The law on the rights of the prisoners has been an evolving one. There is no
comprehensive legislation to deal with prisoners rights and regulate their
conduct while in jail. However, the Judiciary of the country has given due
recognition to the convicts and their fundamental rights time and time again. In
the absence of thorough legislation, it has managed to set precedents and
principles upholding the various rights of the prisoners that not only guide but
also bind all the courts in India.
The main objective of prisons is to bring the offenders back to the mainstream
of the society. If a person commits any crime, it does not mean that by
committing crime, he ceases to be a human being and that he can deprive off
those aspects of life which constitutes human dignity. He still remains a human
who should be treated like one. He should be given the basic human rights
available to every man walking on the earth. But at the same time, he should not
be treated as a free man with all absolute rights and luxuries. His freedom
should be subject to certain limitations and legal restrictions. These
restrictions, in addition, should be reasonable.
The apex court of the USA in the case of Charles Wolff v. McDonnell and the
Supreme Court of India in its famous cases like DBM Patnaik v. State of Andhra
Pradesh and, Sunil Batra v. Delhi Administration has emphatically stated that it
must be realised that a prisoner is a human being as well as a natural person or
a legal person. If a person gets convicted for a crime, it does not reduce him
to the status of a non-person whose rights could be snatched away at the whims
of the prison administration.
The Supreme court of India has been deliberating with the central and state
governments since a long time to improve the deteriorating condition of the
prisoners which is fundamental because of the overcrowding of prisons, lack of
training facilities, personnel and poor infrastructure, etc. Therefore, it is
mandatory to invoke the rights and constitutional safeguards of the prisoners.
Such rights of, unless they are propagated and implemented in each corner and
the entire perimeter of the prism, are a nullity and betrayal of human faith on
the criminal justice delivery system.
Legal Framework In International Scenario
International Human Rights Law
International Human Rights Law protect from various inequalities like racism,
discrimination among poor and elite group of people, torture. According to them,
no person shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. Clothing is considered as a component to an adequate
standard of living standard. There should be a proper hygiene system where
prisons live. All prisoners shall be offered a proper medical examination and
treatment as soon as possible after admission. They also recognize the rights of
specific groups of people, including women, children and for disable peoples.
Basic principles for the betterment and good treatment of prisoners was adopted
and was officially announced by General Assembly revolution on December 14,
1990.The principles are as follows
- Prisoners shall be treated with inherent dignity and valued as human
- No discrimination on the grounds of race, sex, colour, language,
- national, social origin, property, birth, or other status. Respect the
religious beliefs and cultural percepts of the group to which the prisoners
- The responsibility of the prisons for the custody of prisoners and for
the protection of the· society against crime and its fundamental
responsibilities for promoting the well-being and development of all members
of the society.
- All prisoners shall retain the human rights and fundamental freedoms set
out in UDHR, ICESCR, ICCPR and the optional protocol as well as such other
rights are set out under in other United Nations covenants.
UN Core Conventions And Specific Instruments
In 1955, Amnesty International prepared certain rules and regulations for the
betterment of the prisoners.
Some important relevant rules are:
- Perception of equality should be there. There should be no
discrimination on grounds of sex, race, colour, religion. Political or other
opinion, national or social origin, property, birth or other status among
- Men and women must be kept in a separate institutions.
- There should be a separation of the prisoners for the civil and criminal
- Prohibition of cruel inhuman degrading punishments, otherwise it will
lead to severe punishment.
- Availability of at least one qualified medical officer with knowledge of
Article 5 of Universal Decleration of Human Rights proclaims that:
shall be subjected to torture or to cruel, inhuman or degrading treatment or
Article 7 of the International Covenant on Civil and Political Rights, 1966
creates an obligation for the State parties to it that:
No one shall be
subjected to torture or to cruel, in human or degrading treatment or
Legal Framework In Indian Scenario
Fundamental rights form the core of human rights in India. All the human beings
have their own fundamental rights. Likewise prisoners also entitled to some
extent of their fundamental rights. The Supreme Court of India has reiterated
the Principle "imprisonment does not spell farewell to fundamental rights". Thus
the court has cordially declared that for a prisoner the fundamental rights are
enforceable reality, though restricted by the fact of imprisonment.
