Every Saint Has A Past; Every Sinner Has A Future – Oscar Wilde
Historical Background of Prison and Prisoners
The word Prison doesnt means to use sudden force or to cage. The
Prison is an old age foundation. Prison is a place, properly arranged for those
culprits through legal process are kept for safe custody while in trial or for
punishment. Initially, it was just a place where offenders are kept for trials
and ultimate punishment, but their occurred an intermediate point-imprisonment
was regarded in itself.
Lord Macaulay in his book Minutes of 1835 said that:
Imprisonment is the punishment to which we must chiefly trust. He was the
one who put the idea for the idea for the establishment of such rules and
regulations, main aim was to destroy criminal streak among convicted offenders.
If we turn the pages of our past Indian History, there are descriptions of
prisoners, in Manusmriti it is stated that King should have all the prisons
where all the evil and wrongdoers are kept. In the historical writings of Huein-Tsang
and Fa-Hein polished treatment of prisoners was unknown during ancient India and
also stated about brutal and barbaric punishment of the prisoners.
The post independence period saw a major change in our prison system. Government
took special interest in it. Around 1951, experts were invited from United
Nations to study the prison administration and they were said to suggest some
suggestion so as to develop prisoners rights. Shocking to know that even till
now many civilized countries like India, China doesn't have codified rights of
the prisoners, but still our Honorable Judiciary has recognized a long list of
right of prisoners and still Government is working for the welfare of the
Prisons are often placed at the extreme end of the Criminal Justice System. They
inevitably become forgotten institutions that confine persons either facing
trial or convicted of crimes. The role of Judiciary is commonly believed to have
ended when the accused is convicted and sent to prison to undergo punishment.
Yet, time and again, the Courts have intervened to reiterate the obvious:
A Prisoner Does Not Cease To Remain A Human Being Even After Punishment. The
restriction on liberty imposed by law does not take away ones right to dignity
enshrined under the Constitution of India. She/he is entitled to basic human
rights behind bars.
In India, prisons are governed by State laws framed under a Century Old Parent
Legislation, the Prisons Act of 1894. Very few States / Union Territories such
as Andaman & Nicobar Islands, Arunachal Pradesh, Bihar, Daman & Diu, Delhi, Goa,
Sikkim, and West Bengal have Acts / Rules / Manuals which were formulated in the
21st Century. The changes brought in these State Legislations have contributed
little in the development of a legal framework which, inter alia, provides for
Rights of Prisoners.
This lacking of rights based approach in the statutory law on prisons is
remedied by the Courts through recognition of Rights of Prisoners in their
judicial pronouncements. Merely changing the nomenclature of prisons to
Correction Homes, as the Supreme Court of India has said, will not resolve
the problem. [Order Dated 15.09.2017 passed in In Re-Inhuman Conditions in
1382 Prisons Vs State of Assam & Ors., WP(C) 406 / 2013].
Prisoners are also entitled to rights to some extent as a normal human being
when they are behind the prison. These rights are provided under the
Constitution of India, the Prisons Act, 1894 etc. Prisoners are persons and have
some rights and do not lose their basic constitutional rights.
In the case of [State of A.P. Vs Challa Ramkrishna Reddy, (2000) 5 SCC
712: AIR 2000 SC 2083], it was held that a prisoner is entitled to all his/her
fundamental rights unless his/her liberty has been constitutionally curtailed.
The Supreme Court has emphasized that a prisoner, whether a convict, under-trial
or detenu, does not cease to be a human being and, while lodged in jail, he/she
enjoys all his/her fundamental rights guaranteed by the Constitution of India
including the right to life guaranteed by the Constitution of India. Even a
person is convicted and deprived of his/her liberty in accordance with the
procedure established by law; a prisoner still retains the residue of
Prisoners Rights under the Constitution of India
Constitution of India does not expressly provide the provisions related to the
prisoners rights but in the case of [T.V. Vatheeswaran Vs State of Tamil Nadu
1983 (2) SCC 68], it was held that the Articles 14, 19 & 21 are available to the
prisoners as well as freemen. Prison walls do not keep out fundamental rights.
Article 14 of the Constitution of India says that the State shall not deny to
any person equality before law or the equal protection of laws within the
territory of India. Thus Article 14 of the Constitution of India contemplated
that like should be treated alike, and also provided the concept of reasonable
classification. Article 14 of the Constitution of India is very useful guide and
basis for the prison authorities to determine various categories of prisoners
and their classifications with the object of reformation.
