Like you and me, prisoners are also human beings. Hence, all such rights except those that are taken away in the legitimate process of incarceration still remain with the prisoner. These include rights that are related to the protection of basic human dignity as well as those for the development of the prisoner into a better human being. If a person commits any crime, it does not mean that by committing a crime, he/she ceases to be a human being and that he/she can be deprived of those aspects of life which constitutes human dignity. A citizen does not cease to be a citizen just because he/she has become a prisoner.
Prison and its administration is a State subject as it is covered by item 4 under List II in Schedule VII of the Constitution of India. Prison establishments in different States/UTs comprise several tiers of Jails. The most common and standard Jail Institutions which are in existence in the States/UTs are better known as Central Jails, District Jails and Sub Jails.
According to S. 3(1) of the Prisons Act, 1894 “Prison” means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include—
(a) any place for the confinement of prisoners who are exclusively in the custody of the police;
(b) any place specially appointed by the State Government under Section 541 of the Code of Criminal Procedure, 1882 (10 of 1882); or
(c) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail;
The word ‘undertrail prisoner’ has not been defined anywhere however, in general it means a person kept in prison (judicial custody) while the charges against him are being tried.
According to the Prison Statistics INDIA-2011 published by National Crime Records Bureau, Ministry of Home Affairs, Government of India, the maximum of undertrial prisoners in various jails in India at the end of the year 2011, was reported from Uttar Pradesh (54,062) followed by Bihar (23,417), Madhya Pradesh (16,701), Maharashtra (16,064), West Bengal (13,567), Jharkhand (12,073), Rajasthan (11,899) and Punjab (10,295). States/UTs which have reported least number of undertrials in their jails are Sikkim (120), Puducherry (112), Arunachal Pradesh (49), Lakshadweep (30), D&N Haveli (25) and Daman & Diu (17). The proportion of undertrials male inmates was reported as 95.5% while female inmates were of 4.5% at the end of 2011. Further a total of 554 undertrial civil prisoners were reported from 6 States/UTs at the end of the year 2011. Punjab (271) has reported the highest number of undertrial civil prisoners accounting for 48.9% of total such 32 prisoners in the country followed by Jammu & Kashmir (205), Uttar Pradesh (44), Bihar (11), Chhattisgarh and Gujarat (7 each), Karnataka (6), Jharkhand (2) and Haryana (1). Only Punjab (15) and Jammu & Kashmir (12) have reported female undertrial civil prisoners lodged in their jails.
Every convict and undertrial prisoner has been conferred with certain rights which have been enumerated in Part III of the Constitution of India so that their life as a prisoner is dignified and comfortable because a prisoner remains a ‘person’ in prisoner. Though these rights are must for every prisoner to maintain and balance his mental status as a human being, the inefficiency of our law enforcement system prevents prisoners from enjoying these rights. Besides the constitution, there are certain other statutes like the prisoners act, 1900, prisons act, 1894 and prisoners attendance in courts act 1955. In states there are jail and police manuals which also have certain rules and safeguards for the prisoners and cast an obligation on the prison authorities to follow these rules.
The Supreme Court and High Court rulings have played a crucial role in enumerating the rights of prisoners and have elaborately commented upon the deplorable conditions prevailing inside the prisons, resulting in violation of prisoner’s rights. Prisoners’ rights have become an important item in the agenda for prison reforms. The need for prison reforms has come into focus during the last three to four decades. The Supreme Court of India has been active in responding to human right violations in Indian jails and has, in the process, recognised a number of rights of prisoners by interpreting Articles 21, 14, 19, 22, 32, 37 and 39A of the Constitution in a positive and humane way. Given the Supreme Courts‟ overarching authority, these newly recognised rights are also binding on the State under Article 141 of the Constitution of India which provides that the Law declared by the Supreme Court shall be binding on all courts within the territory of India.
Article 21 of our Constitution i.e., Protection of Life and Personal Liberty mandates that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners‟ rights to maintain human dignity. Although it is clearly mentioned that deprivation of Article 21 is justifiable according to procedure established by law, this procedure cannot be arbitrary, unfair or unreasonable. In a celebrity case, Maneka Gandhi Vs. Union of India 1978(1) SCC 248, the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.
Any violation of this right attracts the provisions of Article 14 of the Constitution, which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with, specifically by the Prison Act, 1894 and the Criminal Procedure Code (CRPC). Any excess committed on a prisoner by the police authorities not only attracts the attention of the legislature but also of the judiciary. The Indian judiciary, particularly the Supreme Court, in the recent past, has been very vigilant against violations of the human rights of the prisoners.
