Rights of Prisoners in India written by Aditi Singh student of Army Institute of Law, Mohali.
“The extent to which human rights are respected and protected within the context of its criminal proceeding is an important measure of society’s civilisation”[1]
– Justice P.N. Bhagwati.
Introduction
Everyone has a right to be treated with respect and dignity; everyone has basic and fundamental rights enshrined to them under the law regardless of the person’s status, circumstance or nature, even if the person is behind bars. Article 5 of the Universal Declaration of Human Rights proclaims that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Subsequently Article 7 of the International Covenant on Civil and Political Rights, 1966 creates an obligation for the State parties to it that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prisoners usually face stigma—the government’s effort is to avoid their contact with the society and takes away the freedom of mobility. This in turn denies a chance of a prisoner to get reformed. The Supreme Court in the landmark case of Union of India v. V. Sriharan[2], declared that the sentences in which the court orders that the convicted persons should spend the whole life or at least a minimum number of years behind bars and puts those terms beyond the scope of remission by the government, are valid sentences, but only the Supreme Court and High Courts would have the power to order such terms[3].
Status of Prisoners in India
Theoretically, punishment provided for a particular offence should correspond to the harm that would plausibly result from conduct of the perpetrator. Ideally, stipulation of punishment in penal law involves quantification and scaling of both the harms, the harm plausibly result from the prohibited human conduct (in the form of crime) and the harm to be inflicted (in the form of punishment) on the wilful perpetrator, by the legislature[4]. As far as the current state of prisoners in India is concerned—it’s atrocious. The Prison Statistics India Report, 2015 indicates that, “67 per cent of India’s prison population comprises of under trial prisoners. This number has been consistently high, at an average of 66.97 per cent over the last 15 years”[5]. Furthermore, these trends aren’t current in nature. According to the latest amnesty report of India, about 415 persons died in the custody of police and security forces due to torture between 1 January 1985 and 1 November 1991. Examining the cases of custody death, the same reports points out that not more than 42 magisterial enquiries were conducted; judicial enquiries were ordered in 20 cases; criminal charges were framed in 52 cases; police officers were arrested in 25 cases and only in 3 cases the guilty were known to have been convicted by the Court[6]. Therefore, it can be conclusively stated that the status of prisoners under the criminal judicial system has always been appalling.
Additionally even though the right to personal liberty is a fundamental right recognized by our Constitution, in the case of A.K. Gopalan v. Union of India[7], the Supreme Court took the view that the right to personal liberty guaranteed by article 21 was not violated if the deprivation of personal liberty was permissible by “procedure established by law” and it was immaterial and of no consequence whether that law was just or unjust, fair or unfair, reasonable or unreasonable[8]. There is herein, an unquestionable need to reform the criminal justice system and protect the rights of the prisoners.
Rights of Prisoners in India
Prisoners are some of the worst victims of the violation of fundamental rights. Over the past 30 years, the Supreme Court of India has reiterated the Principle “imprisonment does not spell farewell to fundamental rights”[9]. Thus, the Court has cordially declared that for a prisoner the fundamental rights are enforceable reality, though restricted by the fact of imprisonment.
Keeping the severity of prisoners’ rights in mind, the Supreme Court said that Article 21 of the Constitution is available to the prisoners because the prisoner does not become a non-person. The Court says that it is not justified to aggravate the pain and suffering of the prisoners which is already inherent in the process of incarceration[10].
According to the Supreme Court, while physical assaults are to be totally eliminated even pushing the prisoners into a solitary cell, denial and necessary facility, transferring prisoners to a distant prison, allotment of degrading labour, assigning him/her to desperate or tough gang, etc. must satisfy Articles 21, 11 and 19 of the Constitution. The young inmates must be separated and freed from exploitation by adults. Any harsh isolation from society for long or lengthy cellular detention can be inflicted only consistently with fair procedure. Subject to discipline and security, prisoners must be given their right to meet his fellowmen/fellow women, interviews, visits and confidential communication with lawyers nominated by the competent authorities.
In a comprehensive judgment delivered in Rama Murthy v. State of Karnataka[11] on December, 1996, the Supreme Court observed that there were nine major problems that affected the prison system in India and required immediate attention. These include: “overcrowding, delay in trial, torture and ill-treatment, neglect of health hygiene, insubstantial food and adequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open air prisons”[12]. While issuing show cause notices to central and State Governments on the relevant points, the Court has emphasised, inter alia that “the need to consider the enactment of a new prison law on the lines suggested by the National Human Rights Commission, and the formulation of a new Model Jail Manual for the country as whole”[13].
