PRISONERS’ RIGHTS IN INDIA by Apoorva Begani

Author: Apoorva Begani, Student at Renaissance Law College, Indore (M.P.).

INTRODUCTION

“A CONVICT IS ALSO ENTITLED WITH SOME RIGHTS”

India is a democratic country and it is developing country but till now there is no codified and particular regulation for the Rights of the Prisoners. Though our Honourable judiciary is developing and putting their effort towards the prisoners’ rights and to recall the rights of prisoners by the various judgements and interpretations. A person holds some Fundamental Rights even when he is behind the bars because he had committed an offence which is prohibited by law. Jailbirds have some primary rights with them and no one has the authority to take away those rights. The basic rights include the right to water, food, health care, violence and racial harassment, to have an attorney to defend himself, custodial torture, etc., these problems in jail violate various prisoners’ rights.

This paper explains the constitutional rights and several international instruments and human rights which every prisoner holds. The end part of paper gives some of suggestions to improve the conditions of prisoners in India as they deserve some rights as humans.

WHO IS A PRISONER?

A person who has been controlled to relish their liberty and detent as a punishment for the act which is an offence under law. A person is kept underprivileged of his liberty. A person who committed an act which is punishable under law of land and he/she has been restrained against his/her will. A prisoner also known as Jailbird, inmate.

WHAT IS A PRISON?

Prison means any place which is permanently or temporally which under the state government for the prisoners’ detention who has done something wrong that is punishable under law.

HISTORY   AND DEVELOPMENT

1) PRISONS ACT, 1894

Prisons Act 1894, is the act by which the jail management and administration is done at present in our country. Many changes have been made from time to time. After 1945, various committees and commissions were appointed by the central government and state government to improve the human conditions in the jail. There was an extreme need to change and to make laws regarding the prisons and their inmates.

2) THE MULLA COMMITTEE:

This committee was formed for prison reforms and this committee had made some recommendations which are as follows:

1. Firstly, they suggested that the power of making laws of prison should be moved to concurrent list rather than state list.
2. Secondly, there must be a national policy so that every state should follow that policy on prison.
3. Thirdly, there should be a speedy trial and easy and simplified process of bail for the trial prisoners.
4. Fourthly, there should be a different prison for young offenders so that in future they don’t commit any offences more.
5. Lastly, it was recommended that the child who is under 18 years of age must have a separate institute to get an environment for rehabilitation and to get a care, training and education facilities.

3) THE KRISHNA IYER COMMITTEE:

This committee specially talks about women and child offenders and they recommended some of the following:

1. If a woman is convicted under Criminal Procedure Code then also the dignity of women should be restoring and she must be given respect.
2. There should be a separate prison for woman’s and the staff of the jail must also be women.
3. There should be proper sanitization, discipline and to organise holistic programmes so that it helps the women offenders to rehabilitate from psychosis and neurotic disorders.
4. All the poor women offenders should get a free legal aid from government and to meet her children so that it doesn’t makes psychosis disorder.

After this committee, Government of India constituted a powerful committee under the chairmanship of Director General, Bureau of Police Research and Development. This committee added more recommendations some of them unrealistic to perform. A recommendation which was noted i.e.  National Policy on Prison Reforms and Correctional Administration.

Some important Policy of Drafting are as follows-

• There must be a uniform law for every state.
• Proper working and speedy trial for under trial prisoners.
• There should be proper living condition maintained by the state.
• Government should construct a greater number of prisons all over the country.

4) SUBSEQUENT DEVELOPMENTS:

Few steps have taken for the improvement of the jail and their inmates. Following are the major steps: –

Firstly, there was a new concept introduced i.e. Open Jail. It is a substitute of closed jail where a person can rehabilitate himself and they live with their own families.  It helps a prisoner to re-socialize with the outside world so that they settle after the imprisonment is over. If a person is sentenced to life imprisonment than he could be sent to open jail after fulfilling some conditions and rules. The person who have completed one-fourth of their punishment in the closed prison and showed a good behaviour and fulfil all the eligibility. Minimum security is provided and prisoners have to earn for themselves. Some of them are engaged in farming, tailoring, teaching, or doing private jobs if they are well educated.  There will be absence of bars, walls, and guards. Prisoner engage in productive activity so it keeps them physically and mentally good.

