ARTICLE 10 OF UDHR

-BY KRITI AND ESSA

A fair trial is a trial which is observed by trial judge without being partial. It is helpful in
numerous declarations which represent customary International law, such as the
Universal Declaration of Human Rights. Though the UDHR enshrines some fair trial
rights, such as the presumption of innocence until the accused is proven guilty, in
Articles 6, 7, 8 and 11, the main provision is Article 10 which states: “Everyone is entitled
in full equality to a fair and public hearing by independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him”.

Some years after the adoption of UDHR, the right to fair trial was defined in more details
in the International Covenant on Civil and Political Rights (ICCPR). The right to fair trial is
protected in Article 14 and 16 of the ICCPR which is binding in international law on those
states that are party to it. Article 14(1) establishes the basic right to a fair trial and states
that:

"All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. The press and the public may be excluded from all or part of
a trial for reasons of morals, public order or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice; but any judgment rendered in a criminal case or in a
suit at law shall be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship of
children”.

The rule requiring a fair hearing is broad enough to include the rule against bias since a
fair hearing must be an unbiased hearing. However, the rules are often treated
separately. It is fundamental to fair procedure that both sides should be heard. The right
to a fair hearing requires that individuals are not penalized by decisions affecting their
rights or legitimate expectations unless they have been given prior notice of the cases
against them, a fair opportunity to answer them, and the opportunity to present their
own cases.

The right to a fair trial has been defined in numerous regional and international human
rights instrument. It is one of the most extensive human rights and all international
human rights instruments enshrine it in more than one article. The right to a fair trial is
one of the most litigated human rights and substantial case law that have been
established on the interpretation of this human right. Despite variations in wording and
placement of the various fair trial rights, international human rights instrument define
the right to a fair trial in broadly the same terms. The aim of the right is to ensure the
proper administration of justice. As a minimum the right to fair trial includes the
following fair trial rights in civil and criminal proceedings:

 The right to be heard by a competent, independent and impartial tribunal- The

tribunal charged with the responsibility of making decisions in a case must be
established by law, and must be competent, independent and impartial.

 The right to a public hearing- The right to a public hearing safeguards the fairness
and independence of the judicial process, and helps to maintain public confidence
in the justice system. Except in narrowly defined circumstances, court hearings
and judgments must be public.

 The right to be heard within a reasonable time-If a person in detention is not

brought to trial within a reasonable time, they have the right to be released from
detention pending their trial.

 The right to counsel- Everyone in detention or facing a possible criminal charge

has the right to the assistance of a lawyer of their choice to protect their rights
and to assist in their defense. If the person does not have a lawyer or cannot
afford to hire one, a qualified lawyer should be assigned to them free of charge
whenever the interests of justice so require. The person must be given adequate
time and facilities to communicate confidentially with their lawyer.

 The right to interpretation- Everyone charged with a criminal offence has the right
to the assistance of a competent interpreter, free of charge, if they do not
 understand or speak the language used in court. They also have the right to have
documents translated.

States may limit the right to a fair trial or derogate from the fair trial rights only under
circumstances specified in the human rights instruments.

This human right standard were drafted to apply to all legal systems in the world and
take into account the rich diversity of legal procedures they set out the minimum
guarantees that all systems should provide. The Geneva Conventions, which provide
minimum standards of conduct during armed conflict, also contain important fair trial
safeguards. These international human rights standards represent a collective
agreement by states on how governments should treat people suspected of crimes.

The right to equality before the law is sometimes regarded as part of the right to a fair
trial. It is typically guaranteed under a separate article in international human rights
instruments. The right entitles individuals to be recognized as subject, not as object, of
the law. International human rights permit no derogation or exceptions to this human
right. Closely related to the right to a fair trial is the prohibition on ex post facto law, or
retroactive law, which is enshrined in human rights instrument separately from the right
to fair trial.

The right to public hearings (as part of the right to a fair trial) is enshrined in Article 10
of the Universal Declaration of Human Rights also contained in following documents:

1. Article 14 of the International Covenant on Civil and Political Rights

2. Articles 12, 37 and 40 of the Convention on the Rights of the Child
3. Articles 16, 18 and 83 of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families
4. Article 7 of the African Charter on Human and Peoples' Rights
5. Articles 5, 6 and 7 of the European Convention on Human Rights and articles 2 to
4 of the 7th Protocol to the Convention
6. Articles 3, 8, 9 and 10 of the American Convention on Human Rights.
RIGHT TO FAIR TRIAL IN UNITED STATES

