempt of court. (Section 35-38 of
BNSS)

Joginder Kumar v. State of UP- Young lawyer was detained without any due information-
certain guidelines were issued- Bail is the rule, jail is an exception.

Lalita Kumari v. State- 2014- distressed father came up to file FIR for missing daughter-
compulsory FIR in case of cognizable offences (this prima facie inquiry is to be made on the
face of offence and not on technicalities of law)- preliminary inquiry guidelines.

State of MH v. Christian Community Welfare Council- 2003- Read

Nilabati Behera v. State of Orissa- Read

Sheela Barse v. State of MH- Read

Role of prosecutors

Section 20 of BNSS refers to Directorate of Prosecution. Also read S. 18 and 19.

Appointment procedure- Appointed by the government (central and state)

197th Law commission of India report on ‘Appointments of the prosecutors’- this report has
highlighted that states are using the prosecution wing to serve their own political agendas.

Criminal law falls under the concurrent list. Responsibilities- Independence, justice to be
done, obligation towards society, disclosure duty (has to include every known detail)

UN Guidelines on the role of prosecutors- 1990- key principles are- impartiality and
independence of prosecutors. Must respect human dignity, and uphold HR. They must
refrain from prosecuting cases lacking sufficient evidence (Council of Europe principles).

Servant of the Law Theory- J. Bellin

Principle of legality and principle of expediency (discretion can be exercised)- Prosecutors

are not completely autonomous in nature- must respect legal boundaries, neutrality,
impartiality, and to understand that discretion is not unlimited and actions must align with
the legal rules and obligations.

Fiduciary Prosecution Theory

Public interest and trust- accountability- balance of interests

Hollow Hope Approach (Book written by Rosenberg)

Whole legal setup (defense, prosecution, and judiciary) deals with offences and not a crime-
it is like a false hope to the society. The aim of The Hollow Hope is to present an empirical
and social science-based examination of the efficacy of the Supreme Court in furthering
significant social reform, not an ideological one.

Concept of special prosecutor- National interest matters involving CBI or other central or
state investigating agencies.

Appointment of Prosecutor- S. 18-20 of BNSS- S. 18 and 19 talk about the person who has
got some sort of legal background- how misinterpretation of S. 339 of BNSS has led to a bad
tradition in law? In certain states like MH or Andhra, police prosecutors were frequently
being appointed. Roles and responsibilities must be clearly defined.

The main aim of judges is to provide justice while in certain cases in MH, police prosecutors
were inclined towards their biases and not towards providing justice. Under Section 32 of
the Advocates Act, non-advocates can also be allowed to present their matter.

Raja Ramchandra v. State of Andhra Pradesh (1991) and SB Sahane v. State of MH (1995) -
Provisions of police prosecutors are to be used in rare cases- either they are retired or not in
service or not part of the investigation.

Withdrawal from Prosecution- All 3 theories are to be used here- S. 360 of BNSS/S. 321
of CrPC- with the consent of the court- certain cases cannot be withdrawn. Discretionary
powers of the officers are not independent over here because consent of court is to be taken.

Conflicts can arise between state, judiciary, and prosecutors- state may compel the
prosecutor to withdraw but court may reject the withdrawal application.

Shiv Nandan Paswan v. State of Bihar (1987)- SN Paswan was a trade union leader and
misappropriated certain funds of the trade union. State government tried to withdraw the
prosecution as it would affect the public interest.

Issues- What constitutes public interest u/s 321 of CrPC for withdrawal prosecution?

Can the court override the decision of the public prosecutor to withdraw the case?

Observations- Public interest must be on valid grounds and impartiality is a must. And yes,
the court has the power to override the decision of PP as part of judicial scrutiny.

K. Ajith v. State of Kerala (2000)- State of Kerala had applied for withdrawal of the
accused, who was a key political figure in the state. Hollow hope approach can be applied
here- every legal system was in place but lack of evidence was a key aspect.

Issues- Whether the state has power to withdraw a prosecution in cases involving serious
offences. Whether the court’s consent is mandatory for withdrawal and What factors should
be considered? What is the role of the complainant’s objection in determining whether
prosecution can be withdrawn?
Observations- Withdrawal can be done only if it is in the interest of the justice and not
solely for the convenience of the state. The court cannot simply approve a withdrawal
without considering the merits of the case and the public interest in pursuing the case. While
the complainant’s objection is relevant, the court has the final say in deciding whether the
withdrawal serves the justice.

Role of Judiciary- Independence and Appointment

Origin and Evolution- Segregation between ancient, medieval, and modern eras. In ancient
times, retaliation, and concept of one tribal chief was there. Evolution of feudal system was
seen in medieval times. In Middle Ages, codification was prevalent. Inspirations from
certain religious books was observed. Magna Carta in 1215 was instrumental in establishing
liberties, restrictions on king’s power, and fair trial during medieval times.

Modern ages can be divided in various time frames– 18 th century was the era of
enlightenment. Certain philosophers like Montesquieu and Locke advocated the concept of
SoP and system of checks and balances. Virtual hearing, e-filing are seen as proofs of
modern CJS.

Malimath committee report on criminal reforms included the concept of timelines for
judicial system. Also, strength of judicial officers was an issue. UN provides that there must
be 33 judges per 1 lakh population as the model system.

1. Ancient system- Code of Hammurabi (set of written laws), Ancient India- judicial system
based on dharma and Manu smriti, Greek and Roman legal system laid the foundation of
modern judiciary- Civil law, law of nations and natural law was introduced.

2. Medieval judiciary- influenced by feudal system, Magna Carta of 1215- limited the
power of the king, Hindu laws, and Sharia laws in India.

