110

PRISONER’S HUMAN RIGHTS UNDER JUDICIAL

SCRUTINY

Human rights are the rights which are possessed by all human

beings irrespective of their race, caste, nationality, sex, language

etc. simply because they are human beings. Human rights are called

fundamental rights or basic rights or natural rights. The preamble to

the Universal Declaration of Human Rights, 1948 recognizes the

inherent dignity of the equal and inalienable rights of all members

of the human family as the foundation of freedom, justice and

peace in the world and pledges for the promotion of universal

respect for and observance of human rights and fundamental

freedoms. Respect for the human personality without any

distinction of any kind as to race, colour, sex, language, religion or

political or other opinion, national or social origin, property, birth

or other status is considered a fundamental norm of human rights.

The modern concept of human rights can be said to have evolved in

England in the form of the Magna Carta, 1215, the petition of

Rights, 1672, Habeas Corpus Act, 1679 and the Bill of Rights,

1689. Other significant landmarks are the American Declaration of

Independence and the French Revolution. Although there have been

certain efforts towards promotion of human rights, it was the

political philosophy generated by the United Nations Charter,

affirming the dignity of man and the futility of wars, that led to the

proper formulation and enunciation of human rights. A legal

obligation emerged, namely, the duty of every state “to treat all

111

persons under its jurisdiction with respect for human rights and

fundamental freedoms without distinction as to race, sex, language

or religion.” (Art. 6 of the United Nations Charter)The Universal

Declaration of Human Rights was adopted by the General

Assembly on Dec. 10, 1948 by 48 votes with 8 abstentions, with

the aim to restore human dignity in all countries where political or

economic oppression exists and to relieve human misery, to repair

human strength, to enrich and refine human life in all parts of the

world, where the national culture and wealth are low. The

important principles include the right to life, liberty, property and

security of persons, the right to employment and social security, the

right to participate in cultural life, freedom of thought, conscience

and religion and freedom of expression and opinion. The Universal

Declaration seeks to ensure everyone in the world that certain

human rights exist and can be enjoyed without interference by the

state. Though the Universal Declaration is of prime importance, it

is not a treaty, and therefore, technically it is weak as an instrument

of protection. It is a statement of principles of inalienable human

rights, setting up of a common standard of achievement for all

people and all nations. Infact, it is a charter for objectives and

policy and was drafted in broad and general terms.

Traditional View – Prisoners do not have rights

Imprisonment was not a feature of many traditional justice systems.

An eye for an eye (or a life for a life), or a physical punishment in

the form of cutting-off a hand, banishment or reparation were

variously to be found in the traditional systems of China, Africa the

Pacific Islands. In the West, from which the so-called modern penal

112

systems mostly derive, one might say that imprisonment rather

resembled banishment, “the imprisoned person became a non-

person”, and some countries explicitly adopted the nation of

“deprivation of civil rights” as a facet of punishment. As notions of

universal human rights developed, prisoners were the last class to

benefit. Once the prison gates clanged shut behind him the

convicted person found that rights were left on the “Outside” only

to be picked up again with his civilian clothes once the sentence

was served. In some cases, prisoners could find that their rights

were not fully restored even after they were released.

International Development

From the study the investigator finds that Prisoners like other

members of the society are human beings and do not differ from

them in any respect. But being the victim of circumstances they are

kept within the four walls for a temporary period, when the

offender is sent to the prison, he is confined against his will. He

enters a new world, where he has to obey and follow the directions

not only of the prison officials, but also that of the senior inmates.

Otherwise he has to surrender himself as soon as his imprisonment

starts. His attitude towards others is conditioned by his status in the

prison community. In the days when the entire purpose of

imprisonment was punishment, the rights of the offender seemed

unimportant. Since he seldom returned to the community and made

no complaint, it was believed that a prisoner had no fundamental

rights. But with changing concept of punishment, under modern

correctional philosophy complete deprivation of the prisoner’s

rights has become unrealistic. It is now believed that the convicted

113

prisoner continues with some of his rights, even during the

imprisonment. In USA, in 1868, the passage of the 14th

Amendment

offered convicted criminals the hope that due process of law, which

the Amendment made available to others, might-eventually apply to

them as well. Following the passage of the 14th

Amendment, the

due process clause has been used repeatedly to provide all

constitutional safeguards to the citizens of every state. After

1960’s, a strong movement to provide constitutional safeguards, for

the defendant in criminal case, and for convicted offender in the

penal institutions, became apparent. Historically, prisoners have

rarely challenged the constitutionality of their environment.

