Behind the Bars: A Comprehensive Overview of Prisoners' Rights in India
"Remember those in prison as if you were their fellow prisoners, and those
who are mistreated as if you yourselves were suffering"- Hebrews 13:3
In the realm of criminal justice, the treatment and rights of prisoners hold significant importance. Recognizing the fundamental principles of human dignity and justice, the Indian Constitution safeguards the rights of prisoners, ensuring their fair and humane treatment during incarceration. These fundamental rights provide a framework for the protection and welfare of prisoners in India.
This article provides a comprehensive overview of prisoners' rights within the Indian legal system, examining the present legal framework, relevant legal precedents, and the current situation.
The discussion explores the fundamental rights enshrined in the Indian Constitution that pertain to prisoners. These rights encompass various aspects, such as the right to life and personal liberty, protection against torture and cruel, inhuman, or degrading treatment, the right to legal aid and a fair trial, and the right to be treated with dignity and respect.
By analyzing pertinent legal provisions, landmark judgments, and evolving judicial interpretations, this article aims to inform readers about the prevailing state of prisoners' rights in India. It seeks to foster an informed discussion and contribute to ongoing efforts aimed at improving the conditions and protection of prisoners' rights within the Indian criminal justice system.
Through enhancing awareness and understanding, promoting dialogue, and advocating for a just and humane approach to incarceration, I aim to address the pressing issues surrounding prisoners' rights and contribute to the overall advancement of the criminal justice system in India.
WHY SHOULD PRISONERS BE GIVEN LEGAL RIGHTS?
Legal rights are the entitlements and protections granted to individuals by the law. These rights define the boundaries of acceptable conduct, establish standards for fair treatment, and ensure that individuals are protected from abuse or arbitrary actions by the government or other entities. Legal rights are typically outlined in laws, constitutions, and international human rights treaties.
In the Indian legal context, legal rights for prisoners encompass various fundamental protections. These include the right to humane treatment and dignity, safeguarding individuals from torture, cruel, or degrading punishment; the right to be informed promptly of the grounds for arrest and detention; the right to legal representation and a fair trial; the right to communicate with legal counsel, family, and friends; the right to access healthcare and medical treatment; the right to educational and vocational opportunities; the right to protection from discrimination; and the right to due process and procedural fairness in disciplinary proceedings and parole hearings. These rights are crucial in upholding the principles of justice, ensuring the well-being of prisoners, and facilitating their rehabilitation and reintegration into society.
Prisoners should be given legal rights for several reasons:
Human Dignity:
Every individual, regardless of their actions or circumstances, possesses inherent human dignity. Respecting the legal rights of prisoners acknowledges their fundamental humanity and ensures that they are treated with dignity and fairness.
Rehabilitation and Reintegration:
One of the primary goals of the criminal justice system should be the rehabilitation and reintegration of offenders into society. By granting prisoners legal rights, we recognize their potential for change and growth. Upholding their rights can contribute to a more constructive and rehabilitative environment, increasing the chances of successful reintegration upon release.
Rule of Law:
The rule of law is a fundamental principle of a just society. It ensures that everyone, including prisoners, is subject to a predictable and fair legal framework. By providing legal rights to prisoners, we uphold the principles of fairness, due process, and equal protection under the law.
Preventing Abuse and Mistreatment:
Granting legal rights to prisoners acts as a safeguard against abuse, mistreatment, and arbitrary exercise of power by correctional authorities. It establishes legal protections to prevent torture, cruel or degrading treatment, and ensures that prisoners have access to necessary healthcare, nutrition, and adequate living conditions.
Reducing Recidivism:
Protecting the legal rights of prisoners can contribute to reducing recidivism rates. When prisoners are treated fairly and have access to legal representation, education, vocational training, and rehabilitation programs, they are more likely to develop the necessary skills and support networks to reintegrate into society successfully.
Upholding the Justice System's Credibility: By affording legal rights to prisoners, the justice system demonstrates its commitment to fairness, impartiality, and transparency. This fosters public trust and confidence in the system, which is crucial for the legitimacy and effectiveness of the criminal justice system as a whole.
While prisoners may have their freedoms restricted due to their offenses, it is essential to recognize that they retain basic human rights. Upholding these rights is not only a matter of justice but also a way to promote a more humane and rehabilitative approach to the incarceration process.
RELEVANT CASE LAWS
State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712
22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.
24. Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597] must be reasonable, fair and just.
28. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court.
32. Moreover, these decisions, as for example, Nilabati Behera v. State of Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : (1993) 2 SCR 581 : AIR 1993 SC 1960] , Death of Sawinder Singh Grower, In re [1995 Supp (4) SCC 450 : 1994 SCC (Cri) 1464 : JT (1992) 6 SC 271 : (1992) 3 Scale 34] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] would indicate that so far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of the State, which must fail.
Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104
4. Contemporary profusion of prison torture reports makes it necessary to drive home the obvious, to shake prison top brass from the callous complacency of unaccountable autonomy within that walled-off world of humans held incommunicado. Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, this Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law. Then the parrot-cry of discipline will not deter, of security will not scare, of discretion will not dissuade, the judicial process.
For if courts 'cave in' when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles will be re-enacted. When law ends tyranny begins; and history whispers, iron has never been the answer to the rights of man. Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen.
5. This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Article 21, read with Article 19(1)(d) and (5), is capable of wider application than the imperial mischief which gave it birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of a mature society, as Batra* and Sobraj [Sunil Batra v. Delhi Admn., published later in this volume] have underscored and the American Judges have highlighted.
Fair procedure is the soul of Article 21, reasonableness of the restriction is the essence of Article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anathema For Article 14. Constitutional karuna is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Article 21, this court has adopted, in Kharak Singh case that expanded connotation of 'life' given by Field, J. which we quote as reminder [Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] :
"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm of leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with outer world."
8. Viewed differently, supposing a court sentences a person to simple imprisonment or assigns him 'B' class treatment and the jail authorities unwittingly or vindictively put him under rigorous imprisonment or subject him to 'C' class treatment, does it not show contempt of the courts authority and deprivation of liberty beyond a degree validated by the court warrant? Likewise, where a prisoner is subjected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court?
Yet again, where conditions within a prison are such that inmates incarcerated therein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court's punitive purpose, charged with healing hope, stultified by the prison authorities? Of course, where a prison practice or internal instruction places harsh restrictions on jail life, breaching guaranteed rights, the court directly comes in. Every prison sentence is a conditioned deprivation of life and liberty, with civilized norms built in and unlimited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power. The Criminal judiciary have thus a duty to guardian their sentences and visit prisons when necessary. Many of them do not know or exercise this obligation.
9. Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in a human and dignified manner, keeping in view the adverse effect of his confinement upon his mental and physical conditions". The penological goals which may be regarded as reasonable justification for restricting the right to move freely within the confines of a penitentiary are now well-settled.
And if prisoners have title to Articles 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of a correctional system. It is now well-settled, as a stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and institutional security are vital considerations. Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement. When prison policy advances such a valid goal, the court will not intervene officiously.
11. But when an inmate is cruelly restricted in a manner which supports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitutionality is the consequence. Traumatic futility is obnoxious to pragmatic legality. Social defence is the raison d'etre of the penal code and bears upon judicial control over prison administration. If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the court will become operational based on Article 19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish to lay down only a broad guideline that where policies, with a "Zoological touch", which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitation, the court is not helpless.
However, a prison system may make rational distinctions in making assignments to inmates of vocational, educational and work opportunities available, but is constitutionally impermissible to do so without a functional classification system. The mere fact that a prisoner is poor or rich, high-born or ill-bred, is certainly irrational as a differentia in a 'secular, socialist republic'. Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon to delineate the broad boundaries of judicial jurisdiction vis-a-vis prison administration and prisoner's rights.
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
A 4. Two petitioners - Batra and Sobraj - one Indian and the other French, one under death sentence and the other facing grave charges, share in two different shapes, the slings and arrows of incarceratory fortune, but instead of submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether a prisoner, ipso facto forfeits personhood to become a rightless slave of the State and, in cultural terms, whether man-management of prison society can operate its arts by 'zoological strategies'.
The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de facto solitary confinement, pending his appeal, without de jure sanction. And the complaint of Sobraj is against the distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration, on the ipse dixit of the prison 'brass'.
The petitioners seek to use the rule of law to force open the iron gates of Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as forbidden ground, relying on Section 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The petitioners invoke Articles 14, 21 (and 19, in the case of Batra) of the Constitution.
The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional rights or prescribed procedures. Prisoners have enforceable liberties devalued may be but not demonetized; and under our basic scheme, Prison Power must bow before Judge Power if fundamental freedoms are in jeopardy. The principle is settled, as some American decisions have neatly put it:
"The matter of internal management of prisons or correctional institutions is vested in and rests with the heads of those institutions operating under statutory authority and their acts and administration of prison discipline and overall operation of the institution are not subject to court supervision or control absent most unusual circumstances or absent a violation of a constitutional right. [Donnel Douglas v. Maurice H. Sigler, 386 Fed. Rep. 2d 684] "
But Corwin notes: [ Supplement to Edward S. Corwin's The Constitution, p. 245]
"Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution - overcrowding, understaffing, unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on "cruel and unusual punishments."
52. True, our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper [R.C. Cooper v. Union of India, (1970) 1 SCC 248 : (1970) 3 SCR 531] and Manika Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.
Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears?
Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the life-style within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether.
For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III. So Batra pleads that until decapitation he is human and so should not be scotched in mind by draconian cellular insulation nor stripped of the basic fellowship which keeps the spirit flickering before being extinguished by the swinging rope.