The Rehabilitation of inmates will be worthful only when the prisoners released from the jail and he/she got an employment so for that the education facilities should be introduced. In many jails, IGNOU offered many courses to the inmates for rehabilitation provide various courses and activity so that after completion of punishment they get employed and can live their lives with dignity.

INTERNATIONAL GUIDELINES

It basically protects people from discrimination, torture, etc. It specially focuses some of the groups like women, children, differently abled people and migrant workers. These following treaties covenant with certain issues or give a way to make complaints.

1)UN Charter–

This charter was signed on 26^th June 1945 in San Francisco and came into force on October 24, 1945. It was adopted on 14^th December, 1990.

These are the following principles: –

• Prisoners should be treated with dignity which was inherent as human.
• There should be no discrimination on the basis of caste, sex, colour, religion, etc.
• Respect the religious beliefs of every prisoners.
• It is the responsibility of prison for the safety of prisoners.
• All the prisoners are entitled to retain some rights which is written in UDHR, ICESCR, ICCPR and other rights which is in other covenants of United Nations.
• Prisoners should take part in some cultural and educational activity it helps them to develop their personality.

2) International Bills of Rights–

i) Universal Declaration of Human Rights-

In 1948, it was adopted in General Assembly of United Nation. It was a movement in United Nation. This document is also known as Human Rights Declaration. Some of the provisions are as follows: –

• There should be no torture, no cruelty or any treatment which degrade his/her dignity, etc.
• A person is entitled to have right to life and liberty with some security.
• No person has the authority to arrest, detent or exile any person arbitrary.
• The person who has charged of penal offence has right to be presumed innocent until and unless he/she has been proved guilty.

ii) The International Covenants on Civil and Political Rights, 1966-

It is an important treaty on the prisoners Rights Protection. Some of the provision are as follows: –

• Prisoners should be given respect and treated with humanity as a human they inherent too.
• There should be no torture, no cruelty or any treatment which degrade his/her dignity, etc.
• A person is entitled to have right to life and liberty with some security.
• No person has the authority to arrest, detent or exile any person arbitrary.

3) UN Core Conventions and Specific Instruments: –

These Minimum rules was formulated by Amnesty International in 1955. There are some important rules for the prisoners to treat them are as follows: –

• No discrimination on the basis of race, sex, colour, religion, etc.
• There should be different institution for males and females for detention.
• There should be equality between all the prisoners.
• Separate jails for the civil offenders and criminal offenders.
• There should be separate jails for young prisoners from the adult inmates.
• There should be no torture, no cruelty or any treatment which degrade his/her dignity, etc.
• No person has the authority to arrest, detent or exile any person arbitrary.
• Prisoners should be given respect and treated with humanity as a human they inherent too.

RIGHTS OF PRISONERS UNDER INDIAN LAW

First of all, every prisoner is a human and he/she inherent some rights as a human. Even if a person is behind the bar, he is entitled to have some basic or primary rights. These basic rights are provided under constitution of India, the Prisons Act,1894, etc. In the case of State of A.P. V. Challa Ramkrishna Reddy[1], court held that the prisoner can enjoy their fundamental rights until when their liberty has been curtailed by constitutionally. Every person who is a convict, under-trial or detent is entitle to some rights as a human, these fundamental rights are guaranteed by the Constitution of India including Article 21- Right to Life. A person who is deprived of his liberty procedure established by law, still retains constitutional rights with him.

RIGHTS OF PRISONERS

A person holds some Fundamental Rights even when he is behind the bars because he had committed an offence which is prohibited by law. Jailbird have some primary rights with them and no one has the authority to take away those rights. The basic rights include the right to water, food, health care, violence and racial harassment, to have an attorney to defend himself, custodial torture, etc., these problems in jail violate various prisoners’ rights.

(A). PRISONER’S RIGHTS UNDER THE CONSTITUTION OF INDIA:

Constitution of India offers fundamental rights to the person who is behind the bar but with some reasonable restrictions and they are not absolute in nature. A person can demand all fundamental rights but a prisoner cannot. All the rights which an ordinary person possess can claim their rights but a prison has different status behind the bar.