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 contemplated that like should be treated
alike and also provided the concept of reasonable classification. This Article
is very useful guide and basis for the prison authorities to determine various
categories of prisoners and their classifications with the object of
Article 19 of the Constitution Of India guarantees six freedoms to the all
citizens of India which are as follows:
- Freedom of speech and expression
- Freedom to assemble peacefully without arms
- Freedom to form associations or unions
- Freedom to move throughout the territory of India
- Freedom to reside and settle in any part of the territory of India
- Freedom to practice any profession, or to carry on any occupation, trade
Among these freedoms, certain freedoms except the 'Freedom of speech and
expression' and 'Freedom to become member of an association' cannot be 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 life or personal liberty except according to the procedure established by
This Article stipulates two concepts i.e., right to life and personal liberty.
By Article 21 of the Indian Constitution it is clear that its is available not
only for free people but also those people behind the prison.
The Hon’ble Supreme Court has repeatedly applied the rule of Article 21 in
numerous cases. in the much-known case of Kharak Singh v. State of UP. In the
said case, the court ruled that the term “life” connotes more than mere
existence like that of an animal. It can be said that right to live is not
restricted to a mere animal existence. It connotes something more than just the
physical survival of a being.
Right To Priacy
The Right to Privacy is one of the very significant rights available to the
citizens of India. They form an intrinsic part of Right to Life and Personal
Liberty under Article 21 of the Indian Constitution. They have also been made
applicable to the prisoners and convicts through various judgements passed by
courts over the years The right to privacy in respect to search and seizure was
first raised in the 1950s, where the apex court ruled that search and seizure
cannot be seen as violative of Article 19 (1)(f) of the Indian constitution and
a mere search by itself does not nullify or harm an individual’s right to
The concept of right to privacy has evolved over the years. In recent time, its
scope has been widened to benefit people in the most possible way.
In the case of Rohit Shekha v. N.D Tiwari, the court held that nobody should be
compelled to be subjected to any techniques in question at any circumstances,
even when it is in the context of an investigation in a criminal case.
Proceeding with such acts would result in an unwarranted intrusion into an
individual’s personal liberty.
Right to Privacy of prisoners and their spouses
In Rahmath Nisha v. Additional Director General of Prisoner and Others, the
accused was given 10 days leave to visit his wife. But, due to serious illness,
his wife was transferred to the hospital in ICU by the time he reached home.
However, the police escort that accompanied the accused refused to let him visit
the hospital citing that permission has been granted to visit home only. The
Madras Court held that the prisoner should be allowed to visit his wife in
hospital and that the meeting between him and his wife should not be monitored.
Right Against Solitary Confinement And Bar Fetters'
Solitary confinement is a kind of imprisonment in which the convict or prisoner
is kept in a different cell with little or no contact from other inmates. The
idea behind solitary confinement is to teach notorious convicts discipline and
provide safety to other inmates from them.
The validity of solitary confinement was considered by the Supreme Court in the
famous case of Sunil Batra v. Delhi Administration wherein the honourable court
highlighted that imposition of solitary confinement is only to be made in
exceptional cases where the prisoner is of such violent or dangerous nature that
his segregation becomes an utmost necessity.
The court also observed that keeping prisoners in bar fetters day and night
reduces them to the level of an animal and deteriorates their mental health. The
courts, therefore, have presented strong resentment against solitary and stated
its confinement as highly dehumanizing and derogatory in nature. They have also
held such confinements to be against the spirit of the Constitution of India.
Right To Lie With Human Dignity
The right of a human being to live with dignity is protected by the
constitution. 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
person’s life is precious and irrespective of the circumstances, he should be
given a sense of dignity to help him continue living. The courts have enlarged
the scope of Article 21 to include this right.
In the case of Maneka Gandhi v. Union of India, the apex court propounded a new
dimension of Article 21 wherein it stated that “right to life or live” does not
confine itself to mere physical existence but also includes right to live with
Further, in Francis Coralie v. Delhi Administration, while expanding the
aforementioned concept, the 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 one’s head, facilities
for reading, writing (education), ability and opportunity of expressing oneself
in diverse forms, moving freely, mixing and commingling with fellow human
Thereafter, the apex court in Pandit Parmanand v. Union of India 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 court held that it amounted to a violation of Right to life
under Article 21. 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.
