Rights of Prisoners

NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL

Project For

PROTECTION OF HUMAN RIGHTS AND

DUTIES IN INDIA: LAW, POLITICS AND
SOCIETY

On

PRISONERS’ RIGHTS

International provisions and Indian

Scenario

(2018-2019)

SUBMITTED TO: - SUBMITTED BY:-

Prof. (Dr.) Tapan R. Mohanty Pragya Shukla

2018LL.M.03

2
 Rights of Prisoners

ACKNOWLEDGEMENTS

I, Pragya Shukla, feel myself highly elated, as it gives me tremendous pleasure to

come out with the work on the topic “PRISONERS’ RIGHTS: International
provisions and Indian Scenario” and would like to thank the faculty member for
giving me a topic that finds its relation with one of the most controversial issue of the
present times in India.
First and foremost, I take this opportunity to thank Prof. (Dr.) Tapan R. Mohanty,
Faculty, Protection of Human Rights and Duties in India: Law, Politics and Society,
National Law Institute University, Bhopal for allotting me such topic to work on. He
has been very kind in providing inputs for this work, by way of his lectures,
discussions and suggestions.

I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work.

Last, but not the least I thank the University Administration for equipping the
University with such library and IT facilities, without which, no doubt this work
would not have taken this shape in correct time.

PRAGYA SHUKLA,
LL.M.,

NLIU, BHOPAL.

3
 Rights of Prisoners

Table of Contents

Introduction ......................................................................................... 05

Prisoner, Human Rights in Prisons ...................................................... 09

Why human rights in prison .............................................................. 10

Prisoner’s Right- International provisions and conditions ................. 11

Indian Scenario ................................................................................... 16

Judicial pronouncement to protect prisoners’ rights............................19

For assurance of rights in prison ........................................................... 30

Conclusion ............................................................................................. 34

Bibliography ...........................................................................................35

4
 Rights of Prisoners

INTRODUCTION

“Hate the Crime not the Criminal; Correctional Justice is always better than
punitive justice.”

The degree of civilization in a society can be judged by entering its prisons.

--Fyodor Dostoyevsky

Prisoners retain certain basic rights, which survive despite imprisonment. The rights
of access to the courts and of respect for one’s bodily integrity - that is, not to be
assaulted - are such fundamental rights. Others may be recognised as the law
develops. Prisoners lose only those civil rights that are taken away either expressly by
an Act of Parliament or by necessary implication. For example, one right taken away
by statute is that prisoners detained following conviction do not have a right to vote.
The test in every case is whether the right is fundamental and whether there is
anything in the Prison Act 1952, the Prison Rules 1999 or elsewhere which
authorises the prison authorities to limit such a right.

The test now applied is that the State can only place limits on prisoners' rights if they
are necessary for the prevention of crime or for prison security. Any limitations
placed upon such rights must also be proportionate to the aim that the authorities are
seeking to achieve. There are a large number of cases that have been heard by the
European Court of Human Rights (ECHR) which help clarify the extent to which
limitations can be imposed.

“The penitentiary system shall compromise treatment of prisoners essential aim

of which shall be their reformation and social rehabilitation.”1

The above statement contained in Art.10(3) of the International Covenant on Civil

and Political Rights, 1966 is the cornerstone of the present prisoner management
system and provides the legal foundation for human rights in prisons. Art.7 of the said
International Covenant which ordains that “No one shall be subjected to torture or to

1
Art.10(3) of the International Covenant on Civil and Political Rights, 1966

5
 Rights of Prisoners

cruel, inhuman or degrading treatment or punishment”2 adds strength to the above

thought. Art.10(1) of the said Covenant deals specifically with prisoners and
mandates that “all persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person”, and completes the
philosophical statement in relation of human rights in prisons.

The Indian socio-legal system is based on non-violence, mutual respect and human
dignity of the individual and on the principles of reformation of the criminal. 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 admission 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.

Article 21 of the Constitution guarantees the right of personal liberty and

thereby prohibits any inhuman, cruel or degrading treatments to any person
whether he is a national or foreigner. 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. If any excesses are committed on a
prisoner, the prison administration is responsible for that. Any excesses committed on
a prisoner by the police authorities not only attract 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 encroachments upon the human rights of the
prisoners.

Concept of Human Rights of the prisoners is an ancient and universal phenomenon, as

old as humanity.

2
Art.7 of the International Covenant on Civil and Political Rights, 1966

6
 Rights of Prisoners

STATEMENT OF PROBLEM

The project will attempt to study whether the conditions of prisoners in which they are
kept adhere to the international norms and statues.

LITERATURE REVIEW

 Bronwyn Naylor (2015) in his article Researching Human Rights in Prisons

examines two issues: the capacity of prisons to incorporate human rights
considerations into their routine management; and the methods employed in
this research in prisons. The first element examines the impact of formal
human rights instruments on prison management and on the lived experiences
of prisoners, and the potential for the practical application of human rights
obligations in this environment. The second gives closer analysis to the
specific use of qualitative methodologies in carrying out researches, and the
potential implications of methodology for subsequent acceptance of research
findings by governments.3

 Lines R (2008) in his article Right to health of prisoners in international

human rights law explores the health rights of prisoners as defined in
international law, and the mechanisms that have been used to ensure the rights
of persons in detention to realise the highest attainable standard of health. It
examines this right as articulated within United Nations and regional human
rights treaties, nonbinding or so-called soft law instruments from international
organisations. It explores the use of economic, social and cultural rights
mechanisms, and those within civil and political rights, as they engage the
right to health of prisoners, and identifies the minimum legal obligations of
governments in order to remain compliant with human rights norms. In
addressing these issues, this article adopts a holistic approach to the definition
of the highest attainable standard of health. This includes a consideration of
adequate standards of general medical care, including preventative health and
mental health services. It also examines the question of environmental health,

