10. PRISONERS HUMAN RIGHTS UNDER JUDICIAL SCRUTINY...
Transcript of 10. PRISONERS HUMAN RIGHTS UNDER JUDICIAL SCRUTINY...
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PRISONER’S HUMAN RIGHTS UNDER JUDICIAL
SCRUTINY
Human rights are the rights which are possessed by all human
beings irrespective of their race, caste, nationality, sex, language
etc. simply because they are human beings. Human rights are called
fundamental rights or basic rights or natural rights. The preamble to
the Universal Declaration of Human Rights, 1948 recognizes the
inherent dignity of the equal and inalienable rights of all members
of the human family as the foundation of freedom, justice and
peace in the world and pledges for the promotion of universal
respect for and observance of human rights and fundamental
freedoms. Respect for the human personality without any
distinction of any kind as to race, colour, sex, language, religion or
political or other opinion, national or social origin, property, birth
or other status is considered a fundamental norm of human rights.
The modern concept of human rights can be said to have evolved in
England in the form of the Magna Carta, 1215, the petition of
Rights, 1672, Habeas Corpus Act, 1679 and the Bill of Rights,
1689. Other significant landmarks are the American Declaration of
Independence and the French Revolution. Although there have been
certain efforts towards promotion of human rights, it was the
political philosophy generated by the United Nations Charter,
affirming the dignity of man and the futility of wars, that led to the
proper formulation and enunciation of human rights. A legal
obligation emerged, namely, the duty of every state “to treat all
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persons under its jurisdiction with respect for human rights and
fundamental freedoms without distinction as to race, sex, language
or religion.” (Art. 6 of the United Nations Charter)The Universal
Declaration of Human Rights was adopted by the General
Assembly on Dec. 10, 1948 by 48 votes with 8 abstentions, with
the aim to restore human dignity in all countries where political or
economic oppression exists and to relieve human misery, to repair
human strength, to enrich and refine human life in all parts of the
world, where the national culture and wealth are low. The
important principles include the right to life, liberty, property and
security of persons, the right to employment and social security, the
right to participate in cultural life, freedom of thought, conscience
and religion and freedom of expression and opinion. The Universal
Declaration seeks to ensure everyone in the world that certain
human rights exist and can be enjoyed without interference by the
state. Though the Universal Declaration is of prime importance, it
is not a treaty, and therefore, technically it is weak as an instrument
of protection. It is a statement of principles of inalienable human
rights, setting up of a common standard of achievement for all
people and all nations. Infact, it is a charter for objectives and
policy and was drafted in broad and general terms.
Traditional View – Prisoners do not have rights
Imprisonment was not a feature of many traditional justice systems.
An eye for an eye (or a life for a life), or a physical punishment in
the form of cutting-off a hand, banishment or reparation were
variously to be found in the traditional systems of China, Africa the
Pacific Islands. In the West, from which the so-called modern penal
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systems mostly derive, one might say that imprisonment rather
resembled banishment, “the imprisoned person became a non-
person”, and some countries explicitly adopted the nation of
“deprivation of civil rights” as a facet of punishment. As notions of
universal human rights developed, prisoners were the last class to
benefit. Once the prison gates clanged shut behind him the
convicted person found that rights were left on the “Outside” only
to be picked up again with his civilian clothes once the sentence
was served. In some cases, prisoners could find that their rights
were not fully restored even after they were released.
International Development
From the study the investigator finds that Prisoners like other
members of the society are human beings and do not differ from
them in any respect. But being the victim of circumstances they are
kept within the four walls for a temporary period, when the
offender is sent to the prison, he is confined against his will. He
enters a new world, where he has to obey and follow the directions
not only of the prison officials, but also that of the senior inmates.
Otherwise he has to surrender himself as soon as his imprisonment
starts. His attitude towards others is conditioned by his status in the
prison community. In the days when the entire purpose of
imprisonment was punishment, the rights of the offender seemed
unimportant. Since he seldom returned to the community and made
no complaint, it was believed that a prisoner had no fundamental
rights. But with changing concept of punishment, under modern
correctional philosophy complete deprivation of the prisoner’s
rights has become unrealistic. It is now believed that the convicted
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prisoner continues with some of his rights, even during the
imprisonment. In USA, in 1868, the passage of the 14th
Amendment
offered convicted criminals the hope that due process of law, which
the Amendment made available to others, might-eventually apply to
them as well. Following the passage of the 14th
Amendment, the
due process clause has been used repeatedly to provide all
constitutional safeguards to the citizens of every state. After
1960’s, a strong movement to provide constitutional safeguards, for
the defendant in criminal case, and for convicted offender in the
penal institutions, became apparent. Historically, prisoners have
rarely challenged the constitutionality of their environment.