However, as most jails are extremely antiquated, poor general

conditions of incarceration1 and the prison torture promoted the

prisoners to move their petitions to the courts for the protection of

their rights. But the courts generally refused to review cases

brought by convict prisoners, challenging such incarceration on the

ground that it would violate the “hands-off” doctrine. Actually the

“hands-off” doctrine is based on the fallacious foundation stated in

1871 in Buffin Vs common wealth2, that prison as a consequence of

crime, not only forfeited his liberty, but also his personal rights,

except those, which the law in its humanity accorded to him. He

was for the time being regarded as a slave of the state. It was in

1925 that a convicted prisoner3 was successful in securing the

protection of the court. The state as well as the federal courts

continued to hear the petitions from the stone walls and in a

1 Berkson L.C. : The Concept of Cruel and Unusual punishment (1975) P. 144

2 Ibid. p. 145

3 Howard Vs state, 28 Ariz 433, 237 p. 203 (1925)

114

number of cases restored the rights of the prisoners. In T.K.

Fulwood Vs Clemmer4 the prisoner was deprived of his rights and

privileges, for preaching sermons condemning whites as liers,

thieves and murderers, in front of five or six guards and six guards

and six or seven hundred inmates. A prison rule prohibited such

activity because it might “tend to breach the peace” for this

infraction of rule, Fulwood was placed in a control cell. Where he

was subjected to a number of hardships. In Jordan Vs Fitzharris5,

where the prisoner was confined in a cell and was in miserable

condition, the court observed that requiring a man or beast to live

and sleep under the degrading situation, does violate the elemental

concept of decency. However, it was in 1973, that the National

Advisory Commission on Criminal Justice Standards and Goals, in

its recommendations advocated creating a prisoners Bill of Rights.

The Bill, among other things, has sought that the convicted

offenders should retain all rights that citizens in general have,

except those that must be limited to carry out the criminal sanction

or to administer a correctional facility or agency. Administrating

criminal sanctions does not require general suspension of basic

rights. Since criminal sanctions infringe on liberty the most basic

right, it is thus imperative that restrictions be used fairly and only

for sufficient cause.6 The surge in human rights consciousness that

followed the Second World War and the creation of United Nations

which produced the first international documents recognizing rights

of prisoners, including Art-10 of the International Covenant on

4 206 A. Supp. 370 (D.D.C. 1962)

5 Manroe Vs Rape (1961) 365 U.S. P. 167

6 Progress Report of National Advisory Commission on Criminal Justice Standards and

Goals (U.S. Department of justice) 1973

115

civil and political Rights (ICCPR). The first document exclusively

dealing with prisoners was the United Nations Standard Minimum

Rules for the Treatment of prisoners.7 This document is concerned

not with the rights of prisoners, but with the proper management of

a penal institution, with a view to avoiding indiscipline, disease and

the induction of inmates into lives of crime; these objectives one

can derive from the nature of the recommendations. These include

the separation of different classes of prisoners, individual sleeping

accommodation, decent sanitation, food, clothing and to exercise

medical services, fair and not excessive punishment regimes for

disciplinary offences, complaints procedures, contact with family

and ‘reputable friends’, access to general news, reading materials,

to respect and facilities for religious observance, respect for

property, protection from unnecessary exposure to public insult and

curiosity, general respect for dignity, freedom from discrimination,

and a regime designed to reintegrate, the prisoner into society, with

appropriate education and rehabilitative measures.

Changes in Attitudes

In the 20th

century attitudes towards prisoners began to change.

There are a good number of US cases establishing that prisoners do

not lose all their rights. ‘There is no iron curtain drawn between the

constitution and the prisoners of this country.’8 And the House of

Lords said, “a convicted prisoner, in spite of his imprisonment,

7 Adopted Aug. 30, 1955, by the First United Nations Congress on the Prevention of Crime

and Treatment of Offenders. 8 Welf Vs Mc Donenell, 418 US 539, 555-56 (1974)

116

retains all civil rights which are not taken away expressly or by

necessary implication.’9 The Human rights of prisoners with which

it is concerned are derived from “Universal general human rights”

and are applicable to every individual. So are not prisoners

adequately protected by the inclusion in national constitutions of

Common Human Rights provisions such as are found in the ICCPR,

and the International Covenant on Economic, Social and Cultural

Rights (ICESCR).

