Prisoners’ Rights in India: Justice Behind The Prison Gates

Abstract

In India we have an archaic law pertaining to prisons. The purpose of prison is still hanging between it offering a chance to improve or to inflict maximum suffering on the offender. Over the years, the approach has radically changed and moved from retribution to deterrence and, subsequently, to rehabilitation and reform. In popular mind, a prisoners is an offender and a threat to society, to law and order, and to personal security; he should be locked away and forgotten.

How, people ask, can one talk about prisoners’ rights when they are responsible for crimes such as stealing or taking away an innocents life? But as Justice Krishna Iyer has said; ‘A prisoners does not shed his basic constitutional rights at the prison gate.’ Therefore elucidating the impression that notwithstanding the gravity of the heinous crime committed, the offender still has a right to life and shall be provided with every right laid down in the constitution. The Indian socio-legal system is based on non-violence, mutual respect and human dignity of the individual. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitutes human dignity.

Even the prisoners have human rights because the prison torture is not the last drug in the justice pharmacopoeia but a confession of failure to do justice to living man. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. This research paper will highlight the issue of life of prisoners in India in relation with India’s effort to ameliorate the laws to fulfill the basic needs of prisoners. Also this research paper aims to cover reforms in the Prison administration and history of the same, Constitutional provisions for the rights of the prsioners, case laws decided by the Indian courts and its tryst with International conventions on the same.

Introduction

Abdullah Bin Omar, a former prisoner in Guantanamo Bay prison was said to be one of the worst criminals regarding terrorism. Bin Omar was captured by the United States army in Pakistan after he had spent twenty three years in an unknown prison in Tunisia. The unfairness that Abdullah faced was the fact that he wasn't told nor convicted of any real or specific crime. Cliff Stafford Smith, who is a legal director of Reprieve, a UK charity that provides front -line investigation and legal representation to prisoners found out that Bin Omar was captured with no charges and no trial was made for him. Smith said "there are many other Guantanamo prisoners facing Bin Omar's fate, much as they want to get out of Guantanamo- a purgatory of imprisonment without charge or trail”[1].

Another example of such unfairness is Eddie/Canada. Eddie was convicted of murder and was set to stay in prison for the rest of his life. Moreover, Eddie was totally aware of the prison's procedures and knew his limits during his time over there. Although Eddie killed himself on August 10th, evidence proved that the ignorance of the prison system by those who made and worked on the prisons' rules, not mentioning the carelessness of the guards regarding their prisoners were pretty much the main reasons for Eddie's suicide. These two examples illustrate and introduce my topic of prisoners' rights, which can be supported by article number five in the Universal Declaration of Human Rights which states:" No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment"[2]

In Re-Inhuman Conditions

In 1382 ... vs Vs.[3] Supreme Court of India asked, ‘Are prisoners persons?’ And answer: ‘Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognizes rights of prisoners in the International Covenant on Prisoners’ Rights, to which our country has signed assent.’ The Supreme Court added; ‘Prisoners are peculiarly and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, illiteracy, social station and like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded.’ The court held that prisoners are entitled to every freedom not necessitated by incarceration and sentence- that is, the freedom to read and write, to exercise, mediate and chant, to move within the prison campus and enjoy the minimal joys of self-expression, to acquire skills and techniques within the limitations of imprisonment, and to be prosecuted from indignities and the extremities of weather.

Prison Administration and Reformation in India

In India, imprisonment as a form of punishment was introduced by the British in 1773 and more than 120-year-old Prisons Act of 1894 is still the law, subject to slight amendments. The National Human Rights Commission has been working for some time on a new bill called the Prison (Adminitration and Treatment of Prisoners) Bill, but this has so far not been enacted. Imprisonment plays an important part in the crime policy of every country. In developing countries, imprisonment is at the heart of the penal system even though it is counterproductive and expensive to lock up people and make the state responsible for feeding them.

The Prisons reformations revolution in India is divided into two parts i.e. Pre Independence and Post-Independence “India gained independence in 1947, the memories of horrible conditions in prisons were still fresh in the minds of political leaders and they, on assumption of power, embarked upon effecting prison reforms. However, the Constitution of India which came into force in 1950 retained the position of the Government of India Act, 1935 in the matter of prisons and kept “Prisons” as a State subject by including it in List II— State List, of the Seventh Schedule, Entry 4.”[4] 1. All India Jail Manual Committee (1957) 2. Model Prison Manual 1960 3. Committee on working group of Prisons 4. Mulla Committee 1980 “The existing statutes which have a bearing on regulation and management of prisons in the India are:

• The Indian Penal Code, 1860;
• The Prisons Act, 1894;
• The Prisoners Act, 1900;
• The Identification of Prisoners Act, 1920;
• Constitution of India, 1950;
• The Transfer of Prisoners Act, 1950;
• The Representation of People’s Act, 1951;
• The Prisoners (Attendance in Courts) Act, 1955;
• The Probation of Offenders Act, 1958;
• The Code of Criminal Procedure, 1973;
• The Mental Health Act, 1987;
• The Juvenile Justice (Care & Protection) Act, 2000;
• The Repatriation of Prisoners Act, 2003;
• Model Prison Manual 2003.

