prisoners rights

Introduction

The degree of civilization in a society can be judged by entering its prisons. A society cannot be recognized as a civilized society unless it treats the prisoners with sympathy and affection. This treatment is not possible till the society recognizes and accepts their basic human rights and the fundamental rights. A prisoner, be he a convict or under trial or a detenu, does not cease to be a human being. Even when lodged in jail, he continues to enjoy all his basic human rights and 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 shall retain the residue of the Constitutional rights. The Universal Declaration of Human Rights, 1948 stipulates that “ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”[1]. Article 21 of the Constitution of India, which recognizes that the right to life includes a right to live with human dignity and not mere animal existence, strengthens this mandate. Thus, a prison atmosphere can be accepted as civilized only if it recognizes the basic human rights and the constitutional rights of the prisoners and makes efforts for the effective and meaningful enjoyment of the same by means of prison reforms.

Prisoner’s Rights

The prisoner’s have the following rights while serving their sentence:

(1) In State of Maharashtra v Prabhakar, AIR 1966 SC 424 aid of Article 21 was made available perhaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail.

(2) Suresh Chandra v State of Gujarat, 1976 (1) SCC 654 saw this court stating about penological innovation in the shape of parole to check recidivism because of which liberal use of the same was recommended.

(3) A challenge was made to the segregation of prisoners in Bhutan Mohan Pattnaik v State of Andhra Pradesh, AIR 1974 SC 2092 and a three Judge bench stated that resort to oppressive measures to cub political beliefs (the prisoner was a Naxalite because of which he was put in a ‘quarantine' and subjected to inhuman treatment) could not be permitted. The Court, however, opined that a prisoner could not complain of installation of high-volt live wire mechanism on the jail walls to prevent escape from prisons, as no prisoner had fundamental right to escape from lawful custody.

(4) In Charles Sobraj’s case it was stated that this Court would intervene even in prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of a prisoner. In that case the complaint was against incarcerator torture.

(5) Sunil Batra (I) dealt with the question whether prisoners are entitled to all constitutional rights, apart from fundamental rights. In that case this Court was called upon to decide as to when solitary confinement could be imposed on a prisoner.

(6) Prem Shankar v Delhi Administration, AIR 1980 SC 1535 prohibited putting of under trial prisoners in leg-irons.

(7) In Sunil Batra (II) the Court was called upon the deal with prison vices and the judgment protected the prisoners from these vices with the shield of Article 21, Krishna Iyer. J. stated, "prisons are built with the stones of law".

(8) A challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor in Francis Coralie v Union Territory of Delhi AIR 1981 SC 746 and the rule was held violative, inter alia, of Article 21.

(9) In Sheela Barse v Union Territory, 1993 (4) SCC 204 it was held that jailing of non-criminal mentally ill persons is unconstitutional and directions were given to stop confinement of such persons.

(10) The judicial work done by this Court on the subject at hand would not be complete without mentioning what was held in Mohd. Giasuddin v State of A.P (1977) 3 SCC 287 because in that case reformative aspect was emphasized by stating that the State has to rehabilitate rather than to avenge. Krishna Iyer, J, pointed out that the sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturalisation.

(11) On top of all, there is the undoubted right of speedy trial of under trial prisoners. These consist of ordering for release on bail where trial is protracted. In Supreme Court Legal Aid Committee representing under trial Prisoners v. Union of India, 1994(6) SCC 731, the court directed for the release of those undertrial prisoners who were languishing in jail for a period exceeding half of the punishment provided in the NDPS Act, 1985.

Prison Reforms

The journey, which commenced in 1966, has thus, during the last 39 years, planted many milestones. But it seems there are vet promises to keep and miles to go before one can sleep. We have to be pragmatic also. Constitutional rights of the prisoners shall have to be interpreted in such a way that larger public interest does not suffer while trying to be soft and considerate towards the prisoners. For this, it has to be seen that more injury than is necessary is not caused to a prisoner. At the same time efforts have to be made to reform him so that when he comes out of prison he is a better citizen and not a hardened criminal. It would be useful to note what is the general position of prisons in the country presently. To bring home this, it would be enough to note what has been mentioned in the 1994-95 Annual Report of National Human Rights Commission in this regard at page 13 in para 4.17. The same is as below: -
"The situation in the prisons visited was varied and complex. Many, such as Tihar Jail in Delhi were over-crowded; yet others, like that open jail in Hyderabad were under-utilized. Often, within a single State, conditions varied from one jail to another in this respect, pointing to the need for a more rational Statewide use of facilities. The Commission saw a few jails which were notably clean and where the diet was reasonable such as the Central Jail in Vellore. Unfortunately, it saw many others which are squalid, such as the newly constructed Central Jail in Patna.In yet others, the diet was inferior, and the management was denounced by the inmates as brutal and corrupt. In some, care was being taken to separate juveniles from others, petty offenders from hardened criminals. In others, no such care was being taken and the atmosphere appeared to nurture violence and criminality. In a few, major efforts were being made to reform conditions, to generate employment in a worthwhile and remunerative way, to encourage education and restore dignity. In other, callousness prevailed, prisoners were seen in shackles, mentally disturbed inmates- regardless of whether they were criminal or otherwise- were incarcerated with others, with no real effort being made to rise above the very minimum required for the meanest survival. Where prisoners worked, their remuneration was often a pittance, offering scant hope of savings being generated for future rehabilitation in society. By and large, the positive experiences were the exceptions rather than the rule, dependant more upon the energy and commitment of individual officials rather than upon the capacity of the system to function appropriately on its own."