Prisoners Human Rights: A Survey of Constitutional

Perspective

The constitution of South Africa, 1996 is becoming the standard to

which constitution makers refer. In connection with the rights of

convicted prisoners it provides for conditions of detention that are

consistent with human dignity, including at least exercise and the

provision, at State expense, of adequate accommodation, nutrition,

reading material, medical treatment, to communicate with, and be

visited by, that person’s spouse, a chosen religious counselor and

medical practitioner. The constitution of Cambodia, passed in 1993,

prohibits “Coercion, physical ill-treatment or any other

mistreatment that imposes additional punishment on a prisoner.”10

The 1990 constitution of Nepal prohibits “physical or mental

torture” and “cruel, inhuman or degrading treatment”11

. Art 21 of

the constitution of Paraguay mandates that the people deprived of

their freedom be kept in adequate establishments, in which the

9 Raymond Vs Honey (1983) AC I quoted from “Secretary of State for Home Department”,

exparte simms exparte O’ Brien, R (1999) UK 1+233: (2000) 2 AC 115 10

Art. 38 of the Constitution of Combodia 11

Art. 14 (4) of the Constitution of Nepal

117

mixture of sexes should be avoided, and minors be not allowed to

share the same establishments with adult persons subject to

preventive custody, it further mandates, be detained in places other

than those designed for convicted inmates. The brief survey

unequivocally indicates that the rights of prisoners are as yet a field

not comprehensively considered by constitution makers.

What rights might prisoners claim?

The Prison Reform International Handbook12

discusses the issues of

decent, human-rights oriented prison under the following headings:

Due process- which relates to the disciplinary process for what is

alleged to have been committed by prisoners in prison, the physical

conditions of imprisonment, prisoners health, prisoners contact

with the outside world, programmes for prisoners under which

therapeutic and rehabilitative regimes are included, as well as the

right to engage in religious observance, classification systems

according to which prisoners are grouped to ensure appropriate

treatment, work and other activity, prison staff, and inspection –

mechanism for monitoring prisons and their compliance with

standards. Many of these issues have infact been litigated, with

more or less success for the prisoners concerned, and more or less

sense of satisfaction on the part of observers, on the basis of the

existing general Human Rights provisions, or the limited specific

provisions about prisoners. A few examples of the specific issues,

mainly through cases, are explained here below –

12

Penal Reform International: Making standards Work: An International Handbook on Good

prison practice (Penal Reform International, London, 2001) P.5

118

(i) Due process

It is no longer the case that once in prison, courts will not enquire

into the procedures used by the authorities. In a case, the court of

Appeal held that where a prisoner was re-categorized in a way

which limited his chances of being released on license, this change

ought not to have taken place until the prisoner had been told the

reasons for the change and given the chance to make

representatives.13

(ii) Special forms of constraint

Chains are commonly used in the USA, and also other equipment

such as restraint chains, which Amnesty International has claimed

have led to the deaths of prisoners. The UN Committee Against

Torture has recommended that the US abandon the one of these

chains, as contrary to the convention Against Torture.

(iii) Physical Security of prisoners

One aspect of physical security is the issue of medical treatment for

prisoners. Sometimes medical conditions may have no connection

with the incarceration, but other conditions may be caused or

exacerbated by it. Various courts have held that there is, in certain

circumstances, a duty to provide medical care. The English High

Court held that there might have been a breach of the European

Convention when a man died of a severe asthma attack while in

13

R. (Hirst) Vs Secretary of State for the Home Department, CA: Lord Woolf C.J. May &

Dyson, LJJ: 8 March, 2001

119

custody.14

The European Court of Human Rights held that the

treatment of a severely disabled prisoner, though not intended in

any way to humiliate, was objectively degrading and did amount to

a violation of Art. 3 of the convention.15

(iv) Access to reading matter

An interesting Hongkong case involved a prisoner who wanted to

read the racing pages of the newspaper. The authorities maintained

that they had a problem with prisoners betting on horse racing, but

the prisoner argued that this infringed his freedom of expression

rights under the Bill of Rights which is identical to the ICCPR. The

judge of first instance upheld the claim16

, but was reversed on

appeal. The Court of Appeal holds that this was a, legitimate

derogation on the prisoners rights, proportionate to the evil to be

averted.