213. There are certain broad submissions common to both the petitions and they may first be dealt with before turning to specific contentions in each petition. It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution.
Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex [40 L Ed 2d 224 at 248 (1974)] ). However, a prisoner's liberty is in the very nature or things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for 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 observance of procedural safeguards (see Wolff v. McDonell [41 L Ed 2d 935 at 973 (1974)] ).
By the very fact of the incarceration .prisoners are not in a position to enjoy the full panoply of fundamental rights because these very rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. In D. Bhuvan Mohan Patnaik v. Sate of A.P. [(1975) 3 SCC 185 : (1975) 2 SCR 24] one of us, Chandrachud, J., observed: (SCC pp. 186-87, para 6)
"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practice' a profession.
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of properly for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
In Speedy Trial of Undertrial Prisoners, In re, 2018 SCC OnLine SC 3799
15) The District & Sessions Judge must regularly monitor the progress of such cases pending in all the courts, in which accused are in custody for more than one year in Session triable cases; and more than 6 months in Magisterial triable cases.
Other Instructions/suggestions given by their lordships:
Inhuman Conditions in 1382 Prisons, In re, (2019) 2 SCC 435
5. The issue must be considered in a humanitarian and compassionate manner. That apart the law laid down by this Court in Sunil Batra (1) v. Delhi Admn. [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] is quite clear. It has been held in para 223 of the Report that a prisoner under sentence of death can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure.
In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1894. That being the position, as also mentioned in para 101 of the Report, a prisoner is entitled to every creature comfort and facilities such as bed and pillow, opportunity to commerce with human kind, writing material, newspapers, books, meeting with family members, etc.
6. The above view has been reiterated in Sunil Batra (2) v. Delhi Admn. [Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488 : 1980 SCC (Cri) 777] in para 42 of the Report and in Kishore Singh Ravinder Dev v. State of Rajasthan [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] in paras 10 and 13 of the Report. In para 10 of the Report in Kishore Singh [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , it was held that there is no difference between a separate cell and solitary confinement. Therefore, a convict on death row is entitled to move within the confines of the prison like any other convict undergoing rigorous imprisonment. However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal.
10. With regard to the entitlement of a prisoner on death row to have meetings and interviews with his lawyers or members of his immediate family or even mental health professionals, we are of opinion that such meetings and interviews should be permitted. We follow the view expressed by this Court in Francis Coralie Mullin v. State (UT of Delhi) [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] . In para 8 of the Report, it was specifically noted by this Court, after referring to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights that as a part of the right to live with human dignity, a prisoner is entitled to have interviews with members of his family and friends and no prison regulation and procedure to the contrary can be upheld as being constitutionally valid under Articles 14 and 21 of the Constitution unless it is reasonable, fair and just. Similarly, there cannot be any doubt that a prisoner must be entitled to have discussions with his lawyers so that he has effective legal representation and access to justice as well as remedies for justice. In our opinion, the law laid down by this Court in Francis Coralie Mullin [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] would be equally applicable to death row prisoners for meeting mental health professionals for a reasonable period of time with reasonable frequency so that their rights can be adequately protected at all stages.
11. We make it clear that we have only reiterated the law laid down by this Court over several decades and which is based not only on the provisions of our Constitution but is also in conformity with international instruments. As held by this Court, the rights of prisoners as enunciated by this Court would be available not only in a particular State but would be available to them in all the States and Union Territory Administrations across the country. Accordingly, the State Governments and Union Territory Administrations must modify the prison manuals, regulations and rules accordingly.
8. In para 13 of the Report in Kishore Singh [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , it was directed that the rulings of this Court in Sunil Batra [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , [Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488 : 1980 SCC (Cri) 777] and Rakesh Kaushik v. B.L. Vig [Rakesh Kaushik v. B.L. Vig, 1980 Supp SCC 183 : 1980 SCC (Cri) 834] on prison administration be converted into rules and instructions forthwith so that violation of prisoners' freedom can be avoided and habeas corpus litigation may not proliferate. Para 13 of the Report reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 509-10)
13. We find that the old rules and circulars and instructions issued under the Prisons Act are read incongruously with the Constitution, especially Article 21 and interpretation put upon it by this Court. We, therefore, direct the State Government of Rajasthan - and indeed, all the other State Governments in the country - to convert the rulings of this Court bearing on Prison Administration into rules and instructions forthwith so that violation of the prisoners' freedoms can be avoided and habeas corpus litigation may not proliferate. After all, human rights are as much cherished by the State as by the citizen.
7. Para 10 reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 508-09)
10. We cannot agree that either the section or the rules can be read in the absolutist expansionism the prison authorities would like us to read. That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons. This country has no totalitarian territory even within the walled world we call prison. Articles 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra (1) [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution], by a Constitution Bench of this Court. It is significant that the two opinions given separately in that judgment agree in spirit and substance, in reasoning and conclusions. Batra in that case was stated to be in a separate confinement and not solitary cell. An identical plea has been put forward here too.
For the reasons given in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution] we must overrule the extenuatory submission that a separate cell is different from solitary confinement. The petitioners will, therefore, be entitled to move within the confines of the prison like others undergoing rigorous imprisonment.
If special restrictions of a punitive or harsh character have to be imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution]. Moreover, there must be an appeal not from Caesar to Caesar, but from a prison authority to a judicial organ when such treatment is meted out.
In the case of famed Charles Sobraj through Marie Andre'o vs. The Superintendent, Central Jail, Tihar, New Delhi (1978), Supreme Court Justice Krishna Aiyer held, "..imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen". He further held that imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation.
He observed, "Social defence is the raison d'etre of the Penal Code and bears upon judicial control over prison administration. If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the Court will become operational based on Article 19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish to lay down only a broad guideline that where policies, with a 'Zoological touch', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitation, the Court is not helpless. However, a prison system may make rational distinctions in making assignments to inmates of vocational, educational and work opportunities available, but it is constitutionally impermissible to do so without a functional classification system."
Various fundamental rights under Article, 14, 19, 20, 21 and 22 of the Constitution of India impliedly deal with the rights of prisoners. Article 14 deals with right to equality which provides equality before law and equal protection of law to all persons. Article 21 deals with right to life and personal liberty. Article 20 deals, inter alia, with two things, firstly it prohibits double jeopardy, that is, no person should be convicted for same offence twice. Secondly, it prohibits self incrimination, that is, no one can be compelled to be witness against himself. Article 22 provides that a person must be produced before magistrate within 24 hours of his arrest and must be provided with a counsel of this own choice. Famous constitutional writer Upendar Baxi has opined that scope of Article 21 is so vast that we do not need any other rights in our Constitution, and in the light of the Supreme Court's 'construction' of the meaning of 'life' under Article 21, whereby all the rights such as right to health, right to food, right to shelter, right to bail, right to speedy trial, right to free legal aid, right against custodial violence and death in police lock-ups or encounters, Right to meet friends and family members, Right to reasonable wage in prison, right against cruel and unusual punishment etc., have been included under it.
D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185
6. Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
9. The vacant land appurtenant to the jail is by the definition of "prison" in Section 3(1) of The Prisons Act a part of the prison itself. It cannot, therefore, be gainsaid that members of the Andhra Pradesh Special Police Force must be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under trial prisoners, like two of the petitioners before us, who are remanded to judicial custody ought to be immune from the coercive influence of the police. The security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against "the very essence of a scheme of ordered liberty". But the argument of Mr Garg proceeds from purely hypothetical considerations. The policemen who live on the vacant jail land are not shown to have any access to the jail which is enclosed by high walls. Their presence therefore, in the immediate vicinity of the jail can cause no interference with the personal liberty or the lawful preoccupations of the petitioners.
10. Counsel for the petitioners complained bitterly against the segregation of Naxalite prisoners in a "quarantine" and the inhuman treatment meted out to them as if they were inmates of a "Fascist concentration camp". We would like to emphasise once again, and no emphasis in this context can be too great, that though the Government possesses the constitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the political beliefs of its opponents. No person, not even a prisoner, can be deprived of his "life" or "personal liberty" except according to procedure established by law. The American Constitution by the 5th and 14th Amendments provides, inter alia, that no person shall be deprived of "life, liberty, or property, without due process of law". Explaining the scope of this provision, Field, J. observed in Munn v. Illinois [(1877) 94 US 113] that the term "life" means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332, 347 : (1963) 2 Cri LJ 329]
Shabnam v. Union of India, (2015) 6 SCC 702
14. This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being "as a human being". Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person's life, physical or mental welfare is harmed. It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty, the right of the accused to a fair trial as well as speedy trial, right of legal aid, are all part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity. Prison reforms or jail reforms are measures to make convicts reformed persons so that they are able to lead normal life and assimilate in the society after serving the jail term, are motivated by human dignity jurisprudence.
Undoubtedly, lawful incarceration brings about necessary withdrawal or limitation of some of these fundamental rights, the retraction being justified by the considerations underlying the penal system (see Pell v. Procunier [69 4 L Ed. 2d. 495 at 501 (1974).] ).
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608
4. Now it is necessary to bear in mind the distinction between "preventive detention" and "punitive detention", when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention.
"Punitive detention" is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while "preventive detention" is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order.
It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Article 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] a very narrow and constricted meaning was given to the guarantee embodied in Article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Article 21.
But in Maneka Gandhi case [ Under Article 32 of the Constitution] this Court for the first time opened up a new dimension of Article 21 and laid down that Article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21.
