डॉ. बी. आर. अम्बेडकर विश्वविद्यालय दिल्ली 
| Course Type | Course Code | No. Of Credits |
|---|---|---|
| Foundation Elective | NSLG1LP127 | 4 |
Semester and Year Offered : Winter Semester
Course Coordinator and Team : Kirt Agarwal
Email of the coarse coordinator : kagarwal[at]aud[dot]ac[dot]in
Pre-requisites: None
Course Outline
Module 1: Understanding Constitutional Liberties and Public Order
The interface between criminal law and the Constitution highlights a classic debate in political liberalism: where and how to draw the line between individual liberty and social control. ‘Liberty perspective’ conceives of criminal process primarily as a limitation on the State power, to ensure that the State does not arbitrarily or excessively trample over an individual’s liberty. ‘Public order perspective’ prioritises social control and security over individual liberty when the two interests clash. These two perspectives are not mutually exclusive, watertight compartments or oppositional models, or even the only perspectives on understanding the criminal process. To ensure that the State functions within constitutionally prescribed limits, the State has to justify every deprivation of liberty before an impartial tribunal, where individuals are guaranteed set of rights.
Readings:
- JN Pandey, Constitutional of India, Chapter 1, Introduction, page 1-17.
- Herbert L. Packer, Two Models of the Criminal Process, University of Pennsylvania Law Review.
- Aparna Chandra and Mrinal Satish, Criminal law and the Constitution in Sujit Choudhry et al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP
- A.G. Noorani, Handbook of Human Rights and Criminal Justice in India, SAHRDC, O.U.P., 2007.
- Sekhri, Abhinav, The Constitution and Criminal Justice (May 28, 2022). Available at SSRN: https://ssrn.com/abstract=4122125 or http://dx.doi.org/10.2139/ssrn.4122125
Additional Reading:
- Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford University Press, 2014), pp. 1-25.
Module 2: Criminal Proceedings and Fair Trial
This module aims to provide a comprehensive understanding of the various stages of criminal proceedings, delineating the functions of the investigating agencies involved in procedural tasks from investigation to trial. It will explore measures to expedite criminal proceedings against the accused, ensuring a swift and efficient justice process. Emphasis will be placed on safeguarding the pre-trial rights of the accused, with a particular focus on the Code of Criminal Procedure, 1973 and now the provisions of Bharatiya Nagarik Suraksha Sanhita, 2023. This module aims to provide an understanding of fair trial guarantees in criminal trials, emphasising the legal and constitutional protections available to the accused person. We will delve into the concept of fair trial, examine the legal and constitutional guarantees that ensure justice is served equitably. We will understand the relevance of Miranda guidelines and their implications for the right to silence and protection against self-incrimination, and undertake a critical comparative examination of safeguards in the Indian criminal procedure with the Miranda warnings in the USA.
We will also highlight the importance of the right to a pre-sentence hearing which is indispensable for reformative sentencing practices. The module will address the specific challenges faced by indigent accused and outline measures to support them. At the same time, we will also focus on the rights and needs of victims, ensuring a balanced approach to justice that considers both the accused and the victim.
Readings:
- R V Kelkar's Lectures on Criminal Procedure and Criminal Law and Criminal Justice, Pre-trial Procedure: investigation by Police, pg. 123-145.
- Dr. S. Muralidhar, Crime, Punishment and Justice in India: The Trajectories of Criminal Law, Lecture series in criminal law, Project 39A, NLU Delhi.
- BB Pande, Criminal Law and Criminal Justice: Advanced Legal Writings, chapter 2, The elements & essential principles of criminal law/liability, Eastern Book Company, 2022.
- R V Kelkar's Lectures on Criminal Procedure and Criminal Law and Criminal Justice, Trial Procedures: Principal Features of Fair Trial, pg. 345-358.
- JN Pandey, Constitutional of India, Chapter 10, Protection in respect of conviction of offences, pg. 131-137.
- S Muralidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, LexisNexis Butterworths (2004).
Module 3: Arrest and Constitutional Safeguards
This module will examine the legal framework related to arrests in criminal procedure, including constitutional protections under Articles 21 and 22 against arbitrary detention. This will help us understand the balance between the constitutional liberties and social control perspectives. The module will also examine the rights of the arrested individual and the responsibilities of law enforcement agencies based on various landmark judgments.
Readings:
- R V Kelkar's Lectures on Criminal Procedure and Criminal Law and Criminal Justice, Pre-trial. Procedure: Arrest, and the Rights of the Arrested Person, pg. 71-80.
- JN Pandey, Constitutional of India, chapter 12, safeguards against arbitrary arrest and detention, pg 152-166.
- Upendra Baxi, The Crisis of the Indian Legal System, VPH, New Delhi.
