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To What Extent Can Prisoners Enjoy Fundamental Rights Under Article 21

India is democratic country, and it is known for its democracy and culture. Being an Indian citizen, who lives in a place where to secure the rights of an individual is a basic feature of its constitution even the rights of a prisoner are important, and these cannot be violated. The judiciary has not ignored the rights of prisoners and have given such rights recognition under the constitution. The Article 21 of Indian constitution provides "that no person's personal liberty shall be deprived except where there is a proper legal procedure regarding the same". Basic rights to survive and protection to life of a convicted person cannot be deprived.

But India still lacks in proper legislation for their rights. In this paper the framework of Indian laws and constitution to safeguard the rights of prisoners and the judicial orders that are laid down in various judgments to respect and protect the basic rights of prisoners are explained. The paper also suggests keeping a check on the status of the prisoners in India so that their basic human rights are not violated.

We all live in a society which has a well-organized system of law enforcement. The rights of individuals that helps them to live freely like a human are important. Our constitution does not provide with specific rights for the prisoners but under Part III of the constitution there are certain fundamental rights available for them which ensures that he is still a human even though he is in a prison. If a person commits a crime this cannot deprive him from being a human being[1].

Article 21 of the Indian Constitution gives the prisoners right to life and personal liberty and therefore prohibits any kind of cruelty, brutality, and barbarity treatment to a prisoner. Also, the punishment given to prisoner should not cause him pain and unnecessary suffering. And justification of that punishment shall also be given. The procedure set up by law shall be followed in a fair and just manner.

Constitutional Status Of A Prisoner

The Indian Constitution provides under Article 21, that nobody can be deprived of personal liberty except where the legislature provides a proper procedure. According to this article the procedure that is been given by law should be followed in 'right, just and fair' manner. There should be no inconsistency, causality or brutality while carrying out the procedure. The fundamental rights under the constitution also provides certain rights to the prisoners. In criminal justice after conviction the dignity of human cannot be lost. He as a human cannot be a subject to humiliation and torture.

Right to life and personal liberty, as said in the constitution which takes all the cruel, inhuman, and degrading treatment as a denial of right to life and human dignity. He shall not be tortured as constitution prohibits it. Even the death sentence shall be executed with minimum pain.

Do the prisoners keep freedom and fundamental rights?
A prisoner beside his crime cannot be deprived from fundamental rights. However, he cannot demand for all the fundamental rights. He has been provided with certain basic rights. Their liberty is cut down, but it is not put 'behind the bars.' They all shall be treated humanely and with dignity and as a human being and not as an object.[2] Despite their guilt, they cannot be deprived of humanity. They cannot be treated with contempt, brutality, disrespect, and inhumanity. Detention only takes the right to move from the prison.

The right to be treated as a human being during the confinement in prison.

A prisoner has a right to be treated as a human being and his confinement cannot deprive him from his liberty and dignity as a human. He has freedom to follow his religion, culture, and language[3]. He is also given the right to communicate with his friends, family, or any person from the outside world[4]. He shall not be a subject to discrimination and mental suffering or inhuman treatment or brutality[5]. Even the death punishment should be carried in a manner that inflict less pain[6]. In the case of State of Andra Pradesh v. Challa Ramkrishnan Reddy[7] it was held that they cannot be denied constitutional rights.

The prisons should have proper ventilation and the prisoners should be provided with adequate food at proper intervals and water should be available 24*7. He should be provided with cloths and cleaning facilities. Their health should be looked after and in case of any medical alignment, treatment should be provided. Education should be provided for the development of young prisoners. The aim of the prisons should be of social rehabilitation and training.