(v) Voting

A prisoner in South Africa challenged the Electoral Commission

for failing to make it possible for him to vote. The constitution is

silent on this issue, but says that “Every adult citizen has the right .

. . to vote in elections for any legislative body established in terms

of the constitution and to do so in secret.17

The Electoral Act

likewise said nothing about prisoners. But it also made no special

provision for those unable to get to a polling station because they

14

R. on the application of Wright Vs Secretary of state for the Home Department, (2001)

EWHC Admin, 520, 20 June, 2001. 15

Price Vs United Kingdom, (Application No. 33394/96) 10 July, 2001. 16

Chim Shing Chung Vs Commissioner of Correctional Services, 1995, No. MP2271,

decided on 2 Nov. 1995. 17

Sec. 19 (3) (a) of the Constitution of South Africa

120

were in prison – though it did for those unable to do so by virtue of

certain other factors.18

(vi) Access to media

One of the famous Indian cases involved the issue of whether

journalists should be able to have access to prisoners. It was held

that though citizens have no constitutional right to have access to

prisons, there are circumstances in which it is desirable for the

interests of prisoners that journalists have access to interview

prisoners.19

(vii) Sex and family life

US courts have held that prisoners retain the right to marry, and

also that they cannot be compulsorily sterilized in other words their

right to procreate after release is protected.20

(viii) Privacy

A court in the US held that the 14th

Amendment protects an inmates

right to medical privacy, subject to legitimate penological

interests.21

This arose in the context of an HIV prisoner who

complained that his condition had not been kept confidential.

(ix) HIV Positive prisoner

In some countries prisoners are HIV positive to a greater extent

than the population at large. The risk of contracting or the actual

18

August Vs Electoral Commission, CCT8/99, decided on 1st April, 1999.

19 Sheela Barse Vs State of Maharashtra, (1987) 4 SCC. 373.

20 Turner Vs Safley, 482 US 78 (1987)

21 John Doe Vs Delie, 257 F 3d 309 No. 99-3019

121

existence of infection with, the HIV virus, gives rise to a number of

possible implications for prisoners. There has been some criticism

in India of the endorsement by the National Human Rights

Commission of the refusal of the Red Cross to accept blood from

prisoners on the grounds that they are a high-risk group.22

(x) Religious observance

Being in prison may not interfere with private prayer but may give

rise to other difficulties for prisoners in observing the injunctions

of their religions. In the USA, the 9th

Circuit Court of Appeals

upheld preliminary injunctions forbidding prison authorities from

discipline Muslim prisoners who missed work in order to attend

Friday prayers.23

(xi) Consideration for parole

In 1993 a Canadian prisoner unsuccessfully challenged legislation

passed after he was sentenced, but which enabled the authorities to

decline to release him on parole on the grounds that there was

reason to believe he might commit a serious offence after release

but before the end of his sentence. The S.C. held that the legislation

did not infringe the Charter of Rights and Freedoms because it

stuck an appropriate balance between the protection of society and

the liberty of the individual, and also because there was a right to

hearing and representation.24

22

Ranjit Devraj: “Rights – India, Blood scare but prisoners cannot Donate”, Inter Press

Service Sep. 10, 2001. 23

Mayweathers Vs Newland, Nos. 00 – 16708, 01-15179 judgment filed Aug. 2. 2001 24

Cunningham Vs Canada, (1993) 2 SCR 143

122

(xii) Privatization

Many countries have embarked on a process under which prisons

are now run wholly, or in part by private, essentially commercial,

enterprises rather than by public servants.

(xiii) Monitoring and Complaints

Apart from litigation, the limitations of which for a prisoner are

apparent, the routes for protecting the rights of prisoners may

include a system of prison visitors, Human Rights Commission and

ombudsman. The Common wealth Human Rights Initiative, now

based in India, carried out a study of the prison visiting system in

Madhya Pradesh. It concluded that the system was in many ways

defective – in appointment of visitors, in frequency of visits, in

effectiveness of visits, in accountability. It observed that ‘the visits

are motivated more by the ceremony or festivity of the occasion

and less by the mandated duty to monitor prison conditions and

make efforts towards improvement.25

Human Rights of prisoners – under the constitution of India

In 1979, India adopted the International Covenant on Civil and

Political Rights (1966). India must, therefore, “strive for the

promotion and observance of the rights recognized” in this

covenant. The Indian constitution (1949) was drafted even before

the Universal Declaration (1950), but it was adopted at a time when

the deliberations for the Universal Declaration were in the air, so

that the framers of the Indian constitution was influenced by the 25

Common wealth Human Rights Initiative, Behind Bars: A closer look at prison visiting