3
Bronwyn Naylor, Researching Human Rights in Prisons, International Journal for Crime, Justice and
Social Democracy, vol. 4, no. 1, 2015, pp. 79‐95, ([Link])

7
 Rights of Prisoners

and those poor conditions of detention that may exacerbate health decline,
disease transmission, mental illness or death. 4

 Prof. R.K Gupta and Karam Singh (2016) in their article Human Rights of
Prisoners in India throw light on the right to speedy trial as a right to life and
personal liberty of a prisoner guaranteed under article 21 of the Constitution,
which ensures just, fair and reasonable procedure. The Supreme Court of
India has been very vigilant against encroachments upon the Human Rights of
the prisoners by giving a liberal and comprehensive meaning to life and
personal liberty. Under trial prisoners are those persons who are facing trial in
any court, unable to furnish surety, and have no access to legal aids, are kept
in prison for years together, which amounts to gross violation of their human
rights.5

HYPOTHESIS

In this project the author asserts the notion that the prisoners shall also be awarded
with the basic human rights and their living conditions must be improved in prisons.

OBJECTIVE OF THE STUDY

The objective of this study is:-

 To examine the conditions of the prisoners in a prison as a human right under

International and Indian scenario.

4
Lines R, Right to Health of Prisoners in International Human Rights, Int. J Prison Health, vol. 4. no.
1, 2008, pp. 3-53, ([Link]
5
R.K. Gupta and Karam Singh, Human Rights of Prisoners in India, Imperial Journal of
Interdisciplinary Research (IJIR), vol-2, issue-11, 2016, pp. 624-626.

8
 Rights of Prisoners

RESEARCH METHODOLOGY

This research project is doctrinal in nature since it is largely based on secondary and
electronic sources of data and there is no field work involved while producing this
research. Source utilized for the completion of this project include available books,
articles, statutes, websites and other such literature.

PRISONER
Prisoner: One who is deprived of his liberty. One who is kept against his will in
confinement or custody in a prison, penitentiary, jail or any other correctional
institution, as a result of conviction of a crime or awaiting his trial.

Prisoner: A person under arrest, or in custody, whether in prison or not; a person held
in involuntary restraint; a captive; as, a prisoner at the bar of a court.

HUMAN RIGHTS IN PRISONS

The protection of Human Rights Act, 1993 defined Human Rights as the rights
relating to liberty, equality, and dignity of the individual guaranteed by the Indian
Constitution as embodied in the Fundamental Rights and the International
Covenants.

Human rights are those minimal rights that every individual must have against the
state or the other public authority by virtue of being a “member of human family”
irrespective of any other consideration. These are the rights that are inalienable
because the enlightened conscience of the community would not be permitted to
surrender those rights by any citizen even of his/her own violation. These are the
rights that are inviolable because they are not only vital for the development and the
efflorescence of the human personality and for ensuring its dignity, but also because
without them people would be reduced to the level of animals. Human rights are
neither privileges nor gifts given at the whim of a ruler or a government. Neither can
they be taken away by any arbitrary power. They cannot be denied nor can they be
forfeited because an individual has committed an offence.

9
 Rights of Prisoners

WHY HUMAN RIGHTS IN PRISONS?

Prisons all over the country are managed in terms of the Prisoner Act, 1894 which is
central law. Because of the uniformity in management structure, problems are also
similar. They are the most critical area of human rights because of the very nature of
the functions assigned to them by law. They not only execute sentences imposed by
law courts on convicts but also detain those accused of criminal action. Prison
conditions are such that it is not possible to easily accept that even basic human rights
of inmates would be honoured. Above noted condition of over-crowding and lack of
medical facilities, themselves cause human rights violations. Shortage of staff results
in over reliance on so called star prisoners in matter of internal management, which
cause problems relating to custodial violence. By and large, prisons in this country are
run through outdated structures, ill equipped personnel, outdated methods and
apparatus. It is therefore necessary to consider the question of human rights protection
in prisons in the totality of institutional environment, besides the law on the subject.
It is also necessary to consider them in the context of international Human rights
Law so that we do not lose sight of our binding treaty obligations and remain an
important part of the international community.

Articles 14, 21 and 22 of the constitution recognise the basic principles and aim at
securing human rights contained therein. Even the right to liberty of movement and
others freedoms guaranteed restriction in wider public interest. The Supreme Court
has therefore affirmed that all fundamental rights are an enforceable reality even for
prisoners though restricted by the fact of their imprisonment. Within this
constitutional framework, the supreme court has declared that a prisoner in prison
does not become a non-person and that such a person is entitled to all human rights
other than those taken away of curtailed by the process of incarceration.

State of Maharashtra v. Prabhakar6 was perhaps the first case where the Supreme
Court considers the right of a detenue to read and write and send the manuscript of his
book out of jail for publication.

Sunil Batra v. Delhi Administration7 is a land mark decision holding that conviction
for a crime does not reduce a person into a non-person whose rights are subject to the

6
AIR 1966 SC 424

10
 Rights of Prisoners

whim of the prison administration and hence imposition of any major punishment
within the prison system is conditional upon observance of procedural safeguards
under Art.21 of the constitution. It was held that even section 30(2) of the prison
Act,1894 does not authorise prison authority to impose solitary confinement within
the meaning of section 73 and 74 IPC.

In Kishore Singh v. State of Rajasthan 8 The court laid down that solitary
confinement disguised as “keeping in separate cell” and imposition of bar fetters are
not to be restored to save in the rarest of rare cases and with strict adherence to the
procedural safeguards contained in the decisions of this court relating to the
punishment of prisoners.

In F.D. Upadhyay v. State of Andhra Pradesh 9 and later on in Common Cause v.

UOI10 the court noticed that a large number of trial prisoners were awaiting trial
without their fault and gave directions for their release on bail on conditions laid
down in the judgement. Despite these judgements and binding directions prison
conditions continued to be unsatisfactory.

