Series- Indira Gandhi Murder Case

In the Indira Gandhi murder case, Trial was held in Tihar jail to prevent any miscarriage of justice because the situation of Delhi was not right at that time. But the counsel of the accused opposed this jail trial on the basis that Article 21 of the constitution guarantee the fair procedure to the accused and there would be fair procedure if trial was held in Open Court.

However, Supreme court rejected the contention and wrote its reasoning of the same rejection. This reasoning will be helpful to understand the open trial and jail trial.

Procedure established by Law

Article 21 of the constitution provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

And, this procedure established by law so far as open trial concerned was enacted before our constitution. Section 352 of the Old CrPC (Act of 1898) provided about open trial which is now provided in section 327 of the new code. Which is as follows-

Court to be open

  1. The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

2. Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, Section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in Camera.

Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remains in, the room or building used by the Court.

3. Where any proceedings are held under sub-section (2) it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court.”

It speaks that any place where a criminal court holds its sitting for enquiry or trial shall be deemed to be an open court to which the public generally may have access. So far as the same can conveniently contain them. The language itself indicates that even if a trial is held in a private house or is held inside Jail or anywhere no sooner it becomes a venue of trial of a criminal case it is deemed to be in law an open place and everyone who wants to go and attend the trial has a right to go and attend the trial except the only restriction contemplated is number.

Why law require public trial in criminal cases?

There are two fundamental principles justifying the public access to criminal trials:

  • The crime is a wrong done more to the society than to the individual. It involves a serious invasion of rights and liberties of some other person or persons. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate. Whether it responds appropriately to situation or it presents a pathetic picture. This is one aspect.
  • The other aspect is still more fundamental. When the State representing the society seeks to prosecute a person, the State must do it openly.[1]

The requirement of a trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustify condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility into the importance of their functions and the requirement is fairly observed if, without partiality or favouritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose Presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.[2]

Lord Shaw said with most outspoken words in Scott v. Scott, [1913] A.C. 417 at 477:

“It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. ln the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.

In open dispensation of justice, the people may see that the State is not misusing the State machinery like the Police, the Prosecutors and other public servants. The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Court have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze.”

How witnesses’ testimony affected in Public Trial?

Public access helps to ensure that procedural rights are respected and that justice is applied equally.

This occurs in three ways

First, witnesses are discouraged from committing perjury by the presence of members of the public who may be aware of the truth.

Second, witnesses like other participants, may be encouraged to perform more conscientiously by the presence of the public, thus improving the overall quality of testimony,

Third, unknown witnesses may be inducted to come forward and testify if they learn of the proceedings through publicity.

Public access to trials also plays a significant role in educating the public about the criminal justice process. Public awareness of the functioning of judicial proceedings is essential to informed citizen debate and decision making about issues.[3]

Does every person has right to attend Public Trial?

The sub- section however, state that “the public generally may have access so far as the place can conveniently contain them“. The public trial does not mean that every person shall be allowed to attend the court. Nor the court room shall be large enough to accommodate all persons. The Court may restrict the public access for valid reasons depending upon the particular case and situation.

As Judge Cooley states (Cooley’s Constitutional Law, Vol. I, 8th Ed. at 647):

“It is also requisite that the trial be public. By this is not meant that every person who seeks fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where regard for public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light.”

The proviso to sub-sec. (1) of sec. 327 specifically provides power to the Presiding Judge to impose necessary constraint on the public access depending upon the nature of the case. lt also confers power on the Presiding Judge to remove any person from the court house. The public trial is not a disorderly trial. It is an ordinarily trial. The Presiding Officer may, therefore, remove any person from the Court premises if his conduct is undesirable. If exigencies of a situation require, the person desiring to attend the trial may be asked to obtain a pass from the authorised person. Such visitors may be even asked to disclose their names and sign registers. There may be also security checks. These and other like restrictions will not impair the right of the accused or that of the public. They are essential to ensure fairness of the proceedings and safety to all concerned. [4]

Judicial attitude towards right of open trial

In A. K. Roy v. Union of India[5], Chandrachud, C.J., speaking for the Constitutional Bench said: “The right to public trial is not one of the guaranteed rights under our Constitution as it is under the Sixth Amendment of the American Constitution which secures to persons charged with crimes a public, as well as speedy trial. Even under the American Constitution. the right guaranteed by the Sixth Amendment is held to be personal to the accused which the public in general cannot share.”