Rights Of The Prisoner Under Article 21

  • Rights to free legal aid:
    The rights given by the constitution will be meaningless if the prisoner in case of any violation of his rights is not able to access justice. A poor accused should be given free legal aid despite of his crimes[8]. The right is given to him till the time he is presented before magistrate. This shall be available during the trials too. The accused must be informed about his rights. It was held in the case Suk Das v. Union Territory of Arunachal Pradesh[9], that if this right is not applied by the accused for whatsoever reason, he cannot be denied of his constitutional rights.
  • Right to Speedy trials:
    In was observed in the case Hussainara Khatoon v. Home Secretary[10], that there are so many prisoners in the prison waiting for their trials form years. This was a serious matter, and the court took it as a shame on the system where people wait to get justice for years. The wait also exceeds the years of punishment. "Justice delayed is justice denied." The court made compulsory investigation "as expeditiously as possible." The order was passed by the court to release the prisoners who waited for the trials from a long time, even more than the punishment given if they were convicted.
  • Right to fair trials:
    This right is available to all the prisoners against the unlawful detention. Open court trials should be there so that it is just and fair. It was held in the case of Zahira Habibullah Sheikh v. State of Gujarat[11] that the fair trials are not just for the accused but to the family, relatives, and society.
  • Rights to Consult a Lawyer and meet friends/family:
    In the case Dharambir v. State of U.P.[12] the court said that family can visit the prisoner attest once a year. He has a right to inform anybody about his arrest.
  • Rights against cruel mode of execution of death sentence:
    A convicted person sentenced to death have certain rights that are derived from human dignity. The execution of death sentence shall not be barbaric and painful. It shall be carried out in a humane way and should be quick that causes minimum pain. Such methods that can cause pain and is cruel and inhuman violates Article 21 of the constitution as held in the case Deena @ Deen Dayal v. UOI[13]. It further held that execution of a death sentence shall be quick and in a decent manner that causes minimum pain. It shall be followed as per the procedure that is proved by the law.
  • Right Against Custodial Violence:
    There are some death cases because of cruel and brutal behavior of police towards a prisoner. The supreme court made it clear that there should be no harassment or threat to the accused to make confessions or submissions as it violates the right to dignity of an individual. A prisoner human dignity is protected by Article 21 from unnecessary torture.
  • Right Against Handcuffing:
    Handcuffing is considered inhuman, and it violates Article 21. The supreme court held that when there are chances for an accused to escape before the trials only then he should be handcuffed.[14]The prisoners whose punishment is of non-bailable offence and for more than three years, only they can be handcuffed regularly. Also, it was held that there shall be no handcuff in case the person submits himself into the custody[15]
  • Right to health and medical treatment:
    Article 21 makes it obligatory to safeguard the life of an individual by supplying them medical aid. The jail authorities are responsible to provide medical treatment to the prisoners that suffer from any kind of disease.
  • Right to Write a Book:
    A prisoner wrote a science book and wanted to send it to his wife so that she can publish. The government did not allow him to do so. Later it was held that as per article 21 everyone has a right to write a book and publish it and even if it was a prisoner[16]. It was infringement of right to personal liberty.
  • Right to be released on Bail:
    In the case of Babu Singh v. State of Uttar Pradesh[17] it was held by the Supreme court that bail should be given, and its refusal can be violative of personal liberty under Article 21 of Indian Constitution. In the case of bailable offences, the arrest person should be informed about his right to bail. However, in case of non bailable offences he can also be granted bail by the court after considering certain conditions.

Humans are born free, and we all have equal dignity. There is no exception of inhuman treatment, not even prisoners. Nobody should be subjected to torture, cruelty, brutality, and inhuman treatment. The dignity as a human is above all and it is every individual right. In recent years, the Apex court is taking measures considering the importance of the rights of prisoners. A prisoner cannot demand for the fundamental rights.

However, he has been provided with certain basic rights that does not put all his rights "behind the bars." Article 21 of the Indian Constitution which tells right to life and human dignity has a very wide approach. This right is available to all including the prisoners. This article makes sure that the prisoners are treated as a human and with human dignity. It also prohibits all those brutal practices that can violate the rights of prisoner as a human being. No prisoner can be treated with brutality, cruelty, and barbarity.

  • Even after establishment of proper procedure of law there are still certain practices that violate the human rights of a prisoner being practiced. Custodial violence is common amongst them. There are number of sections in Indian Penal Code, 1860 and Criminal Procedure Code, 1973 that can be followed properly and improve the condition of the prisoners in jail.
  • After the punishment is over and the prisoner is discharged, it is believed that he can live a good life. But that is not the case, the society still considers him as a person who is guilty even after he has been punished for the same. So, he shall be provided with some training that will help him to live a respectful life when he is discharged.
  • They shall be aware of the norms and social outlook so that they do not again engage in such activities that are not acceptable in the society once they are discharged after the completion of the punishment.
  • Special focus should be made on the young generation because they are the future of our country, and they shall be changed in order to fit into the society.
  • Government should keep a check on the management of the prisons and audit them time to time to avoid any kind of violation of the rights of the prisoners.
  • The prisoners shall also not cause harm to each other within the prisons. The prison authority should look after it and keep strict check upon the activities of the prisoners.
  • There shall be no racism on the basis of caste, creed, sex, race etc. They all shall be treated equally in the prisons.

  • Human Frights Of Prisoner's Under Indian Constituion - Dr. Kalpana Bhardwaj
  • The United Nations Standard Minimum Rules for the Treatment of Prisoners: (the Nelson Mandela Rules).
  1. State of Andhra Pardesh v Challa Ramakrishna Reddy AIR 1989 AP 235.
  2. Lynn S Branham, "The Mess We're in: Five Steps Towards the Transformation of Prison Cultures" 44 Indiana L Rev 703 (2011).
  3. Universal Declaration of Human Rights, 1948 (UDHR), art. 18; International Covenant on Economic and Political Rights (ICCPR), art. 8 and 27.
  4. Supra note 3, UDHR, art. 12; ICCPR, art. 17.
  5. Supra note 3, UDHR, art 5; ICCPR, art.7; Convention against Torture and other Cruel, Inhuman or Degrading treatment or Punishment, 1984, Preamble, art. 2, 7 and 16.
  6. ECOSOC Res 1984/50 of 25 May 1984, "Safeguards Guaranteeing Protection of the rights of those Facing the Dealth Penalty"
  7. AIR 2000 SC 2083.
  8. M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548.
  9. 1986 SCC (2) 401.
  10. 1979 AIR 1369.
  11. (2006) 3 SCC 374.
  12. 1979 AIR 1595.
  13. 1983 AIR 1155.
  14. Prem Shankar v. Delhi Administration 1980 AIR 1535.
  15. Birendra Kumar Rai vs. UOI (1993) 1 SCC 272.
  16. State of Maharashtra v. Prabhakar Pandurang AIR 1966 SC 424.
  17. AIR 1978 SC 527.
Written By: Devanshi Sharma, Final Year LL.B. (Hons.) Student Jindal Global Law School, O.P. Jindal. Global University

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