PRISONER’S RIGHTS AND INTERNATIONAL SCENARIO

However before the conventions are enlisted, the related provisions in the Convention
can be divided into two categories, the first category contains to provisions related to
right to life and the other relating to prevention of torture.

Prisoners are also entitled to the fundamental right to life, because as mentioned
before, that no person can be deprived of his “life, liberty or property without due
process of law” and prisoners are also persons and they cannot be deprived of those
rights for the reason they have committed an offence; they don’t cease to be human
beings. Right to life does not mean to merely exist but refers to quality life.

1) Universal Declaration of Human Rights (UDHR)11

Article 3- “Everyone has the right to life, liberty and security of person.”
7
AIR 1978 SC 1675
8
AIR 1981 SC 625
9
(1966) 3 SCC 422
10
(1966) 4 SCC 33
11
Universal Declaration of Human Rights, adopted Dec. 10, 1948, (1948)

11
 Rights of Prisoners

2) International Convention on Civil and Political Rights (ICCPR)

Article 6(1)- “Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life.”12

3) European Convention of Human Rights-

Article 2 (1)- “Everyone’s right to life shall be protected by law. No one shall
be deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided by
law.”13
4) American Convention on Human Rights-
Article 4(1)-“Every person has the right to his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one shall
be arbitrarily deprived of his life.”14

5) African Charter on Human and People’s rights-

Article 4- “Human beings are inviolable. Every human being shall be entitled
to respect for his life and the integrity of his person. No one may be arbitrarily
deprived of this right.”15

TORTURE
Torture is a particularly barbaric violation of the right to physical and neutral integrity
and represents a direct attack on the core of the human personality. It was therefore
abolished during the Age of Enlightenment, and is prohibited, without exception even
16
in emergency situations, by present international law. The Article 1 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment defines torture as:

“The term “torture” means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed,

12
International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, Art.6 (1).
13
European Convention for the Protection of Human Rights and Fundamental Freedoms, art.2 (1).
14
American Convention on Human Rights, signed Nov. 22, 1969, Art 4 (1).
15
African Charter on Human and People's Rights, adopted June 27, 1981, Art. 4.
16
Manfred Nowak, “Civil and Political Rights”, Course Material Human Rights, at pp-96-97.

12
 Rights of Prisoners

or intimidating or coercing him or a third person, or for any reason based on

discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.”

Further Article 2(2) of the above Convention makes the right against torture as an
exceptional right, thereby stating that, “No exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture.”

Never the less right against torture is one of the most violated rights. The following
conventions slot in provisions regarding right against torture:

1) Universal Declaration of Human Rights-

Article 5-“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”17
2) International Convention on Civil and Political Rights-
Article 7- “No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation.”18
3) European Convention on Human Rights
Article 3- “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”19
Having regard to the above provision, under the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
1987, a committee was established under Article 1 of the Convention which shall, by
means of visits, examine the treatment of persons deprived of their liberty with a view
to strengthening, if necessary, the protection of such persons from torture and from
inhuman or degrading treatment or punishment.

4) American Convention on Human Rights-

Article 5 (2)- Right to Humane Treatment20

17
Universal Declaration, Art. 5
18
International Covenant on Civil and Political Rights opened for signature Dec. 16, 1966, Art. 7.
19
European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3,
(entered into force Sept. 3, 1953) Under Article 15(2), there can be no derogation of Article 3.

13
 Rights of Prisoners

“No one shall be subjected to torture or to cruel, inhuman, or degrading

punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.”

5) African Charter on Human Rights and Peoples-

Article-5- “All forms of exploitation and degradation of man particularly
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.”21

The United Nations Standard Minimum Rules for the Treatment of Prisoners,
(known as the Standard Minimum Rules), adopted by the U.N. Economic and Social
Council in 1957 expressly provide that: “corporal punishment, punishment by placing
in a dark cell, and all cruel, inhuman or degrading punishments shall be completely
prohibited as punishments for disciplinary offences.” The Rules also state “no
prisoner shall be punished unless he has been informed of the offence alleged against
him and given a proper opportunity of presenting his defence. The competent
authority shall conduct a thorough examination of the case.” It should be noted that
although the Standard Minimum Rules are not a treaty, they constitute an
authoritative guide to binding treaty standards.

Principle 6 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment prohibit the use of torture or to cruel, inhuman
or degrading treatment or punishment on any person under detention or imprisonment
and no circumstances may be invoked as a justification for such treatment.

The minimum standard rules for prisoners regulate the provision of health care for
them. Apart from the civil and political rights, the so-called second generation
economic and social human rights, as set down in the ICESCR, also apply to
prisoners. The right to the highest attainable standard of health should also apply to
prison health conditions and health care. This right to health care and a healthy
environment is clearly linked, particularly in the case of HIV, to other first generation
rights, such as non-discrimination, privacy and confidentiality. Prisoners cannot fend

20
American Convention on Human Rights, signed Nov. 22, 1969, Art 5. Under Article 27(2), there is
no authorization to suspend Article 5.
21
African Charter on Human and People's Rights, adopted June 27, 1981, Art. 5.

14
 Rights of Prisoners

for themselves in their situation of detention, and it is the responsibility of the state to
provide for health services and a healthy environment.

INTERNATIONAL HUMAN RIGHTS PROTECTIONS FOR THE

PRISONER-ON-PRISONER ABUSES22

In addition to the constitutional protections available to prisoners, numerous

international human rights instruments protect the human rights of prisoners. At the
forefront of such instruments are the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). Both instruments unequivocally prohibit
torture and cruel, inhuman, or degrading treatment or punishment.

While there are no international law provisions that specifically pertain to prison rape,
rape is covered by the prohibitions against torture and cruel, inhuman, or degrading
treatment as defined in these instruments. Additionally, several international
interpretive guidelines delineate the human rights of persons deprived of liberty. To
ensure compliance with international treaty obligations, governments may turn to
such documents for guidance. One such document--the United Nations Standard
Minimum Rules for the Treatment of Prisoners--constitutes an authoritative guide to
binding treaties, including the ICCPR and the CAT.