system, M.P. India, New Delhi P.18

123

concept of human rights, and already guaranteed most of the human

rights which later came to be embodied in the International

covenant in 1966. Even prior to the framing of the constitution for

free India, Mahatma Gandhi had announced before the Second

Round Table Conference that this aim was to establish a political

society in India26

in which there would be no distinction between

high class and low class people, that women should enjoy the same

rights as men; and dignity and justice, social, economic and

political, would be ensured to the tuning millions of India. This was

one of the objects which inspired Pandit Jawaharlal Nehru in

drafting the historic objective Resolutions in the Constituent

Assembly, and which was adopted on Jan.22, 1947.27

The ideal of

the Objectives Resolution was reflected in the preamble28

of the

constitution which adopted in Nov. 1949 with the specific mention

of “dignity of the individual”. It is thus evident that during the

period between 1946 and 1949, India had formulated the concept of

human rights. In the substantive provisions of the constitution, the

human rights were divided into two parts, in much the same way as

the International Covenant on civil and political Rights, and on

Economic, Social and Cultural Rights did later (1966). In the

Indian Constitution, the justifiable human rights were included in

part III, while the non- justifiable social and economic rights were

set forth in part IV on the provides for the creation of a National

Human Rights Commission. The Apex Court, significantly held

that it was fully empowered to look into the propriety of orders

26

Durga Das Basu’s: “Commentary on the constitution of India, 6th

Ed. Vol. A., P. 147. 27

Durga Das Basu: “Introduction to the constitution of India”, 14th

Ed. PP. 20-22 28

Ibid. p.23

124

passed by such Commission and observed: “ In deciding the

matters referred by S.C. National Human Rights Commission is

given a free hand and is not circumscribed by any conditions.

Therefore, the jurisdiction exercised by the National Human Rights

Commission in these matters its of a special nature not covered by

enactment or law, and thus acts sui generis.”29

From study the

research Scholar finds that the Indian prison system, just like the

other agencies of the criminal justice administration, can be

described to exist perpetually in a state of crisis. The reasons for

such a state of affairs are:

(i) antiquate and over-crowded, over- worked nature of prison

institution.

(ii) lack of proper training, skills and motivation of the prison staff.

(iii) policy – level ideological conflicts brought about by the

modern ideas of prisoners rights and egalitarianism,

(iv) internationalization of the prison system.

The aforesaid reasons manifest in several specific problems that

may assume different in the vast network of prisons. However,

some of the notable problems that substantially determine the very

character of the system itself can be described as follows:

(i) Over-Crowding

Over-crowding has almost become a hallmark of most the prisons,

only the degree of over-crowding may vary between two times to

29

Paramjit Kaur Vs State of Punjab and others, AIR 1999 SC 340

125

four times or even more. The intensity of growth of prison

population can be estimated from Tihar prison itself, which started

with an average prison population of 900 inmates in 1958 and has

reached 9000by 1996. The over-crowding issue was recently raised

before the S.C. in a PIL in Rama Murthy Vs State of Karnataka30

seeking wide ranging reforms in prison conditions. The S.C. did not

consider over-crowding per se as unconstitutional, but held that –

“There is no doubt that the same does not affect the health of

prisoners . . . The same also vary adversely affects hygienic

conditions. . .31

.

(2) Inadequate provision for Basic Needs

The issue of basic need provision may not be problematic so far as

Delhi and certain other metropolitan city prisons are concerned.

But when it comes to District and Sub-prisons in less well-

organized and financially badly-off states like Bihar, UP and the

issue of basic need fulfilment relating to food, shelter, clothing,

health-care, hygiene, recreation and involvement in rehabilitation

programmes assumes far greater significance. Even in financially

well-provided states, the prevalence of corruption amongst prison

staff substantially affects provision of basic needs as well. The All

India Committee on jail Reforms, 1980-83, has observed: “The

committee recognized that the central jail, Tihar had been widely

criticized on account of mal-treatment of, and indiscipline amongst,

30

(1997) 2 SCC 642 31

Ibid, at 654

126

prisoners on the one hand and improper attitudes, incompetence,

corruption and abuse of power by the staff on the other.”32

(3) Torture, Ill-treatment and Repressive Control

As a custodial institution prisoners have a basic responsibility for

protecting the inmates from being subjected to any harm or

suffering. But in actual practice the absolute dependence and

powerlessness of the inmates makes him an ideal target for torture,

ill-treatment and repression. Studies and researches on prison

unrest reveal that most of the incidents are related to trivial matters

involving individual torture and violence.