This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of fundamental rights. This decision in Maneka Gandhi case [ Under Article 32 of the Constitution] became the starting point - the springboard - for a most spectacular evolution of the law culminating in the decisions in M.H. Hoskot v. State of Maharashtra [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] , Hussainara Khatoon (I) case [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] , the first Sunil Batra case [Sunil Batra (I) v. Delhi Admn, (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] and the second Sunil Batra case [Sunil Batra (II) v. Delhi Admn, (1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557] .
The position now is that Article 21 as interpreted in Maneka Gandhi case [ Under Article 32 of the Constitution] requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just.
But despite these safeguards laid down by the Constitution and creatively evolved by the courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused.
It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrongdoing as a result of a trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the executive is very limited.
Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of J&K [(1969) 1 SCC 562 : (1969) 3 SCR 574 :1969 Cri LJ 1555] that: "The restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal." (SCC p. 567, para 9)
5. The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a court of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] - [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration".
The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] - [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] this position was impliedly accepted in State of Maharashtra v. Prabhakar Pandurang Sangzgiri [AIR 1964 SC 424 : (1966) 1 SCR 702 : 1966 Cri LJ 311] and it was spelt out clearly and in no uncertain terms by Chandrachud, J., as he then was, in D.B. Mohan Patnaik v. State of A.P. [D.B. Mohan Patnaik v. State of A. P.(1975) 3 SCC 185, 186-87 : 1974 SCC (Cri) 803, 804-05 : (1975) 2 SCR 24] : [SCC pp. 186-87: SCC (Cri) pp. 804-05, para 6]
"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practise' a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] . Krishna Iyer, J. in the latter case proceeded to add in his characteristic style (SCC p. 504):
"The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing (SCC p. 505):
"Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion - the Court armed with the Constitution."
It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr Justice Douglas struck a humanistic note when he said in Eve Pall case [417 US 817 : 41 L Ed 2d 495] : "Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process."
So also in Charles Wolf case [41 L Ed 2d 935] Mr Justice White made the same point in emphatic terms: "But, though his rights may be diminished by environment, a prisoner is not wholly stripped of constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country." Mr Justice Douglas reiterated his thesis when he asserted:
"Every prisoner's liberty is of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards."
Mr Justice Marshall also expressed himself clearly and explicitly in the same terms:
"I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection." What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the court which is, to use the words of Krishna Iyer, J. (SCC p. 504), "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope", will immediately spring into action and run to his rescue.
7. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of U.P. [(1964) 1 SCR 232] Subba Rao, J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois [(1877) 94 US 113 : 24 L Ed 77] to emphasize the quality of life covered by Article 21 : [Sunil Batra (I) v. Delhi Admn, SCR p 503 : SCC p 574 : SCC (Cri) p 235] "By the term "life" as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world" and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] . Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.
8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free-will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.
9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression "personal liberty" occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case [ Under Article 32 of the Constitution] and it has been held in that case that the expression "personal liberty" used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct fundamental rights and given additional protection under Article 19". There can therefore be no doubt that "personal liberty" would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
11. The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention.
The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law.
A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi.
This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory.
Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of Customs/ Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
Kharak Singh v. State of U.P., (1964) 1 SCR 332
11. The content of Article 21 next calls for examination. Explaining the scope of the words "life" and "liberty" which occurs in the 5th and 14th Amendments to the U.S. Constitution reading "No person … shall be deprived of life, liberty or property without due process of law", to quote the material words, on which Article 21 is largely modelled, Field, J. observed:
"By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world … By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a prison."
It is true that in Article 21, as contrasted with the 4th and 14th Amendment in the U.S., the word "liberty" is qualified by the word "personal" and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those elements or incidents of "liberty" like freedom of speech, or freedom of movement etc. already dealt with in Article 19(1) and the "liberty" guaranteed by Article 21 - and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed by sub-clauses 2 to 6 of the Article on the several species of liberty dealt with in the several clauses of Article 19(1).
In view of the very limited nature of the question before us it is unnecessary to pause to consider either the precise relationship between the "liberties" in Article 19(1)(a) & (d) on the one hand and that in Article 21 on the other, or the content and significance of the words "procedure established by law" in the latter Article, both of which were the subject of elaborate consideration by this Court in A.K. Gopalan v. State of Madras [1950 SCC 228 : 1950 SCR 88] . In fact, in Gopalan case [1950 SCC 228 : 1950 SCR 88] there was unanimity of opinion on the question that if there was no enacted law, the freedom guaranteed by Article 21 would be violated, though the learned Judges differed as to whether any and every enacted law satisfied the description or requirements of "a procedure established by law".
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
4. The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of "personal liberty" within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law.
There is no procedure prescribed by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of Article 21.
This contention of the petitioner raises a question as to the true interpretation of Article 21. What is the nature and extent of the protection afforded by this article? What is the meaning of "personal liberty" : does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in The Indian Constitution - Cornerstone of a Nation, "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". They were indelibly written in the subconscious memory of the race which fought for well nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.
They weave a "pattern of guarantees on the basic-structure of human rights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from "alienating" the individual from his creative impulses.
These rights are wide ranging and comprehensive and they fall under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. Articles 14 to 18 occur under the heading "Right to Equality", and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State not to "deny to any person equality before the law or the equal protection of the laws within the territory of India". Articles 19 to 22, which find place under the heading "Right to freedom" provide for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom. It provides that all citizens shall have the right :
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22 confers protection against arrest-and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other fundamental rights are not relevant to the present discussion and we need not refer to them.
5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law.
The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words "personal liberty" as used in this article? This question incidentally came up for discussion in some of the judgments in A.K. Gopalan v. State of Madras [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words "personal liberty" so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words "personal liberty" as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper scope and meaning of the expression "personal liberty" came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that "personal liberty" is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the "personal liberties" of man other than those dealt with in the several clauses of Article 19(1).
In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue. The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words:"No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another.
The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct and the majority view must be held to have been overruled.
We shall have occasion to analyse and discuss the decision in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] a little later when we deal with the arguments based on infraction of Articles 19(1)(a) and 19(1)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the Full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom.
The decision in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] where Shah, J., speaking on behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields they do not attempt to enunciate distinct rights."
The conclusion was summarised in these terms:"In our judgment, the assumption in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that certain articles in the Constitution exclusively deal with specific matters - cannot be accepted as correct". It was held in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] - and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjea, J., and S.R. Das, J., in A.K. Gopalan case - that even where a person is. detained in accordance with the procedure prescribed by law, as mandated be Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedoms under Article 19, clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1).
Indeed, in that event, a law of preventive detention which deprives a person of "personal liberty" in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 22 would not require to be tested on the touchstone of clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] that such a law would have to satisfy the requirement inter alia of Article 19(1), clause (d) and in Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] which was a decision given by a Bench of five Judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression "personal liberty" as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights.
The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and our approach in the interpretation of the fundamental rights must now be in tune with this wavelength.
We may point out even at the cost of repetition that this Court has said in so many terms in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] that "personal liberty" within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.
Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means "enacted law" or "state law" (vide A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] ).
Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements?
Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure.
Fazl Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis' book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law". Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.
The inter-relationship between Articles 14, 19 and 21
6. We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19.
This view proceeded on the assumption that "certain articles in the Constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority Judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] . The learned Judge there said (SCC p. 879):
"In Gopalan case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] the majority court had held that Article 22 was a self-contained code and therefore a law of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The view of Fazl Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article 19(1)(d) and that a law providing for preventive detention had to be subject to such judicial review as is obtained under clause (5) of that article.
In R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the aforesaid premise of the majority in Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was disapproved and therefore it no longer holds the field. Though Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of the majority in Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] to be incorrect."
Subsequently, in Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] also, a Bench of five Judges of this Court, after referring to the decisions in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to be tested in regard to its reasonableness with reference to Article 19.
That decision accepted and applied the ratio in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and Shambhu Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] and proceeded to consider the challenge of Article 19, to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional guarantees enshrined in Article 19.
The same view was affirmed once again by a Bench of four Judges of this Court in Khudiram Das v. State of West Bengal [(1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832] . Interestingly, even prior to these decisions, as pointed out by Dr Rajeev Dhavan, in his book, The Supreme Court of India at p. 235, reference was made by this Court in Mohd. Sabir v. State of Jammu and Kashmir [(1972) 4 SCC 558 : 1971 Cri LJ 1271] to Article 19(2) to justify preventive detention.
The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of "personal liberty" and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] , Shambhu Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] and Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] Now, if a law depriving a person of "personal liberty" and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney-General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that Article 21 "presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for", including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, State of West Bengal v. Anwar Ali Sarkar [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] and Kathi Raning Rawat v. State of Saurashtra [(1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] where there was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code.
The special law in each of these two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14 and in one case, namely, Kathi Raning Rawat case [(1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] he validity was upheld and in the other, namely, Anwar Ali Sarkar case [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] it was struck down. It was held in both these cases that the procedure established by the special law must not be violative of the equality clause. That procedure must answer the requirement of Article 14.
The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic.
And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348] namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
In the case of Sheela Barse vs. State of Maharashtra (1983) where on the application of a journalist the Supreme Court took cognizance of the matter regarding the ill-treatment and poor conditions of the prisoners in the jail and issued certain directions namely:
That interrogation of females should be carried out only in the presence of female police officers/constables.
Whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail.
That whenever a person is arrested by the police and taken to the police lock up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal assistance to the arrested person at State cost provided he is willing to accept such legal assistance. The State Government will provide necessary funds to the concerned Legal Aid Committee for carrying out this direction.