Various provisions of the ICCPR protect the human rights of detained persons. Art- 7
provides that no one shall be subject to torture or cruel, unusual, inhuman, or
degrading treatment or punishment. Art- 9 guarantees the right to liberty and personal
security. Art- 10 provides that “all persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.”

The CAT is particularly instructive with respect to whether prison authorities are
responsible for preventing prisoner-on-prisoner abuses, including rape. The definition
of torture and cruel, inhuman, or degrading treatment or punishment in the CAT
includes acts committed by public officials as well as acts committed with their
acquiescence (Art- 1(1) and 16(1)).

22
Shara Abraham, “Male Rape in U.S. Prisons: Cruel and Unusual Punishment”, Fall, 2001, 9 Human
Rights Brief, 5

15
 Rights of Prisoners

PRISONER’S RIGHTS AND INDIAN SCENARIO

The Protection of Human Rights Act, 199323 defined Human Rights as the rights
relating to liberty, equality, and dignity of the individual guaranteed by the Indian
Constitution as embodied in the Fundamental Rights and the International
Covenants.

Indian laws recognizing rights of prisoners - The Constitution of India, the Prisons
Act 1894, Prisoners Act 1900 and the Judicial Pronouncements are some of the
sources for the rights of prisoners (though the list is not exhaustive) framed for
regulating the Indian prisons.

THE CONSTITUTION OF INDIA, 1950:

In the Constitution of India i.e. basic law of the land, the Articles, which give effect to
the protection of rights of persons- the prisoners, are (the following two articles have
a head on application to the rights of prisoners)-

Article 14 - The state shall not deny to any person equality before law or the equal
protection laws within the territory of India.

Article 21 - Protection of life & personal liberty- No person shall be deprived of his
life or personal liberty except according to procedure established by law.

These articles are the keystone of all the liberties & rights enshrined in the
Constitution. While discussing constitutional and legal provisions for the right of
prisoners the analysis of Art 21 is essential.

THE PRISONS ACT, 1894 AND THE PRISONERS ACT, 1900

The prisons Act was enacted in the year 1894 and though at that time when the
purpose of the enactment was very much different, some basic minimum rights of
prisoners were protected by the following sections:

Sections 13, 14, 15- Health care of prisoner: It is duty of Medical officer to protect
his life and maintain sanitation.
23
The Protection of Human Rights Act, 1993, Section 2 (d)

16
 Rights of Prisoners

Section 26- Examination before transfer & not to be released against will if not safe
for the prisoner.

Section 33- State to provide clothing for unconvinced also, if required.

Section 58- Protection against the use of irons (hand cuffs & fetters).

Section 44- Information and hearing the prisoner before inflicting any punishment.

Conforming these provisions there are corresponding provisions in the Prison Rules
of the various States also.
The Prisons Act 1894 provides for corporal punishment in cases where a prison
offence has been committed. As per Section 46 Clause 12 of the Act, the Jail
Superintendent may examine a prisoner committing such offence and punish him by
whipping him/her not more than 30 times, among other alternatives, as provided in
the Act.

MULLA COMMITTEE-

Under the chairmanship of Justice [Link], Govt. of India appointed a committee

on prison Reform in the year 1980. The committee (popularly known as Mulla
committee) submitted its voluminous report describing the present condition of prison
& giving its suggestions. This committee specially stressed upon how the prisoners,
be dealt with dignity and conforming to the International standards. Many of the
recommendations of the committee have been agreed to by some states, though not
adhered to absolutely.

MODEL PRISON MANUAL (2003)-

It was in the case of Ramamurthy v. State of Karnataka (1996) wherein the Supreme
Court had emphasized the urgent need for bringing uniformity in laws relating to
prisons and directed the central and state governments to formulate a new Model
Prison Manual. The Bureau for Police Research and Development (BPR&D)
constituted a Model Prison Manual Committee at the National level for the
formulation of the Model Prison Manual in 2000.

For developing prison system in the country as an effective instrument for the
reformation and rehabilitation of offenders, the draft Model Prison Manual aims at:

17
 Rights of Prisoners

1) Bringing in basic uniformity in laws, rules and regulations governing the

administration of prisons and the management of prisoners all over the country;

2) Laying down the framework for both sound custody and treatment of prisoners;

3) Rationalisation of prison practices to cater effectively to various categories of

prisoners;

4) Spelling out minimum standards of institutional services for the care, protection,
treatment, education, training and re-socialisation of incarcerated offenders;

5) Evolving such procedures for the protection of human rights of prisoners as they
are entitled to within the limitations imposed by the process of incarceration;

6) Individualisation of institutional treatment of prisoners in keeping with their

personal characteristics, behavioural patterns and correctional requirements;

7) Providing a scientific basis for the treatment of special categories of prisoners

such as women, adolescents and high security prisoners;

8) Outlining an organisation of the Department of Prisons and correctional Services

which can conduct and meet its declared objective and to delineating the duties
and functions of the staff at various levels;

9) Developing coordination between the Department of Prisons and correctional

services and other components of the criminal justice system;

10) Ensuring availability of the necessary service inputs from other public
departments in an efficient functioning of prisons;

11) Forging constructive linkages between prison programmes and community based
welfare institutions in achieving the objective of the reformation and rehabilitation
of prisoners;

12) Leaving flexibility in the suggested provisions so as to allow for adaptation to

local conditions without undermining uniformity in rights and duties of prisoners.

The Model Prison Manual sets standards for construction of prisons and provides for
proper maintenance of prisoners in the form of specifying the nutritional aspects of
diet which the state governments are supposed to follow.

The need of Human rights in prisons can be summed up as:

 As a prisoner is also a human being.