Article 19 of the Constitution of India guarantees six freedoms to the all
citizens of India. Among these freedoms certain freedoms i. e freedom of
speech and expression under Article 19 (1)(a) freedom to become member of
an association under Article 19 (1)(g) cannot enjoyed by the prisoners
because of the very nature of these freedoms.
Article 21 of the Constitution of India says that No person shall be deprived of
his/her life or personal liberty except according to procedure established by
law. This Article stipulates two concepts i.e., right to life and principle of
liberty. By Article 21 of the Constitution of India it is clear that it is
available not only for free people but also to those people behind the prison.
Following are the rights of prisoners which are implicitly provided under the
Article 21 of the Constitution of India
Right To Free Legal Aid; Though the Right to Legal Aid is not something explicitly defined by
Constitution of India, the legal executives often display kindness towards
detainees who cannot afford it or simply connect with the legal counsellor
voluntarily. Free Legal Aid is included by the 42nd Amendment Act, 1976, as
one of the Directive Principles of State Policy under Article 39-A of the
Constitution of India. Although it is the most significant and direct
Article of the Constitution, which discusses Free Legal aid, this Article is
not exactly enforceable by Courts. Still, these guidelines are central to
administering appropriate legislation. Article 37 of the Constitution of
India directs the State to apply these standards.
In contrast, Article 38 of the Constitution of India prescribes advancing
Government assistance of individuals by ensuring and securing a social order
wherein equity, social, monetary, and political, will illuminate all the
establishments and national legislation. The Parliament passed the Legal
Services Authorities Act, 1987 under which legitimate Aid is provided for,
while different State Governments have set up lawful advisory boards and
plans for Free Legal Aid and unforeseen issues to give effect to the
Constitutional command of Article 39-A of the Constitution of India. Under
the Indian Human Rights law, legal Aid is of great importance, and it is not
only accessible in criminal cases but is additionally offered in standard,
income, and regulatory matters.
As exemplified in the case of [Madhav Hayawadan Rao Hosket Vs State of
Maharashtra, (1978) 3 SCC 544] a three adjudicators seat (V. R. Krishna
Iyer, D. A. Desai and O. Chinnappa Reddy, JJ) of the Supreme Court perusing
Articles 21 & 39-A of Constitution of India, alongside Article 142 and
Section 304 of Code of Criminal Procedure, 1973 together pronounced that the
Government was under obligation to offer legitimate types of assistance to
the charged people, as under;.
24. If a prisoner sentenced to imprisonment, is virtually unable to exercise
his constitutional and statutory right of appeal, inclusive of special leave
to appeal, for want of legal assistance, there is implicit in the Court
under Art. 142 read with Articles 21 & 39-A of the Constitution, power to
assign counsel for such imprisoned individual for doing complete justice.
This is a necessary incident of the right of appeal conferred by the Code
and allowed by Article 136 of the Constitution.
The inference is inevitable that this is a States duty and not Governments
charity. Equally affirmative is the implication that while legal services
must be free to the beneficiary the lawyer himself has to be reasonably
remunerated for his services. Surely, the profession has a public commitment
to the people but mere philanthropy of its members yields short mileage in
the long run.
Their services, especially when they are on behalf of the State, must be
paid for. Naturally, the State concerned must pay a reasonable sum that the
court may fix when assigning counsel to the prisoner. Of Course, the court
may judge the situation and consider from all angles whether it is necessary
for the ends of justice to make available legal aid in the particular case.
In every country where free legal services are given it is not done in all
cases but only where public justice suffers otherwise. That discretion
resides in the Court.
Right To Speedy Trial; The Speedy Trial is an essential feature of fair trial as adage; Justice
hurried is Justice worried. Thus there is need to strike balance between
right of the accused to have a speedy trial and right of the prosecution to
fair opportunity to establish guilt of accused. The concept of right to
speedy trial flows from Article 21 of the Constitution of India.
The Speedy Trial of offenses is one of the essential targets of the criminal
equity conveyance framework. When the Court takes the comprehension of the
allegation, then the prosecution must be directed speedily to rebuff the one
who is liable and to exonerate the guiltless.
