"Remember those in prison as if you were their fellow prisoners, and those
who are mistreated as if you yourselves were suffering"-
Hebrews 13:3
In the realm of criminal justice, the treatment and rights of prisoners hold
significant importance. Recognizing the fundamental principles of human dignity
and justice, the Indian Constitution safeguards the rights of prisoners,
ensuring their fair and humane treatment during incarceration. These fundamental
rights provide a framework for the protection and welfare of prisoners in India.
This article provides a comprehensive overview of prisoners' rights within the
Indian legal system, examining the present legal framework, relevant legal
precedents, and the current situation.
The discussion explores the fundamental rights enshrined in the Indian
Constitution that pertain to prisoners. These rights encompass various aspects,
such as the right to life and personal liberty, protection against torture and
cruel, inhuman, or degrading treatment, the right to legal aid and a fair trial,
and the right to be treated with dignity and respect.
By analyzing pertinent legal provisions, landmark judgments, and evolving
judicial interpretations, this article aims to inform readers about the
prevailing state of prisoners' rights in India. It seeks to foster an informed
discussion and contribute to ongoing efforts aimed at improving the conditions
and protection of prisoners' rights within the Indian criminal justice system.
Through enhancing awareness and understanding, promoting dialogue, and
advocating for a just and humane approach to incarceration, I aim to address the
pressing issues surrounding prisoners' rights and contribute to the overall
advancement of the criminal justice system in India.
WHY SHOULD PRISONERS BE GIVEN LEGAL RIGHTS?
Legal rights are the entitlements and protections granted to individuals by the
law. These rights define the boundaries of acceptable conduct, establish
standards for fair treatment, and ensure that individuals are protected from
abuse or arbitrary actions by the government or other entities. Legal rights are
typically outlined in laws, constitutions, and international human rights
treaties.
In the Indian legal context, legal rights for prisoners encompass various
fundamental protections. These include the right to humane treatment and
dignity, safeguarding individuals from torture, cruel, or degrading punishment;
the right to be informed promptly of the grounds for arrest and detention; the
right to legal representation and a fair trial; the right to communicate with
legal counsel, family, and friends; the right to access healthcare and medical
treatment; the right to educational and vocational opportunities; the right to
protection from discrimination; and the right to due process and procedural
fairness in disciplinary proceedings and parole hearings. These rights are
crucial in upholding the principles of justice, ensuring the well-being of
prisoners, and facilitating their rehabilitation and reintegration into society.
Prisoners should be given legal rights for several reasons:
Human Dignity:
Every individual, regardless of their actions or circumstances, possesses
inherent human dignity. Respecting the legal rights of prisoners acknowledges
their fundamental humanity and ensures that they are treated with dignity and
fairness.
Rehabilitation and Reintegration:
One of the primary goals of the criminal justice system should be the
rehabilitation and reintegration of offenders into society. By granting
prisoners legal rights, we recognize their potential for change and growth.
Upholding their rights can contribute to a more constructive and rehabilitative
environment, increasing the chances of successful reintegration upon release.
Rule of Law:
The rule of law is a fundamental principle of a just society. It ensures that
everyone, including prisoners, is subject to a predictable and fair legal
framework. By providing legal rights to prisoners, we uphold the principles of
fairness, due process, and equal protection under the law.
Preventing Abuse and Mistreatment:
Granting legal rights to prisoners acts as a safeguard against abuse,
mistreatment, and arbitrary exercise of power by correctional authorities. It
establishes legal protections to prevent torture, cruel or degrading treatment,
and ensures that prisoners have access to necessary healthcare, nutrition, and
adequate living conditions.
Reducing Recidivism:
Protecting the legal rights of prisoners can contribute to reducing recidivism
rates. When prisoners are treated fairly and have access to legal
representation, education, vocational training, and rehabilitation programs,
they are more likely to develop the necessary skills and support networks to
reintegrate into society successfully.
Upholding the Justice System's Credibility: By affording legal rights to
prisoners, the justice system demonstrates its commitment to fairness,
impartiality, and transparency. This fosters public trust and confidence in the
system, which is crucial for the legitimacy and effectiveness of the criminal
justice system as a whole.
While prisoners may have their freedoms restricted due to their offenses, it is
essential to recognize that they retain basic human rights. Upholding these
rights is not only a matter of justice but also a way to promote a more humane
and rehabilitative approach to the incarceration process.
RELEVANT CASE LAWS
State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712
22. Right to life is one of the basic human rights. 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 undertrial or a
detenu, does not cease to be a human being. Even when lodged 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.
24. Thus, according to the definition under the Prisoners Act, there is a
convict, there is an undertrial and there is a civil prisoner who may be a
detenu under preventive detention law. None of the three categories of prisoners
lose their fundamental rights on being placed inside a prison. The restriction
placed on their right to movement is the result of their conviction or
involvement in crime. Thus, a person (prisoner) is deprived of his personal
liberty in accordance with the procedure established by law which, as pointed
out in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : (1978) 2 SCR 621 :
AIR 1978 SC 597] must be reasonable, fair and just.
28. Thus, fundamental rights, which also include basic human rights, continue to
be available to a prisoner and those rights cannot be defeated by pleading the
old and archaic defence of immunity in respect of sovereign acts which has been
rejected several times by this Court.
32. Moreover, these decisions, as for example, Nilabati Behera v. State of
Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : (1993) 2 SCR 581 : AIR 1993 SC
1960] , Death of Sawinder Singh Grower, In re [1995 Supp (4) SCC 450 : 1994 SCC
(Cri) 1464 : JT (1992) 6 SC 271 : (1992) 3 Scale 34] and D.K. Basu v. State of
W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] would indicate
that so far as fundamental rights and human rights or human dignity are
concerned, the law has marched ahead like a Pegasus but the government attitude
continues to be conservative and it tries to defend its action or the tortious
action of its officers by raising the plea of immunity for sovereign acts or
acts of the State, which must fail.
Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104
4. Contemporary profusion of prison torture reports makes it necessary to drive
home the obvious, to shake prison top brass from the callous complacency of
unaccountable autonomy within that walled-off world of humans held
incommunicado. Whenever fundamental rights are flouted or legislative protection
ignored, to any prisoner's prejudice, this Court's writ will run, breaking
through stone walls and iron bars, to right the wrong and restore the rule of
law. Then the parrot-cry of discipline will not deter, of security will not
scare, of discretion will not dissuade, the judicial process.
For if courts 'cave in' when great rights are gouged within the sound-proof,
sight-proof precincts of prison houses, where, often, dissenters and minorities
are caged, Bastilles will be re-enacted. When law ends tyranny begins; and
history whispers, iron has never been the answer to the rights of man. Therefore
we affirm that imprisonment does not spell farewell to fundamental rights
although, by a realistic re-appraisal, courts will refuse to recognise the full
panoply of Part III enjoyed by a free citizen.
5. This proposition was not contested by the learned Additional Solicitor
General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the
Eighth Amendment to the U.S. Constitution. Article 21, read with Article
19(1)(d) and (5), is capable of wider application than the imperial mischief
which gave it birth and must draw its meaning from the evolving standards of
decency and dignity that mark the progress of a mature society, as Batra* and
Sobraj [Sunil Batra v. Delhi Admn., published later in this volume] have
underscored and the American Judges have highlighted.
Fair procedure is the soul of Article 21, reasonableness of the restriction is
the essence of Article 19(5) and sweeping discretion degenerating into arbitrary
discrimination is anathema For Article 14. Constitutional karuna is thus
injected into incarceratory strategy to produce prison justice. And as an
annotation of Article 21, this court has adopted, in Kharak Singh case that
expanded connotation of 'life' given by Field, J. which we quote as reminder [Kharak
Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ
329] :
"Something more than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by the amputation of
an arm of leg, or the putting out of an eye, or the destruction of any other
organ of the body through which the soul communicates with outer world."
8. Viewed differently, supposing a court sentences a person to simple
imprisonment or assigns him 'B' class treatment and the jail authorities
unwittingly or vindictively put him under rigorous imprisonment or subject him
to 'C' class treatment, does it not show contempt of the courts authority and
deprivation of liberty beyond a degree validated by the court warrant? Likewise,
where a prisoner is subjected to brutality, exploiting the fact that he is
helplessly within the custody of the Jail Administration, does it not deprive
the prisoner of his life and liberty beyond the prescribed limits set by the
court?
Yet again, where conditions within a prison are such that inmates incarcerated
therein will inevitably and necessarily become more sociapathic than they were
prior to the sentence, is not the court's punitive purpose, charged with healing
hope, stultified by the prison authorities? Of course, where a prison practice
or internal instruction places harsh restrictions on jail life, breaching
guaranteed rights, the court directly comes in. Every prison sentence is a
conditioned deprivation of life and liberty, with civilized norms built in and
unlimited trauma interdicted. In this sense, judicial policing of prison
practices is implied in the sentencing power. The Criminal judiciary have thus a
duty to guardian their sentences and visit prisons when necessary. Many of them
do not know or exercise this obligation.
9. Another jurisdictional facet may be touched upon in view of the widely worded
relief sought to treat Sobraj 'in a human and dignified manner, keeping in view
the adverse effect of his confinement upon his mental and physical conditions".
The penological goals which may be regarded as reasonable justification for
restricting the right to move freely within the confines of a penitentiary are
now well-settled.
And if prisoners have title to Articles 19, 21 and 14 rights, subject to the
limitation we have indicated, there must be some correlation between deprivation
of freedom and the legitimate functions of a correctional system. It is now
well-settled, as a stream of rulings of courts proves, that deterrence, both
specific and general, rehabilitation and institutional security are vital
considerations. Compassion wherever possible and cruelty only where inevitable,
is the art of correctional confinement. When prison policy advances such a valid
goal, the court will not intervene officiously.