The literature on prison justice and prison reform shows that there are nine major problems which afflict the system and which need immediate attention. These are:

(1) overcrowding;

(2) delay in trial;

(3) torture and ill- treatment;

(4) neglect of health and hygiene;

(5) insubstantial food and inadequate clothing ;

(6) prison vices;

(7) deficiency in communication;

(8) streamlining of jail visits; and

This is a preview of the whole essay

The literature on prison justice and prison reform shows that there are nine major problems which afflict the system and which need immediate attention. These are:

(1) overcrowding;

(2) delay in trial;

(3) torture and ill- treatment;

(4) neglect of health and hygiene;

(5) insubstantial food and inadequate clothing ;

(6) prison vices;

(7) deficiency in communication;

(8) streamlining of jail visits; and

(9) management of open-air prisons.

Overcrowding

That our jails are overcrowded is a known fact. To illustrate, in Tihar Jail as against the housing capacity of 2,500 persons in 1994-95, there were 8,500 prisoners. Overcrowding contributes to a greater risk of disease, higher noise levels, surveillance difficulties, which increase the danger level. This apart, life is more difficult for inmates and work more onerous for staff when prisoners are in over capacity.

Overcrowding affect the health of prisoners. The same also very adversely affects hygienic condition. It is, therefore, to be taken care of. The release on bail of certain categories of undertrial prisoners, who constitute the bulk of prison population, has to result in lessening the over capacity. It would be useful to refer here to the Seventy-Eighth Report of the Law commission of Indian on `Congestion of Undertrial Prisoners in Jails'. The Commission has in Chapter 9 of the Report made some recommendations acceptance of which would relieve congestion in jails. These suggestions include liberalisation of conditions of release on bail. Overcrowding may also be taken care of by taking recourse to alternatives to incarceration.

These being:

(1) fine;

(2) civil commitment; and

(3) probation.

As to release on probation, it may be stated that it really results in suspension of required to execute bond under the provisions of the Probation of Offenders Act, 1958, requiring maintenance of good conduct during the probationary period, the failure to do which finds the concerned person in prison again. That Act has provision of varying conditions of probation and has also set down the procedure to be followed in case of the offenders failing to observe conditions. Overcrowding is reduced by releases on parole as well, which is a conditional release of an individual from prison after he has served part of the sentence imposed upon him.

Chapter 20 of the Report of All India Committee on Jail Reforms (1980-83) chapter deals with the system of remission, leave and premature release. The Committee has mentioned about various types of remission and has made some recommendations to streamline the remission system. As to premature release, which is the effect of parole, the Committee has stated that this is an accepted mode of incentive to a prisoner, as it saves him from the extra period of incarceration; it also helps in reformation and rehabilitation. The Committee has made certain suggestions in this regard too.

There is yet another baneful effect of overcrowding. The same is that it does not permit segregation among convicts - Those punished for serious offences and for minor. The result may be that hardened criminals spread their influence over others. Then, juvenile offenders kept in jails (because of inadequacy of alternative places where they are required to be confined) get mixed up with others and they are likely to get spoiled further. So, problem of overcrowding is required to be tackled in right earnest for a better future.

Delay in Trial

It is apparent that delay in trial finds an undertrial prisoner (UTP) in jail for a longer period while awaiting the decision of the case. The release of UTP on bail where the trial gets protracted would hopefully take care to a great extent the hardship caused in this regard.

It has to be remembered that production before the court on remand dates is a statutory obligation and the same has a meaning also inasmuch as that the production gives an opportunity to the prisoner to bring to the notice of the Court, who had ordered for his custody, if he has faced any ill-treatment or difficulty during the period of remand. It is for this reason that actual production of the prisoner is required to be insured by the trial court before ordering for further remand.