The right to a Speedy Trial is provided under Section 309 of Code of
Criminal Procedure, 1973. If the arrangements of Code of Criminal Procedure,
1973 were followed in their letter and soul, at that point, there would be
no doubt of any complaint. However, these laws are not appropriately
executed. It is essential that the Constitutional assurance of speedy trial
exuding from Article 21 of the Constitution of India ought to be adequately
reflected in the arrangements of the Code.
Initially, right to Speedy Trial was first discussed in the landmark
document of English Law, the Magna Carta. Right to Speedy Trial is an
abstract idea which deals with the disposal of along-with the Justice. In
the leading landmark case [Hussainara Khatoon Vs State of Bihar,
(1980) 1 SCC 81], it was held that Speedy Trial is an essential ingredient
of right to life and liberty under Article 21 of the Constitution and it is
the constitutional duty of the State to set up procedure to ensure Speedy
For this reason, in [A. R. Antulay Vs. R. S. Nayak & Anr., AIR 1988
SC 1531, throws considerable light on the right to speedy trial as is
recognized in India. It is now well accepted that right to speedy trial is
an inherent and flows from Article 21 of the Constitution of India, which
declares that no person should be deprived of his/her life and liberty
expect in accordance with procedure prescribed by law.
The Supreme Court set suggestions that will be implemented in ensuring the
Human Rights of detainees. The Supreme Court then concluded that the
privilege to speedy trial spilling out of Article 21 of the Constitution
applies to charges at any stage such as examination, request, trial, bid,
modification, and retrial.
Right Against Cruel & Unusual Punishment; Human rights are part and parcel of Human Dignity. The Supreme Court in
catena of Judgments has taken serious note of the inhuman treatment on
prisoners and issued appropriate directions to the prison and police
authorities for safeguarding the rights of the prisoners and the persons in
lock-ups. The treatment to a human being which offends human dignity,
imposes avoidable torture and reduces the man to the level of a beast would
certainly be arbitrary and can be questioned under Article 14 of the
Constitution of India. In [Raghubir Singh & Ors Vs State of Bihar, AIR 1987
sc 149], the Supreme Court expressed its anguish over police torture
upholding the life sentence awarded to a police officer responsible for the
death of a suspect due to torture in the police lock-up. In [Kishore Singh
Vs State of Rajasthan, AIR 1981 SC 62], the Supreme Court held that the use
of third degree method by police is violative of Article 21 of the
Constitution of India.
Right To Fair Trial; The golden rule that runs through the web of civilized criminal
jurisprudence is that an accused is presumed innocent until proved guilty of
the charged offence. Presumption of innocence is a human right recognized as
such under Article 14 (2) on the International Covenant on Civil & Political
Rights 1966. Article 11(1) of the Universal Declaration of Human Rights
1948, also provides that any person charged with penal offences has a right
to be presumed innocent until proved guilty according to law in public trial
in which he/she has all the guarantees necessary for hi/her defence. Even
before these declarations, this principle was part of common law of England
as observed by Viscount Sankey in [Woolington Vs Director of Public
Prosecutions, (1935 AC 462)]. The right to Fair Trial is one of the
fundamental guarantee of human rights and Rule of Law, aimed at ensuring
administration of justice.
It would not be an exaggeration if it is stated that a Fair Trial is
the heart of criminal jurisprudence and, in a way, an important facet of a
democratic polity that is governed by Rule of Law. Denial of Fair Trial is
crucifixion of Human Rights. It is ingrained in the concept of due process
of law. While emphasising the principle of Fair Trial and the practice of
the same in the course of trial, it is obligatory on the part of the Courts
to see whether in an individual case or category of cases, because of
non-compliance of a certain provision, reversion of Judgment of conviction
is inevitable or it is dependent on arriving at an indubitable conclusion
that substantial injustice has in fact occurred. The seminal issue is
whether protection given to the accused under the law has been jeopardised
as a consequence of which there has been failure of justice or causation of
any prejudice. Once prejudice is caused to the accused during trial, it
occasions in Failure of Justice.
Failure of Justice has its own connotation in various jurisprudences.
The concept of Failure of Justice was further elaborated by Supreme Court in
[Rattiram Vs State of M. P. Through Inspector of Police, AIR (SCW)
1772], as under;
36. Having dealt with regard to the concept of fair trial and its
significant facets, it is apt to state that once prejudice is caused to the
accused during trial, it occasions in failure of justice.