Right To Legal Aid
Legal assistance plays a significant part in the life of an accused awaiting
trial or any prisoner or convicts, for that matter. The 42nd Amendment to the
Constitution (1976) of India incorporated services of free legal aid as Article
39A under the head Directive Principles of State Policy. Though this Article is
part of the directive principles of state policy and hence, not enforceable, the
principles underlined therein are of utmost importance.
The parliament has enacted the Legal Services Authorities Act in 1987 wherein it
guaranteed legal Aid. It also directed various state governments to set up Legal
Aid and Advice Boards, and frame schemes aiming to provide Free Legal Aid. This
was done so that the Constitutional mandate of Article 39-A could be given an
Justice Krishna Iyer emphatically declared that “Right to free legal aid is the
State‘s duty and not Government’s charity”.
Right To Speedy Trial
It is very well said that justice delayed is justice denied. Every prisoner has
a right to a speedy trial irrespective of the crime he is convicted of. Speedy
trial is considered as an integral part of the criminal justice delivery system.
Once a person is accused, he must be subject to speedy trials so as to punish
him from the crime he committed or absolve him from it, if not proven guilty. No
one should be subject to long, pending and tiresome trials as it not only
violates the rights of an individual but is considered to be the denial of
justice altogether. The right to a speedy trial, therefore, has become a
universally recognized human right. Moreover, the right to a speedy trial is
also contained under Section 309 of the Code of Criminal Procedure.
In the leading landmark case HUSSAINARA KHATOON V. HOME SECRETARY, STATE OF
BIHAR, it was held that speedy trial of a accused is his fundamental right under
Article 21. If any person who denied his right to speedy trial can directly go
to Supreme Court under Article 32 for enforcing such rights.
Right To Health And Medical Treatment
Right to health is an important right. The Constitution of India incorporates
provisions guaranteeing every individual the right to the highest attainable
standard of physical and mental health. In a series of judgements, the highest
court of the land has held that the right to health care is a crucial element of
The Gujarat High Court in Rasikbhai Ramsing Rana v. State of Gujarat held that
the right to medical treatment is one of the basic human rights that should be
made available to every person. The court further guided the concerned jail
authorities to take proper mental and physical health care of the prisoners
which were suffering from any type of disease.
The same court, in a suo moto writ, issued guidelines to the Central government
to equip all Central and District jails with facilities such as ICCU, pathology
lab, proficient doctors, sufficient staff including nurses and latest
instruments for medical treatment.
Narco Analysis/Brain Mapping/Polygraph
In the case of Seli.State Of Karnataka (2010 right To Reasonable Wages), the Supreme Court has deemed
methods such as narco-analysis, polygraph test and brain mapping as
unconstitutional, thereby violating human rights.
They were marked as a detriment to the accused person's psyche, thereby
interfering with the rights to protection of a person. The Supreme Court
acknowledged that the tests oppose Article 20(3), which mentions that an
individual cannot be compelled to provide proof against himself.
Right To Reasonable Wages
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 . State Of A.P., the 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 P.R.E. of Wages of Prisoners, the court has held that labour
taken from the prisoners, which has not properly remunerated was “forced labour”
and hence violative of Article 23 of the constitution.
Right To Meet Friends And Consult Lawyer
Prisoners are not only protected physically but also mentally. It is necessary
for individuals to meet for the purpose of information, it’s people’s right.
Consult lawyers are their legal representatives, the act done by them directly
affects the convict’s 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 . The Administrator, Union Territory Of Delhi And
Others, 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.
Right Against Inhuman Treatment
It is the right of every prisoner to be protected against any type of cruel or
inhuman treatment. The Supreme Court of India in several cases has highlighted
the harsh treatments faced by prisoners and directed state and prison
authorities to check and regulate the same. The court also prohibited the use of
instruments such as handcuffs, chains, irons and straitjackets in punishing the
prisoners. Some other instruments of restraint are permissible but only under
These circumstances are mentioned hereunder:
- Using instruments of restraint for precaution during the transfer of
prisoners against escape, conditional upon the fact that it shall be removed
while producing the prisoner before an administrative or judicial body.
