The concept of Liberty, Equality and Fraternity demonstrates the importance or impact of constitution on criminal law in the country. These laws go hand in hand and hold equal importance to maintain law and order. Introduction The most vital transformation in the nature of the Rule of Law in India occurred in the 1950s when the Constitution of… Read More »

The concept of Liberty, Equality and Fraternity demonstrates the importance or impact of constitution on criminal law in the country. These laws go hand in hand and hold equal importance to maintain law and order.


The most vital transformation in the nature of the Rule of Law in India occurred in the 1950s when the Constitution of India came into force in 1950. The Constitution has provided legitimacy to the pre-independence British law’s such as the Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Criminal Procedure Code, 1898. These laws were looked upon by the Parliament of India as the inspiration before making other laws.

The Constitution and the Preamble have given the necessary guidelines to form a criminal law in the country, which can function smoothly in the country. Rule of Law, Separation of power etc. have been the pillars of this democratic country. This makes sure that no one is denied justice and every person is treated in the same way in the eyes of law.

In the landmark case of AK Gopalan v. State of Madras[1] it was stated that clause 7 of article 22 should be construed as the exception to clause 4 of article 22. But it was rejected by the Supreme Court. It said that article 22 cannot be read with article 19(1) d and 21. Article 22 is self contended code and clause 7 is the alternative mode of providing preventive measures and it was not an exception.

In RC Cooper v. UOI[2] popularly known as the Bank Nationalization case, the Supreme Court said that article 31 should be read with 19(1) f and that these are interconnected.

After these related cases the SC said that clause 7 of article 22 is an exception and the burden to prove is vested upon the state. After all these year’s Supreme Court revised its decision of the AK Gopalan’s case.

Right to get a lawyer

The ‘Gideon Trumpet’[3] case in America highlighted the aspect of getting counsel in all criminal cases under the Due Process Clause of the Fourteenth Amendment. He was then accused of theft by the local police. Earlier only in serious matters lawyer was provided to the accused at the state’s expense. But after this case the court said that for the poor’s or those who cannot arrange any lawyer for their case the state will provide one from its expenses. This rule is followed in India as well where the accused is given a chance to defend himself from whichever offence he is charged with.

In the other judgment, the Supreme Court of India said that in the case of the death penalty SC should access the evidence independent of its assessment by the High court or trial court. It is the constitutional obligation to do so. Supreme Court has to re-look all the evidence collected in the matter and then only form its independent opinion and give its verdict accordingly.

Applicability of ‘Res Judicata’ in Habeas Corpus matters

There was a case in which a man was detained by the police. He went to the High court after filing a writ application. But the HC denies him the remedy. Through article 32 he went to the Supreme Court where his plea of res judicata was negated. It was said that constructive res judicata does not apply to habeas corpus. This clearly states the importance which the constitution has on criminal law. The constitution lays down the basics which help to maintain a process in the criminal proceedings so that there is no partiality in the decision making.

Police Atrocities

In a case, a man was brutally harassed by the police. He filed a writ petition to Supreme Court. The Supreme Court directed him to approach the Magistrate in this matter. Later, it was said in the order that even in jail article 21 should be applied to everyone and every human should be treated in the same way. In Kishor Singh v. State of Rajasthan[4] the court took cognizance of custodial violence and directed for the payment of the compensation.

The court also said in one of its orders that police officer should carry the memo of the arrest of the arrestee. The person arrested should be informed about his rights in the custody. He should be allowed to tell about his arrest to one of his/her relatives. He can seek the advice of a lawyer. He also has the right to remain silent till then. It was made mandatory that a woman should be arrested in the daytime only and also by a lady officer/constable. These rights are bestowed on every citizen in the country to prevent police atrocities.

Till 1955, the death penalty was mandatory in section 302 of IPC. The exception was life imprisonment. The judge has to record the reason for life imprisonment. After 1955 the situation reversed, as life imprisonment became more popular and to give the death sentence the reason was asked by the court.

Bachhan Singh’s case redirects to AK Gopalan’s case. There was the 5 judge bench in this case and it was stated that the death penalty has to be read in light of article 19, 21 and also 14.

Doctrine of rarest of rare case

It was given by Justice Thakkar. He stated that the burden was on the state to ask for the death penalty and not life imprisonment. There were parameters set to determine the rarest of rare cases. These were-

  1. There should be an extremely brutal and diabolical method of crime.
  2. The motive of the offence should be getting some property and the murder should be cold-blooded.
  3. Act should be anti-social in nature.

If any person is undergoing life- imprisonment and there he commits the same type of crime then also he is not given the death penalty. Supreme Court said that it is unconstitutional in nature. For death punishment, it is checked whether it comes under the parameters of rarest of rare case.

What is an Organized Crime?

If in the preceding 10 years at least 2 charge sheets are filed of an accused of which court has taken cognizance then it is an organized crime. It is an essential ingredient of the crime. If these are done before the act was made then it will not follow on the accused.

In the case of Ratanlal v. State of Punjab[5]it was held that if for a particular crime the punishment is reduced by the statute then the accused can claim the reduced sentence even if he has committed the crime before such law was made.

Sanction under section 197 of CRPC is necessary. Since there is no sanction, the court cannot take the cognizance. In a case in Andhra, after the sanction, a man was again convicted. The high court of Andhra ruled that decision out. Supreme Court said that trial without sanction is nullified and it is not the trial in the eyes of law.

Plea Bargaining

In the case of Tippaswamy v. State of Karnataka[6], a man was accused of a crime. He confessed his crime in front of the court and was sanctioned according to that. The state filed an appeal to the high court and then the Supreme Court said that if the state opines that there should be higher punishment for his crime then Supreme Court can quash the previous orders.

The constitutional validity of section 27 of the Evidence Act was also challenged and it was upheld. Court has cautioned upon its working and said it will be hit by article 20(3) if coercion is used else it is valid.


Constitution of India and the preamble played a very important part in maintaining peace and equality in the nation. Every law made in the country is based on the basic features of the preamble so that there is no injustice to anyone. Even the accused is given a fair and unbiased trial in the court which promotes the essence of equality among the people.

Liberty, Equality and Fraternity had been maintained by the law in the country. The above-mentioned provision demonstrates the importance of constitutional law on criminal law in the country. These laws go hand in hand and hold equal importance to maintain law and order.


  1. MP Jain, Indian Constitutional Law, LexisNexis (7th Edition 2016)
  2. Lecture by Sr. Adv. Shekhar Naphade (YouTube channel ‘Friday Group’)

[1] 1950 AIR 27, 1950 SCR 88

[2] 1970 AIR 564, 1970 SCR (3) 530

[3] Gideon v. Wainwright

[4] 1981 AIR 625, 1981 SCR (1) 995

[5] 1965 AIR 444, 1964 SCR (7) 676

[6] AIR 1983 SC 747, 1983 CriLJ 1271, 1982 (2) SCALE 1398, (1983) 1 SCC 194

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 21 Jun 2021 12:06 AM GMT
Rajat Pratap Singh

Rajat Pratap Singh

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