Aditi Kalbhor (Research Intern)
Are prisoners’ persons?
Yes, of course. Every person is a human being while being a prisoner, one does not cease to be a human being. In a civilised and democratic society like India, it is essential for every citizen to have human rights and reasonably dignified life, even for a person lodged to prison as a punishment for a criminal offence or while awaiting trial. Yet in India, the rights of the prisoners find a place only on the paper with, hardly any prison's authority executing them accurately. V.R Krishna Iyer (J) has rightly observed: "In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters.”(0)Earlier the attitude towards the prison, prisoners and punishments was barbaric. Since independence, the basic principles of criminology and penology have undergone a drastic change to increase consciousness about the prison and prisoner's rights.
There has been a shift from deterrent theory to reformative and rehabilitative one. Mahatma Gandhi’s belief lied in a humanitarian approach that is the offender should be reformed in a way that we should kill the crime, not the criminal. Moreover, the inhumane conditions of prisoners due to overcrowding of prisons, lack of infrastructure and other facilities are violative of rights of prisoners which need to be looked into. This article tries to elucidate and focus upon the rights of prisoners related to Article 21 of the Constitution of India to protect to maintain their human rights. Other than constitutional right, the article also briefs about statutory rights, committee reports and international instruments.
Keywords: Prisoner's rights, Prison, Punishment, Constitutional right.
Part III of the Constitution of India guarantees fundamental rights but there is no specific mention regarding prisoners’ rights. It is established and settled system of law that when an act is committed which is prohibited by law, the person committing it shall be punished for it. When the Court sentences prison to a convict, they must ensure that during detention human rights of the convicts are not infringed. Imprisonment does not mean discarding the fundamental rights wholly, rather there's a limitation on the fundamental rights for prisoners. Lately, it is been observed that the Indian Judiciary through its various judgements is vigilant about prisoners’ rights thereby protecting their fundamental rights under Article 14, 19 and 21 of the Indian Constitution.
Expanding and Ever-Evolving: Article 21 of the Indian Constitution
From the case of A.K. Gopalan v. the State of Madras to Kharak Singh v. State of Uttar Pradesh and then to Maneka Gandhi and so on, the ambit of Article 21 is enlarging to include various other rights. Article 21 of the Indian Constitution deals with the protection of life and personal liberty. It states "No person shall be deprived of his life or personal liberty except according to the procedure established by law." Supreme Court through various judgements has widened the scope of the expression ‘procedure established by law’. It held that the “procedure established by law” to deprive a person of his life and personal liberty, must be just, fair and reasonable and that it must not be arbitrary, unjust or oppressive, and the procedure must comply with the principles of natural justice.
Article 21not only includes Right to Life, Right to Personal Liberty, Right to Privacy, Right to Livelihood, etc. but also prisoner's rights. It extends its protection to recognise rights of prisoners so that no person is illegally detained, and also ensures that the offender though deprived of freedom is entitled to the rights enshrined under Article 21 of the Constitution.
What constitutes the Right to Life and Personal Liberty of a convict?
Article 21 is the 'heart and soul' of fundamental rights which guarantees protection of life and personal liberty. The word 'life' does not mean mere physical existence, but to live with dignity. This interpretation is also applicable to prisoners. Concerning prisoners’ rights Article 21 encompasses within itself the right to free legal aid, right to a fair and speedy trial, protection against inhuman treatment, right to bail during the pendency of the appeal and various other rights.
It is rightly said that 'justice delayed is justice denied.' Most of the Indian prisoners fight long lonely battles for justice. India's prison population accounts for 62% of under trial prisoners against the world average of 18-20 per cent. This indicates concern for speedy trial of under trial prisoners. As per Every party to a case has the right to seek justice and get fair treatment by the Court’s decision. The essence of Article 21 lies not only in ensuring that no citizen is deprived of life and liberty except as per the procedure established by law and that such procedure ensures both fair and expeditious conclusion of a trial. In HussainaraKhatoon and Others v. Home Secretary, State of Bihar(1979)a writ of habeas corpus was filed by undertrial prisoners waiting for their trial. Here, it was held by the Supreme Court that speedy trial is the essence of criminal justice and though not specifically mentioned listed as a fundamental right, it is implied in the scope of Article 21 of the Constitution. Later, in the case of Khatri v. State of Bihar(1981), the right to free legal aid was considered as an essential element of reasonable, just and fair procedure for an accused. It implicitly guarantees the right of an accused by providing free legal assistance and defence service of counsel to an accused who is unable to engage a lawyer due to indigence or economic insufficiency.
Thereafter, in M. H. WadanraoHoskot v. State of Maharashtra(1978), it was specified that right to legal aid is a required ingredient of fair procedure and hence, the State is under constitutional obligation to provide court facilities to the prisoners. The Right to Health and Medical treatment is the basic human right and denial to provide medical care amounts to a violation of the right to life enshrined under Article 21. However, when it comes to prisoners their health conditions are neglected. In 2005, Gujarat High Court issued directions that all Central and District jails should be equipped with ICU, expert doctors and other medical facilities should be made available. Further, the deplorable conditions, torture and cruelty prevailing inside the prisons resulting in violation of prisoner rights have become an important agenda for prison reforms. The Supreme Court in Sheela Barse v. State of Maharashtra(1983)took cognizance of the matter regarding the poor condition and maltreatment of the prisoners. It interpreted Article 21 and developed HR jurisprudence for the protection of prisoners’ rights to human dignity. Custodial Death is another relevant issue in the contemporary situation. In D.K. Basu v. State of West Bengal(1997)the Court stated that custodial torture and lock-up deaths are a violation of human dignity and degradation which destroys, to a very large extent, the individual personally. The Court issued preventive measures to be followed in all cases of detention.
