|
Less than 200 years ago, the attitude to
prisons, prisoners and punishment was brutal and barbaric. Recognition of the
human being in the convicted offender is an idea that has been accepted after a
long struggle with the state.
The Indian socio-legal system is based on
non-violence, mutual respect and human dignity of the individual. If a person
commits any crime, it does not mean that by committing a crime, he ceases to be
a human being and that he can be deprived of those aspects of life which
constitutes human dignity. Even the prisoners have human rights because the
prison torture is not the last drug in the Justice Pharmacopoeia but
a
confession of failure to do justice to living man. For a prisoner all
fundamental rights are an enforceable reality, though restricted by the fact of
imprisonment.
Article 21 of the Constitution guarantees
the right of personal liberty and thereby prohibits any inhuman, cruel or
degrading treatments to any person whether he is a national or foreigner. Any
violation of this right attracts the provisions of Article 14 of the
Constitution which enshrines right to equality and equal protection of law. In
addition to this, the question of cruelty to prisoners is also dealt with
specifically by the Prison Act, 1894. If any excesses are committed on a
prisoner, the prison administration is responsible for that. Any excesses
committed on a prisoner by the police authorities not only attracts the
attention of the legislature but also of the judiciary. The Indian judiciary,
particularly the Supreme Court in the recent past has been very vigilant against
encroachments upon the human rights of the prisoners.
Right to Legal Aid
The talk of human rights would become meaningless unless a person is provided
with legal aid to enable him to have access to justice in case of violation of
his human rights. This a formidable challenge in the country of India’s size and
heterogeneity where more than half of the population lives in far-flung villages
steeped in poverty, destitution and illiteracy. Legal aid is no longer a matter
of charity or benevolence but is one of the constitutional rights and the legal
machinery itself is expected to deal specifically with it. The basic philosophy
of legal aid envisages that the machinery of administration of justice should be
easily accessible and should not be out of the reach of those who have to resort
to it for the enforcement of their legal rights. In fact legal aid offers a
challenging opportunity to the society to redress grievances of the poor and
thereby law foundation of Rule of Law.
In India, judiciary has played an important role in developing the concept of
legal aid and expanding its scope so as to enable the people to have access to
courts in case of any violation of their human rights. In the case of M.H.
Wadanrao Hoskot v. State of Maharashtra , the Court held that the right to legal
aid is one of the ingredients of fair procedure.
If a prisoner sentenced to imprisonment, is
virtually unable to exercise his constitutional and statutory right of appeal,
for want of legal assistance, there is implicit in the court under article 142
read with article 21 and 39-A of the Constitution, power to assign council for
such imprisoned individual for doing complete justice.Where the prisoner is
disabled from engaging a lawyer, on reasonable grounds such as indigence or
incommunicado situation, the court shall, if the circumstances of the case, the
gravity of the sentence, and the ends of justice so required, assign competent
counsel for the prisoners defense, provided the party doesn’t object to that
lawyer.
Right to Speedy
Trial
Right to speedy trial is a fundamental right of a prisoner implicit in article
21 of the Constitution. It ensures just, fair and
reasonable procedure. The
fact that a speedy trial is also in public interest or that it serves the social
interest also, does not make it any the less right of accused. It is in the
interest of all concerned that the guilt or innocence of the accused is
determined as quickly as possible in the circumstances.
In the case of
Hussainara Khatoon(I) v. State of Bihar , a shocking state of affairs in
regard to the administration of justice came forward. An alarmingly large number
of men and women, including children are behind prison bars for years awaiting
trial in the court of law. The offences with which some of them were charged
were trivial, which, even if proved would not warrant punishment for more than a
few months, perhaps a year or two, and yet these unfortunate forgotten specimens
of humanity were in jail, deprived of their freedom, for periods ranging from
three to ten years without as much as their trial having commenced. The Hon’ble
Supreme Court expressed its concerned and said that:
What faith can these lost souls have in the
judicial system which denies them a bare trial for so many years and keeps them
behind the bars not because they are guilty; but because they are too poor to
afford bail and the courts have no time to try them.