Failure of justice has its own connotation in various jurisprudences. As far
as criminal jurisprudence is concerned, we may refer with profit to certain
authorities. Be it noted that in Bhooraji (supra), the Court has referred to
Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 : 2001
SCC (Cri) 358 wherein it has been observed as follows:
23. We often hear about failure of justice and quite often the submission in
a criminal court is accentuated with the said expression. Perhaps it is too
pliable or facile an expression which could be fitted in any situation of a
case. The expression `failure of justice would appear, sometimes, as an
etymological chameleon (the simile is borrowed from Lord Diplock in Town
Investments Ltd. vs. Department of the Environment 24 (1977) 1 All ER
813). The criminal court, particularly the superior court should make a
close examination to ascertain whether there was really a failure of justice
or whether it is only a camouflage.
Right To Live With Human Dignity; The right of a human being to live with dignity is protected by the
Constitution of India. This right is also given to the prisoners as their
mere conviction does not render them inhuman. This right forms a significant
part of right to life guaranteed under the constitution of India. The idea
behind is that every persons life is precious and irrespective of the
circumstances, he/she should be given a sense of dignity to help him/her
The Courts have enlarged the scope of Article 21 of the Constitution of
India to include this right. Its occurrence could be noted in many cases.
Some of them are enumerated below:
In the case of [Maneka Gandhi Vs Union of India, AIR 1978 SC 597],
the Supreme Court propounded a new dimension of Article 21 of the
Constitution of India wherein it stated that right to life or live does not
confine itself to mere physical existence but also includes right to live
with human dignity.
Further, in [Francis Coralie Mullin Vs The Administrator, Union Territory
of Delhi & Ors., AIR 1981 SC 746] while expanding the aforementioned
concept, the Supreme Court held that the word life includes everything that
it goes along with it, namely the bare necessaries of the life such as
adequate nutrition and food, clothing and shelter over ones head, facilities
for reading, writing (education), ability and opportunity of expressing
oneself in diverse forms, moving freely, mixing and commingling with fellow
Thereafter, the Apex Court in [Pandit Parmanand Vs Union of India,
AIR 1989 SC 2039] expanded the concept of life and ruled that the
word life is not just limited up to the period of death but even
after that. Therefore, when a person was executed with the death penalty (as
in this case) but the dead body was not lowered even after half an hour, in
spite of the fact that the doctor already gave the death certificate, the
Supreme Court held that it amounted to a violation of Right to life under
Article 21 of the Constitution of India. It can be concluded that Right to
live continues even after death and includes in its ambit the right to
proper handling of the dead body or right to a decent burial.
The Supreme Court in [State of Andhra Pradesh Vs Challa Ramakrishna Reddy
held that the right to life is one of the basic human rights which is
guaranteed to every person by Article 21. It is so fundamental that even the
State has no authority to violate it. A prisoner does not cease to be a
human being even when lodged in jail. He continues to be a human and
therefore is entitled to enjoy all the fundamental rights including the
right to life.
Apart from these rights of prisoners Constitution of India also provides
following rights to the prisoners:
Right To Meet Friends & Consult Lawyer; The horizon of Human Rights is expanding and the Prisoners rights have been
recognized not only to protect them from physical discomfort and torture,
but also to save them from mental torture. The right to have interview with
the members of ones family and friends is clearly part of the Personal
Liberty enshrined in Article 21 of the Constitution of India.
Prisoners are not only protected physically but also mentally. It is
necessary for individuals to meet for the purpose of information, its
peoples right. Consult lawyers are their legal representatives, the act done
by them directly affects the convicts case. Visiting of friends and family
members give them mental stability to survive in such a worst condition
where people are unknown to each other. In [Francis Coralie Mullin Vs The
Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746], the
Supreme Court held that prisoners can have interview with family members,
friends and lawyers without any severe restrictions, and allowed to go
outside the jail and could not socialize with persons outside jail.
- Rights Against Solitary Confinement, Handcuffing & Bar Fetters and
Protection From Torture;
- Solitary Confinement, according to Blacks Law Dictionary, in
general sense, means the separate confinement of a prisoner, with only
occasional access of any other person, and that too only at the discretion
of the Jail authorities and in stricter sense, it means the complete
isolation of a prisoners from all human society and his/her confinement in a
cell is arranged that he/she has so no direct intercourse with or sight of
no human being or no employment or instruction.