However, as most jails are extremely antiquated, poor general
conditions of incarceration1 and the prison torture promoted the
prisoners to move their petitions to the courts for the protection of
their rights. But the courts generally refused to review cases
brought by convict prisoners, challenging such incarceration on the
ground that it would violate the “hands-off” doctrine. Actually the
“hands-off” doctrine is based on the fallacious foundation stated in
1871 in Buffin Vs common wealth2, that prison as a consequence of
crime, not only forfeited his liberty, but also his personal rights,
except those, which the law in its humanity accorded to him. He
was for the time being regarded as a slave of the state. It was in
1925 that a convicted prisoner3 was successful in securing the
protection of the court. The state as well as the federal courts
continued to hear the petitions from the stone walls and in a
1 Berkson L.C. : The Concept of Cruel and Unusual punishment (1975) P. 144
2 Ibid. p. 145
3 Howard Vs state, 28 Ariz 433, 237 p. 203 (1925)
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number of cases restored the rights of the prisoners. In T.K.
Fulwood Vs Clemmer4 the prisoner was deprived of his rights and
privileges, for preaching sermons condemning whites as liers,
thieves and murderers, in front of five or six guards and six guards
and six or seven hundred inmates. A prison rule prohibited such
activity because it might “tend to breach the peace” for this
infraction of rule, Fulwood was placed in a control cell. Where he
was subjected to a number of hardships. In Jordan Vs Fitzharris5,
where the prisoner was confined in a cell and was in miserable
condition, the court observed that requiring a man or beast to live
and sleep under the degrading situation, does violate the elemental
concept of decency. However, it was in 1973, that the National
Advisory Commission on Criminal Justice Standards and Goals, in
its recommendations advocated creating a prisoners Bill of Rights.
The Bill, among other things, has sought that the convicted
offenders should retain all rights that citizens in general have,
except those that must be limited to carry out the criminal sanction
or to administer a correctional facility or agency. Administrating
criminal sanctions does not require general suspension of basic
rights. Since criminal sanctions infringe on liberty the most basic
right, it is thus imperative that restrictions be used fairly and only
for sufficient cause.6 The surge in human rights consciousness that
followed the Second World War and the creation of United Nations
which produced the first international documents recognizing rights
of prisoners, including Art-10 of the International Covenant on
4 206 A. Supp. 370 (D.D.C. 1962)
5 Manroe Vs Rape (1961) 365 U.S. P. 167
6 Progress Report of National Advisory Commission on Criminal Justice Standards and
Goals (U.S. Department of justice) 1973
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civil and political Rights (ICCPR). The first document exclusively
dealing with prisoners was the United Nations Standard Minimum
Rules for the Treatment of prisoners.7 This document is concerned
not with the rights of prisoners, but with the proper management of
a penal institution, with a view to avoiding indiscipline, disease and
the induction of inmates into lives of crime; these objectives one
can derive from the nature of the recommendations. These include
the separation of different classes of prisoners, individual sleeping
accommodation, decent sanitation, food, clothing and to exercise
medical services, fair and not excessive punishment regimes for
disciplinary offences, complaints procedures, contact with family
and ‘reputable friends’, access to general news, reading materials,
to respect and facilities for religious observance, respect for
property, protection from unnecessary exposure to public insult and
curiosity, general respect for dignity, freedom from discrimination,
and a regime designed to reintegrate, the prisoner into society, with
appropriate education and rehabilitative measures.
Changes in Attitudes
In the 20th
century attitudes towards prisoners began to change.