That as soon as a person is arrested, the police must immediately obtain from him the name of any relative or friend whom he would like to be informed about his arrest and the police should get in touch with such relative or friend and inform him about the arrest.
That the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has right under section 54 of the Code of Criminal Procedure 1973 to be medically examined.
STATUTORY RIGHTS
In addition to the Constitutional rights, prisoners also have certain rights granted by statutes. The Prisons Act of 1894 was established to regulate the functioning of prisons and it includes provisions that outline these statutory rights. Section 4 of the Act ensures that prisoners are provided with suitable accommodation and sanitary conditions.
Section 7 addresses the issue of excess prisoners who cannot be safely accommodated in any prison, requiring shelter and secure custody for them. Section 24(2) mandates that prisoners receive medical examinations from qualified medical officers. Section 31 mandates the separation of prisoners based on categories such as gender, civil or criminal status, and convicted or undertrial status.
Section 33 stipulates that civil and unconvicted prisoners who are unable to provide themselves with adequate clothing and bedding must be supplied with them. Section 35 addresses the treatment of undertrial and civil prisoners, as well as the possibility of parole and temporary release. Section 37 ensures that a prisoner in need or showing signs of ill health, whether physical or mental, must be provided with a medical officer.
Finally, Section 40 requires that proper arrangements be made for the admission of persons with whom civil or unconvicted criminal prisoners wish to communicate, ensuring that undertrial prisoners can meet their qualified legal advisors without the presence of others.
In today's rights-focused society, there is a growing emphasis on considering the rights of individuals. As a result, the concept of open jails is gaining popularity, marking a shift in the perception of prisons. Rather than being solely punitive institutions, prisons are now viewed as places for rehabilitation.
Open jails play a vital role in this new approach by promoting the socialization of inmates with the outside world, allowing them to reintegrate into society. These jails are primarily reserved for prisoners who are deemed non-threatening to society.
Some other major statutory rights are:
Right to Constitutional Remedies
These remedies are available to all the prisoners, who are deprived of their rights by the officials, under article 226 before high court and under article 32 before Supreme court.
Permission to wear clothes of your choice in jail
Undertrial prisoners have the freedom to wear clothes brought from their homes while convicted prisoners do not have such privileges.
Prisoners can move Supreme Court for 'cruelty' in jail
Prisoners have the right to seek legal recourse if they experience any form of cruelty or mistreatment in jail. It is imperative that no prisoner's fundamental rights be denied without following the proper legal procedures. The law strictly prohibits any mistreatment or inhumane treatment of prisoners. In case a prisoner's fundamental rights are violated, they have the option to directly approach the Supreme Court under Article 32 or the high court under Article 226 for appropriate redress.
Free medical facility, legal advice in jail
The Supreme Court has explicitly declared that prisoners must not be treated in a dehumanizing manner. It is the responsibility of the jail administration and the government to ensure that prisoners are provided with all the essential facilities. The model jail manual specifies that prisoners should have access to basic necessities such as clean water, fresh food, appropriate clothing, bedding, and medical services.
Additionally, prisoners are entitled to receive free legal advice, have the ability to correspond through letters and meet their families, and be offered employment opportunities. In certain cases, undertrial prisoners may also be permitted to engage with the media. Security measures are in place for prisoners, and those who had special security arrangements prior to their incarceration receive special protection while in jail.
Prisoners to get 2,400 calories of nutritious food
As per the guidelines outlined in the model prisons manual, a kitchen is equipped to prepare meals for a maximum of 250 prisoners. If the number exceeds this limit, arrangements are made for a separate kitchen. The walls of the kitchens are tiled up to a height of two meters for cleanliness and hygiene purposes.
Adequate lighting, LPG gas connections, bread making machines, flour making machines, and hotplates are among the essential facilities that prison kitchens should possess. Prisoners are provided with meals that contain a calorie intake ranging from 2,000 to 2,400.
Fresh breakfast, lunch, and dinner are served, and it is strictly stated in the manual that prisoners should not be given stale food. In case an inmate faces any issues with the food, they have the right to file a complaint. Food is provided to prisoners based on their specific health requirements and the prevailing environmental conditions, with the dosage determined under the guidance of a medical officer.
Prisoners get remuneration for working
Prisoners have the opportunity to engage in work activities within the prison, and in exchange, they receive payment for their labor. It is strictly prohibited to compel prisoners to work without any form of remuneration. Forcing prisoners to work without compensation infringes upon their fundamental rights.
Right to education for prisoners
There have been significant advancements in the reform measures in India, including the provision of the right to education for detained and imprisoned individuals. This facility is now accessible to all prisoners who express their desire to pursue education. The reformation includes making education compulsory for women and young offenders, as it plays a crucial role in their personal development during their time in jail.
Furthermore, education remains mandatory for prisoners even after their release. It is the responsibility of the state to ensure that both young and older offenders receive education, recognizing it as a necessary and vital step that must be implemented effectively.
CONCLUSION
In conclusion, this article sheds light on the significance of upholding prisoners' legal rights within the Indian context. The Indian Constitution guarantees fundamental rights to every individual, including those who are incarcerated. These rights encompass the principles of human dignity, fairness, and justice, ensuring that prisoners are treated with respect and provided with essential protections.
By safeguarding their rights to humane treatment, fair trial, legal representation, communication, healthcare, education, and protection from discrimination, the Indian legal framework strives to promote rehabilitation, reintegration, and the preservation of their inherent human worth.
Upholding prisoners' rights not only aligns with constitutional principles but also plays a crucial role in building a just and inclusive society where justice is served while respecting the dignity of all individuals, regardless of their circumstances.
To elaborate, In the pursuit of a just and compassionate society, it is essential to recognize and protect the fundamental rights of prisoners in India. The Indian Constitution, with its strong emphasis on individual freedoms and dignity, forms the cornerstone of prisoners' rights. These rights serve as a safeguard against abuse, arbitrary actions, and unjust treatment within the prison system.
By upholding prisoners' rights, we acknowledge their potential for rehabilitation, reformation, and eventual reintegration into society. It reflects our commitment to a restorative approach that prioritizes the principles of fairness, equality, and due process. Recognizing prisoners as individuals deserving of respect and support not only contributes to their personal growth and well-being but also enhances public safety by reducing recidivism rates.
Moreover, protecting prisoners' legal rights serves as a litmus test for the credibility and effectiveness of our criminal justice system. It demonstrates our adherence to the rule of law and ensures that justice is administered fairly, transparently, and without prejudice. By providing access to legal representation, fair disciplinary proceedings, and due process rights, we foster a system that inspires public trust, promotes accountability, and guards against miscarriages of justice.
However, it is crucial to recognize that the realization of prisoners' rights is an ongoing challenge. Adequate resources, infrastructure, and trained personnel are necessary to translate these rights into meaningful actions. Efforts must be made to bridge the gaps between legal provisions and their implementation on the ground. Collaborative endeavors involving government agencies, civil society organizations, and the judiciary can help create a robust framework that upholds prisoners' rights effectively.
In conclusion, recognizing and protecting prisoners' legal rights in India is not just a matter of constitutional obligation; it is a reflection of our commitment to justice, compassion, and the rehabilitation of individuals who have made mistakes. By ensuring their rights are upheld, we take significant strides towards building a fair and inclusive society that values the inherent dignity and potential for transformation of every human being, regardless of their circumstances.
In the realm of criminal justice, the treatment and rights of prisoners hold significant importance. Recognizing the fundamental principles of human dignity and justice, the Indian Constitution safeguards the rights of prisoners, ensuring their fair and humane treatment during incarceration. These fundamental rights provide a framework for the protection and welfare of prisoners in India.
This article provides a comprehensive overview of prisoners' rights within the Indian legal system, examining the present legal framework, relevant legal precedents, and the current situation.
The discussion explores the fundamental rights enshrined in the Indian Constitution that pertain to prisoners. These rights encompass various aspects, such as the right to life and personal liberty, protection against torture and cruel, inhuman, or degrading treatment, the right to legal aid and a fair trial, and the right to be treated with dignity and respect.
By analyzing pertinent legal provisions, landmark judgments, and evolving judicial interpretations, this article aims to inform readers about the prevailing state of prisoners' rights in India. It seeks to foster an informed discussion and contribute to ongoing efforts aimed at improving the conditions and protection of prisoners' rights within the Indian criminal justice system.
Through enhancing awareness and understanding, promoting dialogue, and advocating for a just and humane approach to incarceration, I aim to address the pressing issues surrounding prisoners' rights and contribute to the overall advancement of the criminal justice system in India.
WHY SHOULD PRISONERS BE GIVEN LEGAL RIGHTS?
Legal rights are the entitlements and protections granted to individuals by the law. These rights define the boundaries of acceptable conduct, establish standards for fair treatment, and ensure that individuals are protected from abuse or arbitrary actions by the government or other entities. Legal rights are typically outlined in laws, constitutions, and international human rights treaties.
In the Indian legal context, legal rights for prisoners encompass various fundamental protections. These include the right to humane treatment and dignity, safeguarding individuals from torture, cruel, or degrading punishment; the right to be informed promptly of the grounds for arrest and detention; the right to legal representation and a fair trial; the right to communicate with legal counsel, family, and friends; the right to access healthcare and medical treatment; the right to educational and vocational opportunities; the right to protection from discrimination; and the right to due process and procedural fairness in disciplinary proceedings and parole hearings. These rights are crucial in upholding the principles of justice, ensuring the well-being of prisoners, and facilitating their rehabilitation and reintegration into society.
