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Part VII Rights—Substance and Content, Ch.44 Criminal Law and the Constitution

Aparna Chandra, Mrinal Satish

From: The Oxford Handbook of the Indian Constitution

Edited By: Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 August 2020

This chapters considers themes at the intersection of criminal and constitutional law in India. It considers two perspectives that address the tension between the competing goals of protecting individual liberty and promoting the public good. The first, the ‘liberty perspective’, that emphasises individual liberty by restricting State power, whereas the second, the ‘public order perspective’, that emphasises public order by limiting individual liberty and expanding State power. The chapter illustrates the liberty perspective by focusing on discussions in the Indian Constituent Assembly on criminal due process rights, and explores how the Indian Supreme Court’s understanding of these rights differs from that of the Constituent Assembly. It demonstrates the shift in the development of constitutional criminal procedure in India from a liberty perspective to a public order perspective.

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