18
 Rights of Prisoners

 Human rights are in inalienable; they must apply to all human beings without
exceptions.
 If once it is established that a prisoner is a human being he/she is entitled to be
treated as human being and has all the rights with in the limitations of
imprisonment.
 Prisoners being under the control of their custodial are more vulnerable than
the person outside, to the deprivation of human rights.
 No person is born criminal. Crime is a reflection of the failure of society. By
restoring human rights to prisoners the society corrects its own failure and
ensures proper socialization of prisoners.
 A prisoner should have human rights in order to learn to respect the human
rights of others after release.
 Whatever we require from them we should give them first.
 Treatment of criminals is one of the tests of civilization of the country, so by
maintaining the human rights of prisoners we contribute towards positive
development of civilization.
 If we debar a prisoner from human rights only because a prisoner has
committed a crime, then we shall threaten our own society.
 A prisoner is sent to jail as a punishment and curtailment of liberty is itself a
punishment so prisoner cannot be punished more by debarring him/her from
human rights.

JUDICIAL PRONOUNCEMENTS TO PROTECT PRISONERS’

RIGHT

The Indian judiciary, particularly the Supreme Court in the recent past has been very
vigilant against encroachments upon the human rights of the prisoners.

For the sake of convenience the judicial pronouncement so rendered by the court has
been categorized as per the rights of the prisoners-

 Right to Legal Aid

19
 Rights of Prisoners

Legal aid is no longer a matter of charity or benevolence but is one of the

constitutional rights24 and the legal machinery itself is expected to deal
specifically with it. In India, judiciary has played an important role in
developing the concept of legal aid and expanding its scope so as to enable
the people to have access to courts in case of any violation of their human
rights. In the case of M.H. Wadanrao Hoskot v. State of Maharashtra,
the Court held that the right to legal aid is one of the ingredients of fair
procedure.

“If a prisoner sentenced to imprisonment, is virtually unable to exercise his

constitutional and statutory right of appeal, for want of legal assistance, there
is implicit in the court under article 142 read with article 21 and 39-A of the
Constitution, power to assign council for such imprisoned individual for doing
complete justice. Where the prisoner is disabled from engaging a lawyer, the
court shall, if the circumstances of the case, the gravity of the sentence, and
the ends of justice so required, assign competent counsel for the prisoners’
defence provided the party doesn’t object to that lawyer.”

 Right against Solitary Confinement, Handcuffing & Bar Fetters and

Protection from Torture

Solitary Confinement in a general sense means “the separate confinement

of a prisoner, with only occasional access of any other person, and that
too only at the discretion of the jail authorities. In strict sense it means the
complete isolation of a prisoner from all human society.”

 Handcuffing and Bar fetters

In the case of Prem Shanker Shukla v. Delhi Administration25, Justice

Krishna Iyer was of the opinion that, no doubt the petitioner is an under
trial prisoner whose presence is needed in several cases, making periodical
trips between jail house and magistrate’s courts inevitable and being in

24
Article 39-A of the Constitution of India, 1950.
25
(1980) 3 SCC 526

20
 Rights of Prisoners

custody he may try to flee and so escort duty to prevent escape is

necessary. But escorts, while taking responsible care not to allow their
charges to escape, must respect their personhood. Here is a prisoner who
bitterly complains that he has been publicly handcuffed while being
escorted to court and invokes the court’s power to protect the integrity of
his person and the dignity of his human hood against custodial cruelty
contrary to constitutional prescriptions and handcuffing was treated as a
clear-cut violation of Art. 21 of the Indian Constitution.

 Torture

Torture of a human being by another human is essentially an instrument to

impose the will of the strong over the weak. Torture is a wound in the soul so
painful that sometimes you can almost touch it, but it is also so intangible that
there is no way to heal it.

In the case of Arvinder Singh Bagga v. State of U.P. and Others26, the court
observed that:

“Torture is not merely physical; there may be mental torture and

psychological torture calculated to create fright and submission to the
demands or commands. When the threats proceed from a person in Authority
and that too by a police officer the mental torture caused by it is even graver.”

In the case of Sheela Barse v. State of Maharastra27 the writ petition was
based on a letter addressed by Sheela Barse, a journalist, complaining of
custodial violence and torture to women prisoners whilst confined in the
police lock-up in the city of Bombay. The petitioner stated in her letter that
she interviewed 15 women prisoners in the Bombay Central Jail with the
permission of the Inspector-General of prisoners between May 11 and 17,
1982 and five out of them told her that they had been assaulted by the police in
the police lock-up. Justice Bhagwati said that it is the legal duty of the state

26
AIR1995 SC 117
27
AIR 1983 SC 378

21
 Rights of Prisoners

to ensure the security and safety of the prisoners and also it is important to set
up state machinery for providing legal assistance to the prisoners.

 Right to Speedy Trial

Right to speedy trial is a fundamental right of a prisoner implicit in article 21

of the Constitution. It ensures just, fair and reasonable procedure. The fact that
a speedy trial is also in public interest or that it serves the social interest also,
does not make it any the less right of accused.

In the case of Hussainara Khatoon (I) v. State of Bihar28, a shocking state of

affairs in regard to the administration of justice came forward. An alarmingly
large number of men and women, including children are behind prison bars for
years awaiting trial in the court of law. The offences with which some of them
were charged were trivial, which, even if proved would not warrant
punishment for more than a few months, perhaps a year or two, and yet these
unfortunate forgotten specimens of humanity were in jail, deprived of their
freedom, for periods ranging from three to ten years without as much as their
trial having commenced. The Hon’ble Supreme Court expressed its concern
and said that:

“That a procedure, which keeps such large number of people behind, bars
without trial so long cannot possibly be regarded as reasonable, just or fair so
as to be in conformity with the requirement of Article 21.”

