The article 'Guilty until Proven Innocent: Procedural Hurdles in Justice Delivery in India' accentuates the reforms required in the judicial procedure to expedite justice and loopholes in the contemporary procedural aspects.

The article 'Guilty until Proven Innocent: Procedural Hurdles in Justice Delivery in India' accentuates the reforms required in the judicial procedure to expedite justice and loopholes in the contemporary procedural aspects.

Justice: A Brief Introduction

An experiment was conducted by Sarah Brosnan and Frans de Waal in which a few capuchin monkeys were given rewards in exchange for tokens. When one monkey received a grape and another cucumber for the same token, the one receiving the cucumber threw it and protested by banging on the cage[1]. He probably felt injustice being done to him due to unequal treatment. In the same way, humans also protest when they are excluded from getting grapes, i.e. their rights. A sense of justice is primal and found in most animals.

It is easier to understand the feeling of injustice rather than understand justice. When one feels that he is being wrongfully treated, that feeling is of injustice. Justice is a feeling that one is being treated equally. Justice has been defined as the fair and proper administration of the laws.

Need of Justice

Justice is the foundation of civilised society. A just society prohibits arbitrary action and upholds the principles of equality, fairness, and due process. A person in a just society is entitled to enjoy certain rights without interference from anyone. He can be deprived of those rights either lawfully or unlawfully. When he is deprived of his rights lawfully, the same rules apply to everyone without prejudice. When he is deprived of his rights unlawfully by individuals or the state, he is entitled to the protection of his rights.

Stakeholders of Justice

According to the Merriam-Webster dictionary, justice is done when conflicting claims are impartiality adjusted. This raises questions such as whose claims; against whom; who decides the claims; who enforces the decision once these claims are decided?

Answering these questions provides us with the stakeholders of the justice delivery in any criminal jurisprudence.

Whose claims? - Victim

The one whose rights are infringed by anyone, be it individuals, groups of individuals or the state, is the victim. He has a claim against the whole world, i.e. right in rem to enjoy his rights lawfully.

Against whom? - Offender

One who unlawfully deprives someone of their rights is guilty of doing injustice to that person. Again the offender can be individuals or states.

Who decides whether injustice is done? - Judiciary

The questions of whether the rights are violated if violated, whether the action was lawful or unlawful, and the judiciary decides the remedy for such violation.

Justice For All

If a person is murdered and the perpetrator is untraceable, would it be to punish anyone randomly to give justice to the victim’s family? Justice is the balancing act of settling conflicting claims. Hence the rights of everyone are to be protected in the process of justice delivery. In this light, the rights of offenders find themselves more vulnerable compared to the rights of victims.

Innocent until Proven Guilty

“Ei incumbit probatio qui dicit, non qui negat” is a latin maxim which means that the burden of proving the allegations is on the one who declares and not the one who denies[2].

With its origin in the Roman IUS COMMUNE[3], the maxim was popularised in words "Presumed Innocent Until Proven Guilty" by British barrister Sir William Garrow. Since then, the maxim has become the base of criminal jurisprudence in most modern countries, with India being one of them.

Ground Reality

Birbal Phogat, the resident of Deoria (U.P.), was acquitted by Court after he spent 28 years in jail for an alleged murder due to lack of evidence[4]. This is one of many cases where the accused were acquitted after spending a significant period of their lives in jail. This scenario indicates that perhaps we follow the maxim opposite to its meaning - guilty until proven innocent.

Procedural Hurdles

Archaic law - The statutes governing Indian criminal jurisprudence, such as Indian Penal Code, Criminal Procedure Code, and Indian Evidence Act, were enacted centuries earlier and have not been updated adequately as per changing needs.

Corrupt Administration - From the filing of FIR and investigation to arrest and detention, the high-handed, arbitrary approach of police officers is not new in India[5]. The police suffer from colonial hangovers where the population is considered subjects rather than citizens, and the law is used to harass them.

Procedural rigidity - In Sushil Kumar Sen v. State of Bihar[6], Hon'ble Justice Krishna Iyer pointed out that procedural rules hinder substantial justice delivery by overpowering substantive rights.

Judicial pendency - Years pass by in trials where the rights of both victims and accused are tremendously abrogated. The justice delayed renders the remedy of no use.

In the zeal to curb lawlessness by punishing ‘anyone’ for the crimes, another type of lawlessness is created in a society where innocent people are subjected to the rigours of the insensitive system. Till the time they prove their innocence, there is nothing left for them to get back to.

Expanding the reach of justice

To reform the justice delivery system, several systemic and procedural changes are required to be undertaken, such as -

  1. Modernisation of statutes - A modern set of general principles of criminal law could be incorporated into IPC, which would be better able to cater to the needs of modern society.[7]
  2. Introducing Restorative and transformative justice[8] - According to this theory, the three main stakeholders of the justice process - the victim, offender and community must be involved in the restorative justice process. The offender must be made to bear responsibility, while the victim must be provided reparations through the community.
  3. Provisions for speedy and effective justice - Popular proverbs such as “Justice delayed is justice denied“ and “justice hurried is justice buried“ underline the importance of justice delivery on time. Pendency in the courts is a major hurdle which needs to be addressed by using methods such as ADR, Mediation and Lok Adalats.


It is ironic that the courts, apostles of justice, become a source of torment for the people irrespective of which side of the conflict they are on. While the Hon'ble Judges repeatedly give guidelines to make justice delivery smooth, non-adherence to those guidelines by the state and society reduces them to mere suggestions. Effective implementation of justice requires support from all stakeholders involved in the process.


[1] Inequity responses of monkeys modified by effort, Available Here

[2] Ajj Murjani, Guilty until Proven Innocent - Recent Scenario of Criminal Jurisprudence, Available Here

[3] Innocent Until Proven Guilty: The Origins of a Legal Maxim, Available Here

[4] Man acquitted of murder charges after spending 28 years in jail, Available Here

[5] Cultural roots of police corruption in India, Available Here

[6] Sushil Kumar Sen v. State of Bihar, [1975 (1) SCC 744]

[7] Is criminal law a lost cause in India?, Available Here

[8] Justice Stakeholders, Available Here

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Updated On 17 Feb 2023 5:36 PM GMT
Manish Kumar

Manish Kumar

Manish is an L.L.B student from CLC, Delhi University. His keen interest is in criminal law, focusing on how the law interacts with society.

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