Prisoners should be given legal rights for several reasons:
Human Dignity:
Every individual, regardless of their actions or circumstances, possesses inherent human dignity. Respecting the legal rights of prisoners acknowledges their fundamental humanity and ensures that they are treated with dignity and fairness.
Rehabilitation and Reintegration:
One of the primary goals of the criminal justice system should be the rehabilitation and reintegration of offenders into society. By granting prisoners legal rights, we recognize their potential for change and growth. Upholding their rights can contribute to a more constructive and rehabilitative environment, increasing the chances of successful reintegration upon release.
Rule of Law:
The rule of law is a fundamental principle of a just society. It ensures that everyone, including prisoners, is subject to a predictable and fair legal framework. By providing legal rights to prisoners, we uphold the principles of fairness, due process, and equal protection under the law.
Preventing Abuse and Mistreatment:
Granting legal rights to prisoners acts as a safeguard against abuse, mistreatment, and arbitrary exercise of power by correctional authorities. It establishes legal protections to prevent torture, cruel or degrading treatment, and ensures that prisoners have access to necessary healthcare, nutrition, and adequate living conditions.
Reducing Recidivism:
Protecting the legal rights of prisoners can contribute to reducing recidivism rates. When prisoners are treated fairly and have access to legal representation, education, vocational training, and rehabilitation programs, they are more likely to develop the necessary skills and support networks to reintegrate into society successfully.
Upholding the Justice System's Credibility: By affording legal rights to prisoners, the justice system demonstrates its commitment to fairness, impartiality, and transparency. This fosters public trust and confidence in the system, which is crucial for the legitimacy and effectiveness of the criminal justice system as a whole.
While prisoners may have their freedoms restricted due to their offenses, it is essential to recognize that they retain basic human rights. Upholding these rights is not only a matter of justice but also a way to promote a more humane and rehabilitative approach to the incarceration process.
RELEVANT CASE LAWS
State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712
22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.
24. Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597] must be reasonable, fair and just.
28. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court.
32. Moreover, these decisions, as for example, Nilabati Behera v. State of Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : (1993) 2 SCR 581 : AIR 1993 SC 1960] , Death of Sawinder Singh Grower, In re [1995 Supp (4) SCC 450 : 1994 SCC (Cri) 1464 : JT (1992) 6 SC 271 : (1992) 3 Scale 34] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] would indicate that so far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of the State, which must fail.
Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104
4. Contemporary profusion of prison torture reports makes it necessary to drive home the obvious, to shake prison top brass from the callous complacency of unaccountable autonomy within that walled-off world of humans held incommunicado. Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, this Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law. Then the parrot-cry of discipline will not deter, of security will not scare, of discretion will not dissuade, the judicial process.
For if courts 'cave in' when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles will be re-enacted. When law ends tyranny begins; and history whispers, iron has never been the answer to the rights of man. Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen.
5. This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Article 21, read with Article 19(1)(d) and (5), is capable of wider application than the imperial mischief which gave it birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of a mature society, as Batra* and Sobraj [Sunil Batra v. Delhi Admn., published later in this volume] have underscored and the American Judges have highlighted.
Fair procedure is the soul of Article 21, reasonableness of the restriction is the essence of Article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anathema For Article 14. Constitutional karuna is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Article 21, this court has adopted, in Kharak Singh case that expanded connotation of 'life' given by Field, J. which we quote as reminder [Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] :
"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm of leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with outer world."
8. Viewed differently, supposing a court sentences a person to simple imprisonment or assigns him 'B' class treatment and the jail authorities unwittingly or vindictively put him under rigorous imprisonment or subject him to 'C' class treatment, does it not show contempt of the courts authority and deprivation of liberty beyond a degree validated by the court warrant? Likewise, where a prisoner is subjected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court?
Yet again, where conditions within a prison are such that inmates incarcerated therein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court's punitive purpose, charged with healing hope, stultified by the prison authorities? Of course, where a prison practice or internal instruction places harsh restrictions on jail life, breaching guaranteed rights, the court directly comes in. Every prison sentence is a conditioned deprivation of life and liberty, with civilized norms built in and unlimited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power. The Criminal judiciary have thus a duty to guardian their sentences and visit prisons when necessary. Many of them do not know or exercise this obligation.
9. Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in a human and dignified manner, keeping in view the adverse effect of his confinement upon his mental and physical conditions". The penological goals which may be regarded as reasonable justification for restricting the right to move freely within the confines of a penitentiary are now well-settled.
And if prisoners have title to Articles 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of a correctional system. It is now well-settled, as a stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and institutional security are vital considerations. Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement. When prison policy advances such a valid goal, the court will not intervene officiously.
11. But when an inmate is cruelly restricted in a manner which supports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitutionality is the consequence. Traumatic futility is obnoxious to pragmatic legality. Social defence is the raison d'etre of the penal code and bears upon judicial control over prison administration. If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the court will become operational based on Article 19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish to lay down only a broad guideline that where policies, with a "Zoological touch", which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitation, the court is not helpless.
However, a prison system may make rational distinctions in making assignments to inmates of vocational, educational and work opportunities available, but is constitutionally impermissible to do so without a functional classification system. The mere fact that a prisoner is poor or rich, high-born or ill-bred, is certainly irrational as a differentia in a 'secular, socialist republic'. Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon to delineate the broad boundaries of judicial jurisdiction vis-a-vis prison administration and prisoner's rights.
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
A 4. Two petitioners - Batra and Sobraj - one Indian and the other French, one under death sentence and the other facing grave charges, share in two different shapes, the slings and arrows of incarceratory fortune, but instead of submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether a prisoner, ipso facto forfeits personhood to become a rightless slave of the State and, in cultural terms, whether man-management of prison society can operate its arts by 'zoological strategies'.
The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de facto solitary confinement, pending his appeal, without de jure sanction. And the complaint of Sobraj is against the distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration, on the ipse dixit of the prison 'brass'.
The petitioners seek to use the rule of law to force open the iron gates of Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as forbidden ground, relying on Section 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The petitioners invoke Articles 14, 21 (and 19, in the case of Batra) of the Constitution.
The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional rights or prescribed procedures. Prisoners have enforceable liberties devalued may be but not demonetized; and under our basic scheme, Prison Power must bow before Judge Power if fundamental freedoms are in jeopardy. The principle is settled, as some American decisions have neatly put it:
"The matter of internal management of prisons or correctional institutions is vested in and rests with the heads of those institutions operating under statutory authority and their acts and administration of prison discipline and overall operation of the institution are not subject to court supervision or control absent most unusual circumstances or absent a violation of a constitutional right. [Donnel Douglas v. Maurice H. Sigler, 386 Fed. Rep. 2d 684] "
But Corwin notes: [ Supplement to Edward S. Corwin's The Constitution, p. 245]
"Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution - overcrowding, understaffing, unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on "cruel and unusual punishments."
52. True, our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper [R.C. Cooper v. Union of India, (1970) 1 SCC 248 : (1970) 3 SCR 531] and Manika Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.
Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears?
Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the life-style within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether.
For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III. So Batra pleads that until decapitation he is human and so should not be scotched in mind by draconian cellular insulation nor stripped of the basic fellowship which keeps the spirit flickering before being extinguished by the swinging rope.
213. There are certain broad submissions common to both the petitions and they may first be dealt with before turning to specific contentions in each petition. It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution.
Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex [40 L Ed 2d 224 at 248 (1974)] ). However, a prisoner's liberty is in the very nature or things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for 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 observance of procedural safeguards (see Wolff v. McDonell [41 L Ed 2d 935 at 973 (1974)] ).
By the very fact of the incarceration .prisoners are not in a position to enjoy the full panoply of fundamental rights because these very rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. In D. Bhuvan Mohan Patnaik v. Sate of A.P. [(1975) 3 SCC 185 : (1975) 2 SCR 24] one of us, Chandrachud, J., observed: (SCC pp. 186-87, para 6)
"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practice' a profession.
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of properly for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
In Speedy Trial of Undertrial Prisoners, In re, 2018 SCC OnLine SC 3799
15) The District & Sessions Judge must regularly monitor the progress of such cases pending in all the courts, in which accused are in custody for more than one year in Session triable cases; and more than 6 months in Magisterial triable cases.
Other Instructions/suggestions given by their lordships:
- Compilation of prisoners rights explained in various authorities of Hon'ble Supreme Court, should be available with all Judicial Officers and Panel Advocates of Legal Services Authorities.
- Booklet earlier published by Haryana State Legal Services Authorities regarding prisoners rights need to be amended so as to contain all the authorities of Hon'ble Supreme Court on the subject including the latest authority - CRIMINAL APPEAL NO. 509 OF 2017 'Hussain v. Union of India' decided on 17th March, 2017.
- Periodical training by Legal Services Authorities of its Panel Advocates regarding prisoners rights is utmost necessary.
- Check-list of various rights of the prisoners should be provided by Legal Services Authorities to Panel Advocates, who should ensure compliance of those rights at the time of their visit to Jails. District & Session Judge should monitor it at time of his monthly visit to the jail.
- Supply of Mobiles, intoxicants etc. in Jails is a known fact, may be with or without collusion of Jail Authorities. Legal Services Authorities may be involved to check supply of Mobiles, intoxicants etc. in jails.
- Panel Advocates of Legal Services Authorities should ensure that prisoners are aware of their rights. They should ensure that there is no breach of prisoners rights.