 Right to 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 society has an
obligation towards prisoner’s health for two reasons. First, the prisoners do not
enjoy the access to medical expertise that free citizens have. Secondly,
because of the conditions of their incarceration, inmates are exposed to more

28
AIR1979SC1819

22
 Rights of Prisoners

health hazards than free citizens. Prisoners therefore, suffer from a double
handicap.
In furtherance to that our jails are overcrowded. 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. Keeping 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 and is a condition of confinement
which falls below the standards29. It further results in deprivation of food and
water, due to shortage of the same30. The same also very adversely affects
hygienic condition. It is, therefore, to be taken care of. It would be useful to
refer here to the Seventy-Eighth Report of the Law commission of Indian on
`Congestion of Under-trial 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.

 Exercise

Convicted prisoners no longer have a statutory right to one hour's exercise

each day. There is a right to one hour's physical exercise a week and it is
aimed to allow one hour's exercise in the open air a day if circumstances
permit. Health care advice is that this period should not normally be reduced
to less than half an hour a day.

 Right to expression

In State of Maharashtra v. Prabhakar Panduranga31, the court held that the

civil rights and liberties of a citizen were in no way be curbed by the order of
detention and that it was always open to the detainee to carry on his activities

29
Greek case (1969) 12 Yearbook
30
Cyprus v. Turkey (1976) 1 EHRR 483
31
AIR 1977 SC 424

23
 Rights of Prisoners

within the conditions governing his detention. He further said that there were
no rules prohibiting a detainee from sending a book outside the jail with a
view to get it published. The Appellant, therefore, acted contrary to law in
refusing to send the manuscript book of the detainee out of the jail to his wife
for eventual publication. The State of Maharashtra has infringed the personal
liberty of the first respondent in derogation of the constitution.

Article 21 of Constitution was made available perhaps for the first time in a
prisoner while dealing with the question of his right of reading and writing
books while in jail.

In the case of R. Rajagopal alias R.R. Gopal and Another v. State of Tamil
Nadu and Others32, the petition raises a question concerning the freedom of
press vis-à-vis the right to privacy of the citizens of this country. It also raises
the question as to the parameters of the right of the press to criticize and
comment on the acts and conduct of public officials.

The court held that the petitioners have a right to publish, what they allege to
be the life-story/autobiography of Auto Shankar insofar as it appears from the
public records, even without his consent or authorisation. But if they go
beyond that and publish his life story, they may be invading his right to
privacy and will be liable for the consequences in accordance with law.
Similarly, the State or its officials cannot prevent or restrain the said
publication.

 Right to Reasonable Wages in Prison

Remuneration, which is not less than the minimum wages, has to be paid to
anyone who has been asked to provide labour or service by the state. Where
the remuneration provided for the service or the labor provided is less than the
minimum wage, the labour or service provided by him clearly falls within the
scope and ambit of the words “forced labour” under Article 2333. There is no

32
(1994) 6 SCC 632
33
People's Union for Democratic Rights v. Union of India, De Wilde, Ooms & Versyp v. Belgium
(1971) 1 EHRR 372.

24
 Rights of Prisoners

difference between a prisoner serving a sentence inside the prison walls and a
freeman in the society.

In the case of Mohammad Giasuddin v. State of A.P34, the court took the
stand that person goes to the prison mainly because of the court's order, and
therefore, the courts have a concern about what happens to him from the first
day till the last day.

In Gurdev Singh v. State of Himachal Pradesh, the court finally gave the
following observations:

(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do

hard labour whether he consents to do it or not.
(2) It is open to the jail officials to permit other prisoners also to do any work
which they choose to do provided that such prisoners make a request for that
purpose.
(3) It is imperative that the prisoner should be paid equitable wages for the work
done by them. In order to determine the quantum of equitable wages payable
to prisoners the State concerned shall constitute a wage fixation body for
making recommendations. We direct each State to do so as early as possible.
(4) Until the State Government takes any decision on such recommendations
every prisoner must be paid wages for the work done by him at such rates or
revised rates as the Government concerned fixes in the light of the
observations made above. For this purpose we direct all the State
Governments to fix the rate of such interim wages within six weeks from
today and report to this Court of compliance of this direction.
(5) State concerned should make law for setting apart a portion of the wages
earned by the prisoners to be paid as compensation to deserving victims of the
offence the commission of which entailed the sentence of imprisonment to the
prisoner, either directly or through a common fund to be created for this
purpose or in any other feasible mode.

 Right to meet friends and Consult Lawyer

34
AIR 1977 SC 1926

25
 Rights of Prisoners

A prisoner is entitled to communicate subject to prison rules, include the right

to be ; lodged in a prison close to their homes ; right to communicate with the
members of the family , friends and legal representatives and the access to the
books, newspaper, radio, T.V and the like and right to read and write.

 Right to be Present at Court

At present, if you are a prisoner acting without a solicitor and wish to

be produced at court to present your case in person you must apply to
the prison governor by completing the relevant request form. This
includes a requirement that you undertake to pay the costs of your
production. These costs should be limited to production from the
prison nearest to the court and the level at which they are set should
have regard to what you can actually afford to pay. The courts have
recognised that there may be an appearance of bias if the Home Office
refused to produce at court a prisoner who was unable or who had
refused to give an undertaking as to costs in an action when the Home
Office is the defendant to the action. If you are faced with this
difficulty you should apply to the court that is, to hear your action for
guidance. Any refusal to produce a prisoner, particularly when the
action is against the Home Office, maybe in breach of Article 6 of the
convention, the right to a fair trial.

 Access to Lawyers

As a prisoner you have an absolute right to have visits from and to

correspond with your solicitor. You do not have to tell the prison
authorities why you wish to contact your solicitor, nor make any complaint
about prison treatment to the authorities before contacting a solicitor for
legal advice. This right was first recognised by the ECHR and any
attempts to interfere with such access are closely scrutinised by the courts.
This right also includes preserving the confidentiality of any legally
privileged material held by prisoners in their possession in prison.