The following rights of prisoners have been recognised under the various Indian laws governing prisons, for instance, the Prisoners Act, 1900; Identification of Prisoners Act, 1920; Transfer of Prisoners Act, 1950; and several other etc. by the Supreme Court and High Court rulings as well as those recommended by Expert Committees.
- Right to be lodged appropriately based on proper classification,
- Special right of young prisoners to be segregated from adult prisoners,
- Rights of women prisoners[14],
- Right to healthy environment and timely medical services,
- Right to bail,[15] Section 436-A of the Criminal Procedure Code, lays down the right of an under trial to apply for bail once he/she has served one-half of the maximum term of sentence he/she would have served had he/she been convicted. The section further lays down what the court may order on a bail application filed under this section on hearing the public prosecutor.
- Right to speedy trial,[16]
- Right to free legal services,[17]
- Right to have interviews with one’s lawyer,
- Section 12(2) of the Prisons Act, 1894 and the Apex Court in the case of Veena Sethi v. State of Bihar[18]regulates, “Right against being detained for more than the period of sentence imposed by the Court”,
- Right to protection against being forced into sexual activities,
- “Right against arbitrary use of handcuffs and fetters”, was established to in the case of Prem Shankar Shukla v. Delhi Admn.[19]
- Provided under Franics Mullin v. Union Territory of Delhi[20], Right against torture, cruel and degrading punishment. Furthermore, it has also been observed that, “Right to be compensated for violation of human rights”[21],
- Several rights have further been defined in the case of Sunil Batra (II) v. Delhi Admn.[22] Right not be punished with solitary confinement for a prison offence; Right to air grievances to effective remedy; Right to evoke the writ Habeas Corpus against prison authorities for excesses; Right to visit and access by family members of prisoners; Right to write letters to family and friends and to receive letters, magazines, etc.; Right to reformative programmes; Right to information about prisons rules,
- Right against arbitrary prison punishment.
Life in prison and rights of prisoners are the topics which have been at the centre of human rights discourse since long time. In the celebrated judgment in Sunil Batra (II) case[23], Justice Krishna Iyer ruled that a prisoner is not denuded of his or her basic human rights upon incarceration although the exercise of these rights may be circumscribed by the very nature of imprisonment. He frowned against solitary confinement and ruled that putting iron bars or fetters on prisoners is unconstitutional, unless it is imperative in the interest of security[24].
Conclusion
Therefore, the task of protecting human rights that prisoners are entitled to and of implementing progressive ruling of the Supreme Court and High Courts and recommendations made by various commissions and committees on prison reforms including radical reforms suggested by the National Human Rights Commission call for a thorough restructuring and reorganisation of prisons in India[25]. Conclusively, there is a strong need to increase awareness and remove the social stigma surrounding convict rights under the criminal judicial system, prompting efficient working, regularization and implementation of their rights.
[1] P.N. Bhagwati, Human Rights in the Criminal Justice System, 27 JILI 1, 1 (1985).
[2] 2015 SCC OnLine SC 1267.
[3] Shubham Patel & Shivam Yadav, New Dimensions in Sentencing vis-a-vis Rights of Prisoners, 6.2 NULJ 31, 31 (2017).
[4] K.I. Vibhute, Right to Human Dignity of Convict under Shadow of Death and Freedoms Behind the Bars in India: A Reflective Perception, 58 JILI 15, 16 (2016).
[5] Aparna Chandra & Keerthana Medarametla, Bail and Incarceration: The State of Undertrial Prisoners in India, Approaches to Justice in India (2017).
[6] R.S. Saini, Custodial Torture in Law and Practice with Reference to India, 36 JILI 166, 166 (1994).
[7] AIR 1950 SC 27.
[8] R.V. Kelkar, Law of Arrest: Some problems and Incongruities, 22 JILI 314, 315 (1980).
[9] Charles Sobraj v. Supt., Central Jail, AIR 1978 SC 1514
[10] Sunil Batra v. Delhi Admn., 1978) 4 SCC 494.
[11] AIR 1997 SC 1739
[12] Arvind Tiwari, Human Rights, Ethics & Prison Administration in India: A Critical Overview, 2 RMLNLUJ 43, 60 (2010).
[13] Ibid.
[14] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
[15] Motiram v. State of M.P., AIR 1978 SC 1594.
[16] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
[17] M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.
[18] AIR 1983 SC 339.
[19] AIR 1980 SC 1535.
[20] AIR 1981 SC 746.
[21] Rudul Shah v. State of Bihar, AIR 1983 SC 1086.
[22] (1980) 3 SCC 488.
[23] Ibid.
[24] Soli J. Sorabjee, Human Rights Jurisprudence of the Supreme Court of India, 3 SCC J-26, J-28 – J-29 (2009).
[25] Supra, note 12.
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