India is a democratic and developing country. It is also known for its vast
culture and heritage but it is the sad reality that being a developing nation it
has no specific and codified provisions or laws regarding PRISONERS in India.
Though, we cannot deny this fact that our judicial system has not neglected
PRISONERS and also recognized many rights for them through various judicial
precedents and judicial interpretations of laws. Introducing the rights related
to prisoners has become the great evolution in Indian Laws.
PRISONER is a person who is deprived of liberty against his will and kept under
confinement or any judicial custody as the result of any judicial process or as
punishment of crime or during the trial.
This paper elaborates the existing laws and legal framework in India which
provides various rights and safeguards to the prisoners in India. Many
international forums and entities also provide safeguards to prisoners. This
paper also examines those safeguards and legal framework related to their human
rights and the final portion of this paper submits few suggestions which can
refine the prevailing status of prisoners in India.
The term prison is originated from the Latin term which means to seize. Acc. to
Oxford English Dictionary," prison means a place properly efficient and equipped
for the reception of persons who by legal process are committed to it for sale
custody while pending of trial and punishment".
Generally, it means a place where prisoners are kept in custody during the trial
or in which they are imprisoned as punishment after conviction. If we talk about
the ancient era, there was no such regular concept of punishment of
imprisonment. But in modern era this mode of punishment is developed by British
rule. In 1600 the East India Company were formed and it came to India on 1608.
After 1784 there were 143 civil jails, 75 criminal jails and 68 mixed jails
presented at that period. These prisons were the extension of Mughal rule which
were managed by East India Company.
Under the Indian Constitution, administration of prison was the matter of state.
This was regulated by the Inspector General of Prisons. This administration
covers several central prisons, sub jails, district jails.
CATEGORIES OF PRISON IN INDIA
There are three main categories of prison in India such as Taluka Level,
District level, Central level. Other categories of prison are women jails,
Borstal school, open jails, and special jails.
Imprisonment is a legal punishment imposed by the state for the commission of an
offence or infringement of the law. The objectives behind imprisonment differ
from country to country; it can be punitive, deterrence, rehabilitative and
reformative or others. But these objectives have been evolved with the passage
of time. The main purpose of imprisonment is to protect the society against the
crime. In the present time, the punitive methods of treatment of prisoners are
not considered relevant or desirable or preferable to achieve the well planned
aims of reformation and rehabilitation prisoners.
Now the Reformation and Rehabilitation method has come into the picture, they
are more preferable than punitive method. Now the prison administration is
supposed to function in curative manner. The Indian judicial system and
parliamentary legislations have played great role in this evolution. And there
are also some contributions of international forums in this field. They have
provided some guidelines and standards for the treatment of prisoners.
PRISONER'S RIGHTS UNDER CONSTITUTION
In our Indian Constitution, part-III provides provision related to Fundamental
Rights. It consists of six fundamental rights which are given to citizen and
some of them to non-citizen also. It also protects person from wrongful
confinement because a person who is wrongfully confined remains a person in
prison. The most important provision given under Indian Constitution which is
applied by the court is Article 14 Equality before law. This provision says "the
state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India". 
One of the most important provisions of Indian constitution is Article 19 Right
of Freedom which guarantees six freedoms which says-All citizen shall have the
right � to freedom of speech and expression; to assemble peacefully and without
arms; to form associations or unions or co-operative societies; to move freely
throughout the territory of India; to practice any profession, or to carry on
any occupation, trade or business.
But this paper is about to protection against custodial evils and human rights
protection of those who are wrongfully confined. They have also freedom of
speech and expression. But sadly their rights are violated just because they are
in prison. The most living provision of part- III is Article 20 which protects
the prisoners from wrongful conviction.
- No person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the Act charged as an offence,
nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of offence;
- no person shall be prosecuted and punished for the same offence more
- no person accused of any offence shall be compelled to be a witness
This provision (1) talks about ex-post facto laws. This provision protects
person from being imprisoned which were not authorized by law at the time when
he committed alleged act and for which he was punished. The second provision
embodies the principle of double jeopardy. This protects person from being
punished more than once for the same offence. It is based on the doctrine of
"Nemo debot vis vexari" which says no person should be put twice in the peril
for same offence.