The U.S. Constitution Bill of Rights (under the Sixth Amendment) guarantees the right to
a speedy trial with an impartial jury for criminal defendants in federal courts. The
American Convention on Human Rights in its Article 8(2) recognizes the principle of
presumption of innocence. In Coffin V. United States, the Supreme Court of America
held that presumption of innocence in favour of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at the foundation of the
administration of our criminal law.
The 14th Amendment's Due Process clause extends these rights to state courts. While
the Constitution expressly outlines the right to a jury trial, it doesn't explicitly include
the right to a "fair trial." However, in guaranteeing other trial rights, the Constitution
provides the safeguards for a fair trial. Such rights include:
 The right to an impartial jury- A criminal defendant has a right to an impartial jury
trial by his or her peers. Impartial means that the jurors do not have a stake in the
outcome of the case and do not approach the case with a preconceived bias
against the defendant. Through the process of voir dire, any hidden biases are
attempted to be uncovered so that a potential juror is not placed within the
particular jury.
 The right to due process of law- The right to due process prevents the
government from arbitrarily infringing on an individual's rights without some type
of formal procedure. This is a broad area because due process includes many
different rights and requires the government to respect the legal rights that the
defendant is owed. In the context of criminal trials, the Supreme Court has found
that a denial of due process occurs when there's an absence of fairness such that
it "fatally inflicts the trial."
 The right to confront/call witnesses- The U.S. Constitution gives criminal
defendants the right to confront their witnesses and cross-examine them, but it
also gives them the right to present evidence and call witnesses who support their
case. Sometimes there's a conflict between infringing on the rights of the accused
and following the rules of evidence or trial procedure.
 The right to legal counsel- Anyone facing criminal charges has the right to legal
counsel. This means that they can contact an attorney to find out about their
 rights and to have the attorney represent their legal interests. Not only does the
defendant have a right to have an attorney, but also the right to an adequate
defense. An attorney can fail in their duties by not providing representation that is
sufficient to ensure a fair trial, like failing to present exculpatory evidence or
being under the influence during trial. It held in Hamilton v. Alabama, 368 U.S. 52
(1961), that counsel had to be provided at no expense to defendants in capital
cases when they so requested, even if there was no "ignorance, feeble
mindedness, illiteracy, or the like."

When any of these rights are violated, it can lead to the determination that a trial was
unfair and can result in the reversal of a verdict or the granting of a new trial.

In the United States the right to a fair trial is sometimes illusory. For example, the
United States Supreme Court said in Town of Newton v. Rumery, 480 U.S. 386 that a
prosecutor may threaten a person that he will take or withhold an official act and
prosecute that person for crime unless that person disposes or parts with their right to
peacefully and orderly petition the courts for a redress of grievances. For example, the
Rumery court said when talking about an accused ″the public interest opposing
involuntary waiver of constitutional rights is no reason to hold the agreement here
invalid.″ Rumery did not receive nor waive their right to a trial during a criminal cause.
RIGHT TO FAIR TRIAL IN UK

Right to a fair trial in the United Kingdom is guaranteed by the Article 6 of the Human
Rights Act 1998.
Between 1971 and 1975, the right to a fair trial was suspended in Northern Ireland.
Suspects were simply imprisoned without trial, and interrogated by the British army for
information. This power was mostly used against the Catholic minority. The British
government supplied deliberately misleading evidence to the European Court of Human
Rights when it investigated this issue in 1978. The Irish government and human rights
group Amnesty International requested that the ECHR reconsider the case in December
2014. Three court cases related to the Northern Ireland conflict that took place in
mainland Britain in 1975 and 1976 have been accused of being unfair, resulting in the
imprisonment of the Birmingham Six, Guildford Four and Maguire Seven. These
convictions were later overturned, though an investigation into allegations that police
officers perverted the course of justice failed to convict anyone of wrongdoing.

The United Kingdom created an act – the Special Immigration Appeals Act in 1997,
which then led to the creation of the Special Immigration Appeals Commission (SIAC). It
allowed for secret evidence to be stated in court; however, it provides provisions for the
anonymity of the sources and information itself. The judge has the power to clear the
courtroom of the public and press, and the appellant if need be, if sensitive information
must be relayed. The appellant is provided with a Special Advocate, who is appointed in
order to represent their interests, however no contact can be made with the appellant
after seeing the secret evidence. SIAC is mostly used for deportation cases, and other
cases of public interest.

Secret evidence has seen increased use in UK courts. Some argue that this undermines
the British criminal justice system, as this evidence may not come under proper
democratic scrutiny. Secret evidence can now be used in wide range of cases including
deportations hearings, control orders proceedings, parole board cases, asset-freezing
applications, pre-charge detention hearings in terrorism cases, employment tribunals
and planning tribunals.
In England and Wales, the origin of Right To Fair Trial & Right To Be Heard can be traced
back in the Magna Carta Act, 1215. Art. 39 of the Act speaks about fair trial and
punishment by a competent court after the trial.

INDIAN LAW ON FAIR TRIAL

Right to a fair trial is a concept which is essentially embodied in the Constitution of

India. In a democratic country like India, even an accused cannot be denied his right to
life and personal liberty. Indian Constitution through its Article 21 renders the fair trial a
part of life and personal liberty. The Supreme Court in the case of Rattiaram v. State of
Madhya Pradesh, observed that the fair trial is the heart of criminal jurisprudence. A fair
trial is a fundamental right which flows from article 21 of the Constitution. Denial of the
fair trial is the denial of human rights. Also, the Court in  Mohd. Hussain @ Julfikar Ali v.
The State (Govt. Of Nct), stated that every person, therefore, has a right to a fair trial by
a competent court in the spirit of the right to life and personal liberty. Thus, right to a
fair trial being a fundamental right cannot be refused to any person by the virtue of
Constitution.  In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it
was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made
elaborate provisions for safeguarding the rights of accused with the view to protect his
(accused) dignity as a human being and giving him benefits of a just, fair and impartial
trial.