Legality of Jail Trial

The jail trial is not an innovation. The validity of jail trial with reference to Section 352 of the Code of 1898 since re-enacted as Section 327(l) has been the subject matter of several decisions of different High Courts.

  1. Sahai Singh v. Emperor (Lahore High Court)

In Sahai Singh v. Emperor[6], the accused were convicted and sentenced in the trial held in a jail. Their conviction was challenged before the High Court at Lahore on the ground, amongst others, that the trial was vitiated because it was held in the jail. The High Court rejected the contention stating:

“It is necessary that I should first mention a contention that the whole trial is vitiated because it was held in the jail. Counsel for some of the appellants has referred to s. 352, Criminal Procedure Code, but there is nothing to show that admittance was refused to anyone who desired it, or that the prisoners were unable to communicate with their friends or Counsel. No doubt it is difficult to get Counsel to appear in the jail and for that reason, if for no other, such trials are usually undesirable, but in this case the Executive Authorities were of the opinion that it would be unsafe to hold the trial elsewhere.”

  • Kailash Nath v. Emperor (Allahabad High Court)

In Kailash Nath v. Emperor[7], the Allahabad High Court said that there is no inherent illegality in jail trials if the Magistrate follows the rules of Section 352 and the place becomes Something like an open Court.

  • Re: M.R. Venkataraman (High Court of Madras)

ln re: M.R. Venkataraman[8], the High Court of Madras after referring to the decisions in Kailash Nath’s case and Sahai’s case, observed:

 “Again, if the conveyance of prisoners, and the accused to and from the court house or other buildings, will be attended with serious danger of attack, and the rescue of the accused or the prisoners, or with heavy cost to the Government in providing an armed escort, it may well be within the powers of the Judge or Magistrate, after due consideration of the public interests and after writing down the reasons in each case, to hold the trials even inside the jail premises, where the accused are confined.”

  • Re: T.R. Ganeshan[9] (Madras High Court)

In re: T.R. Ganeshan, the Madras High Court was again called upon to consider the validity of a jail trial. In this case, the trial was held in recreation room which was within the jail compound. The building consisted of a hall and varandah on two sides. It was situated at some distance from the prison walls proper. It was accessible to the public. The press reporters, some members of the Bar and public also attended the trial proceedings. The High Court upheld the validity of that trial. The High Court also said that in the interest of justice and fair trial of the case itself that, in certain circumstances and in some cases, the public may be excluded.

  • Prasanta Kumar v. The State (Calcutta High Court) and Narwar Singh & Ors. v. State (Madhya Pradesh High Court)

The Calcutta High Court in Prasanta Kumar v. The State[10], and Madhya Pradesh High Court in Narwar Singh & Ors. v. State[11], recognised the right of the Magistrate to hold Court in jail for reasons of security for accused, for witnesses or for the Magistrate himself or for other valid reasons.

Is Jail trial fair procedure under law? (Supreme Court Decision)

In Kehar Singh v. State (Delhi Admn.) [12](Indira Gandhi Murder case), Supreme Court stated that,

“It could not be said that merely because trial was held at a particular place it could be said to be a trial which was not open to public. And if there are restrictions for reasonable purpose and a person has to pass through two gates, a person has to sign on the gate and had to have a pass or a clearance, on this basis it could not be said that it ceased to be a public trial.