If it happens then it will be ultra virus to the law of constitution. It is
clearly says that a person shall not be deprived of his life and personal
liberty except according to procedure established by law. Earlier in the case of
Prabhakar and recently in the case of Kishore Singh, Hon'ble Supreme Court
has used this provision to protect the rights of those persons who are in
custody as there is no specially mentioned their rights in the constitution.
After Maneka Gandhi case, there must be just and reasonable procedure for
deprivation of life and personal liberty of the person. It includes right to
process of law, right to counsel, right to speedy trial, right to religion,
right to separation of prisoners, good health and good diet. Without fulfilling
all these confinement would be considered as wrongful. Article 21 also protect
from the arbitrariness of legislature.
Article 22 of the Indian constitution gives protection against arrest and
detention in certain cases. No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice. He shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.
No law providing for preventive detention shall authorize the detention of a
person for a longer period than three months unless-(a) an advisory board
consisting of persons, who are, or have been, or are qualified to be appointed
as, Judges of High Court has reported before the expiration of the said period
of three months that there is in its opinion sufficient cause for such
Provided that nothing in this sub-clause shall authorize the detention of any
person beyond the maximum period prescribed by any law made by parliament under
sub-clause (b) of clause (7); or (b) such person is detained in accordance with
the provisions of any law made parliament under sub-clause (a) and (b) of clause
Sometimes a person is detained without being told the actual grounds of
detention and never produced before the magistrate by the legal representative
of his own choice.
In Ramakrishna's case, it is shown that insufficient facts or particulars
and grounds may render the detention invalid. When arrested person is not
produced before the magistrate within twenty-four hours of his arrest and which
includes time of travel from that place where he has been arrested to court and
the concerning authority must furnish the information to accused that he has to
be represented by legal practitioner of his own choice.
OTHER STATUTORY PROVISIONS AND CASE LAWS RELATED TO PRISONERS'S RIGHTS IN INDIA
Article 21 of the Indian Constitution gives protection to any person citizen and
non-citizen both. This article protects them from any inhumane or disregarding
treatment. If it is committed against prisoners, the whole prison administration
is responsible for that.
Case-.M.H.WADANRAO HOSKOT v. STATE OF MAHARASHTRA, it was held that right to
legal aid is one of the most important ingredients of the said procedure.
Case- HUSSAINARA KHATOON v. HOME SECRETARY, STATE OF BIHAR, in this case, it
was held that the accused has a right to speedy trial as fundamental right under
article 21 of the Indian Constitution. If there is violation of this right of
any person, so he can directly approach to Supreme Court under article 32.
LANDMARK JUDGEMENT RELATED TO PRISONERS' RIGHTS
Case- SUNIL BATRA V. DELHI ADMINISTRATION, It was held that solitary
confinement should be given only in exceptional cases where convicts were of
such a toxic nature that they must be separated from other prisoners. (Krishnaiyer,
indiankanoon, 1979). In the case of MOHAMMAD GIASSUDDIN v. STATE OF ANDHRA
PRADESH held that the labor taken from the prisoners, which was not properly
remunerated, is "forced labor" and it is the violation of the fundamental right
given under article 23 of the Indian Constitution. (Krishnaiyer, indiankanoon,
In the case of FRANCIS CORALIE MULLIN v. THE ADMINISTRATOR, UNION TERRITORY OF
DELHI AND OTHERS, the Supreme Court stated that prisoners have right to meet his
friends, family members and his lawyer in jail without any major restrictions.
In the case of SUKDAS v. ARUNACHAL PRADESH, the Supreme Court held that a
person accused of an offence which may involve jeopardy to his life or personal
liberty has a right to get free legal assistance at state cost. (Bhagwati, 1986)
In the case of STATE OF MADHYA PRADESH v. SHYAMSUNDAR TRIVEDI, the court
held that convict is not by mere reason of the conviction deprived of all the
fundamental rights which he otherwise possesses.
