“If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected - those, precisely, who need the law's protection most! - and listens to their testimony”.
- James A. Baldwin
In the sense of a layman; Laws or rules are formed to regulate the human conduct and ensure administration of Justice in the society. Our society has framed laws to help maintain the rights of ordinary people by providing them welfare and protection and to ensure justice is given to the victim in case they are violated. A Criminal Justice system mainly is focused on three essential components: The Police, The Courts, and The Prison. Police machinery comes into force when a crime is committed i.e. an offense punishable by law or in violation of law. The Court adjudicates and if finds the accused guilty of the offense on the basis of evidence provided by the Police, sentences him to imprisonment in Prison. This process is focused on justice for victim, whose rights have been violated by the accused, and the actions and violations are criminal in nature. A convict who has been sentenced for crime is looked upon with contempt by the society.
Now the question is whether a person who has committed a crime or say a heinous crime, does he deserve any rights? Whether the person after committing a horrendous crime has forfeited his right to be treated as an ordinary human? Whether the Prisoners who are imprisoned in prison for committing a crime are entitled to any rights? The Answer is that our supreme law of the land i.e. the Constitution of India has provided that a convict or prisoner also deserves the right which are enjoyed by an ordinary human. This Article deals with the rights of Convicts i.e. Prisoners (who are convicted and sentenced to imprisonment in Jail).
Rights of Prisoners under Prisons Act, 1894:
A person after his conviction of offense is called Convict and then he is sent to Prison as per sentencing order and nature of crime he committed. When he is detained in Prison, he is called Prisoner. As per Section 1, 2 and 3 of the Prisoners Act, 1894- Prison is a place (Lands and Buildings) used temporarily or permanently under the orders of Government for the detention of Prisoners but does not include detention in Police Custody or Subsidiary Jail. Criminal Prisoner and Convicted Criminal Prisoner means any person duly committed to custody under the order, writ or warrant of Court, Court Martial or competent authority exercising criminal jurisdiction. As per Webster’s Dictionary, Prisoner is a person who is deprived of his personal liberty and kept under involuntary restraint, confinement or Custody. Sections 8 to 23 of the act prescribes duties on the Superintendent, Medical officer, Jailer and their subordinates for regulation of Prison. Some of the important duties are not to engage in business dealings with prisoners, not to be interested in Prison contract, to keep records of the Prisoners, to look after sanitary condition of the Prison and to take special steps on death of Prisoner. Sections 27 to 30 of the act provides for separation of different kinds of prisoners on the basis of gender, nature and type of offense i.e. civil or criminal, convicted or unconvicted. Sections 31 to 33 of the act deal with the maintenance of food, clothing and bedding facilities of civil prisoners and unconvicted criminal prisoners either by Private Sources or by Superintendent. Sections 34 to 36 of the act deal with provisions of employment opportunities of the Civil or Criminal Prisoners. Sections 37 to 39 of the act deal with medical assistance to be provided to the Prisoners and maintaining health of prisoners. Sections 40 and 41 of the act deal with visits to Prisons by legal advisers or other person to see Prisoners.
Thus we can deduce that the Prisons Act, 1894 provides for following rights of Prisoners namely:
Safe and Hygienic accommodation of Prisoners.
Medical examination of Prisoner on admission and discharge from Prison.
Check up of Physical and Mental health of Prisoner by Medical Officer.
Separation of Male -Female Prisoners, Convicted and Unconvicted Criminal Prisoners, and Civil – Criminal Prisoners.
Supply of food, clothing and bedding facilities either by private sources or by Superintendent depending upon the type of prisoner and as the case maybe.
Availability of Hospital or some other proper place in Prison for the reception of Sick Prisoners.
Visits by other persons or legal advisers
Constitutional Rights of Prisoners:
Our Constitution of India does not discriminate in providing fundamental rights to its citizens. Under the umbrella of Article 21 of the Constitution which deals with life and liberty, in various celebrated judgements of the Supreme Court of India, it has been held that a Prisoner is also entitled to the Fundamental or Constitutional rights as an ordinary citizen, though a little restriction is there because of the fact that they are in Prison and certain restrictions are imposed on them by law.
In M.H. Hoskot v. State of Maharashtra, it was held that if a Prisoner is unable or indigent, then it is the duty of state to provide him free legal aid and legal assistance.
In Hussainara Khatoon & Others vs Home Secretary, State Of Bihar, it was held that right to speedy trial is a fundamental right conferred by the Constitution and the Undertrials or Prisoners must not be kept unnecessarily in Jail.
In DK Basu v. State of West Bengal, comprehensive guidelines were framed by the Apex Court for the arrest or detention of the individual so that there is no violation of human or fundamental rights by the Police while arresting a person. This also crystallized the fundamental right of individuals against custodial violence and death by the Police officers.
In Rudul Shah v. State of Bihar, the Apex Court had awarded monetary compensation payable by the State to the aggrieved individual for the violation of fundamental rights as enshrined in the Constitution.