One reason why our legal and judicial system continually denies justice to the
poor by keeping them for long years in pretrial detention is our highly
unsatisfactory bail system. This system of bail operates very harshly against
the poor and it is only the non-poor who are able to take advantage of it by
getting themselves released on bail. The poor find it difficult to furnish bail
even without sureties because very often the amount of bail fixed by the courts
is so unrealistically excessive that in a majority of cases the poor are unable
to satisfy the police or the magistrate about their solvency for the amount of
the bail and where the bail is with sureties as is usually the case, it becomes
an almost impossible task for the poor to find persons sufficiently solvent to
stand as sureties.
In Hussainara Khatoon (II) v. Home
Secretary, State of Bihar , the Court while dealing with the cases of undertrials who had suffered long incarceration held that a procedure which
keeps such large number of people behind bars without trial so long cannot
possibly be regarded as reasonable, just or fair so as to be in conformity with
the requirement of Article 21.
In Mathew Areeparmtil and other v. State of Bihar and other , a large number of
people were languishing in jails without trial for petty offences. Directions
were issued to release those persons. Further the court ordered that the cases
which involve tribal accused concerning imprisonment of more than 7 yrs. should
be released on execution of a personal bond. In the case where trial has started
accused should be released on bail on execution of a personal bond. In case
where no proceedings at all have taken place in regard to the accused within
three yrs., from the date of the lodging of FIR, the accused should be released
forthwith under S.169 Cr. P.C. if there are cases in which neither charge-sheet
have been submitted nor investigation has been completed during the last three
years, the accused should be released forthwith subject to reinvestigation to
the said cases on the fresh facts and they should not be arrested with out the
permission of the magistrate.
In the case of Raj Deo Sharma v. The State
of Bihar , the question before the court was whether on the facts and
circumstances of the case, the prosecution against the petitioner is to be
quashed on the ground of delay in the conduct of trial. The petitioner has never
suffered incarceration. His application for bail was ordered on the day he
appeared before the Court and presented the same. Allowing the appeal Supreme
Court gave the following directions:
1. In cases where the trial is for an
offence punishable with imprisonment for a period not exceeding seven years,
whether the accused is in jail or not, the court shall close the prosecution
evidence on completion of a period of two years from the date of recording the
plea of the accused on the charges framed whether the prosecution has examined
all the witnesses or not, within the said period and the court can proceed to
the next step provided by law for the trial of the case.
2. In such cases as mentioned above, if the accused has been in jail for a
period of not less than one half of the maximum period of punishment prescribed
for the offence, the trial court shall release the accused on bail forthwith on
such conditions as it deems fit.
3. If the offence under trial is punishable with imprisonment for a period
exceeding 7 years, whether the accused is in jail or not, the court shall close
the prosecution evidence on completion of three years from the date of recording
the plea of the accused on the charge framed, whether the prosecution has
examined all the witnesses or not within the said period and the court can
proceed to the next step provided by law for the trial of the case.
In Shaheen Welfare Association v. Union of
India and others , the court while delivering its judgment said that:
In spite
of such review, from the figures which we have cited above, it is clear that
there is very little prospect of a speedy trial of cases under TADA in some of
the States because of the absence of an adequate number of Designated Courts
even in cases where a chargesheet has been filed and the cases are ready for
trial.. But when the release of under-trials on bail is severely restricted as
in the case of TADA by virtue of the provisions of Section 20 (8) of TADA, it
becomes necessary that the trial does proceed and conclude within treasonable
time. Where this is not practical, release on bail which can be taken to be
embedded in the right of a speedy trial may, in some cases, be necessary to meet
the requirements of Article 21.
Right against Solitary Confinement, Handcuffing & Bar Fetters and Protection
from Torture
Solitary Confinement in a general sense means the separate confinement of a
prisoner, with only occasional access of any other person, and that too only at
the discretion of the jail authorities. In strict sense it means the complete
isolation of a prisoner from all human society.
