REVISITING THE RIGHTS OF PRISONERS IN INDIA by-Sristhi Chauhan
“Hate the crime and not the criminal”
The article will be on the topic rights of persons post their conviction. The topic focuses on the rights which are assigned to the person who are in prison i.e., prisoners. The prisoners although gets isolated from all the rights which a common person holds but they hold some basic rights that are necessary for the survival of a person. Prisoner rights deal with the right of the inmate while being behind the bars. Prisoners have basic legal rights that can’t be taken away from them. In India, the debates around prison reforms and rights of prisoners have been very limited. Prisons in the modern democracy have been envisioned as reformative care giving institutions. However, the reality of prisons is that there is overcrowding; inhuman living conditions, a dearth of basic needs such as access to food, medical, treatment and cleanliness; absence of accountability and transparency of administration, targeting and surveillance, torture and even death; least of opportunities of skill building or recreation.
Every man is born equal and has certain fundamental rights with his creator. These rights are primarily the right to life and freedom, but if anyone does not comply with the ethics of society, he is subject to proper punishment for his rights. About 300 years ago, prisoners’ conditions were just
1 Student at Law College Dehradun, Uttaranchal University
worse because they were treated brutally and there were no specific arrangements for them. After a long fight society acknowledged that there were prisoners’ rights that they should have. The prisons’ principal objective is to bring criminals back to society’s mainstream. If a person commits any crime, that doesn’t mean that he or she ceases to be a human being by committing a crime and that he or she can deprive those aspects of human dignity life.
HISTORICAL BACKGROUND OF PRISON AND PRISONERS
“Sudden Force” or “cage” is not meant by the name ‘prison.” The prison is a foundation of old age. Prison is a place that is correctly arranged to ensure that those guilty are kept in custody for trial or punishment through legal procedures.
In the beginning, this was only a place where offenders were held for trials and final punishment, but the intermediate punctual detention was taken into consideration.2 In his book Minutes of 1835, Lord Macaulay said: ‘The sentence we must trust in is punishment.’ The main aim of this was to detreat the criminality of convicted offenders. He was the one who proposed the idea of such rules and regulations.3
Manusmriti states that king should have all the prisons with the evil and the wrongdoing. When we turn the pages of our past Indian history, there are descriptions of prisoners. The historical Huein- Tsang and Fa-Hein writings did not know about the polished treatment of prisoners during ancient India and stated that the prisoners had to be punished with brutal and barbaric punishment.
Our prison system changed a lot in the post independence period. It was of particular interest to the government4. By 1951, experts from the United Nations were invited to study the prison administration and suggested to develop prisoner rights.
Very shocking, as many civilised countries as India are already aware, China does not have codified
prisoners’ rights, but our Honorable Justice has recognised a long list of prisoners’ rights and government is still working towards the welfare of prisoners.
FUNDAMENTAL CONCEPT ABOUT THE TOPIC
All people have human rights of their own. Also, prisoners also have a right to their fundamental rights to a certain extent. In much of the world, prisoners’ rights are deprived if behind bars, which is simply incorrect even if it is a criminal, but no one can take his human rights.
The objective here is to take a small step towards opening the debate on prisoners’ rights. Such an effort involves the attempt to foster the recognition and development of a number of constituents that are closely involved in a range of criminal matters and that are well-informed in order to make prisoner rights a political agenda5. It helps to open the voices and to listen to and recognise their identities and the concerns of their support organisations.
There was no express provision in the Indian Constitution concerning prisoners’ rights except for6STATE OF ANDHRA PRADESH V. CHALLA RAMKRISHNAN REDDY, the prisoners also
have been held to be a person who will not lose their fundamental constitutional rights.
In the Supreme Case, the “prisoner, whether convicted, subjugated or detained, is no less a human being and while in prison, all of his FRs, including Article 21 of the law on life as stated in the Constitution, are enjoyed.”
The efficient prison system in India has various hidden and visual problems. Today’s main problems, problems and trends in prisons are:
5 David Brown,Prisoners as Citizens: Human Rights, Stimulating Prisoners Voice,21, https://books.google.co.in/books?id=hY-CDFek7nAC&dq=right+to+prisoners&source=gbs_navlinks_s 6 (2000) 5SCC712, AIR2000SC2083
Overcrowding- Overcrowding in the Indian prison system is a dilemma because prisons are overcrowded, and prisons are less numerous.7 According to the United Nation’s 2010 Global Report on Crime and Justice, studies in Asian countries show that more than 30% of the population of prisons consists of undertrial detention and that this figure has increased to over 50% in many Asian countries. The report further states that there is a 52.6% increase in the prison population between 1997 and 2007. With such a high percentage of inmate growth over the aforementioned period, the infrastructure, facilities and staff should have increased to maintain this large inflow of inmates.
