Constitutional Vikram Singh

Principles in Asst. Prof. Law

criminal Law
 Role of the Constitution.
• Does the constitution guarantee human rights to people in a country?
• Do public authorities act in accordance with the constitution?
• These are two of the most frequently asked questions when measuring the overall
situation in a country.
• They reflect the central place occupied by the constitution in the lives of a State’s
people.
• Most legal orders are based on a hierarchical structure of legal acts with the
constitution at the top.
• All legislation and other legal measures of a State must be compatible with the
constitution. If a law or other legal measure adopted by the State is inconsistent with
the constitution, then it should be declared null and void by the competent judicial
institution
What is a Constitution?
Any broadly accepted working definition of a constitution would likely describe it
as a set of fundamental legal-political rules that:
1. are binding on everyone in the state, including ordinary law-making institutions;
2. concern the structure and operation of the institutions of government, political
principles and the rights of citizens;
3. are based on widespread public legitimacy;
4. are harder to change than ordinary laws (e.g. a two-thirds majority vote or a
referendum is needed);
5.as a minimum, meet the internationally recognized criteria for a democratic
system in terms of representation and human rights.
A civilized system of law(the Constitution) is as much concerned with the means
employed to bring people to justice, as it is with ends.
The framers of the Constitution sought to balance the
government's interest in crime control with the privacy and
liberty rights of innocent, suspected, and convicted
individuals.
Certain provisions of the Constitution apply specifically to
balancing police powers and citizens' rights.
Criminal procedure is a branch of constitutional law concerned with the rules of
law governing the procedures by which authorities
• investigate,
• prosecute,
• adjudicate crimes.

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.
372. Continuance in force of existing laws and their adaptation
• (1) Notwithstanding the repeal by this Constitution of the enactments referred to
in Article 395 but subject to the other provisions of this Constitution, all the laws
in force in the territory of India immediately before the commencement of this
Constitution, all the laws in force in the territory of India immediately before the
commencement of this Constitution shall continue in force therein until altered or
repealed or amended by a competent Legislature or other competent authority
• (2) For the purpose of bringing the provisions of any law in force in the territory
of India into accord with the provisions of this Constitution, the President may by
order make such adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and provide that the law
shall, as from such date as may be specified in the order, have effect subject to the
adaptations and modifications so made, and any such adaptation or modification
shall not be questioned in any court of law.
• Article 372 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) of Art. 372.
• 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 safeguard of individual freedoms.
 Art. 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.
 Art.15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them.
 Art 15 (3) Nothing in this article shall prevent the State from making any special provision for women and children
 19. (1) All citizens shall have the right—(a) to freedom of speech and expression/association/
 Art.20.(1)No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might haven been
inflicted under the law in force at the time of the commission of the offence.
 Art. 20 (2)No person shall be prosecuted and punished for the same offence more than once.
 Art.20 (3)No person accused of any offence shall be compelled to be a witness against himself.
 Art.21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
 Article 22 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
 (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
 (3) Nothing in clauses (1) and (2) shall apply—(a) to any person who for the time being is an enemy alien; or(b) to any person
who is arrested or detained under any law providing for preventive detention.
 (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless……
 Art.39A Free Legal Aid
 The German Constitutional Protections
Article 1[Human dignity –Human rights Article 2[Personal freedoms]
– Legally binding force of basic rights] • (1) Every person shall have the right to free development of his
personality insofar as he does not violate the rights of others or
• (1) Human dignity shall be inviolable. offend against the constitutional order or the moral law.
To respect and protect it shall be the • (2) Every person shall have the right to life and physical integrity.
duty of all state authority. Freedom of the person shall be inviolable. These rights may be
• (2) The German people therefore interfered with only pursuant to a law.
acknowledge inviolable and Article 3[Equality before the law]
inalienable human rights as the basis • (1) All persons shall be equal before the law.
of every community, of peace and of • (2) Men and women shall have equal rights. The state shall
justice in the world. promote the actual implementation of equal rights for women
and men and take steps to eliminate disadvantages that now
• (3) The following basic rights shall exist.
bind the legislature, the executive and • (3) No person shall be favoured or disfavoured because of sex,
the judiciary as directly applicable law. parentage, race, language, homeland and origin, faith or religious
or political opinions. No person shall be disfavoured because of
disability.
Article 13 [Inviolability of the home] Article 17[Right of petition]
• (1) The home is inviolable. • Every person shall have the right individually or jointly with others to
• (2) Searches may be authorised only by a judge or, when time is of the address written requests or complaints to competent authorities and to
essence, by other authorities designated by the laws and may be the legislature.
carried out only in the manner therein prescribed. Article 18 [Forfeiture of basic rights]
• (3) If particular facts justify the suspicion that any person has
• Whoever abuses the freedom of expression, in particular the freedom
committed an especially serious crime specifically defined by a law,
technical means of acoustical surveillance of any home in which the of the press (paragraph (1) of Article 5), the freedom of teaching
suspect is supposedly staying may be employed pursuant to judicial (paragraph (3) of Article 5), the freedom of assembly (Article 8), the
order for the purpose of prosecuting the offence, provided that freedom of association (Article 9), the privacy of correspondence, posts
alternative methods of investigating the matter would be and telecommunications (Article 10), the rights of property (Article 14)
disproportionately difficult or unproductive. The authorisation shall be or the right of asylum (Article 16a) in order to combat the free
for a limited time. The order shall be issued by a panel composed of democratic basic order shall forfeit these basic rights. This forfeiture
three judges. When time is of the essence, it may also be issued by a and its extent shall be declared by the Federal Constitutional Court.
single judge
Article 20 [Constitutional principles – Right of resistance]
Article 19 [Restriction of basic rights – Legal remedies]
• (1) The Federal Republic of Germany is a democratic and social federal
state. • (1) Insofar as, under this Basic Law, a basic right may be restricted by or
pursuant to a law, such law must apply generally and not merely to a
• (2) All state authority is derived from the people. It shall be exercised by
single case. In addition, the law must specify the basic right affected
the people through elections and other votes and through specific
legislative, executive and judicial bodies.
and the Article in which it appears.
• (3) The legislature shall be bound by the constitutional order, the • (2) In no case may the essence of a basic right be affected.
executive and the judiciary by law and justice. • (3) The basic rights shall also apply to domestic legal persons to the
• (4) All Germans shall have the right to resist any person seeking to extent that the nature of such rights permits.
abolish this constitutional order if no other remedy is available. • (4) Should any person’s rights be violated by public authority, he may
Article 25 [Primacy of international law] have recourse to the courts. If no other jurisdiction has been
• The general rules of international law shall be an integral part of federal established, recourse shall be to the ordinary courts. The second
law. They shall take precedence over the laws and directly create rights sentence of paragraph (2) of Article 10 shall not be affected by this
and duties for the inhabitants of the federal territory. paragraph.
 The U.S Constitutional Protections
First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances”.(Contemporary
Law :Art.19,25,26,27 India/ Art. 4,9,10,11,12 Germany)
The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” (Contemporary Law :Art.20,21, India/ Art. 2,3,13 Germany)
The Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law.” Art. 20(3),Art21 India/ Art. 17,18,19
Germany
Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.” At. 22,39 A,21 32,226India / Art.17Germany
Thank You…!!