- Timely disposal of parole applications is very necessary. Timeline should be provided for disposal of such applications, including instructions to authorities/officers dealing with such applications to the effect that if in a certain given time limit, matter is not decided, application would be deemed to be allowed. The concerned officer may be held personally responsible for causing delay. The District & Sessions Judge may be empowered to monitor the early disposal.
- There are incentives for early release of convicts depending upon their good behaviour. There is no such scheme for under-trial prisoners, particularly, who are in long custody. Some scheme should be formulated for such under-trial prisoners.
- Ensure regular visit of Doctors to Jail, particularly Gynaecologist for female prisoners.
- Periodical medical camps; Yoga classes & spiritual discourses for prisoners should be regular feature in Jail.
- Convicts aged 75 years and above should be separately categorised, for grant of remission, particularly in case of ill health. Legal services authorities should take up their case to the Hon'ble High Court [Example: - Case of lady convict Kaneej confined in FBD jail in a cheating case.]
- Review of those cases is required, in which person is in custody in family matters/cheque bounce cases. Custody of persons even after breaks in maintenance cases should be checked.
- Female prisoners with child aged below 6 years should be specially categorised for welfare of the child. Some scheme like '2 years child care leave' with breaks, up to two children only, may be considered.
- Monitoring is required for fast disposal of custody cases/persons in custody, at following levels:
- Judicial Officer concerned - pro-active approach is required. Long dates be avoided. Managing the cause list.
- Lawyer/Public Prosecutor level - Relaxation of conditions for bail be applied, where bonds not furnished despite bail. Exemption request be made with condition that steps for further progress of case may be taken up.
- Jail Authority level - To have profile of every prisoner and move the concerned authorities for early release, wherever situation so requires.
- Active role of legal services authorities.
Inhuman Conditions in 1382 Prisons, In re, (2019) 2 SCC 435
5. The issue must be considered in a humanitarian and compassionate manner. That apart the law laid down by this Court in Sunil Batra (1) v. Delhi Admn. [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] is quite clear. It has been held in para 223 of the Report that a prisoner under sentence of death can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible and which cannot be annulled and voided by any judicial or constitutional procedure.
In other words, a prisoner can be said to be a prisoner on death row when his sentence is beyond judicial scrutiny and would be operative without any intervention from any other authority. Till then, such a prisoner cannot be said to be under a sentence of death in the context of Section 30 of the Prisons Act, 1894. That being the position, as also mentioned in para 101 of the Report, a prisoner is entitled to every creature comfort and facilities such as bed and pillow, opportunity to commerce with human kind, writing material, newspapers, books, meeting with family members, etc.
6. The above view has been reiterated in Sunil Batra (2) v. Delhi Admn. [Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488 : 1980 SCC (Cri) 777] in para 42 of the Report and in Kishore Singh Ravinder Dev v. State of Rajasthan [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] in paras 10 and 13 of the Report. In para 10 of the Report in Kishore Singh [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , it was held that there is no difference between a separate cell and solitary confinement. Therefore, a convict on death row is entitled to move within the confines of the prison like any other convict undergoing rigorous imprisonment. However, certain restrictions may be necessary for security reasons, but even then, it would be necessary to comply with natural justice provisions with an entitlement to file an appeal.
10. With regard to the entitlement of a prisoner on death row to have meetings and interviews with his lawyers or members of his immediate family or even mental health professionals, we are of opinion that such meetings and interviews should be permitted. We follow the view expressed by this Court in Francis Coralie Mullin v. State (UT of Delhi) [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] . In para 8 of the Report, it was specifically noted by this Court, after referring to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights that as a part of the right to live with human dignity, a prisoner is entitled to have interviews with members of his family and friends and no prison regulation and procedure to the contrary can be upheld as being constitutionally valid under Articles 14 and 21 of the Constitution unless it is reasonable, fair and just. Similarly, there cannot be any doubt that a prisoner must be entitled to have discussions with his lawyers so that he has effective legal representation and access to justice as well as remedies for justice. In our opinion, the law laid down by this Court in Francis Coralie Mullin [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212] would be equally applicable to death row prisoners for meeting mental health professionals for a reasonable period of time with reasonable frequency so that their rights can be adequately protected at all stages.
11. We make it clear that we have only reiterated the law laid down by this Court over several decades and which is based not only on the provisions of our Constitution but is also in conformity with international instruments. As held by this Court, the rights of prisoners as enunciated by this Court would be available not only in a particular State but would be available to them in all the States and Union Territory Administrations across the country. Accordingly, the State Governments and Union Territory Administrations must modify the prison manuals, regulations and rules accordingly.
8. In para 13 of the Report in Kishore Singh [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , it was directed that the rulings of this Court in Sunil Batra [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , [Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488 : 1980 SCC (Cri) 777] and Rakesh Kaushik v. B.L. Vig [Rakesh Kaushik v. B.L. Vig, 1980 Supp SCC 183 : 1980 SCC (Cri) 834] on prison administration be converted into rules and instructions forthwith so that violation of prisoners' freedom can be avoided and habeas corpus litigation may not proliferate. Para 13 of the Report reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 509-10)
13. We find that the old rules and circulars and instructions issued under the Prisons Act are read incongruously with the Constitution, especially Article 21 and interpretation put upon it by this Court. We, therefore, direct the State Government of Rajasthan - and indeed, all the other State Governments in the country - to convert the rulings of this Court bearing on Prison Administration into rules and instructions forthwith so that violation of the prisoners' freedoms can be avoided and habeas corpus litigation may not proliferate. After all, human rights are as much cherished by the State as by the citizen.
7. Para 10 reads as follows: (Kishore Singh case [Kishore Singh Ravinder Dev v. State of Rajasthan, (1981) 1 SCC 503 : 1981 SCC (Cri) 191] , SCC pp. 508-09)
10. We cannot agree that either the section or the rules can be read in the absolutist expansionism the prison authorities would like us to read. That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons. This country has no totalitarian territory even within the walled world we call prison. Articles 14, 19 and 21 operate within the prisons in the manner explained in Sunil Batra (1) [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution], by a Constitution Bench of this Court. It is significant that the two opinions given separately in that judgment agree in spirit and substance, in reasoning and conclusions. Batra in that case was stated to be in a separate confinement and not solitary cell. An identical plea has been put forward here too.
For the reasons given in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution] we must overrule the extenuatory submission that a separate cell is different from solitary confinement. The petitioners will, therefore, be entitled to move within the confines of the prison like others undergoing rigorous imprisonment.
If special restrictions of a punitive or harsh character have to be imposed for convincing security reasons, it is necessary to comply with natural justice as indicated in Sunil Batra (1) case [Sunil Batra (1) v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] [under Article 32 of the Constitution]. Moreover, there must be an appeal not from Caesar to Caesar, but from a prison authority to a judicial organ when such treatment is meted out.
In the case of famed Charles Sobraj through Marie Andre'o vs. The Superintendent, Central Jail, Tihar, New Delhi (1978), Supreme Court Justice Krishna Aiyer held, "..imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen". He further held that imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation.
He observed, "Social defence is the raison d'etre of the Penal Code and bears upon judicial control over prison administration. If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the Court will become operational based on Article 19.
Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish to lay down only a broad guideline that where policies, with a 'Zoological touch', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitation, the Court is not helpless. However, a prison system may make rational distinctions in making assignments to inmates of vocational, educational and work opportunities available, but it is constitutionally impermissible to do so without a functional classification system."
Various fundamental rights under Article, 14, 19, 20, 21 and 22 of the Constitution of India impliedly deal with the rights of prisoners. Article 14 deals with right to equality which provides equality before law and equal protection of law to all persons. Article 21 deals with right to life and personal liberty. Article 20 deals, inter alia, with two things, firstly it prohibits double jeopardy, that is, no person should be convicted for same offence twice. Secondly, it prohibits self incrimination, that is, no one can be compelled to be witness against himself. Article 22 provides that a person must be produced before magistrate within 24 hours of his arrest and must be provided with a counsel of this own choice. Famous constitutional writer Upendar Baxi has opined that scope of Article 21 is so vast that we do not need any other rights in our Constitution, and in the light of the Supreme Court's 'construction' of the meaning of 'life' under Article 21, whereby all the rights such as right to health, right to food, right to shelter, right to bail, right to speedy trial, right to free legal aid, right against custodial violence and death in police lock-ups or encounters, Right to meet friends and family members, Right to reasonable wage in prison, right against cruel and unusual punishment etc., have been included under it.
D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185
6. Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
9. The vacant land appurtenant to the jail is by the definition of "prison" in Section 3(1) of The Prisons Act a part of the prison itself. It cannot, therefore, be gainsaid that members of the Andhra Pradesh Special Police Force must be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under trial prisoners, like two of the petitioners before us, who are remanded to judicial custody ought to be immune from the coercive influence of the police. The security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against "the very essence of a scheme of ordered liberty". But the argument of Mr Garg proceeds from purely hypothetical considerations. The policemen who live on the vacant jail land are not shown to have any access to the jail which is enclosed by high walls. Their presence therefore, in the immediate vicinity of the jail can cause no interference with the personal liberty or the lawful preoccupations of the petitioners.