There are a good number of US cases establishing that prisoners do
not lose all their rights. ‘There is no iron curtain drawn between the
constitution and the prisoners of this country.’8 And the House of
Lords said, “a convicted prisoner, in spite of his imprisonment,
7 Adopted Aug. 30, 1955, by the First United Nations Congress on the Prevention of Crime
and Treatment of Offenders. 8 Welf Vs Mc Donenell, 418 US 539, 555-56 (1974)
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retains all civil rights which are not taken away expressly or by
necessary implication.’9 The Human rights of prisoners with which
it is concerned are derived from “Universal general human rights”
and are applicable to every individual. So are not prisoners
adequately protected by the inclusion in national constitutions of
Common Human Rights provisions such as are found in the ICCPR,
and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
Prisoners Human Rights: A Survey of Constitutional
Perspective
The constitution of South Africa, 1996 is becoming the standard to
which constitution makers refer. In connection with the rights of
convicted prisoners it provides for conditions of detention that are
consistent with human dignity, including at least exercise and the
provision, at State expense, of adequate accommodation, nutrition,
reading material, medical treatment, to communicate with, and be
visited by, that person’s spouse, a chosen religious counselor and
medical practitioner. The constitution of Cambodia, passed in 1993,
prohibits “Coercion, physical ill-treatment or any other
mistreatment that imposes additional punishment on a prisoner.”10
The 1990 constitution of Nepal prohibits “physical or mental
torture” and “cruel, inhuman or degrading treatment”11
. Art 21 of
the constitution of Paraguay mandates that the people deprived of
their freedom be kept in adequate establishments, in which the
9 Raymond Vs Honey (1983) AC I quoted from “Secretary of State for Home Department”,
exparte simms exparte O’ Brien, R (1999) UK 1+233: (2000) 2 AC 115 10
Art. 38 of the Constitution of Combodia 11
Art. 14 (4) of the Constitution of Nepal
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mixture of sexes should be avoided, and minors be not allowed to
share the same establishments with adult persons subject to
preventive custody, it further mandates, be detained in places other
than those designed for convicted inmates. The brief survey
unequivocally indicates that the rights of prisoners are as yet a field
not comprehensively considered by constitution makers.
What rights might prisoners claim?
The Prison Reform International Handbook12
discusses the issues of
decent, human-rights oriented prison under the following headings:
Due process- which relates to the disciplinary process for what is
alleged to have been committed by prisoners in prison, the physical
conditions of imprisonment, prisoners health, prisoners contact
with the outside world, programmes for prisoners under which
therapeutic and rehabilitative regimes are included, as well as the
right to engage in religious observance, classification systems
according to which prisoners are grouped to ensure appropriate
treatment, work and other activity, prison staff, and inspection –
mechanism for monitoring prisons and their compliance with
standards. Many of these issues have infact been litigated, with
more or less success for the prisoners concerned, and more or less
sense of satisfaction on the part of observers, on the basis of the
existing general Human Rights provisions, or the limited specific
provisions about prisoners. A few examples of the specific issues,
mainly through cases, are explained here below –
12
Penal Reform International: Making standards Work: An International Handbook on Good
prison practice (Penal Reform International, London, 2001) P.5
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(i) Due process
It is no longer the case that once in prison, courts will not enquire
into the procedures used by the authorities. In a case, the court of
Appeal held that where a prisoner was re-categorized in a way
which limited his chances of being released on license, this change
ought not to have taken place until the prisoner had been told the
reasons for the change and given the chance to make
representatives.13
(ii) Special forms of constraint
Chains are commonly used in the USA, and also other equipment
such as restraint chains, which Amnesty International has claimed
have led to the deaths of prisoners. The UN Committee Against
Torture has recommended that the US abandon the one of these
chains, as contrary to the convention Against Torture.
(iii) Physical Security of prisoners
One aspect of physical security is the issue of medical treatment for
prisoners. Sometimes medical conditions may have no connection
with the incarceration, but other conditions may be caused or
exacerbated by it. Various courts have held that there is, in certain
circumstances, a duty to provide medical care. The English High
Court held that there might have been a breach of the European
Convention when a man died of a severe asthma attack while in
13
R. (Hirst) Vs Secretary of State for the Home Department, CA: Lord Woolf C.J. May &
Dyson, LJJ: 8 March, 2001
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custody.14
The European Court of Human Rights held that the
treatment of a severely disabled prisoner, though not intended in
any way to humiliate, was objectively degrading and did amount to
a violation of Art. 3 of the convention.15
(iv) Access to reading matter
An interesting Hongkong case involved a prisoner who wanted to
read the racing pages of the newspaper. The authorities maintained
that they had a problem with prisoners betting on horse racing, but
the prisoner argued that this infringed his freedom of expression
rights under the Bill of Rights which is identical to the ICCPR. The
judge of first instance upheld the claim16
, but was reversed on
appeal. The Court of Appeal holds that this was a, legitimate
derogation on the prisoners rights, proportionate to the evil to be
averted.