In the case of STATE OF ANDHRA PRADESH v. CHALLARAMKRISHNA REDDY, the
Supreme Court held that right to life is the basic human right which g
guaranteed to every person under article 21 of the Indian Constitution. Even the
state has no authority to violate this right. A prisoner is also a human being
so he has also right to enjoy his all fundamental rights which include right to
In the case of AR ANTULAY v. RS NAYAK, the Hon'ble Supreme Court held that
the right to speedy trial flowing from article 21 of Indian Constitution, is
given to accused at all stages, stage of investigation, stage of inquiry, stage
of trial, stage of appeal, stage of revision and re-trial. It further said that
the accused can't be deprived of this right of appeal merely on the ground that
he had failed to claim for speedy trial. The time limit has to be decided by
maintaining the balance between the attendant circumstances and relevant
factors, which include the nature of crime, number of accused and witness, the
working pressure of the court, etc. The court concluded that when this right has
been violated of an accused, the charges of the conviction shall be overruled. (Mukharji,
In the case of PREM SHANKAR SHUKLA v. DELHI ADMINISTERATION, the majority
judgments held that the provisions of Punjab Police Rules, that every under
trial who was accused on non-bailable offence punishable with more than three
years imprisonment would be handcuffed, were violative of Articles of 14,191,21
of Indian Constitution of India. Hence they were held ultra virus or
unconstitutional. (Krishnaiyer, indiankanoon, 1980)
In the case of HIRALAL MALLICK v. STATE OF BIHAR, the court said that to
reduce the mental tensions among prisoners, the prison administrative
authorities should provide for vital links between the prisoners and their
family members by periodically granting parole. However, the granting of parole
should be for reasonable spells and it will be subjected to sufficient grounds
ensuring their proper behavior outside and prompt return inside.
COMMITTEE REPORTS RELATED TO RIGHTS OF PRISONERS IN INDIA
Many committees were formed in India through the various orders and judgments
passed by the Indian judiciary. The main objective of forming these committees
is to make prison or jail a better place for prisoners and to improve the
condition of prisoners. Some of them are as follows-
THE PRISON ACT, 1894
This Prisons Act of 1894, elaborates the procedure related to prison management
and the administration related to it India. It is the first legislation which
deals with regulation of prison in India. This Act mainly deals with
accommodation and sanitary conditions of prisoners. It provides for the shelter
and safe custody of that number of prisoners who cannot be confined safely in
It also provides provision related to examination of prisoners by qualified
medical officer, provision related to separation of male and female prisoners;
or civil and criminal prisoners; or convicted or under-trial prisoners and the
provision related to the treatment of under trials, civil prisoners, parole and
temporary release of prisoners.
In 2016, the Parliament has passed the Prisons (Amendment) Bill, 2016. This Bill
was passed to amend the previous act of 1894 with an aim to provide protection
and reformation or welfare of the prisoners.
THE MODEL PRISON MANUAL
The Model Prison Manual, 1960 is guiding principle to form a basic structure of
modern prison management or administration. By the given guidelines of the Model
Prison Manual, the Ministry of Home Affairs, Government of India, in 1972,
appointed a committee for the betterment of the prisons. According to this
committee, every prisoner should be permitted to meet with his family, friends,
and his legal representative once a month.
There must be construction of proper waiting rooms in every prison for the
visitors and to allow them to await their turn. The maximum duration of
interview should be 30 minutes, which can be extended by the permission of the
superintendent of prisons. This committee also prescribed a manner related to
the treatment of the prisoners and they should allow having contact with their
family members, friends and their legal representatives.
THE MULLA COMMITTEE
In 1980, there was a committee appointed by the Government of India for prison
reformation. This committee was chaired by Justice A. N. Mullah. The main
objective of making this committee was to evaluate the legislations, provisions
and rules & regulations and to protect the society against crime and to
rehabilitate the offenders.