Torture is regarded by the
police/investigating agency as normal practice to check information regarding
crime, the accomplice, extract confession. Police officers who are supposed to
be the protector of civil liberties of citizens themselves violate precious
rights of citizens. But torture of a human being by another human is essentially
an instrument to impose the will of the strong over the weak.
Torture is a
wound in the soul so painful that sometimes you can almost touch it, but it is
also so intangible that there is no way to heel it.
An arrested person or under-trial prisoner
should not be subjected to handcuffing in the absence of justifying
circumstances. When the accused are found to be educated persons, selflessly
devoting their service to public cause, not having tendency to escape and tried
and convicted for bailable offence, there is no reason for handcuffing them
while taking them from prison to court.
In the case of Prem Shanker Shukla v. Delhi
Administration , the petitioner was an under-trial prisoner in Tihar jail. He
was required to be taken from jail to magistrate court and back periodically in
connection with certain cases pending against him. The trial court has directed
the concerned officer that while escorting him to the court and back handcuffing
should not be done unless it was so warranted. But handcuffing was forced on him
by the escorts. He therefore sent a telegram to one of the judges of Supreme
Court on the basis of which the present habeas corpus petition has been admitted
by the court.
To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom
of movement, under which a detainee is entitled to under Art.19, cannot be cut
down by the application of handcuffs. Handcuffs must be the last refuge as there
are other ways for ensuring security.
There must be material, sufficiently
stringent, to satisfy a reasonable mind that there is clear and present danger
of escape of the prisoner who is being transported by breaking out of police
control. Even when in extreme circumstances, handcuffs have to be put on
prisoner, the escorting authority must record contemporaneously the reasons for
doing so. The judicial officer before whom the prisoner is produced has to
interrogate the prisoner, as a rule, whether he has been subjected to handcuffs
and other ‘iron’ treatments and if he has been, the official concerned shall be
asked to explain the action forthwith.
In the case of D.K. Basu v. State of West
Bengal , the Court treating the letter addressed to the Chief justice as a writ
petition made the following order:
In almost every States there
are allegations and these allegations are now increasing in frequency of deaths
in custody described generally by newspapers as lock-up deaths. At present there
does not appear to be any machinery to effectively deal with such allegations.
Since this is an all India question concerning all States, it is desirable to
issue notices to all the State Governments to find out whether they are desire
to say anything in the matter. Let notices issue to all the State Government.
Let notice also issue to the Law Commission of India with a request that
suitable suggestions may be made in the matter. Notice be made returnable in two
months from today.
Custodial torture
is a naked violation of human dignity and degradation which destroys, to a very
large extent, the individual personally. It is a calculated assault on human
dignity and whenever human dignity is wounded, civilisation takes a step
backward. Fundamental rights occupy a place of pride in the Indian Constitution.
Article 21 provides no person shall be deprived of his
life or personal liberty except according to procedure established by law.
Personal liberty, thus, is a sacred and cherished right under the Constitution.
The expression life or personal liberty has been
held to include the right to live with human dignity and thus it would also
include within itself a guarantee against torture and assault by the State or
its functionaries. Article 22 guarantees protection against arrest and detention
in certain cases and declares that no person who is arrested shall be detained
in custody without being informed of the grounds of such arrest and he shall not
be denied the right to consult and defend himself by a legal practitioner of his
choice.
The Court, therefore, considered it
appropriate to issue the following requirements to be followed in all cases of
arrest or detention till legal provisions are made in that behalf as preventive
measures:
1. The police personnel carrying out the arrest and handling the interrogation
of the arrestee should bear accurate, visible and clear identification and name
tags with their designations. The particulars of all such police personnel who
handle interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare
a memo of arrest at the time of arrest and such memo shall be attested by at
least one witness, who may be either a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made, it shall also
he countersigned by the arrestee and shall contain the time and dale of arrest.
