Every Saint Has A Past; Every Sinner Has A Future – Oscar Wilde

Historical Background of Prison and Prisoners

The word Prison doesnt means to use sudden force or to cage. The Prison is an old age foundation. Prison is a place, properly arranged for those culprits through legal process are kept for safe custody while in trial or for punishment. Initially, it was just a place where offenders are kept for trials and ultimate punishment, but their occurred an intermediate point-imprisonment was regarded in itself.

Lord Macaulay in his book Minutes of 1835 said that:
Imprisonment is the punishment to which we must chiefly trust. He was the one who put the idea for the idea for the establishment of such rules and regulations, main aim was to destroy criminal streak among convicted offenders. If we turn the pages of our past Indian History, there are descriptions of prisoners, in Manusmriti it is stated that King should have all the prisons where all the evil and wrongdoers are kept. In the historical writings of Huein-Tsang and Fa-Hein polished treatment of prisoners was unknown during ancient India and also stated about brutal and barbaric punishment of the prisoners.

The post independence period saw a major change in our prison system. Government took special interest in it. Around 1951, experts were invited from United Nations to study the prison administration and they were said to suggest some suggestion so as to develop prisoners rights. Shocking to know that even till now many civilized countries like India, China doesn't have codified rights of the prisoners, but still our Honorable Judiciary has recognized a long list of right of prisoners and still Government is working for the welfare of the prisoners.

Prisons are often placed at the extreme end of the Criminal Justice System. They inevitably become forgotten institutions that confine persons either facing trial or convicted of crimes. The role of Judiciary is commonly believed to have ended when the accused is convicted and sent to prison to undergo punishment.

Yet, time and again, the Courts have intervened to reiterate the obvious:
A Prisoner Does Not Cease To Remain A Human Being Even After Punishment. The restriction on liberty imposed by law does not take away ones right to dignity enshrined under the Constitution of India. She/he is entitled to basic human rights behind bars.

In India, prisons are governed by State laws framed under a Century Old Parent Legislation, the Prisons Act of 1894. Very few States / Union Territories such as Andaman & Nicobar Islands, Arunachal Pradesh, Bihar, Daman & Diu, Delhi, Goa, Sikkim, and West Bengal have Acts / Rules / Manuals which were formulated in the 21st Century. The changes brought in these State Legislations have contributed little in the development of a legal framework which, inter alia, provides for Rights of Prisoners.

This lacking of rights based approach in the statutory law on prisons is remedied by the Courts through recognition of Rights of Prisoners in their judicial pronouncements. Merely changing the nomenclature of prisons to Correction Homes, as the Supreme Court of India has said, will not resolve the problem. [Order Dated 15.09.2017 passed in In Re-Inhuman Conditions in 1382 Prisons Vs State of Assam & Ors., WP(C) 406 / 2013].

Prisoners are also entitled to rights to some extent as a normal human being when they are behind the prison. These rights are provided under the Constitution of India, the Prisons Act, 1894 etc. Prisoners are persons and have some rights and do not lose their basic constitutional rights.

In the case of [State of A.P. Vs Challa Ramkrishna Reddy, (2000) 5 SCC 712: AIR 2000 SC 2083], it was held that a prisoner is entitled to all his/her fundamental rights unless his/her liberty has been constitutionally curtailed. The Supreme Court has emphasized that a prisoner, whether a convict, under-trial or detenu, does not cease to be a human being and, while lodged in jail, he/she enjoys all his/her fundamental rights guaranteed by the Constitution of India including the right to life guaranteed by the Constitution of India. Even a person is convicted and deprived of his/her liberty in accordance with the procedure established by law; a prisoner still retains the residue of constitutional rights.

Prisoners Rights under the Constitution of India

Constitution of India does not expressly provide the provisions related to the prisoners rights but in the case of [T.V. Vatheeswaran Vs State of Tamil Nadu 1983 (2) SCC 68], it was held that the Articles 14, 19 & 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights.

Article 14 of the Constitution of India says that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Thus Article 14 of the Constitution of India contemplated that like should be treated alike, and also provided the concept of reasonable classification. Article 14 of the Constitution of India is very useful guide and basis for the prison authorities to determine various categories of prisoners and their classifications with the object of reformation.

Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India. Among these freedoms certain freedoms i. e freedom of speech and expression under Article 19 (1)(a) freedom to become member of an association under Article 19 (1)(g) cannot enjoyed by the prisoners because of the very nature of these freedoms.

Article 21 of the Constitution of India says that No person shall be deprived of his/her life or personal liberty except according to procedure established by law. This Article stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the Constitution of India it is clear that it is available not only for free people but also to those people behind the prison.

