Prisoners rights in India by Bhumica M @lexcliq

Prisoners rights in India 


By Bhumica M


REVA University, Bangalore


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

While the Supreme Court is seized with the matter concerning inhuman conditions of prisoners in prisons in India, primarily due to overcrowding of prisons, lack of training, personnel and infrastructure and is deliberating with the governments of states and centre to improve such conditions; treatment of prisoners in India is grim and secretly violative of fundamental as well as statutory rights of an individual. For this condition to improve, the rights of prisoners should be put in a two-page bullet pointed manual and compulsorily circulated to arrestees and prisoners, at the time of their arrest or production before a magistrate and again at the time of lodging in the prisons. Such rights, unless they are propagated and implemented in each corner and entire perimeter of the prism, are a nullity and betrayal of human faith on the criminal justice delivery system.

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.

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 the 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 the same offence twice. Secondly, it prohibits self incrimination, that is, no one can be compelled to be a witness against himself. Article 22 provides that a person must be produced before a magistrate within 24 hours of his arrest and must be provided with a counsel of his own choice.  

In the case of AK Gopalan vs State of Madras (1950) where the petitioner was detained in Madras Jail under the Preventive Detention Act, 1950, Supreme Court upheld the detention and held that it did not violate article 21 as it was done as per ‘procedure established by law’. The same position was reiterated by the Court in the case of ADM Jabalpur vs. Shiv Kant Shukla (1976) that during emergency the ambit of life and liberty gets suspended. But in the landmark case of Maneka Gandhi vs. Union of India (1978) the Apex Court broadened the scope of ‘life’ under Article 12 and held that any procedure made by the State must be just and reasonable. This case opened the floodgates for the rights of the people and the construction of Article 21 by the courts, whereby every basic right needed for the survival for the human have been included in it.

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.

In the era of right conscious society where the rights are given much more preferences, the concept of open jails are gaining momentum. Recently, it was brought to the notice of the Supreme Court that there are 63 open prisons in different parts of the country, but the existing capacity is not being fully utilised. The prisons are no longer seen as a place to create deterrence but are seen as a place of rehabilitation and so the concept of open-jails plays a crucial role. It is based on the idea of socialization of the workers with the outer world so that they can rehabilitate. Such prisoners who are not considered a threat to the society are shifted to such jails.

Prisoners don’t cease to be human beings and the Supreme Court has reiterated this position in many cases and have recognised rights of the prisoners, so that they do not suffer and a better rehabilitative surrounding be given to them to improve and become better human beings during the course of jail term. The governments of state and centre have the responsibility to not only provide infrastructure, man-power and humane conditions for rehabilitation and rightful survival of prisoners, but also to provide information of rights to prisoners at the right time, to avoid possible, potential and excessive abuse of prisoners by powerful people inside the prisons. I would conclude by saying that circulation of rights’ information to prisoners, vast publicity of prisoner’s rights in the media and corner to corner surveillance in prisons could be the keys for upholding prisoners’ rights in India. 

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