In the case of Sunil Batra v. Delhi Administration(1978), the practice of keeping undertrials with convicts in jail was regarded by the Supreme Court as inhuman. The Court held that it offended the test of reasonableness in Article 19 and fairness in Article 21. The punishment of solitary confinement is complete isolation from society which was regarded as violative of Article 21 stating that liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially curtailed by keeping a prisoner in solitary confinement, would be violative of Article 21, unless the curtailment is backed by law. Through this case, many guidelines were set out for prison reforms. Moreover, though the prisoners are behind the bars, they have the right to education. It includes right to receive books, right to publication, etc. In the case of State of Maharashtra v. Prabhakar Pandurang(1965), it was held that personal liberty has been violated as the prisoner was not allowed to send his book which he wrote in jail for publication. The Supreme Court further stated mere detention doesn't restrict other fundamental rights. Besides these, other rights include right to be released on the due date, right to food and water, right to have adequate accommodation, right to compensation in case of miscarriage of justice, right to compensation in case of custodial death and several other rights.
Other Provisions for Prisoners:
Apart from constitutional rights, there are various committee reports and statutory rights which are available to the prisoners. These committees were formed to recommend and improve the condition of prisoners. The first committee on Prison Reforms was appointed in 1836; the next committee in 1864 and then another committee was appointed to examine jail administration. Based on the reports of these committees, the first legislation was passed, the Prison Act of 1894. In 1956, the Government of India set up the All India Jail Manual Committee that worked on prisons. It created the Model Prison Manual, 1960 to govern Indian prisons and improve the treatment of offenders. Later, Justice A.N. Mulla Committee of Jail Reforms was appointed for the modernisation of prisons. Its main objective was the rehabilitation of offenders, setting up of National Prison Commission and rational classification of prisoners in jail. Next, the National Expert Committee on Women Prisoners headed by Justice V R Krishna Iyer was constituted. It recommended creating awareness among the women prisoners about their rights and duties while in custody.
It also suggested arranging legal aid camps. Lastly, the rights of the prisoners are also available under the provisions of international instruments such as the Universal Declaration of Human Rights which states all human beings are born free and equal in dignity and rights, all are equal before the law and are entitled without any discrimination to equal protection of the law;Article 10 clause 1 of the International Covenant on Civil and Political Rights covers all persons deprived of their liberty to be treated with humanity and respect. In 1955, the United Nations Standard Minimum Rules for the Treatment of Prisoners was adopted to constitute minimum standards for the management of prison facilities and the treatment of prisoners. It was later revised in 2015 and today is known as the Nelson Mandela Rules.
The concept of open prisons is developing in India which is a trust-based prison with minimum security. In open jail, prisoners have the opportunity to work and move out and come back within a stipulated time. This concept is helping them to re-socialize with the world. The rights of prisoners to have contact with the outside world was also recognised in the Nelson Mandela Rules.
Oscar Wilde has well said: "Every saint has a Past; Every Sinner has a Future." It can be said that being a prisoner one isn't detached from their fundamental rights. Convicts continue to enjoy all his rights but with certain limitations. Article 21 of the Constitution is guaranteed to every person, even the souls behind the bars. Even though the Indian Judiciary is cognizant of the prisoners' rights, still police reforms and prison reforms remain a significant matter of concern.
i. 1997.D.K. Basu v. State of West Bengal. 1997 1 SCC 416, s.l. : The Supreme Court of India, 1997.
ii. 1979.Hussainara Khatoon v. the State of Bihar. 1979 AIR 1369, s.l. : The Supreme Court of India, 1979.
iii. 1981.Khatri v. the State of Bihar. AIR 1981 SC 928 , s.l. : The Supreme Court of India, 1981.
iv. 1978.Madhav Hayawadanrao Hoskot vs the State Of Maharashtra. 1978 AIR 1548, s.l. : The Supreme Court of India, 1978.
v. Rights of Prisoners And Duties of Prison Officials. shodhganga. [Online] [Cited: August 6, 2020.] https://shodhganga.inflibnet.ac.in/bitstream/10603/46512/12/12_chapter%204.pdf.
vi. Rights of the Prisoners and Duties of Prison Officials. shodhganga. [Online] shodhganga, 0. [Cited: August 6, 2020.] https://shodhganga.inflibnet.ac.in/bitstream/10603/46512/12/12_chapter%204.pdf.
vii. 1983.Sheela Barse vs the State Of Maharashtra. 1983 AIR 378, s.l. : The Supreme Court of India, 1983.
viii. 1965.The State Of Maharashtra v. Prabhakar Pandurang. 1966 AIR 424, s.l. : The Supreme Court of India, 1965.
ix. 1978.Sunil Batra v. Delhi Administration And Ors. AIR 1978 SC 1675., s.l. : The Supreme Court of India, 1978.