(v) Voting
A prisoner in South Africa challenged the Electoral Commission
for failing to make it possible for him to vote. The constitution is
silent on this issue, but says that “Every adult citizen has the right .
. . to vote in elections for any legislative body established in terms
of the constitution and to do so in secret.17
The Electoral Act
likewise said nothing about prisoners. But it also made no special
provision for those unable to get to a polling station because they
14
R. on the application of Wright Vs Secretary of state for the Home Department, (2001)
EWHC Admin, 520, 20 June, 2001. 15
Price Vs United Kingdom, (Application No. 33394/96) 10 July, 2001. 16
Chim Shing Chung Vs Commissioner of Correctional Services, 1995, No. MP2271,
decided on 2 Nov. 1995. 17
Sec. 19 (3) (a) of the Constitution of South Africa
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were in prison – though it did for those unable to do so by virtue of
certain other factors.18
(vi) Access to media
One of the famous Indian cases involved the issue of whether
journalists should be able to have access to prisoners. It was held
that though citizens have no constitutional right to have access to
prisons, there are circumstances in which it is desirable for the
interests of prisoners that journalists have access to interview
prisoners.19
(vii) Sex and family life
US courts have held that prisoners retain the right to marry, and
also that they cannot be compulsorily sterilized in other words their
right to procreate after release is protected.20
(viii) Privacy
A court in the US held that the 14th
Amendment protects an inmates
right to medical privacy, subject to legitimate penological
interests.21
This arose in the context of an HIV prisoner who
complained that his condition had not been kept confidential.
(ix) HIV Positive prisoner
In some countries prisoners are HIV positive to a greater extent
than the population at large. The risk of contracting or the actual
18
August Vs Electoral Commission, CCT8/99, decided on 1st April, 1999.
19 Sheela Barse Vs State of Maharashtra, (1987) 4 SCC. 373.
20 Turner Vs Safley, 482 US 78 (1987)
21 John Doe Vs Delie, 257 F 3d 309 No. 99-3019
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existence of infection with, the HIV virus, gives rise to a number of
possible implications for prisoners. There has been some criticism
in India of the endorsement by the National Human Rights
Commission of the refusal of the Red Cross to accept blood from
prisoners on the grounds that they are a high-risk group.22
(x) Religious observance
Being in prison may not interfere with private prayer but may give
rise to other difficulties for prisoners in observing the injunctions
of their religions. In the USA, the 9th
Circuit Court of Appeals
upheld preliminary injunctions forbidding prison authorities from
discipline Muslim prisoners who missed work in order to attend
Friday prayers.23
(xi) Consideration for parole
In 1993 a Canadian prisoner unsuccessfully challenged legislation
passed after he was sentenced, but which enabled the authorities to
decline to release him on parole on the grounds that there was
reason to believe he might commit a serious offence after release
but before the end of his sentence. The S.C. held that the legislation
did not infringe the Charter of Rights and Freedoms because it
stuck an appropriate balance between the protection of society and
the liberty of the individual, and also because there was a right to
hearing and representation.24
22
Ranjit Devraj: “Rights – India, Blood scare but prisoners cannot Donate”, Inter Press
Service Sep. 10, 2001. 23
Mayweathers Vs Newland, Nos. 00 – 16708, 01-15179 judgment filed Aug. 2. 2001 24
Cunningham Vs Canada, (1993) 2 SCR 143
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(xii) Privatization
Many countries have embarked on a process under which prisons
are now run wholly, or in part by private, essentially commercial,
enterprises rather than by public servants.