Following are the rights of prisoners which are implicitly provided under the Article 21 of the Constitution of India

• Right To Free Legal Aid;

  Though the Right to Legal Aid is not something explicitly defined by Constitution of India, the legal executives often display kindness towards detainees who cannot afford it or simply connect with the legal counsellor voluntarily. Free Legal Aid is included by the 42nd Amendment Act, 1976, as one of the Directive Principles of State Policy under Article 39-A of the Constitution of India. Although it is the most significant and direct Article of the Constitution, which discusses Free Legal aid, this Article is not exactly enforceable by Courts. Still, these guidelines are central to administering appropriate legislation. Article 37 of the Constitution of India directs the State to apply these standards.
  
  In contrast, Article 38 of the Constitution of India prescribes advancing Government assistance of individuals by ensuring and securing a social order wherein equity, social, monetary, and political, will illuminate all the establishments and national legislation. The Parliament passed the Legal Services Authorities Act, 1987 under which legitimate Aid is provided for, while different State Governments have set up lawful advisory boards and plans for Free Legal Aid and unforeseen issues to give effect to the Constitutional command of Article 39-A of the Constitution of India. Under the Indian Human Rights law, legal Aid is of great importance, and it is not only accessible in criminal cases but is additionally offered in standard, income, and regulatory matters.
  
  As exemplified in the case of [Madhav Hayawadan Rao Hosket Vs State of Maharashtra, (1978) 3 SCC 544] a three adjudicators seat (V. R. Krishna Iyer, D. A. Desai and O. Chinnappa Reddy, JJ) of the Supreme Court perusing Articles 21 & 39-A of Constitution of India, alongside Article 142 and Section 304 of Code of Criminal Procedure, 1973 together pronounced that the Government was under obligation to offer legitimate types of assistance to the charged people, as under;.
  
  24. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Art. 142 read with Articles 21 & 39-A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution.
  
  The inference is inevitable that this is a States duty and not Governments charity. Equally affirmative is the implication that while legal services must be free to the beneficiary the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run.
  
  Their services, especially when they are on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of Course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the Court.
   

• Right To Speedy Trial;

  The Speedy Trial is an essential feature of fair trial as adage; Justice hurried is Justice worried. Thus there is need to strike balance between right of the accused to have a speedy trial and right of the prosecution to fair opportunity to establish guilt of accused. The concept of right to speedy trial flows from Article 21 of the Constitution of India.
  The Speedy Trial of offenses is one of the essential targets of the criminal equity conveyance framework. When the Court takes the comprehension of the allegation, then the prosecution must be directed speedily to rebuff the one who is liable and to exonerate the guiltless.
  
  The right to a Speedy Trial is provided under Section 309 of Code of Criminal Procedure, 1973. If the arrangements of Code of Criminal Procedure, 1973 were followed in their letter and soul, at that point, there would be no doubt of any complaint. However, these laws are not appropriately executed. It is essential that the Constitutional assurance of speedy trial exuding from Article 21 of the Constitution of India ought to be adequately reflected in the arrangements of the Code.
  
  Initially, right to Speedy Trial was first discussed in the landmark document of English Law, the Magna Carta. Right to Speedy Trial is an abstract idea which deals with the disposal of along-with the Justice. In the leading landmark case [Hussainara Khatoon Vs State of Bihar, (1980) 1 SCC 81], it was held that Speedy Trial is an essential ingredient of right to life and liberty under Article 21 of the Constitution and it is the constitutional duty of the State to set up procedure to ensure Speedy Trial..
  
  For this reason, in [A. R. Antulay Vs. R. S. Nayak & Anr., AIR 1988 SC 1531, throws considerable light on the right to speedy trial as is recognized in India. It is now well accepted that right to speedy trial is an inherent and flows from Article 21 of the Constitution of India, which declares that no person should be deprived of his/her life and liberty expect in accordance with procedure prescribed by law.
  
  The Supreme Court set suggestions that will be implemented in ensuring the Human Rights of detainees. The Supreme Court then concluded that the privilege to speedy trial spilling out of Article 21 of the Constitution applies to charges at any stage such as examination, request, trial, bid, modification, and retrial.
   

• Right Against Cruel & Unusual Punishment;

  Human rights are part and parcel of Human Dignity. The Supreme Court in catena of Judgments has taken serious note of the inhuman treatment on prisoners and issued appropriate directions to the prison and police authorities for safeguarding the rights of the prisoners and the persons in lock-ups. The treatment to a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14 of the Constitution of India. In [Raghubir Singh & Ors Vs State of Bihar, AIR 1987 sc 149], the Supreme Court expressed its anguish over police torture upholding the life sentence awarded to a police officer responsible for the death of a suspect due to torture in the police lock-up. In [Kishore Singh Vs State of Rajasthan, AIR 1981 SC 62], the Supreme Court held that the use of third degree method by police is violative of Article 21 of the Constitution of India.
   