3. A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to
have one friend or relative or other person known to him or having interest in
his welfare being informed, as soon as practicable, that he has been arrested
and is being detained at the particular place, unless the attesting witness of
the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the arrestee lives
outside the district or town through the Legal Aid Organisation in the District
and the police station of the area concerned telegraphically within a period of
8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of
the person who has been informed; of the arrest and the names and particulars of
the police officials in whose custody the arrestee is,
7. The arrestee should, where he so requests, be also examined at the time of
his arrest and major and minor-injuries, if any, present on his/her body, must
be recorded at that time. The "Inspection Memo"
must be signed both by the
arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by Director, Health Services of the concerned State
or Union Territory, Director, Health Services should prepare such a panel for
all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.
11. A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place of custody of
the arrestee shall be communicated by the officer causing the arrest, within 12
hours of effecting the arrest and al the police control room it should be
displayed on a conspicuous police, board.
In the case of State
of Andhra Pradesh v. Challa Ramkrishna Reddy & Ors. , the matter was
contested by the State of Andhra Pradesh that no damages could be awarded in
respect of sovereign functions as the establishment and maintenance of jail was
part of the sovereign functions of the State and, therefore, even if there was
any negligence on the part of the Officers of the State, the State would not be
liable in damages as it was immune from any legal action in respect of its
sovereign acts. Both the contentions were accepted by the trial court and the
suit was dismissed. On appeal, the suit was decreed by the High Court for a sum
of Rs. 1,44,000/- with interest at the rate of 6 per cent per annum from the
date of the suit till realisation. It is this judgment which was challenged in
the appeal.
The other question which was argued by the
learned counsel for the parties with all the vehemence at their command was the
question relating to the immunity of the State from legal action in respect of
their sovereign acts. Supreme Court dismissed the appeal filed by the State.
In the case of Ajab Singh & Anr. v. State of
Uttar Pradesh & Ors , the court said that: We do not
appreciate the death of persons in judicial custody. When such deaths occur, it
is not only to the public at large that those holding custody are responsible;
they are responsible also to the courts under whose orders they hold such
custody.
The court further said that the State of
Uttar Pradesh is responsible in public law for the death and must pay
compensation to the petitioners for the same. They shall also pay to the
petitioners the costs of the writ petitions, quantified at Rupees ten thousand.
In the case of Arvinder Singh Bagga v. State of U.P. and Others , the court
observed that:
Torture is not merely physical, there may be mental
torture and psychological torture calculated to create fright and submission to
the demands or commands. When the threats proceed from a person in Authority and
that too by a police officer the mental torture caused by it is even graver.
This clearly brings out not only
highhandedness of the police but also uncivilized behavior on their part. The
Supreme Court issued directions that the State of Uttar Pradesh will take
immediate steps to launch prosecution against all the police officers involved
in this sordid affair. They further awarded compensation to the petitioners.
Right to meet
friends and Consult Lawyer
The horizon of human rights is expanding. Prisoner’s rights have been recognized
not only to protect them from physical discomfort or torture in the prison but
also to save them from mental torture.
In the case of Sunil Batra(II) v. Delhi Administration
, the Supreme Court
recognized the right of the prisoners to be visited by their friends and
relatives. The court favoured their visits but subject to search and discipline
and other security criteria. The court observed:
Visits to prisoners by family and friends are a solace in
insulation, and only a dehumanized system can derive vicarious delight in
depriving prison inmates of this humane amenity.
In Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi and others , The Supreme Court ruled
that the right to life and liberty includes the right to live with human dignity
and therefore a detainee would be entitled to have interviews with family
members, friends and lawyers without severe restrictions. Court stressed upon
the need of permitting the prisoners to meet their friends and relatives. The
court held that the prisoner or detainee could not move about freely by going
outside the jail and could not socialize with persons outside jail. The court
said that:
Personal liberty would include the right to socialize with
members of the family and friends subject, of course, to any valid prison
regulations and under Art. 14 and 21 such prison regulations must be reasonable
and non-arbitrary.