(xiii) Monitoring and Complaints
Apart from litigation, the limitations of which for a prisoner are
apparent, the routes for protecting the rights of prisoners may
include a system of prison visitors, Human Rights Commission and
ombudsman. The Common wealth Human Rights Initiative, now
based in India, carried out a study of the prison visiting system in
Madhya Pradesh. It concluded that the system was in many ways
defective – in appointment of visitors, in frequency of visits, in
effectiveness of visits, in accountability. It observed that ‘the visits
are motivated more by the ceremony or festivity of the occasion
and less by the mandated duty to monitor prison conditions and
make efforts towards improvement.25
Human Rights of prisoners – under the constitution of India
In 1979, India adopted the International Covenant on Civil and
Political Rights (1966). India must, therefore, “strive for the
promotion and observance of the rights recognized” in this
covenant. The Indian constitution (1949) was drafted even before
the Universal Declaration (1950), but it was adopted at a time when
the deliberations for the Universal Declaration were in the air, so
that the framers of the Indian constitution was influenced by the 25
Common wealth Human Rights Initiative, Behind Bars: A closer look at prison visiting
system, M.P. India, New Delhi P.18
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concept of human rights, and already guaranteed most of the human
rights which later came to be embodied in the International
covenant in 1966. Even prior to the framing of the constitution for
free India, Mahatma Gandhi had announced before the Second
Round Table Conference that this aim was to establish a political
society in India26
in which there would be no distinction between
high class and low class people, that women should enjoy the same
rights as men; and dignity and justice, social, economic and
political, would be ensured to the tuning millions of India. This was
one of the objects which inspired Pandit Jawaharlal Nehru in
drafting the historic objective Resolutions in the Constituent
Assembly, and which was adopted on Jan.22, 1947.27
The ideal of
the Objectives Resolution was reflected in the preamble28
of the
constitution which adopted in Nov. 1949 with the specific mention
of “dignity of the individual”. It is thus evident that during the
period between 1946 and 1949, India had formulated the concept of
human rights. In the substantive provisions of the constitution, the
human rights were divided into two parts, in much the same way as
the International Covenant on civil and political Rights, and on
Economic, Social and Cultural Rights did later (1966). In the
Indian Constitution, the justifiable human rights were included in
part III, while the non- justifiable social and economic rights were
set forth in part IV on the provides for the creation of a National
Human Rights Commission. The Apex Court, significantly held
that it was fully empowered to look into the propriety of orders
26
Durga Das Basu’s: “Commentary on the constitution of India, 6th
Ed. Vol. A., P. 147. 27
Durga Das Basu: “Introduction to the constitution of India”, 14th
Ed. PP. 20-22 28
Ibid. p.23
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passed by such Commission and observed: “ In deciding the
matters referred by S.C. National Human Rights Commission is
given a free hand and is not circumscribed by any conditions.
Therefore, the jurisdiction exercised by the National Human Rights
Commission in these matters its of a special nature not covered by
enactment or law, and thus acts sui generis.”29
From study the
research Scholar finds that the Indian prison system, just like the
other agencies of the criminal justice administration, can be
described to exist perpetually in a state of crisis. The reasons for
such a state of affairs are:
(i) antiquate and over-crowded, over- worked nature of prison
institution.
(ii) lack of proper training, skills and motivation of the prison staff.
(iii) policy – level ideological conflicts brought about by the
modern ideas of prisoners rights and egalitarianism,
(iv) internationalization of the prison system.
The aforesaid reasons manifest in several specific problems that
may assume different in the vast network of prisons. However,
some of the notable problems that substantially determine the very
character of the system itself can be described as follows:
(i) Over-Crowding
Over-crowding has almost become a hallmark of most the prisons,
only the degree of over-crowding may vary between two times to
29
Paramjit Kaur Vs State of Punjab and others, AIR 1999 SC 340
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four times or even more. The intensity of growth of prison
population can be estimated from Tihar prison itself, which started
with an average prison population of 900 inmates in 1958 and has
reached 9000by 1996. The over-crowding issue was recently raised
before the S.C. in a PIL in Rama Murthy Vs State of Karnataka30
seeking wide ranging reforms in prison conditions. The S.C. did not
consider over-crowding per se as unconstitutional, but held that –
“There is no doubt that the same does not affect the health of
prisoners . . . The same also vary adversely affects hygienic
conditions. . .31
.
(2) Inadequate provision for Basic Needs
The issue of basic need provision may not be problematic so far as
Delhi and certain other metropolitan city prisons are concerned.
