advnvijayaraj-prisonersandhumanrights

8/19/2019 AdvNVijayaraj-PrisonersAndHumanRights

1/8

WHETHER HUMAN RIGHTS OF PRISONERS STAND SUSPENDED?A CRITICAL ANALYSIS

N.VIJAYARAJAdvocate Mad!a" H#$% Co&!t

Ce''( )**+++,-*-

P!#"oe!" ad Deta#ee"

A prisoner is anyone who is deprived of personal liberty against his will following hisconviction of a crime. Although not afforded all the privileges of a free citizen, a prisoneris assured certain minimal rights by our Constitution and the moral standards of thecommunity.

A detainee is an individual kept in jail even though he/she has not yet been convicted ofa crime. A majority of detainees are individuals who are unable to obtain sufficient fundsto file bail application and therefore cannot be released from jail pending a trial on thecriminal charges.

P!o/'e0" o1 t%e 2!#"oe!"

The prisoners are subjected to untold suffering in the prisons. There are many cases inwhich the risoners are beaten to death by the prison authorities. !till worse the officialswere able to obtain false certificates from doctors to prove that the deceased hadcommitted suicide. The forms of abuse adopted by prison authorities against prisonersinclude brutal assault, !olitary Confinement, blindfolding them with "lycerine soakedclothes, making them bend for long hours, frightening them with sudden bursts ofteargas shells, making them to stand in water for hours, forcing them to remove theirmoustache or tonsure from their heads, kept them nude, frightening them with sudden

gunshots, not providing them water, food or medical facilities, and forcing them to signpapers written in a language not known to them. !e#ual assault on women prisoners iscommon in $ndia. $t is ordinary in $ndian %ail that prisoners with their hands bound behindtheir backs are dragged to the main grounds and beaten. Another important problemprevailing in $ndian %ail is over crowding. &any prisoners were languishing in jailswithout trial for petty offences.

P!#"oe!"3 !#$%t"

As an aspect of human rights, the concept of prisoners' rights has been upheld by anumber of international declarations and national constitutions. The underlyingassumption, that people who are detained or imprisoned do not cease to be humanbeings, no matter how serious the associated crime, was e#pressed in the $nternationalCovenant on Civil and olitical (ights, Article )*, which states, +All persons deprived oftheir liberty shall be treated with humanity and with respect for the inherent dignity of thehuman person.

(ight to get -egal Aid(ight to !peedy Trial(ight against !olitary Confinement, andcuffing 0ar 1etters and rotection fromTorture(ight to meet friends and Consult -awyer (ight to be protected by authorities in the case of assault or rape(ight to &edical Treatment(ight to freedom of e#pression, reading materials, and communication(ight to e#press concern with the prison2s standard of living(ight to a court of law with regards to prison authorities(ight to freedom of religion(ight to access to a court of law(ight to drink safe water and get treated as same as everyone else(ight to food and clothing(ight to get (easonable 3ages for the work done in rison etc.,

-et us discuss some of the above rights in detail


2/8

R#$%t to Le$a' A#d

The talk of human rights would become meaningless unless a person is provided withlegal aid to enable him to have access to justice in case of violation of his human rights.This a formidable challenge in the country of $ndia's size and heterogeneity where more

than half of the population lives in far4flung villages steeped in poverty, destitution andilliteracy. -egal aid is no longer a matter of charity or benevolence but is one of theconstitutional rights and the legal machinery itself is e#pected to deal specifically with it.The basic philosophy of legal aid envisages that the machinery of administration of

justice should be easily accessible and should not be out of the reach of those who haveto resort to it for the enforcement of their legal rights. $n fact legal aid offers a challengingopportunity to the society to redress grievances of the poor and thereby law foundationof (ule of -aw.

$n the case of &.. 3adanrao oskot v. !tate of &aharashtra , the Court held that theright to legal aid is one of the ingredients of fair procedure.

$f a prisoner sentenced to imprisonment, is virtually unable to e#ercise his constitutionaland statutory right of appeal, for want of legal assistance, there is implicit in the courtunder article )56 read with Article 6) and 784A of the Constitution, power to assigncouncil for such imprisoned individual for doing complete justice. 3here the prisoner isdisabled from engaging a lawyer, on reasonable grounds such as indigence orincommunicado situation, the court shall, if the circumstances of the case, the gravity ofthe sentence, and the ends of justice so re9uired, assign competent counsel for theprisoners defense, provided the party doesn't object to that lawyer.