11. But when an inmate is cruelly restricted in a manner which supports no such
relevant purpose, the restriction becomes unreasonable and arbitrary, and
unconstitutionality is the consequence. Traumatic futility is obnoxious to
pragmatic legality. Social defence is the raison d'etre of the penal code and
bears upon judicial control over prison administration. If a whole atmosphere of
constant fear of violence, frequent torture and denial of opportunity to improve
oneself is created or if medical facilities and basic elements of care and
comfort necessary to sustain life are refused, then also the humane jurisdiction
of the court will become operational based on Article 19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude
violative of constitutionality may be thought of in a penal system but we wish
to lay down only a broad guideline that where policies, with a "Zoological
touch", which do not serve valid penal objectives are pursued in penitentiaries
so as to inflict conditions so unreasonable as to frustrate the ability of
inmates to engage in rehabilitation, the court is not helpless.
However, a prison system may make rational distinctions in making assignments to
inmates of vocational, educational and work opportunities available, but is
constitutionally impermissible to do so without a functional classification
system. The mere fact that a prisoner is poor or rich, high-born or ill-bred, is
certainly irrational as a differentia in a 'secular, socialist republic'. Since
the petitioner charges the jail staff with barbaric and inhuman treatment in
prison we are called upon to delineate the broad boundaries of judicial
jurisdiction vis-a-vis prison administration and prisoner's rights.
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
A 4. Two petitioners - Batra and Sobraj - one Indian and the other
French, one under death sentence and the other facing grave charges, share in
two different shapes, the slings and arrows of incarceratory fortune, but
instead of submitting to what they describe as shocking jail injustice,
challenge, by separate writ petitions, such traumatic treatment as illegal. The
soul of these twin litigations is the question, in spiritual terms, whether the
prison system has a conscience in constitutional terms, whether a prisoner, ipso
facto forfeits personhood to become a rightless slave of the State and, in
cultural terms, whether man-management of prison society can operate its arts by
'zoological strategies'.
The grievance of Batra, sentenced to death by the Delhi Sessions Court, is
against de facto solitary confinement, pending his appeal, without de jure
sanction. And the complaint of Sobraj is against the distressing disablement, by
bar fetters, of men behind bars especially of undertrials, and that for
unlimited duration, on the ipse dixit of the prison 'brass'.
The petitioners seek to use the rule of law to force open the iron gates of
Tihar Jail where they are now lodged, and the Prison Administration resists
judicial action, in intra-mural matters as forbidden ground, relying on Section
30 and 56 of Prisons Act, 1894 (the Act, hereafter). The petitioners invoke
Articles 14, 21 (and 19, in the case of Batra) of the Constitution.
The jurisdictional reach and range of this Court's writ to hold prison caprice
and cruelty in constitutional leash is incontestable, but teasing intrusion into
administrative discretion is legal anathema, absent breaches of constitutional
rights or prescribed procedures. Prisoners have enforceable liberties devalued
may be but not demonetized; and under our basic scheme, Prison Power must bow
before Judge Power if fundamental freedoms are in jeopardy. The principle is
settled, as some American decisions have neatly put it:
"The matter of internal management of prisons or correctional institutions is
vested in and rests with the heads of those institutions operating under
statutory authority and their acts and administration of prison discipline and
overall operation of the institution are not subject to court supervision or
control absent most unusual circumstances or absent a violation of a
constitutional right. [Donnel Douglas v. Maurice H. Sigler, 386 Fed. Rep. 2d
684] "
But Corwin notes: [ Supplement to Edward S. Corwin's The Constitution, p.
245]
"Federal courts have intensified their oversight of State penal facilities,
reflecting a heightened concern with the extent to which the ills that plague
so-called correctional institution - overcrowding, understaffing, unsanitary
facilities, brutality, constant fear of violence, lack of adequate medical and
mental health care, poor food service, intrusive correspondence restrictions,
inhumane isolation, segregation, inadequate or non-existent rehabilitative
and/or educational programs, deficient recreational opportunities-violate the
Eighth Amendment ban on "cruel and unusual punishments."
52. True, our Constitution has no 'due process' clause or the VIII Amendment;
but, in this branch of law, after Cooper [R.C. Cooper v. Union of India, (1970)
1 SCC 248 : (1970) 3 SCR 531] and Manika Gandhi [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248] the consequence is the same. For what is punitively
outrageous, scandalizingly unusual or cruel and rehabilitatively
counter-productive, is unarguably unreasonable and arbitrary and is shot down by
Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of
Article 21.
Part III of the Constitution does not part company with the prisoner at the
gates, and judicial oversight protects the prisoner's shrunken fundamental
rights, if flouted, frowned upon or frozen by the prison authority. Is a person
under death sentence or undertrial unilaterally dubbed dangerous liable to
suffer extra torment too deep for tears?
Emphatically no, lest social justice, dignity of the individual, equality before
the law, procedure established by law and the seven lamps of freedom (Article
19) become chimerical constitutional claptrap. Judges, even within a prison
setting, are the real, though restricted, ombudsmen empowered to proscribe and
prescribe, humanize and civilize the life-style within the concerns. The
operation of Articles 14, 19 and 21 may be pared down for a prisoner but not
puffed out altogether.
For example, public addresses by prisoners may be put down but talking to fellow
prisoners cannot. Vows of silence or taboos on writing poetry or drawing
cartoons are violative of Article 19. So also, locomotion may be limited by the
needs of imprisonment but binding hand and foot, with hoops of steel, every man
or woman sentenced for a term is doing violence to Part III. So Batra pleads
that until decapitation he is human and so should not be scotched in mind by
draconian cellular insulation nor stripped of the basic fellowship which keeps
the spirit flickering before being extinguished by the swinging rope.
213. There are certain broad submissions common to both the petitions and they
may first be dealt with before turning to specific contentions in each petition.
It is no more open to debate that convicts are not wholly denuded of their
fundamental rights. No iron curtain can be drawn between the prisoner and the
Constitution.
Prisoners are entitled to all constitutional rights unless their liberty has
been constitutionally curtailed (see Procunier v. Martinex [40 L Ed 2d 224 at
248 (1974)] ). However, a prisoner's liberty is in the very nature or things
circumscribed by the very fact of his confinement. His interest in the limited
liberty left to him is then all the more substantial. Conviction for crime does
not reduce the person into a non-person whose rights are subject to the whim of
the prison administration and, therefore, the imposition of any major punishment
within the prison system is conditional upon the observance of procedural
safeguards (see Wolff v. McDonell [41 L Ed 2d 935 at 973 (1974)] ).
By the very fact of the incarceration .prisoners are not in a position to enjoy
the full panoply of fundamental rights because these very rights are subject to
restrictions imposed by the nature of the regime to which they have been
lawfully committed. In D. Bhuvan Mohan Patnaik v. Sate of A.P. [(1975) 3 SCC 185
: (1975) 2 SCR 24] one of us, Chandrachud, J., observed: (SCC pp. 186-87, para
6)
"Convicts are not, by mere reason of the conviction, denuded of all the
fundamental rights which they otherwise possess. A compulsion under the
authority of law, following upon a conviction, to live in a prison-house entails
by its own force the deprivation of fundamental freedoms like the right to move
freely throughout the territory of India or the right to 'practice' a
profession.
A man of profession would thus stand stripped of his right to hold consultations
while serving out his sentence. But the Constitution guarantees other freedoms
like the right to acquire, hold and dispose of properly for the exercise of
which incarceration can be no impediment. Likewise, even a convict is entitled
to the precious right guaranteed by Article 21 of the Constitution that he shall
not be deprived of his life or personal liberty except according to procedure
established by law."
In Speedy Trial of Undertrial Prisoners, In re, 2018 SCC OnLine SC 3799
15) The District & Sessions Judge must regularly monitor the progress of such
cases pending in all the courts, in which accused are in custody for more than
one year in Session triable cases; and more than 6 months in Magisterial triable
cases.
Other Instructions/suggestions given by their lordships:
- Compilation of prisoners rights explained in various authorities of Hon'ble Supreme Court, should be available with all Judicial Officers and Panel Advocates of Legal Services Authorities.
- Booklet earlier published by Haryana State Legal Services Authorities regarding prisoners rights need to be amended so as to contain all the authorities of Hon'ble Supreme Court on the subject including the latest authority - CRIMINAL APPEAL NO. 509 OF 2017 'Hussain v. Union of India' decided on 17th March, 2017.
- Periodical training by Legal Services Authorities of its Panel Advocates regarding prisoners rights is utmost necessary.
- Check-list of various rights of the prisoners should be provided by Legal Services Authorities to Panel Advocates, who should ensure compliance of those rights at the time of their visit to Jails. District & Session Judge should monitor it at time of his monthly visit to the jail.
- Supply of Mobiles, intoxicants etc. in Jails is a known fact, may be with or without collusion of Jail Authorities. Legal Services Authorities may be involved to check supply of Mobiles, intoxicants etc. in jails.
- Panel Advocates of Legal Services Authorities should ensure that prisoners are aware of their rights. They should ensure that there is no breach of prisoners rights.
- Timely disposal of parole applications is very necessary. Timeline should be provided for disposal of such applications, including instructions to authorities/officers dealing with such applications to the effect that if in a certain given time limit, matter is not decided, application would be deemed to be allowed. The concerned officer may be held personally responsible for causing delay. The District & Sessions Judge may be empowered to monitor the early disposal.
- There are incentives for early release of convicts depending upon their good behaviour. There is no such scheme for under-trial prisoners, particularly, who are in long custody. Some scheme should be formulated for such under-trial prisoners.
- Ensure regular visit of Doctors to Jail, particularly Gynaecologist for female prisoners.