(4) Unequal Treatment and Privileges

Prison society is inherently unequal. There exist within the prison

several hierarchies, some of which have no formal or legal

recognition. The vast bulk of resource less, lower-class, inmates

invariably occupy the lowest position in the hierarchy. They are not

only subjected to the lawful and legitimate commands of prison

officials but are also treated as subjects by the influential “Convict

officers” and the mafia undertrials. The existing prison system

sustains the social hierarchies enjoyed outside even inside the

prison by classifying the prisoners into “B” and “C” classes or “1st”

and “2nd

” classes for conferring prison privileges. The issue of

perpetuating the outside class and status hierarchies within the

prison was examined by the Jail Manual Committee and the All-

India Committee On jail Reforms which recommended for doing

32

Ministry of Hone Affairs, Report of the All-India Committee on jail Reforms, 1980-83

(Govt. of India, New Delhi, 1983) Vol-I, Chap-I, Para 1-14)

127

away with the classification based on social status, education and

mode of living. Time and again, the S.C. has emphasized that Art’s

14, 19 and 21 are available to prisoners as well as freeman prison

walls do not keep out Fundamental Rights.33

The court has

observed in this connection34

, - “A prisoner, be he a convict or

under-trial or a detenu, does not cease to be a human being. Even

when ledged in the jail, he continues to enjoy all his Fundamental

Rights including the right to life guaranteed to him under the

constitution. On being convicted of crime and deprived of their

liberty in accordance with the procedure established by law,

prisoners still retain the residue of constitutional rights.” The court

has given several directives to improve many aspects of prison

administration and condition of prisoners.35

In Sunil Batra’s case,

the petitioner, sentenced to death on charges of murder and

robbery, was being kept in solitary confinement pending his appeal

before the High Court. He filed a writ petition in the S.C. under

Art. 32. The court emphasized this case that Art. 21 means that “the

law must be right, just and fair, and not arbitrary, fanciful or

oppressive otherwise, it would be no procedure at all and the

requirements of Art. 21 would not be satisfied. If it is arbitrary it

would be violative of Art. 14.36

The court has stated that resort to

oppressive measures to curb political beliefs (the prisoner

concerned was a naxalite and, therefore, he was being put in a

“quarantine” and was being put to inhuman treatment) could not be

33

T.V. Vethuswaran Vs State of Tamil Nadu, AIR 1983 SC 361 (2) 34

State of Andhra Pradesh Vs Challa Ramkrishna Reddy, AIR 2000 SC 2083, at 2088 35

Sunil BatraVs Delhi Administration, AIR 1980 SC 1579 (II) 36

Ibid, P. 1732

128

permitted.37

The court has maintained that the conviction of a

person for a crime does not reduce him to a non-person vulnerable

to a major punishment imposed by jail authorities without

observance of the procedural safeguards. The undertrials are in

custody, but not undergoing punitive imprisonment. The court has

frowned upon the practice of keeping prisoners condemned to death

sentence in solitary confinement. Apart from Art. 21, the court has

also held it invalid under Art. 20 (2). A person under death

sentence is held in jail custody so that he is available for execution

of the death sentence when the time comes. No punitive detention

can be imposed on him by jail authorities except for prison

offences. He is not to be detained in solitary confinement as it will

amount to imposing punishment for the same offence more than

once which would be violative of Art. 20 (2)38

, Similarly the court

has ruled that “bar fetters make a serious in road on the limited

personal liberty which a prisoner is left with”. Such a punishment

can be imposed only to secure the safe custody of the prisoner

taking into consideration “the character antecedents and

propensities of the prisoner.”39

The court has observed, “We cannot

be oblivions to the fact that the treatment of a human being which

offends human dignity, imposes avoidable torture and reduces the

man to the level of a beast would certainly be arbitrary and can be

questioned under Art. 14”40

37

Bhuvan Mohan Patnaik Vs State of A.P., AIR 1974 SC 2092 38

Sunil Batra (I), at 1731 39

Ibid, 1734 40

Sunil Batra (I), at 1735

129

The S.C. has strongly deprecated the tendency of continuing to