R#$%t to S2eed4 T!#a'

(ight to speedy trial is a fundamental right of a prisoner implicit in article 6) of theConstitution. $t ensures just, fair and reasonable procedure. The fact that a speedy trialis also in public interest or that it serves the social interest also, does not make it any theless right of accused. $t is in the interest of all concerned that the guilt or innocence ofthe accused is determined as 9uickly as possible in the circumstances.$n the case of H&""a#a!a 5%atoo6I7 v. State o1 8#%a! , a shocking state of affairs inregard to the administration of justice came forward. An alarmingly large number of menand women, including children are behind prison bars for years awaiting trial in the courtof law. The offences with which some of them were charged were trivial, which, even ifproved would not warrant punishment for more than a few months, perhaps a year ortwo, and yet these unfortunate forgotten specimens of humanity were in jail, deprived oftheir freedom, for periods ranging from three to ten years without as much as their trialhaving commenced. The on'ble !upreme Court e#pressed its concerned and said that:3hat faith can these lost souls have in the judicial system which denies them a bare trialfor so many years and keeps them behind the bars not because they are guilty; butbecause they are too poor to afford bail and the courts have no time to try them.$$? v. ome !ecretary, !tate of 0ihar, the Court while dealingwith the cases of undertrials who had suffered long incarceration held that a procedurewhich keeps such large number of people behind bars without trial so long cannotpossibly be regarded as reasonable, just or fair so as to be in conformity with there9uirement of Article 6).

$n &athew Areeparmtil and other v. !tate of 0ihar and other, a large number of people

were languishing in jails without trial for petty offences. @irections were issued to release


3/8

those persons. 1urther the court ordered that the cases which involve tribal accusedconcerning imprisonment of more than yrs. should be released on e#ecution of apersonal bond. $n the case where trial has started accused should be released on bailon e#ecution of a personal bond. $n case where no proceedings at all have taken placein regard to the accused within three yrs., from the date of the lodging of 1$(, the

accused should be released forthwith under !.)B8 Cr. .C. if there are cases in whichneither charge4sheet have been submitted nor investigation has been completed duringthe last three years, the accused should be released forthwith subject to reinvestigationto the said cases on the fresh facts and they should not be arrested with out thepermission of the magistrate.

$n !haheen 3elfare Association v. nion of $ndia and others , the court while deliveringits judgment said that: $n spite of such review, from the figures which we have citedabove, it is clear that there is very little prospect of a speedy trial of cases under TA@A insome of the !tates because of the absence of an ade9uate number of @esignatedCourts even in cases where a chargesheet has been filed and the cases are ready fortrial. 0ut when the release of under trials on bail is severely restricted as in the case ofTA@A by virtue of the provisions of !ection 6* >D? of TA@A, it becomes necessary thatthe trial does proceed and conclude within treasonable time. 3here this is not practical,release on bail which can be taken to be embedded in the right of a speedy trial may, insome cases, be necessary to meet the re9uirements of Article 6).

R#$%t a$a#"t So'#ta!4 Co1#e0et Hadc&11#$ 9 8a! Fette!" ad P!otect#o1!o0 To!t&!e

!olitary 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 ofthe jail authorities. $n strict sense it means the complete isolation of a prisoner from allhuman society.Torture is regarded by the police/investigating agency as normal practice to checkinformation regarding crime, the accomplice, e#tract confession. olice officers who aresupposed to be the protector of civil liberties of citizens themselves violate preciousrights of citizens. 0ut torture of a human being by another human is essentially aninstrument to impose the will of the strong over the weak. Torture is a wound in the soulso painful that sometimes you can almost touch it, but it is also so intangible that there isno way to heel it.

An arrested person or under4trial prisoner should not be subjected to handcuffing in theabsence of justifying circumstances. 3hen the accused are found to be educatedpersons, selflessly devoting their service to public cause, not having tendency to escapeand tried and convicted for bailable offence, there is no reason for handcuffing themwhile taking them from prison to court.