- Periodical medical camps; Yoga classes & spiritual discourses for prisoners should be regular feature in Jail.
- Convicts aged 75 years and above should be separately categorised, for grant of remission, particularly in case of ill health. Legal services authorities should take up their case to the Hon'ble High Court [Example: - Case of lady convict Kaneej confined in FBD jail in a cheating case.]
- Review of those cases is required, in which person is in custody in family matters/cheque bounce cases. Custody of persons even after breaks in maintenance cases should be checked.
- Female prisoners with child aged below 6 years should be specially categorised for welfare of the child. Some scheme like '2 years child care leave' with breaks, up to two children only, may be considered.
- Monitoring is required for fast disposal of custody cases/persons in custody, at following levels:
- Judicial Officer concerned - pro-active approach is required. Long dates
be avoided. Managing the cause list.
- Lawyer/Public Prosecutor level - Relaxation of conditions for bail be
applied, where bonds not furnished despite bail. Exemption request be made
with condition that steps for further progress of case may be taken up.
- Jail Authority level - To have profile of every prisoner and move the
concerned authorities for early release, wherever situation so requires.
- Active role of legal services authorities.
Inhuman Conditions in 1382 Prisons, In re, (2019) 2 SCC 435
5. The issue must be considered in a humanitarian and compassionate manner. That
apart the law laid down by this Court in
Sunil Batra (1) v. Delhi Admn.
[Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] is quite
clear. It has been held in para 223 of the Report that a prisoner under sentence
of death can only mean a prisoner whose sentence of death has become final,
conclusive and indefeasible and which cannot be annulled and voided by any
judicial or constitutional procedure.
In other words, a prisoner can be said to be a prisoner on death row when his
sentence is beyond judicial scrutiny and would be operative without any
intervention from any other authority. Till then, such a prisoner cannot be said
to be under a sentence of death in the context of Section 30 of the Prisons Act,
1894. That being the position, as also mentioned in para 101 of the Report, a
prisoner is entitled to every creature comfort and facilities such as bed and
pillow, opportunity to commerce with human kind, writing material, newspapers,
books, meeting with family members, etc.
6. The above view has been reiterated in
Sunil Batra (2) v. Delhi Admn.
[Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488 : 1980 SCC (Cri) 777] in para
42 of the Report and in Kishore Singh Ravinder Dev v. State of Rajasthan [Kishore
Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191]
in paras 10 and 13 of the Report. In para 10 of the Report in Kishore Singh [Kishore
Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191]
, it was held that there is no difference between a separate cell and solitary
confinement. Therefore, a convict on death row is entitled to move within the
confines of the prison like any other convict undergoing rigorous imprisonment.
However, certain restrictions may be necessary for security reasons, but even
then, it would be necessary to comply with natural justice provisions with an
entitlement to file an appeal.
10. With regard to the entitlement of a prisoner on death row to have meetings
and interviews with his lawyers or members of his immediate family or even
mental health professionals, we are of opinion that such meetings and interviews
should be permitted. We follow the view expressed by this Court in Francis
Coralie Mullin v. State (UT of Delhi) [Francis Coralie Mullin v. State (UT of
Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] . In para 8 of the Report, it was
specifically noted by this Court, after referring to the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights
that as a part of the right to live with human dignity, a prisoner is entitled
to have interviews with members of his family and friends and no prison
regulation and procedure to the contrary can be upheld as being constitutionally
valid under Articles 14 and 21 of the Constitution unless it is reasonable, fair
and just. Similarly, there cannot be any doubt that a prisoner must be entitled
to have discussions with his lawyers so that he has effective legal
representation and access to justice as well as remedies for justice. In our
opinion, the law laid down by this Court in Francis Coralie Mullin [Francis
Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212]
would be equally applicable to death row prisoners for meeting mental health
professionals for a reasonable period of time with reasonable frequency so that
their rights can be adequately protected at all stages.
11. We make it clear that we have only reiterated the law laid down by this
Court over several decades and which is based not only on the provisions of our
Constitution but is also in conformity with international instruments. As held
by this Court, the rights of prisoners as enunciated by this Court would be
available not only in a particular State but would be available to them in all
the States and Union Territory Administrations across the country. Accordingly,
the State Governments and Union Territory Administrations must modify the prison
manuals, regulations and rules accordingly.
8. In para 13 of the Report in Kishore Singh [Kishore Singh Ravinder Dev v.
State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , it was directed
that the rulings of this Court in Sunil Batra [Sunil Batra (1) v. Delhi Admn.,
(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , [Sunil Batra (2) v. Delhi Admn., (1980)
3 SCC 488 : 1980 SCC (Cri) 777] and Rakesh Kaushik v. B.L. Vig [Rakesh Kaushik
v. B.L. Vig, 1980 Supp SCC 183 : 1980 SCC (Cri) 834] on prison administration be
converted into rules and instructions forthwith so that violation of prisoners'
freedom can be avoided and habeas corpus litigation may not proliferate. Para 13
of the Report reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev
v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 509-10)
13. We find that the old rules and circulars and instructions issued under the
Prisons Act are read incongruously with the Constitution, especially Article 21
and interpretation put upon it by this Court. We, therefore, direct the State
Government of Rajasthan - and indeed, all the other State Governments in the
country - to convert the rulings of this Court bearing on Prison Administration
into rules and instructions forthwith so that violation of the prisoners'
freedoms can be avoided and habeas corpus litigation may not proliferate. After
all, human rights are as much cherished by the State as by the citizen.
7. Para 10 reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev v.
State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 508-09)
10. We cannot agree that either the section or the rules can be read in the
absolutist expansionism the prison authorities would like us to read. That would
virtually mean that prisoners are not persons to be dealt with at the mercy of
the prison echelons. This country has no totalitarian territory even within the
walled world we call prison. Articles 14, 19 and 21 operate within the prisons
in the manner explained in Sunil Batra (1) [Sunil Batra (1) v. Delhi Admn.,
(1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution],
by a Constitution Bench of this Court. It is significant that the two opinions
given separately in that judgment agree in spirit and substance, in reasoning
and conclusions. Batra in that case was stated to be in a separate confinement
and not solitary cell. An identical plea has been put forward here too.
For the
reasons given in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4
SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution] we must
overrule the extenuatory submission that a separate cell is different from
solitary confinement. The petitioners will, therefore, be entitled to move
within the confines of the prison like others undergoing rigorous imprisonment.
If special restrictions of a punitive or harsh character have to be imposed for
convincing security reasons, it is necessary to comply with natural justice as
indicated in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC
494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution]. Moreover,
there must be an appeal not from Caesar to Caesar, but from a prison authority
to a judicial organ when such treatment is meted out.
In the case of famed Charles Sobraj through Marie Andre'o vs. The
Superintendent, Central Jail, Tihar, New Delhi (1978), Supreme Court Justice
Krishna Aiyer held, "..imprisonment does not spell farewell to fundamental
rights although, by a realistic re-appraisal, Courts will refuse to recognise
the full panoply of Part III enjoyed by a free citizen". He further held that
imprisonment of a prisoner is not merely retribution or deterrence but also
rehabilitation.
He observed, "Social defence is the raison d'etre of the Penal
Code and bears upon judicial control over prison administration. If a whole
atmosphere of constant fear of violence, frequent torture and denial of
opportunity to improve oneself is created or if medical facilities and basic
elements of care and comfort necessary to sustain life are refused, then also
the humane jurisdiction of the Court will become operational based on Article
19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish
to lay down only a broad guideline that where policies, with a 'Zoological
touch', which do not serve valid penal objectives are pursued in penitentiaries
so as to inflict conditions so unreasonable as to frustrate the ability of
inmates to engage in rehabilitation, the Court is not helpless. However, a
prison system may make rational distinctions in making assignments to inmates of
vocational, educational and work opportunities available, but it is
constitutionally impermissible to do so without a functional classification
system."
Various fundamental rights under Article, 14, 19, 20, 21 and 22 of the
Constitution of India impliedly deal with the rights of prisoners. Article 14
deals with right to equality which provides equality before law and equal
protection of law to all persons. Article 21 deals with right to life and
personal liberty. Article 20 deals, inter alia, with two things, firstly it
prohibits double jeopardy, that is, no person should be convicted for same
offence twice. Secondly, it prohibits self incrimination, that is, no one can be
compelled to be witness against himself. Article 22 provides that a person must
be produced before magistrate within 24 hours of his arrest and must be provided
with a counsel of this own choice. Famous constitutional writer Upendar Baxi has
opined that scope of Article 21 is so vast that we do not need any other rights
in our Constitution, and in the light of the Supreme Court's 'construction' of
the meaning of 'life' under Article 21, whereby all the rights such as right to
health, right to food, right to shelter, right to bail, right to speedy trial,
right to free legal aid, right against custodial violence and death in police
lock-ups or encounters, Right to meet friends and family members, Right to
reasonable wage in prison, right against cruel and unusual punishment etc., have
been included under it.
D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185
6. Convicts are not, by mere reason of the conviction, denuded of all the
fundamental rights which they otherwise possess. A compulsion under the
authority of law, following upon a conviction, to live in a prison-house entails
by its own force the deprivation of fundamental freedoms like the right to move
freely throughout the territory of India or the right to "practise" a
profession. A man of profession would thus stand stripped of his right to hold
consultations while serving out his sentence. But the Constitution guarantees
other freedoms like the right to acquire, hold and dispose of property for the
exercise of which incarceration can be no impediment, likewise, even a convict
is entitled to the precious right guaranteed by Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty except according
to procedure established by law.