In [Sunil Batra Vs Delhi Administration, AIR 1980 SC 1579], it was
held that solitary confinement could be imposed only in exceptional cases
where a convict was of such a dangerous character that he must be segregated
from other prisoners. Solitary confinement has a degrading and dehumanizing
effect on prisoners. Constant and unrelieved isolation of prisoners
represents the most destructive abnormal environment. Results of long
solitary confinement are disastrous to the physical and mental health of
those who subjected to it.
The Courts have solidified their perspective to be against solitary
confinement and held that the inconvenience of solitary confinement is an
exceptionally corrupting and dehumanizing impact on prisoners. However, the
Courts placed an exception for unusual situations where the convict was a
direct threat to others; he/she should then be isolated from the remaining
prisoners. The Supreme Court reflected upon the legitimacy of such
confinement in the Sunil Batra case. The Supreme Court has also
firmly objected against applying bar shackles to the prisoners. The Court
saw that always keeping a prisoner in shackles day and night diminished the
detainee from individual to a creature, and such treatment was so inhuman
and abnormal that the utilization of bar chains was against the soul of the
Constitution of India.
- Right To Reasonable Wages In Prison; [Peoples Union for
Democratic Rights Vs Union of India, AIR 1982 SC 1473].
Whenever during the imprisonment, the prisoners are made to work in the
prison, they must be paid at the reasonable rate. The wage rate should not
trival or below minimum wages. In [Mohammad Giasuddin Vs State of Andra
Pradesh, AIR 1977 SC 1926], the Supreme Court directed the State to take
into account this factor, while finalizing the rules for payment of wages to
prisoners as well as to give retrospective effect to wage policy. In the
matter of [Re: Prison Reforms Enhancement ... Vs Unknown, AIR 1983 Ker.
261], the Kerala High Court held that labour taken from the prisoners, which
has not properly remunerated was forced labour and hence violative of
Article 23 of the Constitution of India.
Prisoners Rights under the Prisons Act, 1894
Prisons Act, of 1894 is the first legislation regarding prison regulation in
India. This Act mainly focus on reformation of prisoners in connection with the
rights of prisoners. Following Sections of the Prisons Act, 1894 are related
with the reformation of prisoners:
- Accommodation & Sanitary Conditions For Prisoners; Section 4 of the
Prisons Act, 1894
- Provision For The Shelter & Safe Custody Of The Excess Number Of
Prisoners Who Cannot Be Safely Kept In Any Prison; Section 7 of the Prisons
- Provisions Relating To The Examination Of Prisoners By Qualified Medical
Officer; Section 24 (2) of the Prisons Act, 1894
- Provisions Relating To Separation Of Prisoners, Containing Female & Male
Prisoners, Civil and Criminal Prisoners and Convicted and Under-trial
Prisoners; Section 27 of the Prisons Act, 1894
- Provisions Relating To Treatment Of Under-trials, Civil Prisoners,
Parole and Temporary Release Of Prisoners; Sections 31 & 35 of the Prisons
In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill,
2016 to amend the Prisons Act, 1894 with a view to provide protection and
welfare of the prisoners.
Prisoners are some of the worst victims of the violation of fundamental rights.
The Supreme Court has reiterated the Principle imprisonment does not spell
farewell to fundamental rights. Thus the Supreme Court has cordially declared
that for a prisoner the fundamental rights are enforceable reality, though
restricted by the fact of imprisonment.
It can be said that the prisoners are also entitled to all his/her fundamental
rights while they are behind the prisons. Constitution of India does not
expressly provides for the prisoners rights but Articles 14, 19 & 21 of
Constitution of India implicitly guaranteed the prisoners rights and the
provisions of the Prisons Act, 1894 contains the provisions for the welfare and
protection of prisoners.
The Supreme Court has ruled that it can intervene with prison administration
when constitutional rights or statutory prescriptions are transgressed to the
injury of the prisoner. Supreme Court in many cases held that prisoner is a
human being, a natural person and also a legal person.
Being a prisoner he/she does not cease to be a human being, natural person or
legal person. Conviction for a 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 absence of procedural safeguards.
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature,
Email: [email protected], [email protected]