$n the case of rem !hanker !hukla v. @elhi Administration , the petitioner was anunder4trial prisoner in Tihar jail. e was re9uired to be taken from jail to magistrate courtand back periodically in connection with certain cases pending against him. The trialcourt has directed the concerned officer that while escorting him to the court and backhandcuffing should not be done unless it was so warranted. 0ut handcuffing was forcedon him by the escorts. e therefore sent a telegram to one of the judges of !upremeCourt on the basis of which habeas corpus petition has been admitted by the court.

To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom ofmovement, under which a detainee is entitled to under Art.)8, cannot be cut down by theapplication of handcuffs. andcuffs must be the last refuge as there are other ways forensuring security.

There must be material, sufficiently stringent, to satisfy a reasonable mind that there isclear and present danger of escape of the prisoner who is being transported by breakingout of police control. Even when in e#treme circumstances, handcuffs have to be put onprisoner, the escorting authority must record contemporaneously the reasons for doingso. The judicial officer before whom the prisoner is produced has to interrogate the

prisoner, as a rule, whether he has been subjected to handcuffs and other Firon'


4/8

treatments and if he has been, the official concerned shall be asked to e#plain the actionforthwith.

$n the case of @.=. 0asu v. !tate of 3est 0engal, the Court treating the letter addressedto the Chief justice as a writ petition made the following order:

$n almost every !tates there are allegations and these allegations are now increasing infre9uency of deaths in custody described generally by newspapers as lock4up deaths. Atpresent there does not appear to be any machinery to effectively deal with suchallegations. Custodial torture is a naked violation of human dignity and degradationwhich destroys, to a very large e#tent, the individual personally. $t is a calculated assaulton human dignity and whenever human dignity is wounded, civilisation takes a stepbackward. 1undamental rights occupy a place of pride in the $ndian Constitution. Article6) provides no person shall be deprived of his life or personal liberty e#cept according toprocedure established by law. ersonal liberty, thus, is a sacred and cherished rightunder the Constitution. The e#pression life or personal liberty has been held to includethe right to live with human dignity and thus it would also include within itself aguarantee against torture and assault by the !tate or its functionaries. Article 66guarantees protection against arrest and detention in certain cases and declares that noperson who is arrested shall be detained in custody without being informed of thegrounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.

The Court, therefore, considered it appropriate to issue the following re9uirements to befollowed in all cases of arrest or detention till legal provisions are made in that behalf aspreventive measures:). The police personnel carrying out the arrest and handling the interrogation of thearrestee should bear accurate, visible and clear identification and name tags with theirdesignations. The particulars of all such police personnel who handle interrogation of thearrestee must be recorded in a register.6. That the police officer carrying out the arrest of the arrestee shall prepare a memo ofarrest at the time of arrest and such memo shall be attested by at least one witness,who may be either a member of the family of the arrestee or a respectable person of thelocality from where the arrest is made, it shall also he countersigned by the arrestee andshall contain the time and dale of arrest.7. A person who has been arrested or detained and is being held in custody in a policestation or interrogation centre or other lock4up, shall be entitled to have one friend orrelative or other person known to him or having interest in his welfare being informed, assoon as practicable, that he has been arrested and is being detained at the particularplace, unless the attesting witness of the memo of arrest is himself such a friend or arelative of the arrestee.5. The time, place of arrest and venue of custody of an arrestee must be notified by thepolice where the ne#t friend or relative of the arrestee lives outside the district or townthrough the -egal Aid


5/8

throughout the interrogation.)). A police control room should be provided at all district and !tate head9uarters, whereinformation regarding the arrest and the place of custody of the arrestee shall becommunicated by the officer causing the arrest, within )6 hours of effecting the arrestand al the police control room it should be displayed on a conspicuous police, board.

R#$%t to 0eet 1!#ed" ad Co"&'t La:4e!

The horizon of human rights is e#panding. risoner's rights have been recognized notonly to protect them from physical discomfort or torture in the prison but also to savethem from mental torture.

$n the case of !unil 0atra>$$? v. @elhi Administration , the !upreme Court recognized theright of the prisoners to be visited by their friends and relatives. The court favoured theirvisits but subject to search and discipline and other security criteria. The court observed:

Iisits to prisoners by family and friends are a solace in insulation, and only adehumanized system can derive vicarious delight in depriving prison inmates of thishumane amenity.