- Shankar, Shylashri, 'The Legal Framework of Preventive Detention and Anti-Terror Laws', Scaling Justice: India's Supreme Court, Social Rights, and Civil Liberties, 2009; Oxford Academic, available at https://doi.org/10.1093/acprof:oso/9780195693201.003.0003
- Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
- D.K. Basu Versus State of West Bengal (1997 (1) SCC 416).
- Joginder Kumar v State of U.P, (1994) 4 SCC 260.
Module 4: Reliability of Evidence and Right to Privacy
This module will explore the reliability of evidence in criminal trials, focusing on the nuances of illegally obtained evidence, its admissibility in courts as per Chapter II of the Evidence Act, and the constitutional safeguards, especially the Right to Privacy under Article 21 of the Indian Constitution. Emphasis is made on the exclusionary rule and the doctrine of the "fruit of the poisonous tree” and the need to maintain the balanced interest of the prosecution and the rights of the accused with the help of landmark judgments. This module will also focus on the use of lie detector tests, brain mapping and narco-analysis, including their scientific basis, reliability, legal implications and constitutional considerations in criminal investigations.
Readings:
- Vepa P. Sarathi, Law of Evidence, Chapter 3, Relevant facts of which evidence may be given, pg. 37-46.
- JN Pandey, Constitutional of India, chapter 11, Protection of Life and Personal Liberty, pg 138-151.
- Khagesh Gautam, “The Unfair Operation Principle and the Exclusionary Rule: On the Admissibility of Illegally Obtained Evidence in Criminal Trials in India” 27(2) Indiana International and Comparative Law Review (2017).
- S.N. Jain, Admissibility of illegally obtained evidence, 22(3) Journal of the Indian Law Institute 322-327 (1980).
- Talha Abdul Rahman, Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible? S-38 PL, (2011).
- R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
- Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345
- K.S. Puttaswamy and Anr. v. Union of India and Ors, (2017) 10 SCC 1.
- Selvi v. State of Karnataka, (2010) 7 SCC 263.
Additional Reading:
- Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press, 1994),ch 6.
Module 5: Right to Bail and Representation
The legal provisions related to bail in India will be discussed, along with the guidelines for granting bail, the various forms of bail, and the judicial discretion involved as per BNSS. The human rights viewpoint on bail will be covered in this unit, with a focus on striking a balance between a person's right to liberty and the requirement for social protection.
Readings:
- P.N. Bhagwati, Human Rights in Criminal Justice System, 27 J. INDIAN L. INST. 1 (1985)
- Rahman, T. A. (2018). In The Custody of Law: Withering Jurisdiction of A Magistrate. Journal of the Indian Law Institute, 60(4), 427–443. https://www.jstor.org/stable/26826654
- Individual Freedoms and Criminal Justice Administration: Constitutional Perspectives with Special Reference to Right to Bail, P. Puneeth, 2019, Bail: Law and Practice in India 1 - 29 (ILI, 2019).
- Kartar Singh v State of Punjab, (1994) 3 SCC 569.
- Supreme Court Legal Aid Committee Representing Undertrial Prisoners v Union of India, (1994) 6 SCC 731.
- Gurbaksh Singh Sibbia vs State of Punjab, AIR 1980 SC 1632.
- Sanjay Singh vs CBI, (2012) 1 SCC 40.
Additional Reading:
- Abhinav Sekhri, The Bailable v. Non-Bailable Classification in Indian Criminal Procedure, 3 GNLU Law &Socy. Rev. 56 (2021).
|
Week |
Plan/ Theme/ Topic |
Objectives |
Core Reading (with no. of pages) |
Additional Suggested Readings |
|
1-2 |
Module 1: Understanding Constitutional Liberties and Public Order
|
To study the interface between criminal law and the Constitution Law. |
|
|
|
3-4 |
Module 2: Criminal Proceedings and Fair Trial |
This module aims to provide a comprehensive understanding of the various stages of criminal proceedings, delineating the functions of the investigating agencies involved in procedural tasks from investigation to trial. |
|
|
|
5-6 |
Module 3: Arrest and Constitutional Safeguards |
This module will examine the legal framework related to arrests in criminal procedure, including constitutional protections under Articles 21 and 22 against arbitrary detention |
https://doi.org/10.1093/acprof:oso/9780195693201.003.0003
|
|
|
9-10 |
Module 4: Reliability of Evidence and Right to Privacy |
This module will explore the reliability of evidence in criminal trials, focusing on the nuances of illegally obtained evidence. |
|
|
|
11-12 |
Module 5: Right to Bail and Representation |
The legal provisions related to bail in India will be discussed, along with the guidelines for granting bail, the various forms of bail, and the judicial discretion involved as per BNSS. |
|
|