Mental Illness- Mental health problems affect more than half of the prisoners’ population. Most prisoners have a number of issues, including substance dependence, anxiety, depression and disorders.8 Haryana has concluded that psychiatric disease is found at 23.8% of the 500 convicted people loaded with it in a study by government medical college, Amritsar, and MM College. This was the Central prison report, Amritsar, and it was assumed that the facts and figures could be found in other prison areas in the country.
Racism- Racism in prisons is one of the problems. Age, gender, race, religion and disability are discriminated against in Prisons.9 The most common cause of alleged discrimination was verbal abuse. Access to the regime was denied; and routine preferences, which allegedly treat white prisoners more gentleness or more benefits.
GangActivity- Common activities in prisons that are a safe source and regulate the social and economic affairs, including the underground economy, in a dangerous environment. In prison people do so because of their sensitivity and turning to gangs is a way of protecting themselves against other prisons.
Inmate Rehabilitation- The principal aim of the modern penal policy is to reintegrate the convicted person into the society to counteract common offences, also referred to as criminal
7 Gurpuneet Singh Randhawa, Dr. D.J Singh, Analysis of Challenges faced by IPS, www.iosrjournals.org.
8Punjab govt finally shuts down Chintpurni Medical College, withdraws essentiality certificate.
9 Dr Kimmett Edgar and KhatunaTsintsadze,Tackling Discrimination in Prison: still not a fair response,10, Prison Reform Trust.
Private Prisons-It is a sort of unfairness between the elite class and society’s poor. This results in higher turnover of employees and reduced safety in prisons, which leads to them repeatedly committing offences.
CONSTITUTIONAL AND OTHER STATUTORY PROVISIONS RELATING TO THERIGHTS OF PRISONERSININDIA
Pursuant to Article 21 of the Constitution that prohibits any person (both citizen or non-citizen) from receiving inhuman, cruel or degrading treatment, shall be punished. Likewise in the 1984 Prisoners Act the cruelty of prisoners is specifically addressed. The prison official shall be responsible for that if any excesses are made on a prisoner. In recent years, the Indian judiciary, especially the Supreme Court, has been very alert to the violation of the prisoners’ human rights.
Right to Legal Aid- Although our country has a complex economic structure and therefore crises like poverty, misery and analphabetism arise, this will be addressed by legal machinery itself. Legal Aid provides assurance:
• Equality before law
• Right to Counsel
• Right to fair trial.
The nine concept of legal aid was developed by the Indian judiciary and extended the scope of the10 concept of legal aid to ensure fair justice for the prisoners. The court held that the right to legal help is one of the elements of the proceedings in the 10-million-hour case of WADANRAO HOSKOT
V. STATE OF MAHARASHTRA11.
Right to Speedy Trial – One of the fundamental rights of a prisoner mentioned in article 21 of the constitution. It ensures just, fair and reasonable proceedings.12 One of the prisoner’s fundamental
10http://www.legalserviceindia.com 11 1978AIR1548,1979SCR(1)192.
12 Dr.DurgaDasBasu,IntroductiontotheConstitutionofIndia,20thed.,2009,LexisNexis,ButterworthsWadwaPublication .
rights referred to in Article 21. It ensures, too, that the Prosecutor cannot delay the prosecution of a criminal suspect arbitrary in order to promote the social welfare of the state.
“The first thing that was discussed in the key document of English law, the Magna Carta, was the right to prompt trial. The right to prompt proceedings is an abstract idea about the disposition of justice. It was held that a prompt process of a prosecute was his fundamental right under Article 21, in the leading historical case13 HUSSAINARA KHATOON V. HOME SECRETARY, STATE OF BIHAR. If anyone denied the right to a rapid trial can proceed directly with the enforcement of such rights by the Supreme Court under Article 32.
Right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from Torture-
In the general sense, solitary confining, as described in Black’s law dictionary, means a detainee’s separate containment, with access by any other person only on occasion, and also, at the discretion of the authorities of the jail and in the stricter sense of the word, it means the total isolation of a prisoner from all human societies. In SUNIL BATRA V. DELHI ADMINISTRATION14 it was stated that the only exceptional case where the convict has such a dangerous character that he has to be separated from other prisoners is solitary confinement. The degrading and dehumanizing effect of solitary detention on prisoners. The most destructive and abnormal environment is the continuous, unrelieved isolation of prisoners. Long solitary confinement has a disastrous effect on people’s physical and psychological health.
Right to reasonable wages-Whenever during the imprisonment, the prisoners are made to work in the prison, they must be paid at the reasonable rate. The wage rate should not trival or below minimum wages. In MOHAMMAD GIASUDDIN V. STATE OF A.P., the court directed the State to take into account this factor, while finalizing the rules for payment of wages to prisoners as well as to give retrospective effect to wage policy.