9. The vacant land appurtenant to the jail is by the definition of "prison" in
Section 3(1) of The Prisons Act a part of the prison itself. It cannot,
therefore, be gainsaid that members of the Andhra Pradesh Special Police Force
must be deemed to be in occupation of a part of the prison premises. The
infiltration of policemen into prisons must generally be deprecated for, under
trial prisoners, like two of the petitioners before us, who are remanded to
judicial custody ought to be immune from the coercive influence of the police.
The security of one's person against an arbitrary encroachment by the police is
basic to a free society and prisoners cannot be thrown at the mercy of policemen
as if it were a part of an unwritten law of crimes. Such intrusions are against
"the very essence of a scheme of ordered liberty". But the argument of Mr Garg
proceeds from purely hypothetical considerations. The policemen who live on the
vacant jail land are not shown to have any access to the jail which is enclosed
by high walls. Their presence therefore, in the immediate vicinity of the jail
can cause no interference with the personal liberty or the lawful preoccupations
of the petitioners.
10. Counsel for the petitioners complained bitterly against the segregation of
Naxalite prisoners in a "quarantine" and the inhuman treatment meted out to them
as if they were inmates of a "Fascist concentration camp". We would like to
emphasise once again, and no emphasis in this context can be too great, that
though the Government possesses the constitutional right to initiate laws, it
cannot, by taking law into its own hands, resort to oppressive measures to curb
the political beliefs of its opponents. No person, not even a prisoner, can be
deprived of his "life" or "personal liberty" except according to procedure
established by law. The American Constitution by the 5th and 14th Amendments
provides, inter alia, that no person shall be deprived of "life, liberty, or
property, without due process of law". Explaining the scope of this provision,
Field, J. observed in Munn v. Illinois [(1877) 94 US 113] that the term "life"
means something more than mere animal existence and the inhibition against its
deprivation extends to all those limits and faculties by which life is enjoyed.
This statement of the law was approved by a Constitution Bench of this Court in
Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332, 347 : (1963)
2 Cri LJ 329]
Shabnam v. Union of India, (2015) 6 SCC 702
14. This right to human dignity has many elements. First and foremost, human
dignity is the dignity of each human being "as a human being". Another element,
which needs to be highlighted, in the context of the present case, is that human
dignity is infringed if a person's life, physical or mental welfare is harmed.
It is in this sense torture, humiliation, forced labour, etc. all infringe on
human dignity. It is in this context many rights of the accused derive from his
dignity as a human being. These may include the presumption that every person is
innocent until proven guilty, the right of the accused to a fair trial as well
as speedy trial, right of legal aid, are all part of human dignity. Even after
conviction, when a person is spending prison life, allowing humane conditions in
jail is part of human dignity. Prison reforms or jail reforms are measures to
make convicts reformed persons so that they are able to lead normal life and
assimilate in the society after serving the jail term, are motivated by human
dignity jurisprudence.
Undoubtedly, lawful incarceration brings about necessary withdrawal or
limitation of some of these fundamental rights, the retraction being justified
by the considerations underlying the penal system (see Pell v. Procunier [69 4 L
Ed. 2d. 495 at 501 (1974).] ).
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC
608
4. Now it is necessary to bear in mind the distinction between "preventive
detention" and "punitive detention", when we are considering the question of
validity of conditions of detention. There is a vital distinction between these
two kinds of detention.
"Punitive detention" is intended to inflict punishment
on a person, who is found by the judicial process to have committed an offence,
while "preventive detention" is not by way of punishment at all, but it is
intended to pre-empt a person from indulging in conduct injurious to the
society. The power of preventive detention has been recognised as a necessary
evil and is tolerated in a free society in the larger interest of security of
the State and maintenance of public order.
It is a drastic power to detain a
person without trial and there are many countries where it is not allowed to be
exercised except in times of war or aggression. Our Constitution does recognise
the existence of this power, but it is hedged-in by various safeguards set out
in Articles 21 and 22. Article 22 in clauses (4) to (7), deals specifically with
safeguards against preventive detention and any law of preventive detention or
action by way of preventive detention taken under such law must be in conformity
with the restrictions laid down by those clauses on pain of invalidation. But
apart from Article 22, there is also Article 21 which lays down restrictions on
the power of preventive detention.
Until the decision of this Court in Maneka
Gandhi v. Union of India [(1978) 1 SCC 248] a very narrow and constricted
meaning was given to the guarantee embodied in Article 21 and that article was
understood to embody only that aspect of the rule of law, which requires that no
one shall be deprived of his life or personal liberty without the authority of
law. It was construed only as a guarantee against executive action unsupported
by law. So long as there was some law, which prescribed a procedure authorising
deprivation of life or personal liberty, it was supposed to meet the requirement
of Article 21.
But in Maneka Gandhi case [ Under Article 32 of the Constitution]
this Court for the first time opened up a new dimension of Article 21 and laid
down that Article 21 is not only a guarantee against executive action
unsupported by law, but is also a restriction on law making. It is not enough to
secure compliance with the prescription of Article 21 that there should be a law
prescribing some semblance of a procedure for depriving a person of his life or
personal liberty, but the procedure prescribed by the law must be reasonable,
fair and just and if it is not so, the law would be void as violating the
guarantee of Article 21.
This Court expanded the scope and ambit of the right to
life and personal liberty enshrined in Article 21 and sowed the seed for future
development of the law enlarging this most fundamental of fundamental rights.
This decision in Maneka Gandhi case [ Under Article 32 of the Constitution]
became the starting point - the springboard - for a most spectacular evolution
of the law culminating in the decisions in M.H. Hoskot v. State of Maharashtra [M.H.
Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1
SCR 192] , Hussainara Khatoon (I) case [Hussainara Khatoon (I) v. Home Secy,
(1980) 1 SCC 81, 1980 SCC (Cri) 23] , the first Sunil Batra case [Sunil Batra
(I) v. Delhi Admn, (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] and
the second Sunil Batra case [Sunil Batra (II) v. Delhi Admn, (1980) 3 SCC 488 :
1980 SCC (Cri) 777 : (1980) 2 SCR 557] .
The position now is that Article 21 as
interpreted in Maneka Gandhi case [ Under Article 32 of the Constitution]
requires that no one shall be deprived of his life or personal liberty except by
procedure established by law and this procedure must be reasonable, fair and
just and not arbitrary, whimsical or fanciful and it is for the court to decide
in the exercise of its constitutional power of judicial review whether the
deprivation of life or personal liberty in a given case is by procedure, which
is reasonable, fair and just or it is otherwise. The law of preventive detention
has therefore now to pass the test not only of Article 22, but also of Article
21 and if the constitutional validity of any such law is challenged, the court
would have to decide whether the procedure laid down by such law for depriving a
person of his personal liberty is reasonable, fair and just.
But despite these
safeguards laid down by the Constitution and creatively evolved by the courts,
the power of preventive detention is a frightful and awesome power with drastic
consequences affecting personal liberty, which is the most cherished and prized
possession of man in a civilised society. It is a power to be exercised with the
greatest care and caution and the courts have to be ever vigilant to see that
this power is not abused or misused.
It must always be remembered that
preventive detention is qualitatively different from punitive detention and
their purposes are different. In case of punitive detention, the person
concerned is detained by way of punishment after he is found guilty of
wrongdoing as a result of a trial where he has the fullest opportunity to defend
himself, while in case of preventive detention, he is detained merely on
suspicion with a view to preventing him from doing harm in future and the
opportunity that he has for contesting the action of the executive is very
limited.
Having regard to this distinctive character of preventive detention,
which aims not at punishing an individual for a wrong done by him, but at
curtailing his liberty with a view to pre-empting his injurious activities in
future, it has been laid down by this Court in Sampat Prakash v. State of J&K
[(1969) 1 SCC 562 : (1969) 3 SCR 574 :1969 Cri LJ 1555] that: "The restrictions
placed on a person preventively detained must, consistently with the
effectiveness of detention, be minimal." (SCC p. 567, para 9)
5. The question which then arises is whether a person preventively detained in a
prison has any rights which he can enforce in a court of law. Once his freedom
is curtailed by incarceration in a jail, does he have any fundamental rights at
all or does he leave them behind, when he enters the prison gate? The answer to
this question is no longer res integra. It has been held by this Court in the
two Sunil Batra cases [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 :
1978 SCC (Cri) 468 : (1979) 1 SCR 192] - [Hussainara Khatoon (I) v. Home Secy,
(1980) 1 SCC 81, 1980 SCC (Cri) 23] that "fundamental rights do not flee the
person as he enters the prison although they may suffer shrinkage necessitated
by incarceration".
The prisoner or detenu has all the fundamental rights and
other legal rights available to a free person, save those which are incapable of
enjoyment by reason of incarceration. Even before the two Sunil Batra cases [M.H.
Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1
SCR 192] - [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri)
23] this position was impliedly accepted in State of Maharashtra v. Prabhakar
Pandurang Sangzgiri [AIR 1964 SC 424 : (1966) 1 SCR 702 : 1966 Cri LJ 311] and
it was spelt out clearly and in no uncertain terms by Chandrachud, J., as he
then was, in D.B. Mohan Patnaik v. State of A.P. [D.B. Mohan Patnaik v. State of
A. P.(1975) 3 SCC 185, 186-87 : 1974 SCC (Cri) 803, 804-05 : (1975) 2 SCR 24] :
[SCC pp. 186-87: SCC (Cri) pp. 804-05, para 6]
"Convicts are not, by mere reason of the conviction, denuded of all the
fundamental rights which they otherwise possess. A compulsion under the
authority of law, following upon a conviction, to live in a prison-house entails
by its own force the deprivation of fundamental freedoms like the right to move
freely throughout the territory of India or the right to 'practise' a
profession. A man of profession would thus stand stripped of his right to hold
consultations while serving out his sentence. But the Constitution guarantees
other freedoms like the right to acquire, hold and dispose of property for the
exercise of which incarceration can be no impediment. Likewise, even a convict
is entitled to the precious right guaranteed by Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty except according
to procedure established by law."