THE KRISHNA IYER COMMITTEE
This Krishna Iyer Committee was appointed to analysis the present condition of
female prisoners in country. This committee has suggested that there should be
option of more women in the police force. So they can easily manage the female
convicts and the child offenders both. Women offenders are less in number as
compared to male offenders so they have to face more than man. They are found
more in inhumane condition. They have been treated very badly. Female offenders
have been offered lesser facilities than male prisoners. Mostly they have
imprisoned under protective custody. They have faced the problem of family
dislocation more than men because of their small number. They have been provided
ROLE OF INTERNATIONAL INSTRUMENTS IN RELATION TO THE RIGHTS OF PRISONERS
The international law also deals with the provision of prisoners' rights. Many
conventions and international guidelines have dealt with the provision of rights
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) � UNITED NATIONS
On December 10, 1948 the United Nation General Assembly (UNGA) implemented the
Universal Declaration of Human Rights (UDHR) to promote Human Rights in all over
ARTICLE 1 states that "in dignity and rights all human beings are born free and
ARTICLE 2 states that "everyone shall have the right, without any discrimination
of any kind, to all the rights and freedoms provided for in this declaration,
such as race, color, sex, language, religion, political or another opinion,
national or social origin, property, birth or other status,"
ARTICLE 3 states that, "every person has the right to life, freedom and personal
ARTICLE 5 states that, "no one shall be subjected to torture or cruel, inhumane
or humiliating treatment."
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
The International Covenant on Civil and Political Rights proposes every person
the right to life by birth, whether he is prisoner or someone else. Law protects
this right and no one is deprived of his or her life except the procedure
established. According to:
Article 7 of this provision, "no one shall be tortured or subjected to cruel,
inhumane or humiliating treatment or punishment."
Article 10 states that, "all people deprived of their freedom are treated with
humanity and with respect for the human person's inherent dignity."
RULES FOR THE TREATMENT OF PRISONERS: UNITED NATIONS
The UN stated minimum rules for the treatment of prisoners. These are as follow-
Provision related to separation of categories; clothing; exercise; medical;
protection against double jeopardy; prohibition of corporal punishment, dark
cell punishment; information to and complaints by; having contact with their
family and lawyer.
BASIC PRINCIPLES REGARDING THE TREATMENT OF PRISONERS: UN
The basic principle which is regarded by the United Nations for the better
treatment of prisoners is that they should be treated without any
discrimination. They have also a right to live their life with dignity and they
are also human beings.
The basic principle of human rights is a universal concept. It is beyond all the
restriction. It should be free from all the restriction. Every person has the
basic human rights including prisoners also. They should also have the basic
human rights and legal rights. If their rights violate, they can easily approach
to the court for their enforcement. For their protection, our Government and
Judicial system need to take some important steps.
Some of them are as- there is a need to sync the available prison administration
with the current Indian judicial system and criminal procedure system to get
more effective results.
There should be more committees to manage the whole administration of prison.
Authorities should be there for regular checking of their condition.
There should be Proper utilization of all the resources provided by the
government. There should be complete separation of all different categories of
prisoners in prisons. There should be more prisons to avoid the problem of
over-crowding which leads to lack of facilities. There should be more
appointment of judges in courts to avoid more pendency of cases. Authorities
should focus on the rehabilitation of prisoner rather than kept them within the
four walls of jail.
It has been observed that a prisoner is a person who is deprived of his life and
liberty against his or her will. He has been forcefully kept within the four
walls of prison as punishment for committing any offence. They also have rights
which a common man of the state has but with some justifiable restriction. Even
if he is imprisoned, he can also enjoy his all basic human rights. They still
have some legal and constitutional rights when they are in conviction of crime.
However, the authorities need to be trained for the betterment and welfare of
Written By: Khushi Dwivedi
- Article 14 of the Constitution of India
- Article 19 clause (1) of Indian Constitution
- Article 20 clause (1)
- Article 20 clause (2)
- State of Maharashtra v. Prabhakar Panduram, AIR 1966 SC 424
- Kishore Singh v. State of Rajasthan, AIR 1981 SC 625
- Maneka Gandhi v. Union of India, AIR 1978 SC 597
- Article 22 clause (1) of Indian Constitution
- Article 22 clause (2)
- Article 22 clause (4)
- Ram Krishna v. State of Delhi, AIR 1953 SC 318, Pushkar Mukherjee v.
State of West Bengal 1969 2 SCR 635
- 1978 AIR 1548, 1979 SCR(1) 192
- AIR 1979 SC 1360
- 1980 AIR 1579, 1980 SCR (2) 557
- 1977 AIR 1926, 1978 SCR (1) 153
- AIR 1986 SC 991
- AIR 2000 SC 2083
- AIR 1984 SC 1630
- AIR 1980 SC 1535
- 1977 Cri LJ 1921 at 1927 (SC)
, Chhatrapati Shahu ji Maharaja University,