In the case of Joginder Kumar v. State of
U.P. and others, The court observed that whenever a public servant is arrested
that matter should be intimated to the superior officers, if possible, before
the arrest and in any case, immediately after the arrest. In cases of members of
Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer
commanding the unit to which the member belongs. It should be done immediately
after the arrest is affected. Under Rule 229 of the Procedure and Conduct of
Business in Lok Sabha, when a Member is arrested on a criminal charge or is
detained under an executive order of the Magistrate, the executive authority
must inform without delay such fact to the Speaker. As soon as any arrest,
detention, conviction or release is effected intimation should invariably be
sent to the Government concerned concurrently with the intimation sent to the
Speaker/ Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha.
The person who has been arrested have the
right to have someone informed. That right of the arrested person, upon request,
to have someone informed and to consult privately with a lawyer was recognized
by Section 56(1) of the Police and Criminal Evidence Act, 1984. That Section
provides:
Where a person has been arrested and is being held in
custody in a police station or other premises, he shall be entitled, if he so
requests, to have one friend or relative or other person who is known to him or
who is likely to take an interest in his welfare told, as soon as is practicable
except to the extent that delay is permitted by this section, that he has been
arrested and is being detained there.
These rights are inherent in Articles 21 and
22(1) of the Constitution and require be recognizing and scrupulously
protecting. For effective enforcement of these fundamental rights, the court
issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to
have one friend relative or other person who is known to him or likely to take
an interest in his welfare told as far as is practicable that he has been
arrested and where is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the
police station of this right.
3. An entry shall be required to be
made in the Diary as to who was informed of the arrest. These protections from
power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is
produced, to statisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal
provisions are made in this behalf. The Directors General of Police of all the
States in India shall issue necessary instructions requiring due observance of
these requirements. In addition, departmental instruction shall also be issued
that a police officer making an arrest should also record in the case diary, the
reasons for making the arrest.
Right to Reasonable
Wages in Prison
Remuneration, which is not less than the minimum wages, has to be paid to anyone
who has been asked to provide labour or service by the state. The payment has to
be equivalent to the service rendered, otherwise it would be ‘forced labour’
within the meaning of Article 23 of the Constitution. There is no difference
between a prisoner serving a sentence inside the prison walls and a freeman in
the society.
Whenever during the imprisonment, the
prisoners are made to work in the prison; they must be paid wages at the
reasonable rate. The wages should not be below minimum wages.
In the case of Mahammad Giasuddin v. State
of A.P. , the court directed the state to take into account that the wages
should be paid at a reasonable rate. It should not be below minimum wages, this
factor should be taken into account while finalizing the rules for payment of
wages to prisoners, as well as to give retrospective effect to wage policy.
In the case of People's Union for Democratic Rights v. Union of India, the Bench
observed thus:
We are, therefore, of the view that where a person
provides labour or service to another or remuneration which is less than the
minimum wage, the labour or service provided by him clearly falls within the
scope and ambit of the words "forced labour” under Article 23.
In the case of State of Gujarat v. Hon'ble
High Court of Gujarat, A delicate issue requiring very circumspective approach
mooted before the court. Whether prisoners, who are required to do labour as
part of their punishment, should necessarily be paid wages for such work at the
rates prescribed under Minimum Wages law. The court has before him appeals filed
by some State Governments challenging the judgments rendered by the respective
High Courts which in principle upheld the contention that denial of wages at
such rates would fringe on infringement of the Constitution protection against
exaction of forced labour.
A Division Bench in the case of
Gurdev Singh v. State Himachal Pradesh, the
court said that Article 23 of the Constitution prohibits ‘forced Labour’ and
mandated that any contravention of such prohibition shall be an offence
punishable in accordance with law. The court had no doubt that paying a pittance
to them is virtually paying nothing. Even if the amount paid to them were a
little more than a nominal sum the resultant position would remain the same.