This statement of the law was affirmed by a Bench of five Judges of this Court
in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC
544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] and by Krishna Iyer, J. speaking on
behalf of the Court in the second Sunil Batra case [Hussainara Khatoon (I) v.
Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] . Krishna Iyer, J. in the latter
case proceeded to add in his characteristic style (SCC p. 504):
"The
jurisdictional reach and range of this Court's writ to hold prison caprice and
cruelty in constitutional leash is incontestable" and concluded by observing (SCC
p. 505):
"Thus it is now clear law that a prisoner wears the armour of basic
freedom even behind bars and that on breach thereof by lawless officials the law
will respond to his distress signals through 'writ' aid. The Indian human has a
constant companion - the Court armed with the Constitution."
It is interesting
to note that the Supreme Court of the United States has also taken the same view
in regard to rights of prisoners. Mr Justice Douglas struck a humanistic note
when he said in Eve Pall case [417 US 817 : 41 L Ed 2d 495] : "Prisoners are
still persons entitled to all constitutional rights unless their liberty has
been constitutionally curtailed by procedures that satisfy all the requirements
of due process."
So also in Charles Wolf case [41 L Ed 2d 935] Mr Justice White
made the same point in emphatic terms: "But, though his rights may be diminished
by environment, a prisoner is not wholly stripped of constitutional protections,
when he is imprisoned for crime. There is no iron curtain drawn between the
Constitution and the prisons of this country." Mr Justice Douglas reiterated his
thesis when he asserted:
"Every prisoner's liberty is of course, circumscribed
by the very fact of his confinement, but his interest in the limited liberty
left to him is then only the more substantial. Conviction of a crime does not
render one a non-person whose rights are subject to the whim of the prison
administration, and therefore, the imposition of any serious punishment within
the system requires procedural safeguards."
Mr Justice Marshall also expressed
himself clearly and explicitly in the same terms:
"I have previously stated my
view that a prisoner does not shed his basic constitutional rights at the prison
gate, and I fully support the court's holding that the interest of inmates in
freedom from imposition of serious discipline is a 'liberty' entitled to due
process protection." What is stated by these learned Judges in regard to the
rights of a prisoner under the Constitution of the United States applies equally
in regard to the rights of a prisoner or detenu under our constitutional system.
It must, therefore, now be taken to be well settled that a prisoner or detenu is
not stripped of his fundamental or other legal rights, save those which are
inconsistent with his incarceration, and if any of these rights are violated,
the court which is, to use the words of Krishna Iyer, J. (SCC p. 504), "not a
distant abstraction omnipotent in the books but an activist institution which is
the cynosure of public hope", will immediately spring into action and run to his
rescue.
7. Now obviously, the right to life enshrined in Article 21 cannot be restricted
to mere animal existence. It means something much more than just physical
survival. In Kharak Singh v. State of U.P. [(1964) 1 SCR 232] Subba Rao, J.
quoted with approval the following passage from the judgment of Field, J. in
Munn v. Illinois [(1877) 94 US 113 : 24 L Ed 77] to emphasize the quality of
life covered by Article 21 : [Sunil Batra (I) v. Delhi Admn, SCR p 503 : SCC p
574 : SCC (Cri) p 235] "By the term "life" as here used something more is meant
than mere animal existence.
The inhibition against its deprivation extends to
all those limbs and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body or amputation of an arm or leg or the
putting out of an eye or the destruction of any other organ of the body through
which the soul communicates with the outer world" and this passage was again
accepted as laying down the correct law by the Constitution Bench of this Court
in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC
544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] . Every limb or faculty through
which life is enjoyed is thus protected by Article 21 and a fortiorari, this
would include the faculties of thinking and feeling. Now deprivation which is
inhibited by Article 21 may be total or partial, neither any limb or faculty can
be totally destroyed nor can it be partially damaged.
Moreover it is every kind
of deprivation that is hit by Article 21, whether such deprivation be permanent
or temporary and, furthermore, deprivation is not an act which is complete once
and for all: it is a continuing act and so long as it lasts, it must be in
accordance with procedure established by law. It is therefore clear that any act
which damages or injures or interferes with the use of, any limb or faculty of a
person, either permanently or even temporarily, would be within the inhibition
of Article 21.
8. But the question which arises is whether the right to life is limited only to
protection of limb or faculty or does it go further and embrace something more.
We think that the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings. Of course, the magnitude and content of
the components of this right would depend upon the extent of the economic
development of the country, but it must, in any view of the matter, include the
right to the basic necessities of life and also the right to carry on such
functions and activities as constitute the bare minimum expression of the
human-self.
Every act which offends against or impairs human dignity would
constitute deprivation pro tanto of this right to live and it would have to be
in accordance with reasonable, fair and just procedure established by law which
stands the test of other fundamental rights. Now obviously, any form of torture
or cruel, inhuman or degrading treatment would be offensive to human dignity and
constitute an inroad into this right to live and it would, on this view, be
prohibited by Article 21 unless it is in accordance with procedure prescribed by
law, but no law which authorises and no procedure which leads to such torture or
cruel, inhuman or degrading treatment can ever stand the test of reasonableness
and non-arbitrariness: it would plainly be unconstitutional and void as being
violative of Articles 14 and 21.
It would thus be seen that there is implicit in
Article 21 the right to protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article 5 of the Universal
Declaration of Human Rights and guaranteed by Article 7 of the International
Covenant on Civil and Political Rights. This right to live which is comprehended
within the broad connotation of the right to life can concededly be abridged
according to procedure established by law and therefore when a person is
lawfully imprisoned, this right to live is bound to suffer attenuation to the
extent to which it is incapable of enjoyment by reason of incarceration. The
prisoner or detenu obviously cannot move about freely by going outside the
prison walls nor can he socialise at his free-will with persons outside the
jail. But, as part of the right to live with human dignity and therefore as a
necessary component of the right to life, he would be entitled to have
interviews with the members of his family and friends and no prison regulation
or procedure laid down by prison regulation regulating the right to have
interviews with the members of the family and friends can be upheld as
constitutionally valid under Articles 14 and 21, unless it is reasonable, fair
and just.
9. The same consequence would follow even if this problem is considered from the
point of view of the right to personal liberty enshrined in Article 21, for the
right to have interviews with members of the family and friends is clearly part
of personal liberty guaranteed under that article. The expression "personal
liberty" occurring in Article 21 has been given a broad and liberal
interpretation in Maneka Gandhi case [ Under Article 32 of the Constitution] and
it has been held in that case that the expression "personal liberty" used in
that article is of the widest amplitude and it covers a variety of rights which
go to constitute the personal liberty of a man and it also includes rights which
"have been raised to the status of distinct fundamental rights and given
additional protection under Article 19". There can therefore be no doubt that
"personal liberty" would include the right to socialise with members of the
family and friends subject, of course, to any valid prison regulations and under
Articles 14 and 21, such prison regulations must be reasonable and
non-arbitrary. If any prison regulation or procedure laid down by it regulating
the right to have interviews with members of the family and friends is arbitrary
or unreasonable, it would be liable to be struck down as invalid as being
violative of Articles 14 and 21.
11. The same reasoning must also result in invalidation of sub-clause (i) of
clause 3(b) of the Conditions of Detention Order which prescribes that a detenu
can have interview with a legal adviser only after obtaining prior permission of
the District Magistrate, Delhi and the interview has to take place in the
presence of an officer of Customs/Central Excise/Enforcement to be nominated by
the local Collector of Customs/Central Excise or Deputy Director of Enforcement
who has sponsored the case for detention.
The right of a detenu to consult a
legal adviser of his choice for any purpose not necessarily limited to defence
in a criminal proceeding but also for securing release from preventive detention
or filing a writ petition or prosecuting any claim or proceeding, civil or
criminal, is obviously included in the right to live with human dignity and is
also part of personal liberty and the detenu cannot be deprived of this right
nor can this right of the detenu be interfered with except in accordance with
reasonable, fair and just procedure established by a valid law.
A prison
regulation may, therefore, regulate the right of a detenu to have interview with
a legal adviser in a manner which is reasonable, fair and just but it cannot
prescribe an arbitrary or unreasonable procedure for regulating such an
interview and if it does so, it would be violative of Articles 14 and 21. Now in
the present case the legal adviser can have interview with a detenu only by
prior appointment after obtaining permission of the District Magistrate, Delhi.
This would obviously cause great hardship and inconvenience because the legal
adviser would have to apply to the District Magistrate, Delhi well in advance
and then also the time fixed by the District Magistrate, Delhi may not be
suitable to the legal adviser who would ordinarily be a busy practitioner and,
in that event, from a practical point of view the right to consult a legal
adviser would be rendered illusory.
Moreover, the interview must take place in
the presence of an officer of Customs/Central Excise/Enforcement to be nominated
by the local Collector of Customs/Central Excise or Deputy Director of
Enforcement who has sponsored the detention and this too would seem to be an
unreasonable procedural requirement because in order to secure the presence of
such officer at the interview, the District Magistrate, Delhi would have to fix
the time for the interview in consultation with the Collector of Customs/
Central Excise or the Deputy Director of Enforcement and it may become difficult
to synchronise the time which suits the legal adviser with the time convenient
to the concerned officer and furthermore if the nominated officer does not, for
any reason, attend at the appointed time, as seems to have happened on quite a
few occasions in the case of the petitioner, the interview cannot be held at all
and the legal adviser would have to go back without meeting the detenu and the
entire procedure for applying for an appointment to the District Magistrate,
Delhi would have to be gone through once again. We may point out that no
satisfactory explanation has been given on behalf of the respondents disclosing
the rationale of this requirement.