$n 1rancis Coralie &ullin v. The Administrator, nion Territory of @elhi and others, The!upreme Court ruled that the right to life and liberty includes the right to live with humandignity and therefore a detainee would be entitled to have interviews with familymembers, friends and lawyers without severe restrictions. Court stressed upon the needof permitting the prisoners to meet their friends and relatives. The court held that theprisoner or detainee could not move about freely by going outside the jail and could notsocialize with persons outside jail. The court said that:ersonal liberty would include the right to socialize with members of the family andfriends subject, of course, to any valid prison regulations and under Art. )5 and 6) suchprison regulations must be reasonable and non4arbitrary.

$n the case of %oginder =umar v. !tate of .. and others, The court observed thatwhenever a public servant is arrested that matter should be intimated to the superiorofficers, if possible, before the arrest and in any case, immediately after the arrest. $ncases of members of Armed 1orces, Army, Javy or Air 1orce, intimation should be sentto the


6/8

payment of wages to prisoners, as well as to give retrospective effect to wage policy.$n the case of eople2s nion for @emocratic (ights v. nion of $ndia, the 0enchobserved thus:3e are, therefore, of the view that where a person provides labour or service to anotheror remuneration which is less than the minimum wage, the labour or service provided by

him clearly falls within the scope and ambit of the words Hforced labour under Article 67.$n the case of !tate of "ujarat v. on2ble igh Court of "ujarat, A delicate issuere9uiring very circumspective approach mooted before the court. 3hether prisoners,who are re9uired to do labour as part of their punishment, should necessarily be paidwages for such work at the rates prescribed under &inimum 3ages law. The court hasbefore him appeals filed by some !tate "overnments challenging the judgmentsrendered by the respective igh Courts which in principle upheld the contention thatdenial of wages at such rates would fringe on infringement of the Constitution protectionagainst e#action of forced labour.

A @ivision 0ench in the case of "urdev !ingh v. !tate imachal radesh, the court saidthat Article 67 of the Constitution prohibits Fforced -abour' and mandated that anycontravention of such prohibition shall be an offence punishable in accordance with law.The court had no doubt that paying a pittance to them is virtually paying nothing. Even ifthe amount paid to them were a little more than a nominal sum the resultant positionwould remain the same.

R#$%t to e;2!e""#o

$n !tate of &aharashtra v. rabhakar anduranga , the court held that the right topersonal liberty includes the right to write a book and get it published and when this rightwas e#ercised by a detenu its denial without the authority of law violated Article 6).$n the case of (. (ajagopal alias (.(. "opal and Another v. !tate of Tamil Jadu and


7/8

@etenues, !ecurity (e9uirements, @isciplinary or Administrative re9uirements,Correctional Educational or &edical Jeeds.

P!#"oe!" R#$%t"( So0e Lad0a!< J&d$0et"

&aneka "andhi2s case was a landmark in $ndian jurisprudence. The &aneka principlewas e#tended to prison conditions and particularly to the plight of under4trials. A series of news items appeared in HThe $ndian E#pressH about the continued incarceration ofunder4trials in 0ihar %ails. !ome of them were never produced before the courts. !omeothers had spent more time in jails as under4trials than the ma#imum penalty that couldbe imposed upon them if they were convicted of the offences they were charged with.The !upreme Court in the 3rits of abeas Corpus for under4trials stated thatHThe information contained in these newspaper cuttings is most distressing and it issufficient to stir the conscience and disturb the e9uanimity of any socially motivatedlawyer or judge. !ome of the under trial prisoners whose names are given in thenewspaper cuttings have been in jail for as many as G, , or 8 years and a few of themfor even more than )* years without their trial being begun. 3hat faith can these lostsouls have in a judicial system which denies them a bare trial for so many years, andkeeps them behind bars, not because they are guilty, but because they are too poor toafford bail and the courts have no time to try them. The !upreme Court thereafterdirected the release of such under4trials who were in detention for a unduly long period.