A trial conducted by a judge in an impartial way is said to be a Fair Trial. The question of
whether a trial is fair or not depends upon the procedure as laid down by the Code of
Criminal Procedure,1973 and the prevailing system of criminal justice. In Zahira
Habibullah Sheikh and Ors. v. State of Gujarat and Ors, the Supreme Court of India
observed each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of
a fair trial is as much injustice to the accused as it is to the victim and to society. Fair
trial obviously would mean a trial before an impartial judge, a fair prosecutor and an
atmosphere judicial calm. A fair trial means a trial in which bias or prejudice for or
against the accused, the witness or the cause which is being tried, is eliminated. Thus, in
order to secure the right to fair and impartial trial all Indian criminal laws are well made
to safeguard these rights.
A right to a fair trial includes the right for legal assistance. This is part of the right to life
enshrined under Article 21 of the Constitution of India.
Supreme court in Suk Das and another Vs. Union Territory of Arunachal Pradesh, and
Khatri and Others Vs. State of Bihar and Others, held that the conviction of an appellant
not represented by a lawyer was clearly in violation of the fundamental rights of the
appellant under Article 21 of the Constitution. But where the accused pleads guilty
without the assistance of a counsel under the legal aid scheme and was convicted by the
Magistrate it was held that the trial and conviction was not vitiated because the
Magistrate was fully satisfied that the plea was voluntary, true and genuine.

 A fair trial requires that trial must be in an open court. The openness of the court as per
section 327(1) of Cr.P.C means in which not only parties but also, the general public
have access to records of the court. However, the rule laid down under section 327(1) is
followed by an exception. Under section 327(2) the court is bound to observe the trial
relating to rape offences in camera. Cases relating to rape offences require secrecy and
thus, proceedings conducted in the camera are not a violation of the right to fair trial.
In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra, the apex court held
that the right to open trial must not be denied except in exceptional circumstances. High
Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit
publication of a part of its proceedings.

Speedy trial is an essential feature of a fair trial. Delayed justice leads to denial of
justice. Speedy trial ensures that the accused is free from any unnecessary harassment.
The concept of speedy trial flows from Article 21 of the constitution.
In Husainara Khatoon v. the State of Bihar, the Supreme Court recognized that speedy
trial is an essential ingredient of article 21 of the Constitution of India. And it’s the
Constitutional duty of the State to set up such procedure as would ensure speedy trial
to the accused.
In the case of Moti Lal Saraf v. Union of India, the court observed that the concept of a
fair trial is an integral part of article 21 of the Constitution.

Indian judiciary places its reliance upon evidence and in order to ensure the fair and
impartial administration of justice, it is must that evidence are taken in presence of
accused. Every person, therefore, has a right to a fair trial by a competent court in the
spirit of the right to life and personal liberty. Section 273 of Cr.P.C requires that all the
evidence and the proceedings should take place in presence of accused. This rule is
backed with exceptions as well. The court may take evidence in the absence of the
accused and the accused will appear through his counsel. The court in the case of State
of Maharashtra v. P.B.desai, held that section 273 CRPC provides for dispensation from
personal attendance. In such cases, evidence can be recorded in the presence of
pleader. The presence of pleader is thus, deemed to be a presence of accused. 
Therefore, actual presence is not necessary, a constructive presence is also enough.
In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this
Court that the procedure for depriving a person of his life or liberty should be fair,
reasonable and just. “We are of the opinion that it is not fair or just that a criminal case
should be decided against an accused in the absence of a counsel. It is only a lawyer
who is conversant with law who can properly defend an accused in a criminal case.
Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided
against an accused in the absence of a counsel, there will be violation of Article 21 of the
Constitution.

Indian law is in consonance with the prevailing international legal standards to be tried
by a competent and independent and impartial court. All persons must be equal before
the court. Every one shall be entitled to a fair trial by an impartial court established by
law. A salient requirement of fair trial is one without undue delay. The right to a speedy
trial flowing from Article 21 of the Constitution encompasses all the stages such as
investigation, inquiry, trial, appeal, revision and re-trial. In a criminal case, a conviction
cannot be based on the testimony of witnesses whose examination in chief stands
contradicted by their cross -examination. Basic concept behind a fair trial is succinctly
explained, in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1. A reasoned judgment
diminished the chances of appeal, and reduces the courts overload. Appreciation of
evidence must be rational and dispassionate. In every criminal trial the degree of
probability of guilt has to be much higher, almost amounting to certainty; and if there is
the slightest reasonable or probable chance of innocence of an accused the benefit
must be given to him.