Kharak Singh v. State of U.P., (1964) 1 SCR 332
11. The content of Article 21 next calls for examination. Explaining the scope
of the words "life" and "liberty" which occurs in the 5th and 14th Amendments to
the U.S. Constitution reading "No person … shall be deprived of life, liberty or
property without due process of law", to quote the material words, on which
Article 21 is largely modelled, Field, J. observed:
"By the term 'life' as here used something more is meant than mere animal
existence. The inhibition against its deprivation extends to all these limits
and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body or amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body through which the soul
communicates with the outer world … By the term liberty, as used in the
provision something more is meant than mere freedom from physical restraint or
the bounds of a prison."
It is true that in Article 21, as contrasted with the 4th and 14th Amendment in
the U.S., the word "liberty" is qualified by the word "personal" and therefore
its content is narrower. But the qualifying adjective has been employed in order
to avoid overlapping between those elements or incidents of "liberty" like
freedom of speech, or freedom of movement etc. already dealt with in Article
19(1) and the "liberty" guaranteed by Article 21 - and particularly in the
context of the difference between the permissible restraints or restrictions
which might be imposed by sub-clauses 2 to 6 of the Article on the several
species of liberty dealt with in the several clauses of Article 19(1).
In view
of the very limited nature of the question before us it is unnecessary to pause
to consider either the precise relationship between the "liberties" in Article
19(1)(a) & (d) on the one hand and that in Article 21 on the other, or the
content and significance of the words "procedure established by law" in the
latter Article, both of which were the subject of elaborate consideration by
this Court in A.K. Gopalan v. State of Madras [1950 SCC 228 : 1950 SCR 88] . In
fact, in Gopalan case [1950 SCC 228 : 1950 SCR 88] there was unanimity of
opinion on the question that if there was no enacted law, the freedom guaranteed
by Article 21 would be violated, though the learned Judges differed as to
whether any and every enacted law satisfied the description or requirements of
"a procedure established by law".
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
4. The first contention urged on behalf of the petitioner in support of the
petition was that the right to go abroad is part of "personal liberty" within
the meaning of that expression as used in Article 21 and no one can be deprived
of this right except according to the procedure prescribed by law.
There is no
procedure prescribed by the Passports Act, 1967 for impounding or revoking a
passport and thereby preventing the holder of the passport from going abroad and
in any event, even if some procedure can be traced in the relevant provisions of
the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for
giving an opportunity to the holder of the passport to be heard against the
making of the order and hence the action of the Central Government in impounding
the passport of the petitioner is in violation of Article 21.
This contention of
the petitioner raises a question as to the true interpretation of Article 21.
What is the nature and extent of the protection afforded by this article? What
is the meaning of "personal liberty" : does it include the right to go abroad so
that this right cannot be abridged or taken away except in accordance with the
procedure prescribed by law? What is the inter-relation between Article 14 and
Article 21? Does Article 21 merely require that there must be some semblance of
procedure, howsoever arbitrary or fanciful, prescribed by law before a person
can be deprived of his personal liberty or that the procedure must satisfy
certain requisites in the sense that it must be fair and reasonable? Article 21
occurs in Part III of the Constitution which confers certain fundamental rights.
These fundamental rights had their roots deep in the struggle for independence
and, as pointed out by Granville Austin in The Indian Constitution - Cornerstone
of a Nation, "they were included in the Constitution in the hope and expectation
that one day the tree of true liberty would bloom in India". They were indelibly
written in the subconscious memory of the race which fought for well nigh thirty
years for securing freedom from British rule and they found expression in the
form of fundamental rights when the Constitution was enacted. These fundamental
rights represent the basic values cherished by the people of this country since
the Vedic times and they are calculated to protect the dignity of the individual
and create conditions in which every human being can develop his personality to
the fullest extent.
They weave a "pattern of guarantees on the basic-structure
of human rights" and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions. It is apparent from the
enunciation of these rights that the respect for the individual and his capacity
for individual volition which finds expression there is not a self-fulfilling
prophecy. Its purpose is to help the individual to find his own liability, to
give expression to his creativity and to prevent governmental and other forces
from "alienating" the individual from his creative impulses.
These rights are
wide ranging and comprehensive and they fall under seven heads, namely, right to
equality, right to freedom, right against exploitation, right to freedom of
religion, cultural and educational rights, right to property and right to
constitutional remedies. Articles 14 to 18 occur under the heading "Right to
Equality", and of them, by far the most important is Article 14 which confers a
fundamental right by injuncting the State not to "deny to any person equality
before the law or the equal protection of the laws within the territory of
India". Articles 19 to 22, which find place under the heading "Right to freedom"
provide for different aspects of freedom. Clause (1) of Article 19 enshrines
what may be described as the seven lamps of freedom. It provides that all
citizens shall have the right :
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India;
- to acquire, hold and dispose of property;
- to practice any profession or to carry on any occupation, trade or business.
But these freedoms are not and cannot be absolute, for absolute and unrestricted
freedom of one may be destructive of the freedom of another and in a
well-ordered, civilised society, freedom can only be regulated freedom.
Therefore, clauses (2) to (6) of Article 19 permit reasonable restrictions to be
imposed on the exercise of the fundamental rights guaranteed under clause (1) of
that article. Article 20 need not detain us as that is not material for the
determination of the controversy between the parties. Then comes Article 21
which provides:
21. No person shall be deprived of his life or personal liberty except according
to procedure established by law.
Article 22 confers protection against arrest-and detention in certain cases and
provides inter alia safeguards in case of preventive detention. The other
fundamental rights are not relevant to the present discussion and we need not
refer to them.
5. It is obvious that Article 21, though couched in negative language, confers
the fundamental right to life and personal liberty. So far as the right to
personal liberty is concerned, it is ensured by providing that no one shall be
deprived of personal liberty except according to procedure prescribed by law.
The first question that arises for consideration on the language of Article 21
is : what is the meaning and content of the words "personal liberty" as used in
this article? This question incidentally came up for discussion in some of the
judgments in A.K. Gopalan v. State of Madras [1950 SCC 228 : AIR 1950 SC 27 :
1950 SCR 88 : 51 Cri LJ 1383] and the observations made by Patanjali Sastri, J.,
Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the
words "personal liberty" so as to confine the protection of Article 21 to
freedom of the person against unlawful detention. But there was no definite
pronouncement made on this point since the question before the Court was not so
much the interpretation of the words "personal liberty" as the inter-relation
between Articles 19 and 21. It was in Kharak Singh v. State of U.P. [AIR 1963 SC
1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the
proper scope and meaning of the expression "personal liberty" came up pointedly
for consideration for the first time before this Court. The majority of the
Judges took the view "that "personal liberty" is used in the article as a
compendious term to include within itself all the varieties of rights which go
to make up the "personal liberties" of man other than those dealt with in the
several clauses of Article 19(1).
In other words, while Article 19(1) deals with
particular species or attributes of that freedom, 'personal liberty' in Article
21 takes in and comprises the residue. The minority Judges, however, disagreed
with this view taken by the majority and explained their position in the
following words:"No doubt the expression 'personal liberty' is a comprehensive
one and the right to move freely is an attribute of personal liberty. It is said
that the freedom to move freely is carved out of personal liberty and,
therefore, the expression 'personal liberty' in Article 21 excludes that
attribute. In our view, this is not a correct approach. Both are independent
fundamental rights, though there is overlapping. There is no question of one
being carved out of another.
The fundamental right of life and personal liberty
has many attributes and some of them are found in Article 19. If a person's
fundamental right under Article 21 is infringed, the State can rely upon a law
to sustain the action, but that cannot be a complete answer unless the said law
satisfies the test laid down in Article 19(2) so far as the attributes covered
by Article 19(1) are concerned." There can be no doubt that in view of the
decision of this Court in R.C. Cooper v. Union of India [(1970) 2 SCC 298 :
(1971) 1 SCR 512] the minority view must be regarded as correct and the majority
view must be held to have been overruled.
We shall have occasion to analyse and
discuss the decision in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] a
little later when we deal with the arguments based on infraction of Articles
19(1)(a) and 19(1)(g), but it is sufficient to state for the present that
according to this decision, which was a decision given by the Full Court, the
fundamental rights conferred by Part III are not distinct and mutually exclusive
rights. Each freedom has different dimensions and merely because the limits of
interference with one freedom are satisfied, the law is not freed from the
necessity to meet the challenge of another guaranteed freedom.
The decision in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383]
gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are
exclusive - each article enacting a code relating to the protection of distinct
rights, but this theory was overturned in R.C. Cooper case [(1970) 2 SCC 298 :
(1971) 1 SCR 512] where Shah, J., speaking on behalf of the majority pointed out
that "Part III of the Constitution weaves a pattern of guarantees on the texture
of basic human rights. The guarantees delimit the protection of those rights in
their allotted fields they do not attempt to enunciate distinct rights."
The
conclusion was summarised in these terms:"In our judgment, the assumption in A.K.
Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that
certain articles in the Constitution exclusively deal with specific matters -
cannot be accepted as correct". It was held in R.C. Cooper case [(1970) 2 SCC
298 : (1971) 1 SCR 512] - and that is clear from the judgment of Shah, J.,
because Shah, J., in so many terms disapproved of the contrary statement of law
contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J.,
Mukherjea, J., and S.R. Das, J., in A.K. Gopalan case - that even where a person
is. detained in accordance with the procedure prescribed by law, as mandated be
Article 21, the protection conferred by the various clauses of Article 19(1)
does not cease to be available to him and the law authorising such detention has
to satisfy the test of the applicable freedoms under Article 19, clause (1).