- If the medical officer permits the same on certain medical grounds;
- In cases wherein it is difficult to prevent a prisoner from self-harm or
damaging the property around, the director in consultation with the medical
officer and after reporting the higher administrative authority may order
the prisoner to be put in instruments of restraint.
The patterns and manner of use of instruments of restraint shall be
decided by the central prison administration. Such instruments must not be
applied for any longer time than is strictly necessary.
In Sunil Gupta v. the State of MP, the petitioners had voluntarily surrendered
themselves. They even refused to bail out and decided to stay in prison for the
cause of public good. Even though they were put in handcuffs and taken to court
by the escort party. The court expressed that the act done by the escort party
was inhuman in nature and violative of Article 21 of the Constitution. The court
also directed the government to take immediate and appropriate action against
the defaulting escort part for having acted unjustly and unreasonably in
handcuffing the prisoners.
Right To Education
Right to education is a Fundamental Right and therefore it should be given to
every citizen of the country. Along with education, it is compulsory that the
right type of education should be imparted.
In Mohammad Giasuddin v. State of AP, the court tried to regulate the manner of
work and education provided to the inmates of the jail. It directed the state
government to look into the nature of work and education given to the prisoners
and check that the work provided is “not of a monotonous, mechanical,
intellectual or like type mixed with a title manual labour…”.
Moreover, basic learning such as tailoring, embroidery, doll-making should be
extended to the women prisoners. In addition to that, the well-educated
prisoners should be given the opportunities to engage in some sort of
mental-cum-manual productive work.
Right To Receive Books/Magazines/Publication
In State of Maharashtra v. Prabhakar Pandurang Sanzgir wherein an accused
detained under preventive detention was not allowed to hand over his unpublished
book to his wife for publication, the court termed such an act as violative of
In yet another case of Rajgopal v. State of Tamil Nadu, the Supreme Court held
that there was no authority in law that could priorly deny the permission to
publish the autobiography of Auto Shanker (prisoner) under the fear or
impression that it would cause defamation of prominent IAS and IPS officers. The
concerned officials can take action after the publication and only if the
publications are false.
Rights Of Prisoners In India Under The Prisons Act, 1894
Prisons Act of 1894 is the first legislation regarding prison regulation in
India. This Act mainly focuses on the reformation of prisoners in connection
with the rights of the prisoners.
Following Sections of the Prisons Act, 1894 are related to the reformation of
- Accommodation and sanitary conditions for prisoners
- Provision for the shelter and safe custody of the excess number of
prisoners who cannot be safely kept in any prison
- Provisions relating to the examination of the prisoners by qualified
- Provisions relating to separation of prisoners, containing female and
male prisoners, civil and criminal prisoners and convicted and under-trial
- Provisions relating to the treatment of under-trials, civil prisoners,
parole and temporary release of prisoners.
In the year of 2016, The Parliament has passed the Prisons (Amendment)
Bill, 2016 to amend the Prisons Act, 1894 with a view to providing protection
and welfare of the prisoners.
The Prisoners Act, 1990
It is the duty of the government for the removal of any prisoner detained under
any order or sentence of any court, which is of unsound mind to a lunatic asylum
and other place where he will be given proper treatment.
The Transfer Of Prisoners Act, 1950
This act was passed to avoid over-population in prisons, prisoners are
transferred from one state to another for vocational training and to get rid
The days are gone when prisons were dungeons where prisoners were lodged to pass
their days in dark cells. The prisons are no more the institutions designed to
achieve only the retributive and deterrent aspects of punishment. Prisons are
now the places, where the inmates are lodged not as a forgotten or forsaking
members of the society but as human beings who have to go out in to their
surroundings as well behaving as reformed persons.
For a prisoner, the
imprisonment itself is a punishment and thus, prisons are expected to be places
of rehabilitation, not places where extra punishment is added resulting into the
violation of their human rights.
The judiciary of the country has played a crucial role in safeguarding the
rights of prisoners whenever the legislative and executive have erred. It has
acted as the saviour of the convicts and upheld their fundamental rights time
and time again. It has thoroughly exercised its powers through judicial activism
and has repeatedly devised new remedies and tools to protect the human’s right
to life and personal liberty.
Written By: Damini Singh Chauhan -
BA-LLB ( The law School, University of Jammu)
LLM( Jindal Global Law School)