10. Counsel for the petitioners complained bitterly against the segregation of Naxalite prisoners in a "quarantine" and the inhuman treatment meted out to them as if they were inmates of a "Fascist concentration camp". We would like to emphasise once again, and no emphasis in this context can be too great, that though the Government possesses the constitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the political beliefs of its opponents. No person, not even a prisoner, can be deprived of his "life" or "personal liberty" except according to procedure established by law. The American Constitution by the 5th and 14th Amendments provides, inter alia, that no person shall be deprived of "life, liberty, or property, without due process of law". Explaining the scope of this provision, Field, J. observed in Munn v. Illinois [(1877) 94 US 113] that the term "life" means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332, 347 : (1963) 2 Cri LJ 329]
Shabnam v. Union of India, (2015) 6 SCC 702
14. This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being "as a human being". Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person's life, physical or mental welfare is harmed. It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty, the right of the accused to a fair trial as well as speedy trial, right of legal aid, are all part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity. Prison reforms or jail reforms are measures to make convicts reformed persons so that they are able to lead normal life and assimilate in the society after serving the jail term, are motivated by human dignity jurisprudence.
Undoubtedly, lawful incarceration brings about necessary withdrawal or limitation of some of these fundamental rights, the retraction being justified by the considerations underlying the penal system (see Pell v. Procunier [69 4 L Ed. 2d. 495 at 501 (1974).] ).
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608
4. Now it is necessary to bear in mind the distinction between "preventive detention" and "punitive detention", when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention.
"Punitive detention" is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while "preventive detention" is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order.
It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Article 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] a very narrow and constricted meaning was given to the guarantee embodied in Article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Article 21.
But in Maneka Gandhi case [ Under Article 32 of the Constitution] this Court for the first time opened up a new dimension of Article 21 and laid down that Article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21.
This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of fundamental rights. This decision in Maneka Gandhi case [ Under Article 32 of the Constitution] became the starting point - the springboard - for a most spectacular evolution of the law culminating in the decisions in M.H. Hoskot v. State of Maharashtra [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] , Hussainara Khatoon (I) case [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] , the first Sunil Batra case [Sunil Batra (I) v. Delhi Admn, (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] and the second Sunil Batra case [Sunil Batra (II) v. Delhi Admn, (1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557] .
The position now is that Article 21 as interpreted in Maneka Gandhi case [ Under Article 32 of the Constitution] requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just.
But despite these safeguards laid down by the Constitution and creatively evolved by the courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused.
It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrongdoing as a result of a trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the executive is very limited.
Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of J&K [(1969) 1 SCC 562 : (1969) 3 SCR 574 :1969 Cri LJ 1555] that: "The restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal." (SCC p. 567, para 9)
5. The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a court of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] - [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration".
The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] - [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] this position was impliedly accepted in State of Maharashtra v. Prabhakar Pandurang Sangzgiri [AIR 1964 SC 424 : (1966) 1 SCR 702 : 1966 Cri LJ 311] and it was spelt out clearly and in no uncertain terms by Chandrachud, J., as he then was, in D.B. Mohan Patnaik v. State of A.P. [D.B. Mohan Patnaik v. State of A. P.(1975) 3 SCC 185, 186-87 : 1974 SCC (Cri) 803, 804-05 : (1975) 2 SCR 24] : [SCC pp. 186-87: SCC (Cri) pp. 804-05, para 6]
"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practise' a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case [Hussainara Khatoon (I) v. Home Secy, (1980) 1 SCC 81, 1980 SCC (Cri) 23] . Krishna Iyer, J. in the latter case proceeded to add in his characteristic style (SCC p. 504):
"The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing (SCC p. 505):
"Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion - the Court armed with the Constitution."
It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr Justice Douglas struck a humanistic note when he said in Eve Pall case [417 US 817 : 41 L Ed 2d 495] : "Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process."
So also in Charles Wolf case [41 L Ed 2d 935] Mr Justice White made the same point in emphatic terms: "But, though his rights may be diminished by environment, a prisoner is not wholly stripped of constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country." Mr Justice Douglas reiterated his thesis when he asserted:
"Every prisoner's liberty is of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards."
Mr Justice Marshall also expressed himself clearly and explicitly in the same terms:
"I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection." What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the court which is, to use the words of Krishna Iyer, J. (SCC p. 504), "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope", will immediately spring into action and run to his rescue.
7. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of U.P. [(1964) 1 SCR 232] Subba Rao, J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois [(1877) 94 US 113 : 24 L Ed 77] to emphasize the quality of life covered by Article 21 : [Sunil Batra (I) v. Delhi Admn, SCR p 503 : SCC p 574 : SCC (Cri) p 235] "By the term "life" as here used something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world" and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192] . Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged.
Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.
8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.
Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free-will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.
9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression "personal liberty" occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case [ Under Article 32 of the Constitution] and it has been held in that case that the expression "personal liberty" used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct fundamental rights and given additional protection under Article 19". There can therefore be no doubt that "personal liberty" would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
11. The same reasoning must also result in invalidation of sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention.
The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law.
A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi.
This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory.
Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of Customs/ Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
Kharak Singh v. State of U.P., (1964) 1 SCR 332
11. The content of Article 21 next calls for examination. Explaining the scope of the words "life" and "liberty" which occurs in the 5th and 14th Amendments to the U.S. Constitution reading "No person … shall be deprived of life, liberty or property without due process of law", to quote the material words, on which Article 21 is largely modelled, Field, J. observed:
"By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world … By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a prison."
It is true that in Article 21, as contrasted with the 4th and 14th Amendment in the U.S., the word "liberty" is qualified by the word "personal" and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those elements or incidents of "liberty" like freedom of speech, or freedom of movement etc. already dealt with in Article 19(1) and the "liberty" guaranteed by Article 21 - and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed by sub-clauses 2 to 6 of the Article on the several species of liberty dealt with in the several clauses of Article 19(1).
In view of the very limited nature of the question before us it is unnecessary to pause to consider either the precise relationship between the "liberties" in Article 19(1)(a) & (d) on the one hand and that in Article 21 on the other, or the content and significance of the words "procedure established by law" in the latter Article, both of which were the subject of elaborate consideration by this Court in A.K. Gopalan v. State of Madras [1950 SCC 228 : 1950 SCR 88] . In fact, in Gopalan case [1950 SCC 228 : 1950 SCR 88] there was unanimity of opinion on the question that if there was no enacted law, the freedom guaranteed by Article 21 would be violated, though the learned Judges differed as to whether any and every enacted law satisfied the description or requirements of "a procedure established by law".
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
4. The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of "personal liberty" within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law.
There is no procedure prescribed by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of Article 21.
This contention of the petitioner raises a question as to the true interpretation of Article 21. What is the nature and extent of the protection afforded by this article? What is the meaning of "personal liberty" : does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in The Indian Constitution - Cornerstone of a Nation, "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". They were indelibly written in the subconscious memory of the race which fought for well nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.
They weave a "pattern of guarantees on the basic-structure of human rights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from "alienating" the individual from his creative impulses.
These rights are wide ranging and comprehensive and they fall under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. Articles 14 to 18 occur under the heading "Right to Equality", and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State not to "deny to any person equality before the law or the equal protection of the laws within the territory of India". Articles 19 to 22, which find place under the heading "Right to freedom" provide for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom. It provides that all citizens shall have the right :
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India;
- to acquire, hold and dispose of property;
- to practice any profession or to carry on any occupation, trade or business.
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22 confers protection against arrest-and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other fundamental rights are not relevant to the present discussion and we need not refer to them.
5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law.
The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words "personal liberty" as used in this article? This question incidentally came up for discussion in some of the judgments in A.K. Gopalan v. State of Madras [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words "personal liberty" so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words "personal liberty" as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper scope and meaning of the expression "personal liberty" came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that "personal liberty" is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the "personal liberties" of man other than those dealt with in the several clauses of Article 19(1).
In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue. The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words:"No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another.
The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct and the majority view must be held to have been overruled.
We shall have occasion to analyse and discuss the decision in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] a little later when we deal with the arguments based on infraction of Articles 19(1)(a) and 19(1)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the Full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom.
The decision in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] where Shah, J., speaking on behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields they do not attempt to enunciate distinct rights."
The conclusion was summarised in these terms:"In our judgment, the assumption in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that certain articles in the Constitution exclusively deal with specific matters - cannot be accepted as correct". It was held in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] - and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjea, J., and S.R. Das, J., in A.K. Gopalan case - that even where a person is. detained in accordance with the procedure prescribed by law, as mandated be Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedoms under Article 19, clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1).
Indeed, in that event, a law of preventive detention which deprives a person of "personal liberty" in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 22 would not require to be tested on the touchstone of clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] that such a law would have to satisfy the requirement inter alia of Article 19(1), clause (d) and in Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] which was a decision given by a Bench of five Judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression "personal liberty" as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights.
The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and our approach in the interpretation of the fundamental rights must now be in tune with this wavelength.
We may point out even at the cost of repetition that this Court has said in so many terms in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] that "personal liberty" within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.
Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means "enacted law" or "state law" (vide A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] ).
Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements?
Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure.
Fazl Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis' book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law". Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.
The inter-relationship between Articles 14, 19 and 21
6. We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19.
This view proceeded on the assumption that "certain articles in the Constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority Judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven Judges of this Court in Shambhu Nath Sarkar v. State of West Bengal [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] . The learned Judge there said (SCC p. 879):
"In Gopalan case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] the majority court had held that Article 22 was a self-contained code and therefore a law of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The view of Fazl Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article 19(1)(d) and that a law providing for preventive detention had to be subject to such judicial review as is obtained under clause (5) of that article.
In R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the aforesaid premise of the majority in Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was disapproved and therefore it no longer holds the field. Though Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of the majority in Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] to be incorrect."