This would clearly show that Articles 19(1) and 21 are not mutually exclusive,
for, if they were, there would be no question of a law depriving a person of
personal liberty within the meaning of Article 21 having to meet the challenge
of a fundamental right under Article 19(1).
Indeed, in that event, a law of
preventive detention which deprives a person of "personal liberty" in the
narrowest sense, namely, freedom from detention and thus falls indisputably
within Article 22 would not require to be tested on the touchstone of clause (d)
of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal [(1973) 1 SCC 856 : 1973 SCC (Cri)
618 : AIR 1973 SC 1425] that such a law would have to satisfy the requirement
inter alia of Article 19(1), clause (d) and in Haradhan Saha v. State of West
Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] which was a
decision given by a Bench of five Judges, this Court considered the challenge of
clause (d) of Article 19(1) to the constitutional validity of the Maintenance of
Internal Security Act, 1971 and held that that Act did not violate the
constitutional guarantee embodied in that article. It is indeed difficult to see
on what principle we can refuse to give its plain natural meaning to the
expression "personal liberty" as used in Article 21 and read it in a narrow and
restricted sense so as to exclude those attributes of personal liberty which are
specifically dealt with in Article 19. We do not think that this would be a
correct way of interpreting the provisions of the Constitution conferring
fundamental rights.
The attempt of the Court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their meaning and content
by a process of judicial construction. The wavelength for comprehending the
scope and ambit of the fundamental rights has been set by this Court in R.C.
Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and our approach in the
interpretation of the fundamental rights must now be in tune with this
wavelength.
We may point out even at the cost of repetition that this Court has
said in so many terms in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512]
that each freedom has different dimensions and there may be overlapping between
different fundamental rights and therefore it is not a valid argument to say
that the expression "personal liberty" in Article 21 must be so interpreted as
to avoid overlapping between that article and Article 19(1). The expression
"personal liberty" in Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of
them have been raised to the status of distinct fundamental rights and given
additional protection under Article 19. Now, it has been held by this Court in
Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] that
"personal liberty" within the meaning of Article 21 includes within its ambit
the right to go abroad and consequently no person can be deprived of this right
except according to procedure prescribed by law.
Prior to the enactment of the
Passports Act, 1967, there was no law regulating the right of a person to go
abroad and that was the reason why the order of the Passport Officer refusing to
issue passport to the petitioner in Satwant Singh case [AIR 1967 SC 1836 :
(1967) 3 SCR 525 : (1968) 1 SCJ 178] was struck down as invalid. It will be seen
at once from the language of Article 21 that the protection it secures is a
limited one. It safeguards the right to go abroad against executive interference
which is not supported by law; and law here means "enacted law" or "state law"
(vide A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ
1383] ).
Thus, no person can be deprived of his right to go abroad unless there
is a law made by the State prescribing the procedure for so depriving him and
the deprivation is effected strictly in accordance with such procedure. It was
for this reason, in order to comply with the requirement of Article 21, that
Parliament enacted the Passports Act, 1967 for regulating the right to go
abroad. It is clear from the provisions of the Passports Act, 1967 that it lays
down the circumstances under which a passport may be issued or refused or
cancelled or impounded and also prescribes a procedure for doing so, but the
question is whether that is sufficient compliance with Article 21. Is the
prescription of some sort of procedure enough or must the procedure comply with
any particular requirements?
Obviously, the procedure cannot be arbitrary,
unfair or unreasonable. This indeed was conceded by the learned Attorney-General
who with his usual candour frankly stated that it was not possible for him to
contend that any procedure howsoever arbitrary, oppressive or unjust may be
prescribed by the law. There was some discussion in A.K. Gopalan case [1950 SCC
228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] in regard to the nature of
the procedure required to be prescribed under Article 21 and at least three of
the learned Judges out of five expressed themselves strongly in favour of the
view that the procedure cannot be any arbitrary, fantastic or oppressive
procedure.
Fazl Ali, J., who was in a minority, went to the farthest limit in
saying that the procedure must include the four essentials set out in Prof.
Willis' book on Constitutional Law, namely, notice, opportunity to be heard,
impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did
not go as far as that but he did say that "certain basic principles emerged as
the constant factors known to all those procedures and they formed the core of
the procedure established by law". Mahajan, J., also observed that Article 21
requires that "there should be some form of proceeding before a person can be
condemned either in respect of his life or his liberty" and "it negatives the
idea of fantastic, arbitrary and oppressive forms of proceedings". But apart
altogether from these observations in A.K. Gopalan case [1950 SCC 228 : AIR 1950
SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] which have great weight, we find that even
on principle the concept of reasonableness must be projected in the procedure
contemplated by Article 21, having regard to the impact of Article 14 on Article
21.
The inter-relationship between Articles 14, 19 and 21
6. We may at this stage consider the inter-relation between Article 21 on the
one hand and Articles 14 and 19 on the other. We have already pointed out that
the view taken by the majority in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC
27 : 1950 SCR 88 : 51 Cri LJ 1383] was that so long as a law of preventive
detention satisfies the requirements of Article 22, it would be within the terms
of Article 21 and it would not be required to meet the challenge of Article 19.
This view proceeded on the assumption that "certain articles in the Constitution
exclusively deal with specific matters" and where the requirements of an article
dealing with the particular matter in question are satisfied and there is no
infringement of the fundamental right guaranteed by that article, no recourse
can be had to a fundamental right conferred by another article. This doctrine of
exclusivity was seriously questioned in R.C. Cooper case [(1970) 2 SCC 298 :
(1971) 1 SCR 512] and it was over-ruled by a majority of the full Court, only
Ray, J., as he then was, dissenting. The majority Judges held that though a law
of preventive detention may pass the test of Article 22, it has yet to satisfy
the requirements of other fundamental rights such as Article 19. The ratio of
the majority judgment in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512]
was explained in clear and categorical terms by Shelat, J., speaking on behalf
of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal
[(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] . The learned Judge
there said (SCC p. 879):
"In Gopalan case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] the
majority court had held that Article 22 was a self-contained code and therefore
a law of preventive detention did not have to satisfy the requirements of
Articles 19, 14 and 21. The view of Fazl Ali, J., on the other hand, was that
preventive detention was a direct breach of the right under Article 19(1)(d) and
that a law providing for preventive detention had to be subject to such judicial
review as is obtained under clause (5) of that article.
In R.C. Cooper v. Union
of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the aforesaid premise of the
majority in Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri
LJ 1383] was disapproved and therefore it no longer holds the field. Though
Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] dealt with the
inter-relationship of Article 19 and Article 31, the basic approach to
construing the fundamental rights guaranteed in the different provisions of the
Constitution adopted in this case held the major premise of the majority in
Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] to
be incorrect."
Subsequently, in Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198 : 1974
SCC (Cri) 816 : (1975) 1 SCR 778] also, a Bench of five Judges of this Court,
after referring to the decisions in A.K. Gopalan case [1950 SCC 228 : AIR 1950
SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and R.C. Cooper case [(1970) 2 SCC 298 :
(1971) 1 SCR 512] agreed that the Maintenance of Internal Security Act, 1971,
which is a law of preventive detention, has to be tested in regard to its
reasonableness with reference to Article 19.
That decision accepted and applied
the ratio in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and Shambhu
Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] and
proceeded to consider the challenge of Article 19, to the constitutional
validity of the Maintenance of Internal Security Act, 1971 and held that the Act
did not violate any of the constitutional guarantees enshrined in Article 19.
The same view was affirmed once again by a Bench of four Judges of this Court in Khudiram Das v. State of West Bengal [(1975) 2 SCC 81 : 1975 SCC (Cri) 435 :
(1975) 2 SCR 832] . Interestingly, even prior to these decisions, as pointed out
by Dr Rajeev Dhavan, in his book, The Supreme Court of India at p. 235,
reference was made by this Court in Mohd. Sabir v. State of Jammu and Kashmir
[(1972) 4 SCC 558 : 1971 Cri LJ 1271] to Article 19(2) to justify preventive
detention.
The law, must, therefore, now be taken to be well settled that
Article 21 does not exclude Article 19 and that even if there is a law
prescribing a procedure for depriving a person of "personal liberty" and there
is consequently no infringement of the fundamental right conferred by Article
21, such law, insofar as it abridges or takes away any fundamental right under
Article 19 would have to meet the challenge of that article. This proposition
can no longer be disputed after the decisions in R.C. Cooper case [(1970) 2 SCC
298 : (1971) 1 SCR 512] , Shambhu Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC
(Cri) 618 : AIR 1973 SC 1425] and Haradhan Saha case [(1975) 3 SCC 198 : 1974
SCC (Cri) 816 : (1975) 1 SCR 778] Now, if a law depriving a person of "personal
liberty" and prescribing a procedure for that purpose within the meaning of
Article 21 has to stand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation, ex-hypothesi
it must also be liable to be tested with reference to Article 14. This was in
fact not disputed by the learned Attorney-General and indeed he could not do so
in view of the clear and categorical statement made by Mukherjea, J., in A.K.
Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that
Article 21 "presupposes that the law is a valid and binding law under the
provisions of the Constitution having regard to the competence of the
legislature and the subject it relates to and does not infringe any of the
fundamental rights which the Constitution provides for", including Article 14.
This Court also applied Article 14 in two of its earlier decisions, namely,
State of West Bengal v. Anwar Ali Sarkar [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952
SCR 284 : 1952 Cri LJ 510] and Kathi Raning Rawat v. State of Saurashtra [(1952)
1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] where there was a
special law providing for trial of certain offences by a speedier process which
took away some of the safeguards available to an accused under the ordinary
procedure in the Criminal Procedure Code.