3. Modern Judiciary- John Locke and Montesquieu who emphasized SoP between legis.,
exec., and judiciary. Common law system in England and civil law system in Europe was
becoming dominant. A. 3 of US constitution emphasized upon independence of judiciary.
Judicial review came up and ICJ was established in 1945. Concepts related to technological
advancements were also seen.

Role of judges- Read

Strength of Judges- Judge to population ratio- sanctioned strength by UN is 34 judges per 1

lakh population. In India, only 1.54 judges are there for 1 lakh population. US and UK are
also facing these strength issues. Young minds are required for dynamic judgements like
same sex marriage case, Sabarimala temple issue etc.

USA- Judicial conference of the US- It is the principal policy making body concerned with
the admin. of US courts and it reports on matters related to judicial independence and
efficient functioning of the judiciary. It took place in 2024- Judiciary must participate more
in budget, finance and policy making issues. Congressional hearings on reforms are also
conducted.

UK- Const. reform Act of 2005- UK Supreme court came up in 2009. Judicial appointment
commission was established. This act Aimed at strengthening judicial independence. This
act separated the judiciary from the House of Lords. JAC publishes the annual reports
detailing its efforts to ensure a fair and transparent process for appointing judges, hence
upholding judicial independence.

05-02-2025: Read PPT

(https://docs.google.com/presentation/d/1yt9hxpaepczn4zAw0hjYpMWxrj96CdSW/edit?
usp=sharing&ouid=113968214035159448383&rtpof=true&sd=true)

06-02-2025

Rights of Accused

Terminology is a bit biased- even before procedures, we are addressing a person as accused

UDHR, ICCPR, all principles already dealt with above, Art. 19, 20, 21, 22, 40.

Ajmal Kasab- in this matter of national security, the accused was not given right to choose his own
LR

Income tax and customs- compulsion to give certain statements for regulatory purposes

1. Art. 10 and 11 of UDHR- Fair hearing and presumption of innocence

2. ICCPR- 1966- Art. 9 and 14- prevention from arbitrary arrest and detention; right to appeal and
LR

3. Convention against torture- 1984- prohibits torture and inhumane treatment of detainees

4. European convention on HR- 1950- Art. 5- right to liberty and Art.6- right to fair trial

Pre constitution laws- IPC and other old laws

Post constitution- A. 14, 19, 20-22.

Miranda v. Arizona- Miranda Warnings- 1966- 23-year-old Miranda kidnapped and raped a minor
girl- confessed to the crime- no warning was given as to usage of his confession against him- no
rights were provided to him- Did the police violate Miranda’s 5 th amendment right against self-
incrimination by failing to inform him of his rights before interrogation?

Did the lack of legal counsel during police questioning violate his 6 th amendment right to an
attorney?

It was a lapse on the part of police officials- when a person is making such statement, he must have a
right to a legal counsel who can advise the accused- also, he should be given the warning regarding
usage of his statement against him.
Warnings- 1. Before any custodial interrogation, police must inform suspects

i) They have right to remain silent

ii) Anything they say can and will be used against them in court of law

iii) They have right to an attorney

iv) If they cannot afford an attorney, then one will be appointed for them

Wainwright Case- 1963- 51-year-old man arrested for stealing, house breaking. Not given any
attorney to represent. The court of Florida held that attorney will be appointed in matters of capital
offences or where death penalty as a punishment is given. Only for grave offences.

Certain issues arose- Did the denial of a court appointed lawyer violate the person’s const. rights of
6th amendment?

Does the right to counsel apply to state courts under the 14th amendment due process clause?

Accused arguments- The state did not provide attorney but the state validated it as per codified laws.

Betts v. Brady- 1942- State of Florida will not provide attorney unless there are special
circumstances like death penalty or grievous offences. This 1942 judgement was overruled under due
process clause of 14th amendment. These rights are important for principles like presumption of
innocence and it would override state law.

Some other case laws- Maneka Gandhi v. UOI; DK Basu v, State of WB; Selvi v. State of Karnataka
(case of Narco analysis and Polygraph test- can be used as an exception)

Nandini Satpathy v. PL Dani- 1978- Section 179 of IPC- corruption case related to CM of Odisha-
certain self-incriminating questions were asked to which Ms. Nandini refused- Art. 20(3) of CoI-
does the right against self-incrimination u/A 20 (3) apply during police interrogation or only in court
trials?

Can an accused person be compelled to answer questions that may later be used as evidence against
them? Does S. 179 IPC overrides A. 20(3). At both the stages (police and court), this rule must be
applicable. A. 20(3) overrides S. 179 of IPC.

Exceptions- Read Notes given by ma’am. (Terrorism, National security etc.)

Rights of the Victims

Primary (directly being offended by the accused) and Secondary (much more dangerous, victim is
being forced to deal with cumbersome CJS stakeholders) Victimization.

Retributive theory- To give imprisonment punishments to offender

Restorative theory- Going for other punishments- Victim participation is very important in certain
ADR mechanisms. Major reason is to heal the victim.

Feminist theory- Special considerations for female and child victims.

2 issues- Who will give the compensation (state may sometimes give interim compensation) and how
to heal the victim within the restorative framework.

People v. Turner- A girl was drunk, and was raped by Turner. The court ordered for imprisonment of
only 1 month. Then, another trial took place after public outcry, wherein Turner was given
imprisonment punishment for 2 years. Similarly, juvenile laws in India were amended by Nirbhaya’s
mother’s statements in media.

Mathura Rape Case- terminology ‘habitual to sex’ was held to be derogatory- marks of struggle to
be seen on the body of accused as well- accused has to prove consent beyond reasonable doubt.

Conflict between IPC and POCSO- there is a need for uniformity and balance. There have been
many amendments to rape laws in India. Special provisions for child victims and accused- special
courts, reformative measures etc. (Read Notes provided by Ma’am)