detain persons as criminal lunatics for long periods even after they

have become same. The court has emphasized that there should be

an adequate number of institutions for looking after the mentally

sick persons and that the practice of sending lunatics or persons of

unsound mind to jail for safe custody is not desirable, because jail

is hardly a place for treating such persons.41

The court has also

frowned upon the practice of keeping women in prison without

being accused of any crime. In Hussainara III,42

the court has

characterized “protective custody” as “really and in truth nothing

but imprisonment” which violates Art. 21. The court has directed

the Govt. to setup welfare and rescue homes to take care of

destitute women and children. In Inder Singh Vs State43

, the S.C.

issued certain directions as to how the jail authorities should treat

two young men convicted of murder and sentenced to life

imprisonment, with a view to reforming them. In Kishor Singh Vs

State of Rajasthan44

, the S.C. again exposed the injustice being

perpetrated on the prisoners and how the guidelines laid down by

the court in the Sunil Batra’s case were being ignored and flouted

by the prison administration. Human dignity is not to be ignored

even in prisons. Broadly, the judicial control of prisons has arisen

from two streams of cases – a. those that focus on the constitutional

rights and Human Rights of prisoners.

41

Veena Sethi Vs State of Bihar, AIR 1983 SC 339 42

AIR 1979 SC 1360, 1367 43

AIR 1978 SC 1091, 1094 44

AIR 1981 SC 625

130

b. those that relate to a wide range of prison conditions and

standards of prisonisation.

The research Scholar from study observes some established Human

Rights and well-settled Fundamental Rights, which are and have

been made available to prisoners in general –

When there is deprivation of liberty, otherwise than according

to law – The personal liberty of a citizen is guaranteed under the

scheme of Art. 20, 21 and 22 of the Constitution of India.

However, a person may be deprived of his liberty only according to

procedure established by law. It follows, therefore, that those who

will call upon to deprive other persons of their personal liberty in

the discharge of what they conceive to be their duty, must strictly

and scrupulously observe and follow the rules of law.45

Speedy Trial is a Fundamental Right and in a manner an

ingredient of Art. 21 – The S.C. has advanced further and held

that the provision of speedy justice is an obligation of the State,

for, otherwise the operation of the legal system would not promote

justice.46

Right in case of acquittal – If the trail against a prisoner

concludes into acquittal, the prisoner is entitled, as a matter of right

to be released forthwith. After an order of acquittal, he cannot be

detained behind the prison walls.47

45

Ram Narain Vs State of Delhi, 1953 SCR 652 46

S.C. Advocates on Record Association Vs U.O.I, AIR 1994 SC 268 47

Rudal Shah Vs State of Bihar (1993) 3 SCR 508

131

Detention without trial or charge – When an undertrial was kept

in jail without any trial for a longer time, the court has held that

they should be released. Likewise in cases where even charges

were not framed against the undertrial and long life elapsed for no

fault of the undertrial then the courts have directed for the release

of such persons.48

Right to have a fair trial and open trial – All the prisoners have a

human right to have a trial for the offence charged against.

Universal Declaration of Human Rights, 1948 and the constitution

of India generally propounds four protections to every undertrial –

a. Presumption of innocence

b. Prevention of ex post facto operation of criminal

law

c. Protection against double jeopardy

d. Due process and according to law

Right to be told as to the grounds of arrest- All prisoners have

got a right to be informed of the grounds of arrest. Art. 22 (I)

provides such a right is unmistakable words. Similarly Art. 39A of

the constitution also provides guidelines in the DPSP to make it

obligatory on the State to provide legal assistance to an undertrial.49

48

Mathew Vs State of Bihar, AIR 1984 SC 1854 49

State of Haryana Vs Darshna Devi, AIR 1979 SC 855

132

Right to get himself medically examined – In Sheela Barse,50

the

S.C. has make it clear that all undertrials have got a right to get

them medically examined. Right against torture – Torture is an

effort to the human dignity. No prisoner can be tortured and cannot

be subjected to custodial violence.51

No handcuffing – The S.C.