26
 Rights of Prisoners

 Contacting the media

Prisoners are not generally allowed to telephone the media from card-phones
and must make an application for permission to do so to the governor. The
High Court has held that in exceptional cases, it would be wrong for such a
request to be refused but that in most cases, a written letter from the prisoner
to the press would be sufficient.
Letters sent to the media can be stopped if they contain information about your
past criminal offences or of others, identify members of staff or are sent in
return for payment. Serious comment on the criminal justice system is
allowed.

It used to be policy for journalists visiting prisons to be asked to sign an

undertaking stating that any material obtained would not be used for
publication or professional purposes. The House of Lords ruled that it was
unlawful for this to be applied as a blanket policy in 1999.

Visits from journalists can now be permitted on application to the prison

governor. The visits will normally be allowed if the prisoner wishes to discuss
a matter relating to their conviction or sentence, but may be more difficult to
obtain in other circumstances. A refusal to allow a journalist to visit may
potentially breach Article 10 of the Convention and, if the visit is concerned
with a miscarriage of justice, Article 6.

In the case of Sunil Batra v. Delhi Administration35, the Supreme Court

recognized the right of the prisoners to be visited by their friends and relatives.
The court favoured their visits but subject to search and discipline and other
security criteria.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi

and others36, the Supreme Court said that:

35
1984(3) Crimes 771
36
1981 CriLJ 306

27
 Rights of Prisoners

“The right to life and liberty includes the right to live with human dignity and
therefore a detainee would be entitled to have interviews with family
members, friends and lawyers without severe restrictions, the right to socialize
with members of the family and friends subject, of course, to any valid prison
regulations and under Art. 14 and 21 such prison regulations must be
reasonable and non-arbitrary.”

Under Section 56(1) of the Police and Criminal Evidence Act, 1984. The
person who has been arrested has the right to have someone informed.

 Education

NOMS is under a general duty to provide evening classes at every prison and
to encourage prisoners to profit from the educational facilities provided. This
does not mean that you have the right to the educational course of your choice
and the prison authorities have a wide discretion as to what educational
facilities they provide and who is to get benefit from them.
Local education authorities provide a programme of evening classes in all
prisons, but classroom space is often limited. Facilities for daytime study and
remedial teaching vary. The governor is responsible for assessing a prisoner's
needs and suitability for further study. He or she can release individuals from
work duty for study. Permission from the prison authorities can be obtained to
take a correspondence course and long-term prisoners often study Open
University courses leading to a degree. All prisons have at least one library.

 Prisoners of Compulsory School Age

Governors are instructed that prisoners of compulsory school age should have
educational and vocational training for at least 15 hours a week and should be
denied education only as a last resort. If there were inadequate educational
facilities offered to young offenders of statutory school age, this would
potentially be in breach of Article 2 of the second protocol of the Convention.
The governor may suspend or end attendance at educational classes if he or
she believes it necessary to prevent disruption or for security reasons, or if a

28
 Rights of Prisoners

disciplinary punishment - for example, segregation - prevents it. However,

removal from education may not in itself be ordered as a punishment.

 Reading and Writing Materials

You are entitled to have supplied to you, at your own expense, books,
newspapers, writing materials and other means of occupation, except those
that appear objectionable. Generally, material should only be denied if it
includes matter that incites or involves criminal or disciplinary offences.
While it may be permissible to withhold a particular issue of a publication,
a blanket ban may be subject to challenge in the courts.

 Marriage and family

High-risk prisoners who wish to get married must make arrangements

with the prison authorities for a service to take place within the prison.
Low-risk prisoners may be given escorted leave or temporary release
to marry outside prison.
As a prisoner, especially if you are serving a long sentence, you may
wish to start a family with your partner by use of artificial
insemination. Prison Department policy is that this should only be
allowed where there are exceptionally strong reasons, and where the
applicant couple are legally married. Article 12 of the Convention
guarantees the right to marry and found a family: a refusal by the
Prison Department to allow you to marry or to start a family by
artificial insemination could be challenged under this article. In one
case involving a lifer, the courts upheld a decision made by the prison
authorities not to allow artificial insemination to take place but this
decision is currently being considered by the ECHR.

 Women Prisoners with Children

There are a limited number of mother and baby units within the
prison system. You can keep a baby up to the age of nine months in
Holloway, 18 months at Styal - both closed prisons - and 18

29
 Rights of Prisoners

months at Askham Grange. If the baby has reached these age limits
before you have served your sentence, you may be forced to give
up looking after your baby, either then or at an earlier stage.
However, the Court of Appeal has held that this policy must not be
applied rigidly and that each case must be looked at on its own
merits. This means that there may be circumstances where it is
appropriate for a child to remain with his/her mother beyond 18
months.

 Conjugal rights

It has been notified by Dr. Mridul Shrivastava after a practical

study in Lucknow jail that the conjugal rights of the prisoners
must also be realised as not providing the prisoners with the
basic human right of conjugation is wrong and it further leads
to more complications like homosexuality and cases of sodomy
in the prison and thus the laws are further violated.

However, it is extremely regretful to note that the jail authorities are ignoring these
right and reformations required in this regard.

The respective spouses should be allowed to visit the imprisoned spouse thus,
following the trend of Kutchhi and Pakki Mulaqat in the British India.

FOR ASSURANCE OF RIGHTS IN PRISON

Maintaining Human Dignity

 Prisoners should be treated in a humane and dignified manner from admission

to discharge.
 Physical and mental torture can never be justified.
 Use of force must be strictly regulated.
 On admission prisoners must be informed of their regulations, their rights and
obligations and records with their legal status must be made.

30
 Rights of Prisoners

 Standards must be met for accommodations, hygiene, clothing and bedding,

food and exercise.

Health Rights of prisoners

 Proper health care including specialist treatment is a basic right and should be
free.
 Prisons conditions must meet proper health standards.
 Medical staff should be fully trained.
 The medical officer is responsible for a prisoner’s from day of admission to
discharge.