In the matter of P.R.E. of 15Wages of Prisoners, the court has held that labour taken from the prisoners, which has not properly remunerated was forced labour and hence violative of article 23 of the constitution.
Right to meet friends and their Consult lawyer-Not only physically but also mentally, Prisoners are being protected. For the purpose of information, it is necessary to meet people: it is the right of people. The legal representatives of consultation lawyers, their actions affect the case of the convicted directly. Visiting friends and family members gives them mental stability to live in such an unfamiliar state. The Supreme Court held that prisoners could, without serious constraints, interview family members, friends and lawyers, and would have the option that they would go out of prison and not have access to people outside jail. FRANCIS CORALIE MULLIN V. THE ADMINISTRATOR, UNION TERRITORY OF DELHI AND OTHERS
LEGAL FRAMEWORK OF TOPIC IN BOTH INDIAN AND FOREIGN SCENARIOS
Along with the country many foreign layout a real so responsible for a good prison system, discuss in detail below”:
International Human Rights Law
International Human Rights Law protects against various inequalities such as racism, discrimination between the poor and elite, torture. No person shall be tortured or subjected to cruelty, inhumanity or harassment, or punishment, according to them. Clothing has a sufficient standard of living to be considered a component. A good hygiene system should be in place in prisons. A proper medical examination and treatment shall be offered to all prisoners as soon as possible after acceptance. They also recognise the rights of particular groups, including women, children and people with disabilities”.
Basic principles were adopted and announced by the General Assembly on the 14th December 1990, for the improvement and good treatment of prisoners. The following are the principles.16
• No discrimination based on race, sex, colour, language, religion, political, national, social origin, property, birth or any other status.
• Responsibility of prisoners for and for the custody of the prisoners.
• Responsibility for prisoners’ rights, and respecting the religious beliefs and cultural perceptions of the group to which the prisoner belongs.
The fundamental freedoms and human rights set forth in UDHR, ICESCR, the ICCPR and optional Protocol, together with such other rights, shall be retained in all prisoners.
UN Core Conventions and Specific Instruments
• Amnesty International drew up certain rules and regulations for prisoners’ improvement in 1955.
• The perception of equality should be there. Some relevant rules. Gender, race, colour and religion should not be discriminated against. • Men and women should be held in separate institutional institutions, including national or social origin, property, birth or other status among prisoners17.
• The prisoners for civilian and criminal offences should be separated.
• Prohibition of cruel inhuman punishments, otherwise severe punishment is to be imposed.
• Available at least one qualified physician with psychiatric skills.
17 Standard minimum rules for treatment of prisoners, adpt on Aug.30, 1955 Rule 6(1).
Indian Law Constitution
The rights of prisoners are made available in Part III of the Indian Constitution. The principle of a reasonable classification was examined in Article 14 that the same thing should be treated, and also given. A jail does not enjoy the following fundamental rights:
• Freedom of movement.
• Freedom of residence and to settle.
• Freedom of Profession.
Enactments and Rules The Prison Act, 1894
This law is India’s first prison regulation legislation. The provisions are as follows:
• Hospitality and prisoners’ sanitary conditions.
• There needs to be a medical officer.
• Some provisions concerning the physical and mental condition of prisoners are available.
• Divorce for male, female, criminal, civil, convicted and prisoners under trial.
The Prisoners Act, 1990
The government has a responsibility to remove any prisoner arrested in accordance with any order or judgement of any tribunal which is uncertain about lunatic asylum and wherever it is properly treated.
The Transfer of Prisoners Act, 1950.
This was done in order to avoid overpopulation in prisons, to transfer prisoners for vocational training from one country to another and to rid themselves of over crowdedness.
The days have gone by where prisons have been dungeons and in the dark cells prisoners have been lodged. The prisons are no longer the institutions which aim at only punishment in terms of retribution and disruption. Prisons are now placing in which prisoners are not accommodated as forgotten or abandoning members of society but as human beings who must also behave like reformed people. A prisoner is punished for imprisonment itself, which is why prisons must be rehabilitated rather than where additional punishment is being added that infringes his human rights. The Supreme Court of the US declared in “Manna V. People of Illinois that life is not just an existence. It is impossible to deny the prisons behind prison the same thing. It is therefore a duty of the Court of Justice to protect the fundamental rights of prisoners. The importance of affirmed rights of every human being is unempowered. The Himachal Pradesh Government recently lifted the prohibition to put Gandhi caps in prisons. Different prison officials organise seminars on legal rights, the problems of health and sanitation, HIV/AIDS and mental health issues for prisoners. The system of open jail is a very modern and efficient alternative to the system of closed prison. Such practises help to alter the traditional and colonial views of the Indian prison system and also contribute to a responsible, creative and potential citizen for prisoners. There have been several steps to improve prisons, however, but much more has to be done”. Adequate steps towards effective centralisation of prisons should take the Central Government, alongside NGOs and prison administration.