Subsequently, in Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] also, a Bench of five Judges of this Court, after referring to the decisions in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to be tested in regard to its reasonableness with reference to Article 19.
That decision accepted and applied the ratio in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and Shambhu Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] and proceeded to consider the challenge of Article 19, to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional guarantees enshrined in Article 19.
The same view was affirmed once again by a Bench of four Judges of this Court in Khudiram Das v. State of West Bengal [(1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832] . Interestingly, even prior to these decisions, as pointed out by Dr Rajeev Dhavan, in his book, The Supreme Court of India at p. 235, reference was made by this Court in Mohd. Sabir v. State of Jammu and Kashmir [(1972) 4 SCC 558 : 1971 Cri LJ 1271] to Article 19(2) to justify preventive detention.
The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of "personal liberty" and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] , Shambhu Nath Sarkar case [(1973) 1 SCC 856 : 1973 SCC (Cri) 618 : AIR 1973 SC 1425] and Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] Now, if a law depriving a person of "personal liberty" and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney-General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A.K. Gopalan case [1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that Article 21 "presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for", including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, State of West Bengal v. Anwar Ali Sarkar [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] and Kathi Raning Rawat v. State of Saurashtra [(1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] where there was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code.
The special law in each of these two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14 and in one case, namely, Kathi Raning Rawat case [(1952) 1 SCC 215 : AIR 1952 SC 123 : 1952 SCR 435 : 1952 Cri LJ 805] he validity was upheld and in the other, namely, Anwar Ali Sarkar case [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] it was struck down. It was held in both these cases that the procedure established by the special law must not be violative of the equality clause. That procedure must answer the requirement of Article 14.
The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic.
And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348] namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
In the case of Sheela Barse vs. State of Maharashtra (1983) where on the application of a journalist the Supreme Court took cognizance of the matter regarding the ill-treatment and poor conditions of the prisoners in the jail and issued certain directions namely:
That interrogation of females should be carried out only in the presence of female police officers/constables.
Whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail.
That whenever a person is arrested by the police and taken to the police lock up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal assistance to the arrested person at State cost provided he is willing to accept such legal assistance. The State Government will provide necessary funds to the concerned Legal Aid Committee for carrying out this direction.
That as soon as a person is arrested, the police must immediately obtain from him the name of any relative or friend whom he would like to be informed about his arrest and the police should get in touch with such relative or friend and inform him about the arrest.
That the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has right under section 54 of the Code of Criminal Procedure 1973 to be medically examined.
STATUTORY RIGHTS
In addition to the Constitutional rights, prisoners also have certain rights granted by statutes. The Prisons Act of 1894 was established to regulate the functioning of prisons and it includes provisions that outline these statutory rights. Section 4 of the Act ensures that prisoners are provided with suitable accommodation and sanitary conditions.
Section 7 addresses the issue of excess prisoners who cannot be safely accommodated in any prison, requiring shelter and secure custody for them. Section 24(2) mandates that prisoners receive medical examinations from qualified medical officers. Section 31 mandates the separation of prisoners based on categories such as gender, civil or criminal status, and convicted or undertrial status.
Section 33 stipulates that civil and unconvicted prisoners who are unable to provide themselves with adequate clothing and bedding must be supplied with them. Section 35 addresses the treatment of undertrial and civil prisoners, as well as the possibility of parole and temporary release. Section 37 ensures that a prisoner in need or showing signs of ill health, whether physical or mental, must be provided with a medical officer.
Finally, Section 40 requires that proper arrangements be made for the admission of persons with whom civil or unconvicted criminal prisoners wish to communicate, ensuring that undertrial prisoners can meet their qualified legal advisors without the presence of others.
In today's rights-focused society, there is a growing emphasis on considering the rights of individuals. As a result, the concept of open jails is gaining popularity, marking a shift in the perception of prisons. Rather than being solely punitive institutions, prisons are now viewed as places for rehabilitation.
Open jails play a vital role in this new approach by promoting the socialization of inmates with the outside world, allowing them to reintegrate into society. These jails are primarily reserved for prisoners who are deemed non-threatening to society.
Some other major statutory rights are:
Right to Constitutional Remedies
These remedies are available to all the prisoners, who are deprived of their rights by the officials, under article 226 before high court and under article 32 before Supreme court.
Permission to wear clothes of your choice in jail
Undertrial prisoners have the freedom to wear clothes brought from their homes while convicted prisoners do not have such privileges.
Prisoners can move Supreme Court for 'cruelty' in jail
Prisoners have the right to seek legal recourse if they experience any form of cruelty or mistreatment in jail. It is imperative that no prisoner's fundamental rights be denied without following the proper legal procedures. The law strictly prohibits any mistreatment or inhumane treatment of prisoners. In case a prisoner's fundamental rights are violated, they have the option to directly approach the Supreme Court under Article 32 or the high court under Article 226 for appropriate redress.
Free medical facility, legal advice in jail
The Supreme Court has explicitly declared that prisoners must not be treated in a dehumanizing manner. It is the responsibility of the jail administration and the government to ensure that prisoners are provided with all the essential facilities. The model jail manual specifies that prisoners should have access to basic necessities such as clean water, fresh food, appropriate clothing, bedding, and medical services.
Additionally, prisoners are entitled to receive free legal advice, have the ability to correspond through letters and meet their families, and be offered employment opportunities. In certain cases, undertrial prisoners may also be permitted to engage with the media. Security measures are in place for prisoners, and those who had special security arrangements prior to their incarceration receive special protection while in jail.
Prisoners to get 2,400 calories of nutritious food
As per the guidelines outlined in the model prisons manual, a kitchen is equipped to prepare meals for a maximum of 250 prisoners. If the number exceeds this limit, arrangements are made for a separate kitchen. The walls of the kitchens are tiled up to a height of two meters for cleanliness and hygiene purposes.
Adequate lighting, LPG gas connections, bread making machines, flour making machines, and hotplates are among the essential facilities that prison kitchens should possess. Prisoners are provided with meals that contain a calorie intake ranging from 2,000 to 2,400.
Fresh breakfast, lunch, and dinner are served, and it is strictly stated in the manual that prisoners should not be given stale food. In case an inmate faces any issues with the food, they have the right to file a complaint. Food is provided to prisoners based on their specific health requirements and the prevailing environmental conditions, with the dosage determined under the guidance of a medical officer.
Prisoners get remuneration for working
Prisoners have the opportunity to engage in work activities within the prison, and in exchange, they receive payment for their labor. It is strictly prohibited to compel prisoners to work without any form of remuneration. Forcing prisoners to work without compensation infringes upon their fundamental rights.
Right to education for prisoners
There have been significant advancements in the reform measures in India, including the provision of the right to education for detained and imprisoned individuals. This facility is now accessible to all prisoners who express their desire to pursue education. The reformation includes making education compulsory for women and young offenders, as it plays a crucial role in their personal development during their time in jail.
Furthermore, education remains mandatory for prisoners even after their release. It is the responsibility of the state to ensure that both young and older offenders receive education, recognizing it as a necessary and vital step that must be implemented effectively.
CONCLUSION
In conclusion, this article sheds light on the significance of upholding prisoners' legal rights within the Indian context. The Indian Constitution guarantees fundamental rights to every individual, including those who are incarcerated. These rights encompass the principles of human dignity, fairness, and justice, ensuring that prisoners are treated with respect and provided with essential protections.
By safeguarding their rights to humane treatment, fair trial, legal representation, communication, healthcare, education, and protection from discrimination, the Indian legal framework strives to promote rehabilitation, reintegration, and the preservation of their inherent human worth.
Upholding prisoners' rights not only aligns with constitutional principles but also plays a crucial role in building a just and inclusive society where justice is served while respecting the dignity of all individuals, regardless of their circumstances.
To elaborate, In the pursuit of a just and compassionate society, it is essential to recognize and protect the fundamental rights of prisoners in India. The Indian Constitution, with its strong emphasis on individual freedoms and dignity, forms the cornerstone of prisoners' rights. These rights serve as a safeguard against abuse, arbitrary actions, and unjust treatment within the prison system.
By upholding prisoners' rights, we acknowledge their potential for rehabilitation, reformation, and eventual reintegration into society. It reflects our commitment to a restorative approach that prioritizes the principles of fairness, equality, and due process. Recognizing prisoners as individuals deserving of respect and support not only contributes to their personal growth and well-being but also enhances public safety by reducing recidivism rates.
Moreover, protecting prisoners' legal rights serves as a litmus test for the credibility and effectiveness of our criminal justice system. It demonstrates our adherence to the rule of law and ensures that justice is administered fairly, transparently, and without prejudice. By providing access to legal representation, fair disciplinary proceedings, and due process rights, we foster a system that inspires public trust, promotes accountability, and guards against miscarriages of justice.
However, it is crucial to recognize that the realization of prisoners' rights is an ongoing challenge. Adequate resources, infrastructure, and trained personnel are necessary to translate these rights into meaningful actions. Efforts must be made to bridge the gaps between legal provisions and their implementation on the ground. Collaborative endeavors involving government agencies, civil society organizations, and the judiciary can help create a robust framework that upholds prisoners' rights effectively.
In conclusion, recognizing and protecting prisoners' legal rights in India is not just a matter of constitutional obligation; it is a reflection of our commitment to justice, compassion, and the rehabilitation of individuals who have made mistakes. By ensuring their rights are upheld, we take significant strides towards building a fair and inclusive society that values the inherent dignity and potential for transformation of every human being, regardless of their circumstances.
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