Making prisons safe places

 Prisoners should be classified according to risk and kept in the lowest possible
security custody
 Instrument of restraint shall never be applied as punishment.
 There should be a balance of physical, procedural and dynamic security.
 Prisons should be safe environments.
 There should be a balance of incentives, encouragement and discipline.
 Discipline should be based on principles of natural justice.

Making the best use of prisons

 Social reintegration should be an explicit aim of imprisonment.

 There should be full programme of activities to meet prisoners needs.
 Work habits and skills.
 The right to education and training
 Offending behaviour and courses
 Physical training and education.
 Preparation for release/ parole/ after care
 The rights to freedom of religious beliefs and working.
 Staff should act as good role models.

31
 Rights of Prisoners

Prisoners contact with outside world

 The prison is a part of the outside community.

 Prisoners should be located in prisons close to their homes.
 Prisoners have a right to communicate with the community e.g. families,
friends legal representative, diplomatic representatives, through letters, visits,
and telephone.
 Home leave and temporary leave schemes assist in reintegration process.
 Prisoners should have access to books, newspaper, radio and T.V

Complaints and inspection

 Prisoners should have an access to an effective complaint procedure within

the prison or to higher authorities in the administration of to an independent
body or to court.
 Prisoners should be handled with fairness, speed and sensitivity and without
fear of reprisal.
 International inspections of prisons should be routine.
 Prisoners should be open to public security by independent inspection teams
whose reports are published.

Special categories of prisoners:

Women

 Women prisoners are a minority in a system run for men, and should not be
discriminated against.
 Women should be held separately from men.
 Special needs of women should be recognized in the way they are treated e.g.
staffing and staff training, accommodation and pregnancy, childbirth and
family care, health care etc.
Juveniles

32
 Rights of Prisoners

 Special needs recognized in the UN Conventions on rights of the child (1989)

and UN Standards Minimum Rules for the Administration of juvenile justice
(Beijing Rule, 1985)
 The deprivation of liberty of a juvenile shall always be last resort and for a
minimum necessary period.
 Juveniles shall be held separately from adults.
 Juveniles are more amendable to change, so should be given the opportunities
of education, training and development help.

Prisoners under sentence of death

 Abolition of death penalty is encouraged

 Capital punishment shall be carried out with the minimum possible suffering.
 Staff needs to be sensitive to the needs of the prisoners and his/her family.

Persons under detention without sentence

 The right to be presumed to be innocent until proved guilty

 The right of a prompt court hearing after arrest to review the legality of
detention, and right to bail.
 The right to confidential access to a lawyer and friends in preparation of a
defence.
 The right to trial within a reasonable time, or to release.
 Untried prisoners should be kept separately from convicted persons
 Untried prisoners have special rights: food, clothing, work and visit

The administration of prison and prison staff

 The prison administration should be a civilian organization totally separate

from the military, the police and the public prosecutor.
 The key to a humane prison is the quality of the relationship between staff
and prisoners, management and staff, the prison and the government, the
prison and the community.

33
 Rights of Prisoners

 Staff should be selected for their integrity, humanity, professional capacity

and personal suitability.
 Staff should be given training, salary and conditions of service commensurate
with the required professional qualities.

CONCLUSION

The horizon of human rights is expanding. Prisoner’s rights have been recognized not
only to protect them from physical discomfort or torture in the prison but also to save
them from mental torture.

In order to improve the living conditions of prisoners, upgrade the prisons, and
improve the infrastructure facilities in Prisons while making them also highly secure,
the Government should undertake schemes for planned modernization of prisons.

It is now being recognized that a reformative philosophy and a rehabilitative strategy

must form a part of prison justice. It can possible only when prisoners get their rights.

There can be little doubt on dynamic interpretations of Article 21 that a procedure

which keeps such large number, of people behind bars without trial so long cannot
possibly be regarded as reasonable, just or fair so as to be in conflict with the
requirement of the Article." So there should be release of such under-trials who were
in detention for an unduly long period as early as possible.

Government should ensure that prisoners get the facilities they are entitled to. Their
human rights should be protected by providing decent living conditions, wholesome
food, sufficient clothing, proper treatment and medical care, interviews and education
facilities. Prison officials are sensitized adequately to be receptive to the genuine
grievances of the prisoners. Members of National and State Human Rights
Commissions and Hon’ble Judges should visit various prisons for a regular interval of
time, and should commend the administration of jails. Government must have concern
in regard to general overcrowding in prisons.

In pursuing these reforms and innovations, the administration must receive strong and
consistent support from the Government. Concerted efforts should take by the
Government to promote the welfare of prisoners and the service conditions of the

34
 Rights of Prisoners

prison staff. Infrastructure facilities, safety and security of prisons, provision of health
care, concern for women prisoners and observance of human rights should receive
consistent attention. The overall objective should be to make prison secure,
modern and correctional institutions, both in latter as well as in spirit.

The importance of affirmed rights of every human being needs 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.

BIBLIOGRAPHY

Books :

 Shah, Giriraj, Human Rights Looking Back and Forging Ahead, Himalaya
Publishing House, 2005.
 Sheley F., Joseph, Crimonology, Wadsworth, 3rd edn., 2002.
 Shukla, V.N., Constitution of India, 10th edn.
 Naylor, Brownyn, Researching Human Rights in Prisons, International Journal for
Crime, Justice and Social Democracy, vol. 4, no. 1, 2015, pp. 79‐95,
([Link]).
 Lines, R, Right to health of prisoners in international human rights, Int. J Prison
Health, vol. 4, no. 1, 2008, pp. 3-
53,([Link]
 Gupta, R.K., & Singh, Karam, Human Rights of Prisoners in India, Imperial
Journal of Interdisciplinary Research (IJIR), vol-2, issue-11, 2016, pp. 624-626,
([Link]

35
 Rights of Prisoners

Websites:

 [Link]
 [Link]
 [Link]
 [Link]
 [Link]

36