has held that iron is inhuman and therefore no iron bars or

handcuffs should be put to and fro while an undertrial is taken from

prison to the court and while returning from court to the prison.52

Right to fair treatment – All prisoners have got a right of fair

treatment and the basic dignity. This would include all measures of

security, remand and parole, premature release, conditions of

prisonisation as well as prison transfer and prison visiting system.53

The Prisoners: Some pleasures In the penal institutions,

particularly in the maximum security installations, there is greater

commitment to the criminal value system, and less co-operation

with the custodial personnel. Nevertheless, even in such institutions

there are many inmates, who co-operate for choice assignments,

without arousing the hostility of their fellow inmates. They are

from category of the prison wise inmates and are always careful to

avoid being categorized as “stool-pigeons”. They justify a certain

amount of co-operation to their fellow inmates as necessary or

useful to obtain early release on parole.

The jail officers themselves are in league with the criminals in the

cells. There is a large network of criminals and officials in the

50

Sheela Barse Vs State of Maharashtra, AIR 1983 SC 378 51

D.K. Basu Vs State of W.B. AIR 1997 SC 610 52

Citizen for Democracy Vs State of Assam AIR 1966 SC 2193 (except for special reasons) 53

Zoil Nath Sharmah Vs State of Assam, 1992 CrLj. 207

133

house of corrections, where drug racket, alcoholism, smuggling,

supply of women or handsome boys, violence, theft and the like are

not uncommon. The cases of Sunil Batra, Charles Sobraj are eye

opener in respect of the illegal facilities which are given to the

“inmate dada’s”. These types of prisoners are able to develop a

certain rapport, with some of the staff members in the jail such as

Head Warders, Warders and illegally obtain certain facilities

including that of smuggling of number of items. A number of

allegations have been made in Rakesh Kaushik’s54

case, regarding

illegalities which are committed by the rich and influential

prisoners not only with the permission of the prison officers, but

also with their active help. The S.C. in this case observed that –

“jural perspectives make the court and activist instrument of jail

justice. We proceed on this basis to a consideration of the issues

raised before us. But to clothe these issues with flesh and blood and

to make abstract poignancies into concrete problems, we may

excerpt at random some of the allegations made by the petitioner,

perhaps, by mixing fiction with fact. Even after making a liberal

allowance for adulteration distortion, the Masonic residue presses

upon our judicial conscience to use the court process and restore

basic humanism inside the penal institution where sentences,

punitively set by the court, are subject to unbearable tensions and

torments on their physical and moral fiber, thanks to the prison

milieu being what is . . .”

54

Rakesh Kaushik Vs B.L. Vig. Superintendent, central jail, New Delhi, AIR, 1981 SC 1767

134

The Prisoners: Some pains However, the real pressure of the

prison, goes beyond the surface discomfort created by a harsh

environment. Immobility, poverty, abstinence, compliance,

uncertainly – all these are aspects of prison experiences, that seem

designed to irritate and annoy. But the brunt of these pains of

imprisonment lies in the fact that prisoner loses control of his

world, and is rendered powerless to alter his fate. The pressures of

prison thus threaten to undermine the convict’s image as a self-

sufficient, respectable adult male. The prisoner’s male identity is

apt to become distorted or blurred in this all male world, where the

moderating influence of women is conspicuously absent. The

deprivations which are followed, with the loss of liberty are

numerous and vary in their dimensions according to the nature and

length of the imprisonment, period served in the institution as well

as the status of the prisoner, which he enjoys in the institution, or

might have enjoyed in the society. The pains of imprisonment are

actute for those who are with long-term imprisonment, as compared

to those who are with short-term imprisonment. Such a pains, to a

larger extent frustrate the programmes of rehabilitation and

consequently make the resocialization a difficult task. The young

offenders often find imprisonment to be a crime learning situation.

Further, prison monotony contributes to the mental deterioration of

the inmates. Though no serious effort has been made to study the

effects of the imprisonment on mentality of the prisoner, yet what

one sees actually lead to the conclusion that prison administration

is in a large measure responsible for development of insanity

among the prisoners, mentally sound at the time of admission. The

multiplicity of rules and restrictions, the tedious monotony, the

135

curtailment of freedom, the forced subjection to an unusual severe

discipline, the worries for the family and the sad outlook for the

future, all are quite disturbing and lead to abnormal mental

reactions, which is turn negative the process of rehabilitation.