• Right To Fair Trial;

  The golden rule that runs through the web of civilized criminal jurisprudence is that an accused is presumed innocent until proved guilty of the charged offence. Presumption of innocence is a human right recognized as such under Article 14 (2) on the International Covenant on Civil & Political Rights 1966. Article 11(1) of the Universal Declaration of Human Rights 1948, also provides that any person charged with penal offences has a right to be presumed innocent until proved guilty according to law in public trial in which he/she has all the guarantees necessary for hi/her defence. Even before these declarations, this principle was part of common law of England as observed by Viscount Sankey in [Woolington Vs Director of Public Prosecutions, (1935 AC 462)]. The right to Fair Trial is one of the fundamental guarantee of human rights and Rule of Law, aimed at ensuring administration of justice.
  
  It would not be an exaggeration if it is stated that a Fair Trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of Fair Trial is crucifixion of Human Rights. It is ingrained in the concept of due process of law. While emphasising the principle of Fair Trial and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of Judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice. Once prejudice is caused to the accused during trial, it occasions in Failure of Justice.
  
  Failure of Justice has its own connotation in various jurisprudences.
  The concept of Failure of Justice was further elaborated by Supreme Court in [Rattiram Vs State of M. P. Through Inspector of Police, AIR (SCW) 1772], as under;
  36. Having dealt with regard to the concept of fair trial and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in failure of justice.
  
  Failure of justice has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 : 2001 SCC (Cri) 358 wherein it has been observed as follows:
  23. We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression `failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment 24 (1977) 1 All ER 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
   

• Right To Live With Human Dignity;

  The right of a human being to live with dignity is protected by the Constitution of India. This right is also given to the prisoners as their mere conviction does not render them inhuman. This right forms a significant part of right to life guaranteed under the constitution of India. The idea behind is that every persons life is precious and irrespective of the circumstances, he/she should be given a sense of dignity to help him/her continue living.
  
  The Courts have enlarged the scope of Article 21 of the Constitution of India to include this right. Its occurrence could be noted in many cases. Some of them are enumerated below:
  In the case of [Maneka Gandhi Vs Union of India, AIR 1978 SC 597], the Supreme Court propounded a new dimension of Article 21 of the Constitution of India wherein it stated that right to life or live does not confine itself to mere physical existence but also includes right to live with human dignity.
  
  Further, in [Francis Coralie Mullin Vs The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746] while expanding the aforementioned concept, the Supreme Court held that the word life includes everything that it goes along with it, namely the bare necessaries of the life such as adequate nutrition and food, clothing and shelter over ones head, facilities for reading, writing (education), ability and opportunity of expressing oneself in diverse forms, moving freely, mixing and commingling with fellow human beings.
  
  Thereafter, the Apex Court in [Pandit Parmanand Vs Union of India, AIR 1989 SC 2039] expanded the concept of life and ruled that the word life is not just limited up to the period of death but even after that. Therefore, when a person was executed with the death penalty (as in this case) but the dead body was not lowered even after half an hour, in spite of the fact that the doctor already gave the death certificate, the Supreme Court held that it amounted to a violation of Right to life under Article 21 of the Constitution of India. It can be concluded that Right to live continues even after death and includes in its ambit the right to proper handling of the dead body or right to a decent burial.
  
  The Supreme Court in [State of Andhra Pradesh Vs Challa Ramakrishna Reddy held that the right to life is one of the basic human rights which is guaranteed to every person by Article 21. It is so fundamental that even the State has no authority to violate it. A prisoner does not cease to be a human being even when lodged in jail. He continues to be a human and therefore is entitled to enjoy all the fundamental rights including the right to life.
  
  Apart from these rights of prisoners Constitution of India also provides following rights to the prisoners:
   

• Right To Meet Friends & Consult Lawyer;

  The horizon of Human Rights is expanding and the Prisoners rights have been recognized not only to protect them from physical discomfort and torture, but also to save them from mental torture. The right to have interview with the members of ones family and friends is clearly part of the Personal Liberty enshrined in Article 21 of the Constitution of India.
  
  Prisoners are not only protected physically but also mentally. It is necessary for individuals to meet for the purpose of information, its peoples right. Consult lawyers are their legal representatives, the act done by them directly affects the convicts case. Visiting of friends and family members give them mental stability to survive in such a worst condition where people are unknown to each other. In [Francis Coralie Mullin Vs The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746], the Supreme Court held that prisoners can have interview with family members, friends and lawyers without any severe restrictions, and allowed to go outside the jail and could not socialize with persons outside jail.
   