But when it comes to District and Sub-prisons in less well-
organized and financially badly-off states like Bihar, UP and the
issue of basic need fulfilment relating to food, shelter, clothing,
health-care, hygiene, recreation and involvement in rehabilitation
programmes assumes far greater significance. Even in financially
well-provided states, the prevalence of corruption amongst prison
staff substantially affects provision of basic needs as well. The All
India Committee on jail Reforms, 1980-83, has observed: “The
committee recognized that the central jail, Tihar had been widely
criticized on account of mal-treatment of, and indiscipline amongst,
30
(1997) 2 SCC 642 31
Ibid, at 654
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prisoners on the one hand and improper attitudes, incompetence,
corruption and abuse of power by the staff on the other.”32
(3) Torture, Ill-treatment and Repressive Control
As a custodial institution prisoners have a basic responsibility for
protecting the inmates from being subjected to any harm or
suffering. But in actual practice the absolute dependence and
powerlessness of the inmates makes him an ideal target for torture,
ill-treatment and repression. Studies and researches on prison
unrest reveal that most of the incidents are related to trivial matters
involving individual torture and violence.
(4) Unequal Treatment and Privileges
Prison society is inherently unequal. There exist within the prison
several hierarchies, some of which have no formal or legal
recognition. The vast bulk of resource less, lower-class, inmates
invariably occupy the lowest position in the hierarchy. They are not
only subjected to the lawful and legitimate commands of prison
officials but are also treated as subjects by the influential “Convict
officers” and the mafia undertrials. The existing prison system
sustains the social hierarchies enjoyed outside even inside the
prison by classifying the prisoners into “B” and “C” classes or “1st”
and “2nd
” classes for conferring prison privileges. The issue of
perpetuating the outside class and status hierarchies within the
prison was examined by the Jail Manual Committee and the All-
India Committee On jail Reforms which recommended for doing
32
Ministry of Hone Affairs, Report of the All-India Committee on jail Reforms, 1980-83
(Govt. of India, New Delhi, 1983) Vol-I, Chap-I, Para 1-14)
127
away with the classification based on social status, education and
mode of living. Time and again, the S.C. has emphasized that Art’s
14, 19 and 21 are available to prisoners as well as freeman prison
walls do not keep out Fundamental Rights.33
The court has
observed in this connection34
, - “A prisoner, be he a convict or
under-trial or a detenu, does not cease to be a human being. Even
when ledged in the jail, he continues to enjoy all his 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 still retain the residue of constitutional rights.” The court
has given several directives to improve many aspects of prison
administration and condition of prisoners.35
In Sunil Batra’s case,
the petitioner, sentenced to death on charges of murder and
robbery, was being kept in solitary confinement pending his appeal
before the High Court. He filed a writ petition in the S.C. under
Art. 32. The court emphasized this case that Art. 21 means that “the
law must be right, just and fair, and not arbitrary, fanciful or
oppressive otherwise, it would be no procedure at all and the
requirements of Art. 21 would not be satisfied. If it is arbitrary it
would be violative of Art. 14.36
The court has stated that resort to
oppressive measures to curb political beliefs (the prisoner
concerned was a naxalite and, therefore, he was being put in a
“quarantine” and was being put to inhuman treatment) could not be
33
T.V. Vethuswaran Vs State of Tamil Nadu, AIR 1983 SC 361 (2) 34
State of Andhra Pradesh Vs Challa Ramkrishna Reddy, AIR 2000 SC 2083, at 2088 35
Sunil BatraVs Delhi Administration, AIR 1980 SC 1579 (II) 36
Ibid, P. 1732
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permitted.37
The court has maintained that the conviction of a
person for a crime does not reduce him to a non-person vulnerable
to a major punishment imposed by jail authorities without
observance of the procedural safeguards. The undertrials are in
custody, but not undergoing punitive imprisonment. The court has
frowned upon the practice of keeping prisoners condemned to death
sentence in solitary confinement. Apart from Art. 21, the court has
also held it invalid under Art. 20 (2). A person under death
sentence is held in jail custody so that he is available for execution
of the death sentence when the time comes. No punitive detention
can be imposed on him by jail authorities except for prison
offences. He is not to be detained in solitary confinement as it will
amount to imposing punishment for the same offence more than
once which would be violative of Art. 20 (2)38
, Similarly the court
has ruled that “bar fetters make a serious in road on the limited
personal liberty which a prisoner is left with”. Such a punishment
can be imposed only to secure the safe custody of the prisoner
taking into consideration “the character antecedents and
propensities of the prisoner.”39
The court has observed, “We cannot
be oblivions to the fact that the treatment of 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 Art. 14”40
37
Bhuvan Mohan Patnaik Vs State of A.P., AIR 1974 SC 2092 38
Sunil Batra (I), at 1731 39
Ibid, 1734 40
Sunil Batra (I), at 1735
129
The S.C. has strongly deprecated the tendency of continuing to
detain persons as criminal lunatics for long periods even after they
have become same. The court has emphasized that there should be
an adequate number of institutions for looking after the mentally
sick persons and that the practice of sending lunatics or persons of
unsound mind to jail for safe custody is not desirable, because jail
is hardly a place for treating such persons.41
The court has also
frowned upon the practice of keeping women in prison without
being accused of any crime. In Hussainara III,42
the court has
characterized “protective custody” as “really and in truth nothing
but imprisonment” which violates Art. 21. The court has directed
the Govt. to setup welfare and rescue homes to take care of
destitute women and children. In Inder Singh Vs State43
, the S.C.