Certain rights are available to the prisoners which are enumerated in part III of constitution because a prisoner is a “person” behind the bar. Our preamble itself speaks about protecting its citizens and establish peace and harmony in the society. It makes our country safe for live in by the citizens. In the case of T.V. Vatheeswaran V. State of Tamil Nadu,[2] 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. Prisoners are entitled of following rights: –

• Article 14- Right to Equality

“the state shall not deny to any person equality before law or the equal protection of laws within the territory of India”.

This Article is one of the important provisions of Constitution of India. It basically talks about principle of Equality. It is of two types- (i) Equal protection of Law and (ii) Equality before Law. The regulation of this Article is “like should be treated alike” and the conceptualization of reasonable classification holds under Article 14.

• Article 19 – Right to Freedom

This Article guarantees six freedoms to the citizen of India.

1. Freedom of Movement
2. Freedom to Reside and to settle
3. Freedom to assemble peacefully
4. Freedom of Profession, Occupation, trade or business
5. Freedom of speech and expression
6. Freedom to become member of an association

First four freedoms which are not with the prisoners because of their punishment they cannot enjoy these rights. Rest of all rights or freedoms of these Article can be enjoyed by the prisoners with reasonable restrictions and subjected by the limitations of prison laws.

• Article 20 – Right to Protect

Article 20(1) talks about Ex post facto which states “no person shall be convicted of any offence except for the violation of law in force at the time of the commission of the act charged as an offence, nor be subject to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”.

Article 20(2) Protection against Double Jeopardy. It speaks that “no one shall be prosecuted and punished for the same offence more than once”.

Article 20(3) Prohibition against Self Incrimination. This provision states that “no person accused of any offence shall be compelled to be a witness against himself”.

• Article 21- Right to Life and Personal Liberty

“no person shall be deprived of his life or personal liberty except according to procedure established by law”.

As we know that there is no provision in the Constitution for Rights of Prisoners.  But the Apex Court has given a wider interpretation on Right to Personal Liberty. Prisoner has right to Speedy trial, free legal aid, right against Torture, and right against inhuman and degrading treatment, etc. Article 21 talks about the principle of Liberty.

In Maneka Gandhi[3] case, it was held that “a fair and reasonable procedure for the deprivation of the life and the personal liberty of the individuals”. Article 21 is justifiable only when it is according to procedure established by law, and this procedure cannot be arbitrary, unfair or unreasonable.

In Francis Coralie Mullin v. The Administration[4], court held that Article 21 requires that no one shall be deprived of his life or personal liberty except the procedure established by the law and this procedure must be reasonable, fair and just and not arbitrary or fanciful.

• Article 21(A)- Right to Education

Due to reformative approach and international covenant, reasonable education is made necessary even he is imprisoned. women and youth offender should get reasonable education or necessary education for improving personality. New Education Institution must be setup so that after released from jail they can continue their further courses. State must take actions from the education and education for young offenders should be made compulsory.

• Article 22 It states that any person who is arrested can consult and can choose a legal practitioner of his choice.

Article 22(1) Right of person under arrest and detention-

In Dharmbir v. state of U.P.[5], it was held that the state government must allow prisoner’s family members to visit the prison at least once in a year.

Article 22(2) Right to be produced Before Magistrate-

A person who is arrested have right to be produced before the nearest magistrate within 24 hours excluding the time of journey.

These are the rights which is given to the prisoners under Constitution of India: –

• Right to meet friends and consult lawyer
• Rights against Solitary Confinement, handcuffing & bar fetters and protection from torture
• Right to reasonable wages in prison

(B). ENACTMENTS AND RULES:

1. The Prisons Act, 1894:

It was the first act which talks about the prison regulation. Some of the provisions regarding prisoners’ rights are as follows: –

• Provide comfortable and hygienic environment for prisoners.
• There should be mental and physical state provision for prisoners.
• There should be separate jail for male, female, criminal, civil, convicted and under trial prisoners.
• There should be a qualified medical officer for prisoner’s examination.

2. The Prisoners Act, 1990:

Any person who is of an unsound mind or a lunatic person detained under any order or sentence. It is the responsibility of the government for any removal so that he/she will get a proper treatment.

3. The Transfer of Prisoners Act, 1950:

The act provides transfer of any prisoner from one state to other state for rehabilitation or for training or for reducing the overcrowded jails and making it just living.

4. The Prisoners (Attendance in Courts) Act, 1955:

If a prisoner proved that he is not guilty for the offence or given such an evidence then the person can be removed whether it is a civil or criminal court.