• Rights Against Solitary Confinement, Handcuffing & Bar Fetters and Protection From Torture;
   
• Solitary Confinement, according to Blacks Law Dictionary, in general sense, means the separate confinement of a prisoner, with only occasional access of any other person, and that too only at the discretion of the Jail authorities and in stricter sense, it means the complete isolation of a prisoners from all human society and his/her confinement in a cell is arranged that he/she has so no direct intercourse with or sight of no human being or no employment or instruction.
  
  In [Sunil Batra Vs Delhi Administration, AIR 1980 SC 1579], it was held that solitary confinement could be imposed only in exceptional cases where a convict was of such a dangerous character that he must be segregated from other prisoners. Solitary confinement has a degrading and dehumanizing effect on prisoners. Constant and unrelieved isolation of prisoners represents the most destructive abnormal environment. Results of long solitary confinement are disastrous to the physical and mental health of those who subjected to it.
  
  The Courts have solidified their perspective to be against solitary confinement and held that the inconvenience of solitary confinement is an exceptionally corrupting and dehumanizing impact on prisoners. However, the Courts placed an exception for unusual situations where the convict was a direct threat to others; he/she should then be isolated from the remaining prisoners. The Supreme Court reflected upon the legitimacy of such confinement in the Sunil Batra case. The Supreme Court has also firmly objected against applying bar shackles to the prisoners. The Court saw that always keeping a prisoner in shackles day and night diminished the detainee from individual to a creature, and such treatment was so inhuman and abnormal that the utilization of bar chains was against the soul of the Constitution of India.
   
• Right To Reasonable Wages In Prison; [Peoples Union for Democratic Rights Vs Union of India, AIR 1982 SC 1473].
  Whenever during the imprisonment, the prisoners are made to work in the prison, they must be paid at the reasonable rate. The wage rate should not trival or below minimum wages. In [Mohammad Giasuddin Vs State of Andra Pradesh, AIR 1977 SC 1926], the Supreme Court directed the State to take into account this factor, while finalizing the rules for payment of wages to prisoners as well as to give retrospective effect to wage policy. In the matter of [Re: Prison Reforms Enhancement ... Vs Unknown, AIR 1983 Ker. 261], the Kerala High Court held that labour taken from the prisoners, which has not properly remunerated was forced labour and hence violative of Article 23 of the Constitution of India.

Prisoners Rights under the Prisons Act, 1894

Prisons Act, of 1894 is the first legislation regarding prison regulation in India. This Act mainly focus on reformation of prisoners in connection with the rights of prisoners. Following Sections of the Prisons Act, 1894 are related with the reformation of prisoners:

• Accommodation & Sanitary Conditions For Prisoners; Section 4 of the Prisons Act, 1894
• Provision For The Shelter & Safe Custody Of The Excess Number Of Prisoners Who Cannot Be Safely Kept In Any Prison; Section 7 of the Prisons Act, 1894
• Provisions Relating To The Examination Of Prisoners By Qualified Medical Officer; Section 24 (2) of the Prisons Act, 1894
• Provisions Relating To Separation Of Prisoners, Containing Female & Male Prisoners, Civil and Criminal Prisoners and Convicted and Under-trial Prisoners; Section 27 of the Prisons Act, 1894
• Provisions Relating To Treatment Of Under-trials, Civil Prisoners, Parole and Temporary Release Of Prisoners; Sections 31 & 35 of the Prisons Act, 1894

In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill, 2016 to amend the Prisons Act, 1894 with a view to provide protection and welfare of the prisoners.

Conclusion
Prisoners are some of the worst victims of the violation of fundamental rights. The Supreme Court has reiterated the Principle imprisonment does not spell farewell to fundamental rights. Thus the Supreme Court has cordially declared that for a prisoner the fundamental rights are enforceable reality, though restricted by the fact of imprisonment.

It can be said that the prisoners are also entitled to all his/her fundamental rights while they are behind the prisons. Constitution of India does not expressly provides for the prisoners rights but Articles 14, 19 & 21 of Constitution of India implicitly guaranteed the prisoners rights and the provisions of the Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners.

The Supreme Court has ruled that it can intervene with prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner. Supreme Court in many cases held that prisoner is a human being, a natural person and also a legal person.

Being a prisoner he/she does not cease to be a human being, natural person or legal person. Conviction for a crime does not reduce the person into a non person, whose rights are subject to the whim of the prison administration and therefore, the imposition of any major punishment within the prison system is conditional upon the absence of procedural safeguards.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]