The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Art.21. Speedy trial would encompass within its sweep all the stages including investigation, inquiry, trial, appeal, revision and retrial. In short everything commencing with an accusation and expiring with the final verdict, the two being respectively the “terminus a quo and terminus ad quem” of the journey which an accused must necessarily undertake once faced with an implication.

In P. Ramachandra Rao v State of karnataka[2] the court observed that it must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Art.21 and if so, then to terminate the particular proceedings and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted. The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Criminal Procedure Code to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be a better protector of such right than any guidelines. In appropriate cases, inherent power of High Court under Sec.482 can be invoked to make such orders, as may be necessary, to give effect to any order under CrPC or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases the High Courts have exercised their jurisdiction under Sec.482 CrPC for quashing of first information report, investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of Fundamental Right conferred by Art.21 of the Constitution.Torture and ill-treatment

Apart from torture, various other physical ill treatments like putting of fetters, iron bars are generally taken recourse to in jails. Some of these are under the colour of provisions in Jail Manuals.

Neglect of health and hygiene

The Mulla Committee has dealt with this aspect in Chapter 6 and 7 of its Report, a perusal of which shows the pathetic position in which most of the jails are placed insofar as hygienic conditions are concerned. Most of them also lack proper facilities for treatment of prisoners. The recommendations of the Committee in this regard are to be found in Chapter 29. The society has an obligation towards prisoners' health for two reasons. First, the prisoners do not enjoy the access to medical expertise that free citizens have. Their incarceration places limitations on such access; no physician of choice, no second opinions, and few if any specialists. Secondly, because of the conditions of their incarceration, inmates are exposed to more health hazards than free citizens. Prisoners therefore, suffer from a double handicap.

Insubstantial food and inadequate clothing

There is not much to doubt that the rules contained in concerned Jail Manual dealing with food and clothing etc. to be given to prisoners are not fully complied with always. All that can usefully he said on this aspect is the persons who are entitled to inspect jails should do so after giving shortest notice so that the reality becomes known on inspection. The system of complaint box introduced in Tihar Jail during some period needs to be adopted in other jails also. The complaint received must be fairly inquired and appropriate actions against the delinquent must be taken. On top of all, prisoners must receive full assurance that whoever would lodge a complaint would not suffer any evil consequence for lodging the same.

Prison vices

It may only be stated that some vices may be taken care of if what is being stated later on the subject of jail visits is given concrete shape. Many of the vices are related to sexual urge, which remains unsatisfied because of snapping of marital life of the prisoner. If something could be done to keep the thread of family life unbroken some vices many take care of themselves, as sexual frustration may become tolerable. The aforesaid seems to be a more rational way to deal with prison vices rather than awarding hard punishment to them. In the situation in which they are placed, a sympathetic approach is also required.

Deficiency in communication

While in jail, communication with outside world gets snapped with a result that the inmate does not know what is happening even to his near and dear ones. This causes additional trauma. A liberalized view relatin to communication with kith and kin specially is desirable. It may be pointed out that though there may be some rationale for restricting visits, but insofar as communication by post is concerned, there does not seem be any plausible reason to deny easy facility to an inmate.

Streamlining of jail visits

Prison visits fall into three categories:

(1) relatives and friends;

(2) professionals; and

(3) lay persons.

In the first category comes the spouse. Visit by him/her has special significance because a research undertaken on Indian prisoners sometime back showed that majority of them were in the age group of 18 to 34, which shows that most of them were young and were perhaps having a married life before their imprisonment. For such persons, denial of conjugal life during the entire period of incarceration creates emotional problems also. Visits by a spouse are, therefore, of great importance. It is, of course, correct that at times visit may become a difficult task for the visitors. This would be so where prisoners are geographically isolated. This apart, in many jails facilities available to the visitors are degrading. At many places even privacy is not maintained. If the offenders and visitors are screened, the same emphasizes their separation rather than retaining common bonds and interests. There is then urgent need to streamline these visits.

The frequent jail visits by family members go a long way in acceptance of the prisoner by his family and small friendly group after his release from jail finally, as the visits continue the personal relationship during the term of imprisonment, which brings about a psychological communion between him and other members of the family.

As to visits by professionals, i.e. the lawyer, the same has to be guaranteed to the required extent, if the prisoner be a pre-trial detainee, in view of the right conferred by Article 22(1) of the Constitution.