(c). CASES DECIDED BY SUPREME COURT AND HIGH COURT:

1. D.B.M.Patnaik v. State of Andhra Pradesh[6]

The SC asserted that the mere detention does not deprive the convicts of all the fundamental rights enshrined in our constitution.

2. Hiralal Mallick v. State of Bihar[7]

In 1977 the SC stressed for the rehabilitation of prisoners and reformation of prisons.

3. Sunil Batra v. Delhi Administration[8]

The court held that the fact that a person is legally in prison does not prevent the use of Habeas Corpus to protect his other inherent rights.

4. Hussain Ara Khatun v. State of Bihar[9]

Court adopted a dynamic and constructive role with regard prison reforms. Court apart from other things stressed on the improvements of the conditions of the prisons in India.

COMMON PROBLEMS ACROSS PRISONS IN INDIA

To throw light on the problems of jails is came in 1980 by K.F. Rustamji (police officer). He released     around 40,000 under trial prisoner. His first PIL was Hussainara Khatoon v. State of Bihar.

1. Overcrowded Jails/Prisons -There are more offenders comparatively with the number of jails.
2. Corruption and Extortion – corruption is everywhere in our country and it is a big problem for all of us. Food corruption is done of food items in the jail.
3. Unsatisfactory Living Conditions – the conditions of jail are very vulnerable and the unhygienic. It is not live in condition.
4. Staff Shortage and Poor Training of Staff – the number of staff should be increase and government should train the staff so that it improves their knowledge and habit.
5. Inequalities and Distinctions – there is discrimination in the jail. Our constitution gives right against discrimination. Everyone should be equally treated.
6. Poor Spending on Health Care and Welfare – there must be a qualified doctor who can just check the health and can avoid health issues.
7. Lack of Legal Aid – there must be a free legal aid to the prisoner so that they can have an idea about their next step and to release themselves from the jail.
8. Abuse of Women Prisoners – a person who has done an offence and if she is female. the intention of the society towards that female is changed and their mentality becomes more vulnerable.
9. Consequence of Prison Structure and Functions – the infrastructure of prison is very congested. State must improve their infrastructure and functions of the prison.
10. Health Problems of Women Prisoners in Prisons – there are so many female prisoners who gave birth to their child in the prison. So many females suffer from internal diseases.
11. Various communicable diseases – a diseased person can transfer their diseases with the other inmates and can cause a huge problem.

SUGGESTIONS

1. To manage the funds and resources as there is a need to form more committees to audit all the affairs.
2. To submit a yearly report to that committee.
3. To focus more on the young offenders who are in between 18-21 years so that the mental condition doesn’t change and they contribute to develop our nation after the punishment is over.
4. To keep prisoners in a different prison which is on the basis of crimes, punishment and charges so that helps in reducing crime rates.
5. Overcrowdings is one of the basic problems of most of the prison so government should construct a greater number of prison and that too in different-different cities.
6. Authority must focus on rehabilitation of prisoner rather than confined them between the four walls of the prisoner.
7. A number of appeals is in pending before the higher courts and prisoners faces a lot of trouble at the time of disposal. There is a need in judiciary to appoint more judges for speedy procedures.

CONCLUSION

It has been observed that a convict who has done an act which is prohibited by law of land and he/she is liable for an act. Prisoner is debilitated of liberty against his/her will. This can be capture forcefully restraint but he does infringe his Human Rights as well as the Prisoners’ Rights. They can have all those rights which an individual of society holds but with some reasonable restrictions.

The Apex Court had interpreted in wider sense on prisoners right and has taken corrective measure to protect the Human Rights of the prisoner. The Apex Court provides guidelines to legislature and executive. There is a need to train the police authority and prison authority to take the rights of prisoners in a strict manner.

REFERENCES

[1] (2000) 5 SCC 712: AIR 2000 SC 2083.

[2] AIR 1983 SC 361: (1983) 2 SCC 68.

[3] 1978 AIR 597 , 1978 SCR (2) 621.

[4] 1981 AIR 746 , 1981 SCR (2) 516.

[5] 1979 AIR 1595 , 1980 SCR (1) 1

[6] AIR 1974 (SC 20920)

[7] AIR 1977 (SC 2237)

[8] AIR 1978 (SC 1675)

[9] AIR 1979 (SC 1377)