In one of the landmark judgments on prison reforms Sunil Batra v. Delhi Administration (1978) 4 SCC 494, the Apex Court has held that under-trials shall be deemed to be in custody, but not undergoing punitive imprisonment. So much so, they shall be accorded more relaxed conditions than convicts. It was further held that fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases dealt with next below. Moreover, Legal aid shall be given to prisoners to seek justice from prison authorities, and, if need be, to challenge the decision in court — in cases where they are too poor to secure on their own. If lawyer’s services are not given, the decisional process becomes unfair and unreasonable, especially because the Rule of law perishes for a disabled prisoner if counsel is unapproachable and beyond purchase. By and large, prisoners are poor, lacking legal literacy, under the trembling control of the jailor, at his mercy as it were, and unable to meet relations or friends to take legal action. Where a remedy is all but dead the right lives only in print. Article 39-A is relevant in the context. Article 19 will be violated in such a case as the process will be unreasonable. Article 21 will be infringed since the procedure is unfair and is arbitrary. In Maneka Gandhi’s case the Rule has been stated beyond mistake.
Again in the year 1980, the constitutional bench of V.R. Krishna Iyer, R.S. Pathak and O. Chinnappa Reddy, JJ. in Sunil Batra (II) v. Delhi Admn., 1980 has affirmed that where the rights of a prisoner, either under the Constitution or under other law are violated, the writ power of the court can and should run to his rescue. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. It was further held that all actions against and treatment of the prisoner must be commensurate with his sentence and satisfy the test of Articles 14, 19 and 21.
The Rudal Shah’s case is an instance of breakthrough in Human Rights Jurisprudence. The petitioner Rudal Shah was detained illegally in prison for more than fourteen years. He filed Habeas Corpus before the court for his immediate release and, interalia, prayed for his rehabilitation cost, medical charges and compensation for illegal detention. After his release, the question before the court was “whether in exercise of jurisdiction under Article 32, could the court pass an order for payment of money? Was such an order in the nature of compensation consequential upon the deprivation of fundamental right? There is no expressed provision in the Constitution of India for grant of compensation for violation of a fundamental right to life and personal liberty. But the judiciary has evolved a right to compensation in cases of illegal deprivation of personal liberty. The Court granted monetary compensation of Rs.35,000 against the Bihar Government for keeping the person in illegal detention for 14 years even after his acquittal. The Court departed from the traditional approach, ignored the technicalities while granting compensation.
The decision of Rudal Shah was important in two respects. Firstly, it held that violation of a constitutional right can give rise to a civil liability enforceable in a civil court and; secondly, it formulates the bases for a theory of liability under which a violation of the right to personal liberty can give rise to a civil liability. The decision focused on extreme concern to protect and preserve the fundamental right of a citizen. It also calls for compensatory jurisprudence for illegal detention in prison.
In India, the courts have acknowledged and several judgments recognise a wide array of fundamental and other rights of prisoners. There are still many rights that are not recognised by the Indian legal system. For example, in January 2010, considering the rapid increase in the number of HIV positive prisoners, the Bombay High Court asked the Maharashtra government to examine the possibility of allowing jail inmates to have sex with their wives in privacy.
BASIC RIGHTS OF UNDERTRAIALS ARE BELOWMENTIONED:
Right to be lodged appropriately based on Proper Classification, Special Right of young prisoners to be segregated from adult prisoners, Rights of women prisoners, Right to healthy environment, Right to bail, Right to speedy trial, Right to free legal services, Right to basic needs such as food, water and shelter, Right to have interviews with one‟s Lawyer, Right against being detained for more than the period of sentence imposed by the court, Right to protection against being forced into sexual activities, Right against arbitrary use of handcuffs and fetters, Right against torture, cruel and degrading punishment, Right not to be punished with solitary confinement for a prison offence, Right against arbitrary prison punishment, Right to air grievances and to effective remedy, Right to evoke the writ of habeas corpus against prison authorities for excesses, Right to be compensated for violation of human rights, Right to visits and access by family members of prisoners, Right to write letters to family and friends and to receive letters, magazines, etc., Right to rehabilitation and reformative programmes, Right in the context of employment of prisoners and to prison wages, Right to information about prison rules, Right to emergency and reasonable health care.
Various judgments passed by Indian courts suggest that they are sensitised to the need for doing justice to people to whom justice had been denied by a heartless society for generations. Although several judgments have recognised the rights of prisoners, these have resulted in few amendments to legislation and unfortunately, little has changed. There have been no worthwhile reforms affecting the basic issues of relevance to prison administration in India. Though various rights have been granted to prisoners, in reality, they do not reach the prisoners. An outstanding example is the right to speedy trial. A huge backlog of cases impedes the delivery of justice and this is a violation of the rights by the court itself. Similarly, free legal aid is an idealistic goal, but presently far from reality. Many of the prisoners do not know about the services and they are unable to utilise it.