Management of open air prisons

Open-air prisons play an important role in the scheme of reformation of a prisoner, which has to be one of the desideratum of prison management. They represent one of the most successful applications of the principle of individualization of penalties with a view to social readjustment. It has been said so because release of offenders on probation, home leave to prisoners, introduction of wage system, release on parole, educational, moral and vocational training of prisoners are some of the features of the open air prison (camp) system. In terms of finances, open institution is far less costly than a closed establishment and the scheme has further advantage that the Government is able to employ in work, for the benefit of the public at large, the jail population, which would have otherwise remained unproductive. The monetary returns are positive, and once put into operation, the camps pay for itself.

The whole thrust is to see that after release the prisoners may not relapse into crimes, for which purpose they are given incentives to live normal life, as they are trained in the fields of agriculture, horticulture etc. Games, sports and other recreational facilities, which form part of the routine life at the open-air camps, inculcate in the prisoners a sense of discipline and social responsibility. The prayers made regularly provide spiritual straight. Open air prison; however, create their own problem, which are basically of management. These problems are not such which cannot be sorted out.

For the greater good of the society, which consists in seeing that the inmates of a jail come out, not as a hardened criminal but as a reformed person, no managerial problem is insurmountable. So, let more and more open-air prisons be opened. To start with, this may be done at all the District Headquarters of the country.

The Jail Reform Committee, 1980-83 has given the following recommendations in this regard:

(1) Departmentalisation: There shall be in each State and Union Territory a Department of Prisons and Correctional services dealing with the adult and the young offenders- their institutional care, treatment, aftercare, probation and other non-institutional services.

(2) Under trial prisoners (UTPs): The State shall endeavour to evolve proper mechanism to ensure that no under trial prisoner is unnecessary detained. This shall be achieved speeding up trials, simplification of bail procedures and periodic review of cases of under trial prisoners. Under trial prisoners should, as far as possible, be confined in separate institutions.

(3) Alternatives to imprisonment: Since it is recognized that imprisonment is not always the best way to meet the objectives of punishment, the government shall endeavour to provide in law, new alternatives to imprisonment such as community service, forfeiture of property, payment of compensation to victims, public censure, etc in addition to the ones already existing, and shall specifically ensure that the Probation of Offenders Act, 1958 is effectively implemented throughout the country.

(4) Suitable living conditions: Living condition in every prison and allied institutions shall be compatible with human dignity in all aspects such as accommodation, hygiene, sanitation, food, clothing, medical facilities etc. All factors responsible for vitiating the atmosphere of these institutions shall be identified and dealt with effectively.

(5) Prison cadre: Prison service shall be developed as a professional career service. The State shall endeavour to develop a well-organised prison cadre based on appropriate job requirements, sound training and proper promotional avenues.

(6) Open prisons: Prisons are hitherto a closed world. It is necessary to open them to some kind of positive and public discernment. Selected eminent public men shall be authorized to visit prisons and give independent report on them to appropriate authorities.

(7) Essential functions: Probation, aftercare, rehabilitation, and follow up offenders shall form an integral part of the functions of the Department of prisons and correctional services.

(8) Planned and systematic development: The development of prisons shall be planned in a systematic manner keeping in view the objectives and goals to be achieved. The progress of implementation of such plans shall be continuously monitored and periodically evaluated.

(9) Resource allocation: The government at the Center and in the States/Union Territories shall endeavour to provide adequate resources for the development of prisons and other allied services.

(10) National development plan: The government recognizes that the process of reformation and rehabilitation of offenders is an integral part of the total process of social reconstructions, and therefore, the development of prison shall find a place in the national development plans.

Judicial response

In Lingala v Public Prosecutor[3]the Supreme Court observed: “The court has responsibility to see that punishment serves social defence, which is the validation of deprivation of citizen's liberty. Correctional treatment, with a rehabilitative orientation, is an imperative of modern penology. A hospital setting and a humanitarian ethos must pervade our prisons if the retributive theory, which is but vengeance in disguise, is to disappear and deterrence as a punitive objective gain success not through the hardening practice of inhumanity inflicted on prisoners but by reformation and healing whereby the creative potential of the prisoner is unfolded. These values have their roots in Article 19 of the Constitution which sanctions deprivation of freedoms provided they render a reasonable service to social defence, public order and security of the State. By cruel treatment within the cell you injure his psyche and injury never improves. Nay, you make him recidivist, embittered and ready to battle with society on emerging from the jail gates. It is obvious that it is unreasonable to be torture some, as it recoils on society and it is reasonable to be compassionate, educative and purposeful because it transforms the man and makes him more social. On appropriate motion made to this Court showing violation of the residual rights of a prisoner by unnecessary cruelty and unreasonable impositions and denials and deprivations within the prison-setting, the judicial process will call to order the prison authorities and make them respect the fundamental rights of the appellants. Prisoners are not non-persons. Our prisons are not laudably different even in the matter of homosexuality. The point of no return in social defence arrives if imprisonment is not geared to therapeutic goals. On release such an offender is 'caught in a revolving door-leading from arrest on the street through a brief unprofitable sojourn in jail back to the street and eventually another arrest. The jails overcrowded and put to use for which they are not suitable have a destructive effect upon.... inmates”.