It could not be doubted that at one time in this Court the highest Court of the land, any one could freely walk in and sit and attend the Court but today even in this Court there are restrictions and one has to pass through those restrictions but still it could not be said that any one is prevented from attending the Court and therefore merely suggesting the difficulties in reaching the Jail will not be enough.

It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons.”

Guidelines for jail trial

In kehar singh case, Supreme court also laid down some guidelines for holding trial in jail. Which were-

  • The enquiry or trial, however, must be conducted in open Court.
  • There should not be any veil of secrecy in the proceedings.
  • There should not even be an impression that it is a secret trial.
  • The dynamics of judicial process should be thrown open to the public at every stage.
  • The public must have reasonable access to the place of trial.
  • The Presiding Judge must have full control of the Court house.
  • The accused must have all facilities to have a fair trial and all safe-guards to avoid prejudice.

Why Supreme Court allowed Jail Trial in Indira Gandhi Murder case?

In its judgement of kehar singh case, Supreme court allowed the jail trial and gave below mentioned reasoning for the legality of jail trail-

“The case is of very special nature and of utmost importance. The assassination of the late Prime Minister had provoked violence and secutiry of State besides the maintenance of law and order had become vital problems for Administration. There is every risk of breach of public peace and disturbance of law and order, if the trial is held in an open place. The lives of the trial Judge, prosecutor and those otherwise involved in the prosecution of the case may be jeopardised. It is on record that during committal proceeding the Magistrate and Prosecutor concerned were threatened with dire consequences as they were working for a successful prosecution. The circumstances in which the Hon’ble High Court was pleased to accept the prayer of the Administration for conducting remand and committal proceedings in Central Jail, Tihar continue to exist. It is only for the security of the Judge, witnesses, Police Officers and others but also for the safety of the accused themselves.

That is not all. There was unprecedented violence aftermath in the national capital and other places. Frenzied mob armed with whatever they could lay their hands were seen besieging passing sikhs and burning their vehicles, as doctors in the hospital fought their vain battle to save the life of Mrs. lndira Gandhi. Even President Zail Singh’s cavalcade, making its way from the Airport to the hospital was not spared. The reaction of outrage went on unabated followed by reprisal killings and destruction of properties.

These unprecedented events and circumstances, in my judgment, would amply justify the decision of the High Court to direct that the trial of the case should take place in Tihar Jail.”

Even in this situation, permission was granted to the people including press to attend trial. It is not merely lndian press representatives and the news agencies which have been allowed to come to attend the trial but the International agency like BBC, London Times, New York Times and Associated Press have also been allowed and admitted and are, in fact, present. Even law students were allowed to attend the trial.


Public debate about controversial topics, such as exclusionary evidentiary rules, is enhanced by public observation of the effect of such rules on actual trials. Attendance at criminal trials is a key means by which the public can learn about the activities of police, prosecutors, attorneys and other public servants, and thus make educated decisions about how to remedy abuses within the criminal justice system. Finally, public access to trials serves an important “sunshine” function. Closed proceedings, especially when they are the only judicial proceedings in a particular case or when they determine the outcome of subsequent proceedings, may foster distruct of the judicial system. Open proceedings enhance the appearance of justice and thus help to maintain public confidence in the judicial system.`

[1] Kehar Singh v. (1988)

[2] Cooley’s Constitutional Law, Vol. I, 8th Ed. at 647

[3] Beth Hornbuckle Fleming “First Amendment Right of Access to Pretrial Proceedings in Criminal Cases” (Emory Law Journal, V. 32 (1983) p. 618 to 688)

[4] Kehar Singh v. 1988 AIR 1883,

[5] [1982] 2 SCR 272

[6] AIR 1917 Lahore 311

[7] AIR 1947 All. 436

[8] AIR 1950 Madras 441

[9] AIR 1950 Madras 696

[10] AIR 1952 Calcutta 91

[11] [1952] MB 193 at 195

[12] 1988 AIR 1883, 1988 SCR Supl. (2) 24