issued certain directions as to how the jail authorities should treat
two young men convicted of murder and sentenced to life
imprisonment, with a view to reforming them. In Kishor Singh Vs
State of Rajasthan44
, the S.C. again exposed the injustice being
perpetrated on the prisoners and how the guidelines laid down by
the court in the Sunil Batra’s case were being ignored and flouted
by the prison administration. Human dignity is not to be ignored
even in prisons. Broadly, the judicial control of prisons has arisen
from two streams of cases – a. those that focus on the constitutional
rights and Human Rights of prisoners.
41
Veena Sethi Vs State of Bihar, AIR 1983 SC 339 42
AIR 1979 SC 1360, 1367 43
AIR 1978 SC 1091, 1094 44
AIR 1981 SC 625
130
b. those that relate to a wide range of prison conditions and
standards of prisonisation.
The research Scholar from study observes some established Human
Rights and well-settled Fundamental Rights, which are and have
been made available to prisoners in general –
When there is deprivation of liberty, otherwise than according
to law – The personal liberty of a citizen is guaranteed under the
scheme of Art. 20, 21 and 22 of the Constitution of India.
However, a person may be deprived of his liberty only according to
procedure established by law. It follows, therefore, that those who
will call upon to deprive other persons of their personal liberty in
the discharge of what they conceive to be their duty, must strictly
and scrupulously observe and follow the rules of law.45
Speedy Trial is a Fundamental Right and in a manner an
ingredient of Art. 21 – The S.C. has advanced further and held
that the provision of speedy justice is an obligation of the State,
for, otherwise the operation of the legal system would not promote
justice.46
Right in case of acquittal – If the trail against a prisoner
concludes into acquittal, the prisoner is entitled, as a matter of right
to be released forthwith. After an order of acquittal, he cannot be
detained behind the prison walls.47
45
Ram Narain Vs State of Delhi, 1953 SCR 652 46
S.C. Advocates on Record Association Vs U.O.I, AIR 1994 SC 268 47
Rudal Shah Vs State of Bihar (1993) 3 SCR 508
131
Detention without trial or charge – When an undertrial was kept
in jail without any trial for a longer time, the court has held that
they should be released. Likewise in cases where even charges
were not framed against the undertrial and long life elapsed for no
fault of the undertrial then the courts have directed for the release
of such persons.48
Right to have a fair trial and open trial – All the prisoners have a
human right to have a trial for the offence charged against.
Universal Declaration of Human Rights, 1948 and the constitution
of India generally propounds four protections to every undertrial –
a. Presumption of innocence
b. Prevention of ex post facto operation of criminal
law
c. Protection against double jeopardy
d. Due process and according to law
Right to be told as to the grounds of arrest- All prisoners have
got a right to be informed of the grounds of arrest. Art. 22 (I)
provides such a right is unmistakable words. Similarly Art. 39A of
the constitution also provides guidelines in the DPSP to make it
obligatory on the State to provide legal assistance to an undertrial.49
48
Mathew Vs State of Bihar, AIR 1984 SC 1854 49
State of Haryana Vs Darshna Devi, AIR 1979 SC 855
132
Right to get himself medically examined – In Sheela Barse,50
the
S.C. has make it clear that all undertrials have got a right to get
them medically examined. Right against torture – Torture is an
effort to the human dignity. No prisoner can be tortured and cannot
be subjected to custodial violence.51
No handcuffing – The S.C.