The special law in each of these two
cases undoubtedly prescribed a procedure for trial of the specified offences and
this procedure could not be condemned as inherently unfair or unjust and there
was thus compliance with the requirement of Article 21, but even so, the
validity of the special law was tested before the Supreme Court on the
touchstone of Article 14 and in one case, namely, Kathi Raning Rawat case
[(1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] he
validity was upheld and in the other, namely, Anwar Ali Sarkar case [(1952) 1
SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] it was struck down. It
was held in both these cases that the procedure established by the special law
must not be violative of the equality clause. That procedure must answer the
requirement of Article 14.
The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article
14 : what is the content and reach of the great equalising principle enunciated
in this article? There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which rests securely the foundation of
our democratic republic.
And, therefore, it must not be subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in E.P. Royappa v.
State of Tamil Nadu [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348]
namely, that "from a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs
to the rule of law in a republic, while the other, to the whim and caprice of an
absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative
of Article 14". Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure contemplated by Article 21 must answer
the test of reasonableness in order to be in conformity with Article 14. It must
be "right and just and fair" and not arbitrary, fanciful or oppressive;
otherwise, it .would be no procedure at all and the requirement of Article 21
would not be satisfied.
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
In the case of
Sheela Barse vs. State of Maharashtra (1983) where on the
application of a journalist the Supreme Court took cognizance of the matter
regarding the ill-treatment and poor conditions of the prisoners in the jail and
issued certain directions namely:
That interrogation of females should be carried out only in the presence of
female police officers/constables.
Whenever a person is arrested by the police without warrant, he must be
immediately informed of the grounds of his arrest and in case of every arrest it
must immediately be made known to the arrested person that he is entitled to
apply for bail.
That whenever a person is arrested by the police and taken to the police lock
up, the police will immediately give an intimation of the fact of such arrest to
the nearest Legal Aid Committee and such Legal Aid Committee will take immediate
steps for the purpose of providing legal assistance to the arrested person at
State cost provided he is willing to accept such legal assistance. The State
Government will provide necessary funds to the concerned Legal Aid Committee for
carrying out this direction.
That as soon as a person is arrested, the police must immediately obtain from
him the name of any relative or friend whom he would like to be informed about
his arrest and the police should get in touch with such relative or friend and
inform him about the arrest.
That the magistrate before whom an arrested person is produced shall enquire
from the arrested person whether he has any complaint of torture or maltreatment
in police custody and inform him that he has right under section 54 of the Code
of Criminal Procedure 1973 to be medically examined.
STATUTORY RIGHTS
In addition to the Constitutional rights, prisoners also have certain rights
granted by statutes. The Prisons Act of 1894 was established to regulate the
functioning of prisons and it includes provisions that outline these statutory
rights. Section 4 of the Act ensures that prisoners are provided with suitable
accommodation and sanitary conditions.
Section 7 addresses the issue of excess prisoners who cannot be safely
accommodated in any prison, requiring shelter and secure custody for them.
Section 24(2) mandates that prisoners receive medical examinations from
qualified medical officers. Section 31 mandates the separation of prisoners
based on categories such as gender, civil or criminal status, and convicted or
undertrial status.
Section 33 stipulates that civil and unconvicted prisoners who are unable to
provide themselves with adequate clothing and bedding must be supplied with
them. Section 35 addresses the treatment of undertrial and civil prisoners, as
well as the possibility of parole and temporary release. Section 37 ensures that
a prisoner in need or showing signs of ill health, whether physical or mental,
must be provided with a medical officer.
Finally, Section 40 requires that proper arrangements be made for the admission
of persons with whom civil or unconvicted criminal prisoners wish to
communicate, ensuring that undertrial prisoners can meet their qualified legal
advisors without the presence of others.
In today's rights-focused society, there is a growing emphasis on considering
the rights of individuals. As a result, the concept of open jails is gaining
popularity, marking a shift in the perception of prisons. Rather than being
solely punitive institutions, prisons are now viewed as places for
rehabilitation.
Open jails play a vital role in this new approach by promoting the socialization
of inmates with the outside world, allowing them to reintegrate into society.
These jails are primarily reserved for prisoners who are deemed non-threatening
to society.
Some other major statutory rights are:
Right to Constitutional Remedies
These remedies are available to all the prisoners, who are deprived of their
rights by the officials, under article 226 before high court and under article
32 before Supreme court.
Permission to wear clothes of your choice in jail
Undertrial prisoners have the freedom to wear clothes brought from their homes
while convicted prisoners do not have such privileges.
Prisoners can move Supreme Court for 'cruelty' in jail
Prisoners have the right to seek legal recourse if they experience any form
of cruelty or mistreatment in jail. It is imperative that no prisoner's
fundamental rights be denied without following the proper legal procedures. The
law strictly prohibits any mistreatment or inhumane treatment of prisoners. In
case a prisoner's fundamental rights are violated, they have the option to
directly approach the Supreme Court under Article 32 or the high court under
Article 226 for appropriate redress.
Free medical facility, legal advice in jail
The Supreme Court has explicitly declared that prisoners must not be treated in
a dehumanizing manner. It is the responsibility of the jail administration and
the government to ensure that prisoners are provided with all the essential
facilities. The model jail manual specifies that prisoners should have access to
basic necessities such as clean water, fresh food, appropriate clothing,
bedding, and medical services.
Additionally, prisoners are entitled to receive free legal advice, have the
ability to correspond through letters and meet their families, and be offered
employment opportunities. In certain cases, undertrial prisoners may also be
permitted to engage with the media. Security measures are in place for
prisoners, and those who had special security arrangements prior to their
incarceration receive special protection while in jail.
Prisoners to get 2,400 calories of nutritious food
As per the guidelines outlined in the model prisons manual, a kitchen is
equipped to prepare meals for a maximum of 250 prisoners. If the number exceeds
this limit, arrangements are made for a separate kitchen. The walls of the
kitchens are tiled up to a height of two meters for cleanliness and hygiene
purposes.
Adequate lighting, LPG gas connections, bread making machines, flour making
machines, and hotplates are among the essential facilities that prison kitchens
should possess. Prisoners are provided with meals that contain a calorie intake
ranging from 2,000 to 2,400.
Fresh breakfast, lunch, and dinner are served, and it is strictly stated in the
manual that prisoners should not be given stale food. In case an inmate faces
any issues with the food, they have the right to file a complaint. Food is
provided to prisoners based on their specific health requirements and the
prevailing environmental conditions, with the dosage determined under the
guidance of a medical officer.
Prisoners get remuneration for working
Prisoners have the opportunity to engage in work activities within the prison,
and in exchange, they receive payment for their labor. It is strictly prohibited
to compel prisoners to work without any form of remuneration. Forcing prisoners
to work without compensation infringes upon their fundamental rights.
Right to education for prisoners
There have been significant advancements in the reform measures in India,
including the provision of the right to education for detained and imprisoned
individuals. This facility is now accessible to all prisoners who express their
desire to pursue education. The reformation includes making education compulsory
for women and young offenders, as it plays a crucial role in their personal
development during their time in jail.
Furthermore, education remains mandatory for prisoners even after their release.
It is the responsibility of the state to ensure that both young and older
offenders receive education, recognizing it as a necessary and vital step that
must be implemented effectively.
CONCLUSION
In conclusion, this article sheds light on the significance of upholding
prisoners' legal rights within the Indian context. The Indian Constitution
guarantees fundamental rights to every individual, including those who are
incarcerated. These rights encompass the principles of human dignity, fairness,
and justice, ensuring that prisoners are treated with respect and provided with
essential protections.
By safeguarding their rights to humane treatment, fair trial, legal
representation, communication, healthcare, education, and protection from
discrimination, the Indian legal framework strives to promote rehabilitation,
reintegration, and the preservation of their inherent human worth.
Upholding prisoners' rights not only aligns with constitutional principles but
also plays a crucial role in building a just and inclusive society where justice
is served while respecting the dignity of all individuals, regardless of their
circumstances.
To elaborate, In the pursuit of a just and compassionate society, it is
essential to recognize and protect the fundamental rights of prisoners in India.
The Indian Constitution, with its strong emphasis on individual freedoms and
dignity, forms the cornerstone of prisoners' rights. These rights serve as a
safeguard against abuse, arbitrary actions, and unjust treatment within the
prison system.
By upholding prisoners' rights, we acknowledge their potential for
rehabilitation, reformation, and eventual reintegration into society. It
reflects our commitment to a restorative approach that prioritizes the
principles of fairness, equality, and due process. Recognizing prisoners as
individuals deserving of respect and support not only contributes to their
personal growth and well-being but also enhances public safety by reducing
recidivism rates.
Moreover, protecting prisoners' legal rights serves as a litmus test for the
credibility and effectiveness of our criminal justice system. It demonstrates
our adherence to the rule of law and ensures that justice is administered
fairly, transparently, and without prejudice. By providing access to legal
representation, fair disciplinary proceedings, and due process rights, we foster
a system that inspires public trust, promotes accountability, and guards against
miscarriages of justice.
However, it is crucial to recognize that the realization of prisoners' rights is
an ongoing challenge. Adequate resources, infrastructure, and trained personnel
are necessary to translate these rights into meaningful actions. Efforts must be
made to bridge the gaps between legal provisions and their implementation on the
ground. Collaborative endeavors involving government agencies, civil society
organizations, and the judiciary can help create a robust framework that upholds
prisoners' rights effectively.
In conclusion, recognizing and protecting prisoners' legal rights in India is
not just a matter of constitutional obligation; it is a reflection of our
commitment to justice, compassion, and the rehabilitation of individuals who
have made mistakes. By ensuring their rights are upheld, we take significant
strides towards building a fair and inclusive society that values the inherent
dignity and potential for transformation of every human being, regardless of
their circumstances.
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