Government of India had set up in 1980 a Committee on jail reforms under the
Chairmanship of Mr. Justice A.N. Mulla, a retired judge of the Allahabad High
Court. The report submitted by the said Committee is known as ‘Mulla Committee
Report’. It contains a lot of very valuable suggestions, among which the
following are contextually apposite.
All prisoners under
sentence should be required to work subject to their physical and mental fitness
as determined medically. Work is not to be conceived as additional punishment
but as a means of furthering the rehabilitation of the prisoners, there training
for work, the forming of better work habits, and of preventing idleness and
disorder...........Punitive, repressive and afflictive work in any form should
not be given to prisoners. Work should not become drudgery and a meaningless
prison activity. Work and training programmes should be treated as important
avenues of imparting useful values to inmates for their vocational and social
adjustment and also for their ultimate rehabilitation in the free
community..........Rates of Wages should be fair and equitable and not merely
nominal or paltry. These rates should be standardized so as to achieve a broad
uniformity in wage system in all the prisons in cash State and Union Territory.
The court finally gave the following
observations:
(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to
do hard labour whether he consents to do it or not.
(2) It is open to the jail officials to
permit other prisoners also to do any work which they choose to do provided such
prisoners make a request for that purpose.
(3) It is imperative that the prisoner
should be paid equitable wages for the work done by them. In order to determine
the quantum of equitable wages payable to prisoners the State concerned shall
constitute a wage fixation body for making recommendations. We direct each State
to do so as early as possible.
(4) Until the State Government takes any
decision on such recommendations every prisoner must be paid wages for the work
done by him at such rates or revised rates as the Government concerned fixes in
the light of the observations made above. For this purpose we direct all the
State Governments to fix the rate of such interim wages within six weeks from
today and report to this Court of compliance of this direction.
(5) State concerned should make law for
setting apart a portion of the wages earned by the prisoners to be paid as
compensation to deserving victims of the offence the commission of which
entailed the sentence of imprisonment to the prisoner, either directly or
through a common fund to be created for this purpose or in any other feasible
mode.
Right to expression
In State of Maharashtra v. Prabhakar Panduranga , the court held that the right
to personal liberty includes the right to write a book and get it published and
when this right was exercised by a detenu its denial without the authority of
law violated Article 21.
In the case of R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu
and Others, the petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also raises
the question as to the parameters of the right of the press to criticize and
comment on the acts and conduct of public officials.
The court held that the petitioners have a right to publish, what they allege to
be the life-story/autobiography of Auto Shankar insofar as it appears from the
public records, even without his consent or authorisation. But if they go beyond
that and publish his life story, they may be invading his right to privacy and
will be liable for the consequences in accordance with law. Similarly, the State
or its officials cannot prevent or restrain the said publication.
Conclusion
U.S. Supreme Court in Manna v. People of Illinois once said that life is not mearly animal existence. The souls behind the bars cannot be denied the same. It
is guaranteed to every person by Article 21 of the Constitution and not even the
State has the authority to violate that Right. A prisoner, be he a convict or
under-trial or a detenu, does not cease to be a human being. They also have all
the rights which a free man has but under some restrictions. Just being in
prison doesn’t deprive them from their fundamental rights. Even when lodged in
the jail, he continues to enjoy all his Fundamental Rights. 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 importance of affirmed rights of every
human being need no emphasis and, therefore, to deter breaches thereof becomes a
sacred duty of the Court, as the custodian and protector of the fundamental and
the basic human rights of the citizens.
Supreme Court has gone a long way fighting for their rights. However the fact
remains that it is the police and the prison authorities who need to be trained
and oriented so that they take prisoner’s rights seriously.
---------------------------------------------------------***********************************----------------------------------------------------------
The author can be reached at :saurbhkothari@legalserviceindia.com
|
Taking
Prisoner’s Rights Seriously