has held that iron is inhuman and therefore no iron bars or
handcuffs should be put to and fro while an undertrial is taken from
prison to the court and while returning from court to the prison.52
Right to fair treatment – All prisoners have got a right of fair
treatment and the basic dignity. This would include all measures of
security, remand and parole, premature release, conditions of
prisonisation as well as prison transfer and prison visiting system.53
The Prisoners: Some pleasures In the penal institutions,
particularly in the maximum security installations, there is greater
commitment to the criminal value system, and less co-operation
with the custodial personnel. Nevertheless, even in such institutions
there are many inmates, who co-operate for choice assignments,
without arousing the hostility of their fellow inmates. They are
from category of the prison wise inmates and are always careful to
avoid being categorized as “stool-pigeons”. They justify a certain
amount of co-operation to their fellow inmates as necessary or
useful to obtain early release on parole.
The jail officers themselves are in league with the criminals in the
cells. There is a large network of criminals and officials in the
50
Sheela Barse Vs State of Maharashtra, AIR 1983 SC 378 51
D.K. Basu Vs State of W.B. AIR 1997 SC 610 52
Citizen for Democracy Vs State of Assam AIR 1966 SC 2193 (except for special reasons) 53
Zoil Nath Sharmah Vs State of Assam, 1992 CrLj. 207
133
house of corrections, where drug racket, alcoholism, smuggling,
supply of women or handsome boys, violence, theft and the like are
not uncommon. The cases of Sunil Batra, Charles Sobraj are eye
opener in respect of the illegal facilities which are given to the
“inmate dada’s”. These types of prisoners are able to develop a
certain rapport, with some of the staff members in the jail such as
Head Warders, Warders and illegally obtain certain facilities
including that of smuggling of number of items. A number of
allegations have been made in Rakesh Kaushik’s54
case, regarding
illegalities which are committed by the rich and influential
prisoners not only with the permission of the prison officers, but
also with their active help. The S.C. in this case observed that –
“jural perspectives make the court and activist instrument of jail
justice. We proceed on this basis to a consideration of the issues
raised before us. But to clothe these issues with flesh and blood and
to make abstract poignancies into concrete problems, we may
excerpt at random some of the allegations made by the petitioner,
perhaps, by mixing fiction with fact. Even after making a liberal
allowance for adulteration distortion, the Masonic residue presses
upon our judicial conscience to use the court process and restore
basic humanism inside the penal institution where sentences,
punitively set by the court, are subject to unbearable tensions and
torments on their physical and moral fiber, thanks to the prison
milieu being what is . . .”
54
Rakesh Kaushik Vs B.L. Vig. Superintendent, central jail, New Delhi, AIR, 1981 SC 1767
134
The Prisoners: Some pains However, the real pressure of the
prison, goes beyond the surface discomfort created by a harsh
environment. Immobility, poverty, abstinence, compliance,
uncertainly – all these are aspects of prison experiences, that seem
designed to irritate and annoy. But the brunt of these pains of
imprisonment lies in the fact that prisoner loses control of his
world, and is rendered powerless to alter his fate. The pressures of
prison thus threaten to undermine the convict’s image as a self-
sufficient, respectable adult male. The prisoner’s male identity is
apt to become distorted or blurred in this all male world, where the
moderating influence of women is conspicuously absent. The
deprivations which are followed, with the loss of liberty are
numerous and vary in their dimensions according to the nature and
length of the imprisonment, period served in the institution as well
as the status of the prisoner, which he enjoys in the institution, or
might have enjoyed in the society. The pains of imprisonment are
actute for those who are with long-term imprisonment, as compared
to those who are with short-term imprisonment. Such a pains, to a
larger extent frustrate the programmes of rehabilitation and
consequently make the resocialization a difficult task. The young
offenders often find imprisonment to be a crime learning situation.
Further, prison monotony contributes to the mental deterioration of
the inmates. Though no serious effort has been made to study the
effects of the imprisonment on mentality of the prisoner, yet what
one sees actually lead to the conclusion that prison administration
is in a large measure responsible for development of insanity
among the prisoners, mentally sound at the time of admission. The
multiplicity of rules and restrictions, the tedious monotony, the
135
curtailment of freedom, the forced subjection to an unusual severe
discipline, the worries for the family and the sad outlook for the
future, all are quite disturbing and lead to abnormal mental
reactions, which is turn negative the process of rehabilitation.