In Dharambir v State of U.P[4] the Supreme Court gave the rationale for the use of open prison system for reformation and rehabilitation of the offenders. The court observed: “One of the principal purposes of punitive deprivation of liberty, constitutionally sanctioned, is decriminalization of the criminal and restoration of his dignity, self-esteem and good citizenship, so that when the man emerges from the forbidden gates he becomes a socially useful individual. The long prison terms do not humanise or habilitate but debase and promote recidivism. Life imprisonment means languishing in prison for years and years. Such induration of the soul induced by indefinite incarceration hardens the inmates, not softens their responses”. Therefore, the Court issued the following directions designed to make the life of the sentence inside jail restorative of his crippled psyche:a) dispatching the two prisoners to one of the open prisons in U.P., if they substantially fulfill the required conditions;b) being agriculturists by profession they be put to use as or them small wages;c) by keeping the prisoners in contact with their familyi) by allowing members of the family to visit them andii) by permitting the prisoners under guarded conditions at least once a year, to visit their families andd) the prisoners to be released on parole for two weeks, once a year, which will be repeated throughout their period of incarceration provided their conduct, while at large, is found to be satisfactory.

In Rama Murthy v State of Karnataka[5]the Supreme Court issued the following guidelines to various authorities for the streamlining of prison reforms in India:1) To take appropriate decision on the recommendations of the Law Commission of India made in its 78th Report on the subject of `Congestion of undertrial prisoners in jail' as contained in Chapter 9.2) To apply mind to the suggestions of the Mulla Committee as contained inChapter20 of Volume I of its Report relating to streamlining the remission system and prematurerelease parole), and then to do the needful.3) To consider the question of entrusting the duty of producing UTPs on remand dates to the prison staff.4) To deliberate about enacting of new Prison Act to replace century old Indian Prison At, 1894.5) To examine the question of framing of a model new All India Jail Manual.6) To reflect on the recommendations of Mulla Committee made in Chapter 29 on the subject of giving proper medical facilities and maintaining appropriate hygienic conditions and to take needed steps.7) To ponder about the need of complaint box in all the jails.8) To think about introduction of liberalisation of communication facilities.9) To take needful steps for streamlining of jail visits.10) To ruminate on the question of introduction of open-air prisons at least in the District Headquarters of the country.The Supreme Court has also given directions from time to time in various cases for the amelioration of prison conditions. These are:

(1) Separation of the young offenders: The young inmates must be separated and freed from exploitation by adults.

(2) Companionship: Subject to discipline and other security criteria, the right of the society of fellow men, parents and other family members cannot be denied in the light of Article 19 and its sweep.

(3) Legal consultancy: Lawyers nominated by courts be given all facilities for interview, visits, and confidential communication with prisoners, subject to discipline and security considerations.

(4) Judicial surveillance: District Magistrates and Sessions Judges shall personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances of the prisoners.

(5) Standard Minimum Rules: The State shall take steps to keep up to the Standard Minimum Rules for treatment of prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategy.

(6) Just and rationale Prison Act and Manual: The Prisons Act needs modification and the Prison Manual total overhaul. A correctional cum orientation course has become necessitous for the prison staff indicating the constitutional values, therapeutic approaches and tension free management.

(7) Legal protection of prisoner’s rights: The court shall protect the prisoner’s right by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoners shall be promoted through recognized legal aid.

Conclusion

The talk about treatment and training in prisons is not rhetoric; it can prove to be real, given the zeal and determination. We cannot afford to fail in this sphere, as a sound prison system is a crying need of our time in the backdrop of great increase in the numbers of prisoners and that too of various types and from different strata of society. Efforts should be made to improve our prison system by introducing new techniques of management and by educating the prison staff with our constitutional obligations towards prisoners. Rest would follow, as day follows the night. Let the dawning ray of hope see the end of gloom cast on the faces of majority of prisoners and let a new awakening percolate every prison wall.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Supreme Court of India.

Contact at: [email protected]/ [email protected]
Tele No: + 91 9899169611

[1] Article 5.
[2] (2002) 4 SCC 578.
[3] AIR 1978 SC 1485.
[4] (1979) 3 SCC 645.
[5] (1997) 2 SCC 642.

prisoners rights

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