Whereas, The Constitution of India does not expressly provide the provisions related to the prisoners’ rights but in the case of T.V. Vatheeswaran v. State of Tamil Nadu[5], it was held that the Articles 14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights. Article 21 of the Constitution of India says that “No person shall be deprived of his 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 Indian Constitution 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 of inmates of protective homes,[6] Right to free legal aid,[7] Right to speedy trial,[8] Right against cruel and unusual punishment,[9] Right to fair trial,[10] Right against custodial violence and death in police lock-ups or encounters,[11] Apart from these rights of prisoners Constitution of India also provides following rights to the prisoners:- Right to meet friends and consult lawyer,[12] Rights?T against solitary confinement, handcuffing & bar fetters and protection from torture,[13] Right to reasonable wages in prison,[14]

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:- 1. Accommodation and sanitary conditions for prisoners,[15] 2. Provision for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison,[16] 3. Provisions relating to the examination of prisoners by qualified Medical Officer,[17] 4. Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners,[18] 5. Provisions relating to treatment of undertrials, civil prisoners, parole and temporary release of prisoners.[19]

‘Prisons have been such a garbage can of society that they have been a garbage can of the law as well’ said Herman Schawartz, Professor of Law at the American Univerity’s Washington College of Law. The European Convention on Human Rights, The African Charter on Human and People’s Rights and the Inter Americann Convention on Human Rights. The spirit of the United Nations Standard Minimum Rules for the treatment of prisoners and other such documents is that ‘men come to prison as a punishment, not for punishment..’ Yet these rules are repeatedly breached or else not adopted at all by some other countries. One of the major problems in prisons all over the world has been overcrowding, which affects the right to live with dignity.

Though the population of India has crossed the billion mark more than a decade ago, the number of prisoners in India is comparatively not large. When the prisoner’s lodged far exceed the capacity of the prison, extra prisoners have to be accommodated through internal adjustment, which creates numerous administrative problems. According to Justice Leila Seth Commission of Inquiry[20], The consequences of extra prisons being accommodated through internal adjustments is the prisoners sleeping on the floor in between the raised cement platforms or beds and three or more were housed in a cell meant for single individuals, resulting in prisoners having to sit next to the toilet facilities. Inadequate latrines and toilets attached to the wards were overused to the extent that the condition was totally deplorable despite the Mulla Committee’s recommendation that the ratio of latrines to prisoners should be one to six.[21]

This is certainly not in keeping with Article 21 of the Constitution of India which speaks about ‘personal liberty’. Because prisoners live in very difficult conditions, physically overcrowded and uncomfortable, mentally isolated and frustrating, they are, therefore, more prone to suffer physical and mental ill health. All these conditions can worsen diseases and speed the spread of infection. According to WTO, TB in prisons is believed to be up to 100 times bigger than that in civilian population. In India too, TB continues to be rampant in prisons. This is not only a denial of right to medical care of a person in custody but also a source of exposure and infection to other suspecting inmates. 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 under-trial or a detune, does not cease to be a human being. They also have all the rights which a free man has but under some restrictions. Just being in prison doesn’t deprive them from their fundamental rights. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights. 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. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Supreme Court has gone a long way fighting for their rights. However the fact remains that it is the police and the prison authorities who need to be trained and oriented so that they take prisoner’s rights seriously.[22] In Mathew Areeparmtil and other v. State of Bihar and other[23], a large number of people were languishing in jails without trial for petty offences. Directions were issued to release those persons.

Further the court ordered that the cases which involve tribal accused concerning imprisonment of more than 7 yrs. should be released on execution of a personal bond. In the case where trial has started accused should be released on bail on execution of a personal bond. In case where no proceedings at all have taken place in regard to the accused within three yrs., from the date of the lodging of FIR, the accused should be released forthwith under S.169 Cr. P.C. if there are cases in which neither charge-sheet have been submitted nor investigation has been completed during the last three years, the accused should be released forthwith subject to reinvestigation to the said cases on the fresh facts and they should not be arrested with out the permission of the magistrate.

Conslusion

Prison is for reformation, not retribution. If we act on the principle of an eye for an eye, the world, as Gandhiji said, would be full of blind people. The terrible suffering that is being inflicted on prisoners worldwide leaves one horrified. One cannot forget the words of Judith Ward, who served for 18 years in Durham Prison before being cleared of charges against her. She recorded what she saw and had lived throught being a victim of gross miscarriage of injustice. She said, Never could I forget, put it all behind me. I will never forget, more importantly- I will never let you forget.’ Here are some suggestions as alternative to the prison system we have in India today so as to let go of the heinous and grave miscarriage of injustice, A)Mediation Schemes B)Plea Bargaining C)Paying compensation to victims D)Open jails E) Community service F) Uniform Jail Manual Our emphasis should be on crime prevention, on the removal of illiteracy, poverty, inequality and unemployment, and on the findings ways to make people proud of a just and democratic society.

1. Smith, 2007
2. Universal declaration of human rights, 1948
3. WRIT PETITION (CIVIL) NO.406/2013
4. M.B Mahaworker, Prison Management, Problems and Solutions, 2006, p.58-59
5. AIR 1983 SC 361 : (1983) 2 SCC 68.
6. Upendra Baxi v. State of U.P., (1983) 2 SCC 308.
7. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.
8. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.
9. Jagmohan Singh v. State of U.P., AIR 1973 SC 947.
10. Rattiram v. State of M.P., (2012) 4 SCC 516.
11. D.K. Basu v. State of W.B., (1997) 1 SCC 416.
12. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579
13. Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.
14. People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
15. Section 4 of the Prisons Act, 1894.
16. Section 7 of the Prisons Act, 1894.
17. Section 24(2) of the Prisons Act, 1894.
18. Section 27 of the Prisons Act, 1894.
19. Sections 31 and 35 of the Prisons Act, 1894.
20. Justice Leila Seth Commission of Inquiry, House Department, Government of the National Capital Territory of Delhi, 1997.
21. All India Committee on Jail Reforms, 1980-1983 (Mulla Committee)
22. Workshop on Prisons and Human Rights, April 25-26, 1998, Bhopal, jointly organized by Madhya Pradesh Human Rights Commission.
23. 1984 AIR 1854, 1985 SCR (1) 776