The !upreme Court in a writ petition filed by !unil 0atra and Charles !obharaj, twoprisoners in @elhi2s Tihar jail, made an effort to humanize jail conditions. The 9uestionbefore the Court was: =Doe" a 2!#"o "ett#$ #2"o 1acto o&t'a: t%e !&'e o1 'a: 'oc<o&t t%e >&d#c#a' 2!oce"" 1!o0 t%e >a#' $ate" ad dec'a!e a 'o$ %o'#da4 1o! %&0a!#$%t" o1 cov#ct" # co1#e0et ? And if there is no total eclipse what luscentsegment is open for judicial justiceK !unil 0atra, sentenced to death had challenged hisincarceration in solitary confinement and Charles !obhraj had challenged hisconfinement with bar4fetters.The !upreme Court held that there is no total deprivation of a prisoner2s rights of life andliberty. The Hsafe keepingH in jail custody is the limited juris4diction of the jailer. HTo desortsafe4keeping into a hidden opportunity to care the ward and to traumatize him is tobetray the custodian of law, safe custody does not mean deprivations, violation,banishment from the lanter barguet of prison life and infliction2s of tra4vails as ifguardianship were best fulfilled by making the ward suffer near insanity.H The court heldthat !unil 0atra2s mercy petition to the resident/"overnor had not been disposed offand 0atra was not Hunder sentence of death.H is solitary confinement was 9uashed. $nthe case of Charles !obhra%, it was held that there was no arbitrary power to put anundertrial under bar4fetters. The discretion to impose HironsH is a 9uasi4judicial decisionand a previous hearing is essential before putting a prisoners in fetters. The grounds forimposing fetters would be given to each victim in his language. $t was further laid downthat no HfettersH shall continue beyond day time and a prolonged continuance of bar4fetters shall be with the approval of the Chief %udicial &agistrate or a !essions %udge.

$n another case of =P!e0 S%a


8/8

Constitution 0ench of the !upreme Court in !unil 0atra $ vs. @elhi Admn. hadcrystalized the legally enforceable rights of a prisoner, the later decision in !unil 0atra $$has radicalized the procedure for the enforcement of the rights of the prisoners.The habeas corpus writ was traditionally used for securing the release of a persondetained illegally. $t is a favoured remedy because of its simplicity, non4technicality and

the priority which is given to its hearing by courts. !unil 0atra $$ lays down the importantprinciple of law that a writ of habeas corpus is available not only to secure the release of a prisoner illegally detain4ed but also to regulate the conditions and manner of detentionof a person whose detention is lawful. Thus a speedy and simple remedy is available toprisoners to seek redress of their grievances about the manner of their detention.

$n another landmark judgement in the case of =F!ac#e" Co!a'e M&''# v". t%eAd0##"t!ato! U#o Te!!#to!4 o1 De'%# 9 ot%e!"=, the !upreme Court e#plained theingredients of personal liberty under Article 6). The case arose out of the rights of adetainee under CCoc'&"#o

The $ndian socio4legal system is based on non4violence, mutual respect and humandignity of the individual. $f a person commits any crime, it does not mean that bycommitting a crime, he ceases to be a human being and that he can be deprived ofthose aspects of life which constitutes human dignity. 1or a prisoner all fundamentalrights are an enforceable reality, though restricted by the fact of imprisonment.

Article 6) of the Constitution guarantees the right of personal liberty and therebyprohibits any inhuman, cruel or degrading treatments to any person whether he is anational or foreigner. Any violation of this right attracts the provisions of Article )5 of theConstitution which enshrines right to e9uality and e9ual protection of law. $n addition tothis, the 9uestion of cruelty to prisoners is also dealt with specifically by the rison Act,)D85. $f any e#cesses are committed on a prisoner, the prison administration isresponsible for that. Any e#cesses committed on a prisoner by the police authorities notonly attracts the attention of the legislature but also of the judiciary. The $ndian judiciary,particularly the !upreme Court in the recent past has been very vigilant againstencroachments upon the human rights of the prisoners.

-ife is not mearly animal e#istence. The souls behind the bars cannot be denied thesame. $t is guaranteed to every person by Article 6) of the Constitution and not even the!tate has the authority to violate that (ight. A prisoner, be he a convict or under4trial or adetenu, does not cease to be a human being. They also have all the rights which a freeman has but under some restrictions. %ust being in prison doesn't deprive them fromtheir fundamental rights. Even when lodged in the jail, he continues to enjoy all his1undamental (ights.

advnvijayaraj-prisonersandhumanrights

Documents