In Sunil Batra v. Delhi Administration, it was held that a prisoner should not be subjected to harsh, agonizing or bitter treatment during his time in Prison and that even a convicted prisoner is entitled to fundamental rights given in the Constitution.
In Francis Coralie Mullin v. Delhi Administration, it was held that right to life which is a fundamental right does not involve only existence but along with it other necessities or things required to enjoy the life and a detenu is entitled to the broad meaning of right to life.
In George Fernandes v. State of Maharashtra, it was held that there cannot be an arbitrary restriction on the number of books which a detenu is entitled to in Prison. Authorities can not deny or restrict the number of books given to a prisoner except in the case that there is some objectional or unsuitable content in the book, authorities may deny giving such book to the detenu.
In Mohammed Giasuddin v. State of Andhra Pradesh, it was held that right to education is a fundamental right and such right has to be given to prisoners. It was further stated that we must not adopt the policy of “Behind the Bars and Forget them” and we must adopt an approach which would lead to personality development and reformation of Prisoners by providing work and educational facilities to them.
In Rahmath Nisha vs The Additional Director General, it was held that the right to life also includes right to privacy and a Prisoner is entitled to that while he is meeting his family members outside of the Prison under conditions and directions as given, in a dignified manner.
In Sheela Barse v. State of Maharashtra, it was held that Prisoners have the right to give interviews to journalists under Article 21 of the Constitution of India. The press also had the right to dessiminate correct information regarding prisons and conditions of prisoners. However it was also held that Interviews have to be regulated and controlled if needed by the authorities.
Thus, we can conclude that our Constitution has also provided for certain fundamental rights which are to be enjoyed by all the citizens of India. Our Constitutional Courts in various judgements have widen the scope of Article 21 of the Constitution and has reiterated that Prisoners are also entitled for the various fundamental rights subject to the restrictions imposed on them by incarceration. Thus Prisoners are also given fundamental rights by the Constitution for their welfare and protection, not expressly but impliedly.
Prison Reforms (Statistics and Need):
Prison reform is an attempt to improve the living conditions of Prisoners and provide alternatives to incarceration. As per the National Crime Record Bureau’s report of 2019, there is a 0.82% increase in number of Prisons from 1339 in 2018 to 1350 in 2019 and the occupancy rate has increased from 117.6 % in 2018 to 118.5 % in 2019. There is clear overcrowding in Prisons as there are more Prisoners than the actual holding capacity of Prisons. The number of undertrial Prisoners is 69.05 % while that of Convicts and Detenues is 30.11 % and 0.67 % respectively. Thus the number of undertrial prisoners is significantly more. Out of all undertrials , 74.08 percent (2,44,841) have been in Prison for upto 1 year. 13.35 %, 6.79% and 4.25 % have been in Jail for 1-2 years, 2-3 years and 4.25 percent 3-5 years respectively. Also there were 5,011 undertrial prisoners (accounting for 1.52% of total undertrial prisoners) who were confined for more than 5 years. The total sanctioned strength of staff in Prisons was 87,599 while the real strength was lesser than that which was 60,787 as on 31st December, 2019. The total sanctioned strength of Medical Staff in Prisons was 3,320 while the real strength in Prisons was 1,962 as on 31st December, 2019.
Thus from the data of the National Crime Record Bureau, we can deduce that we are in need of significant prison reforms to overcome the problems of overcrowding, inadequate infrastructural facilities, inadequate medical and other staff, deficiency in communication, psychological impact on prisoners, disparity in law and enforcing justice, inadequate educational and work facilities etc.
Lack of enforcement of Reformative Theory of Punishment:
Out of many theories of Punishment, Reformative theory has been widely accepted in our Criminal Jurisprudence. The basis of this theory is that criminals or convicts are sent to prison not just for punishment but also for rehabilitation and reformation of their overall personality so that after serving their sentence they can come back to the world as an ordinary person and live like that. Efforts are to be made in prison to reform their mens rea i.e. their guilty mind so as to reform them from criminals to ordinary law abiding people. However given the practical situation of our Prisons, it is not possible to reform all the prisoners as there is lack of infrastructural and other facilities needed to reform and provide guidance to the convicted prisoners.
Hence from the above discussion we can conclude Prisoners are also entitled to the same fundamental rights conferred by our Constitution that an ordinary citizen enjoys, along with certain other statutory rights. Time and Time again, Judgements have been given by our Constitutional Courts which hold that Prisoners are entitled to the basic rights which are at pari passu with the rights enjoyed by ordinary citizens, subject to some restrictions. An act or Crime of a person, however horrendous it maybe, does not take away rights from him. The cardinal principles of law which are Natural Justice and Audi Alteram Partem are always given to the accused or convict and this is the beauty of our Criminal Jurisprudence which holds no man shall be punished unheard. However the question still remains as to till how much extent are the rights as conferred by our constitution are actually enjoyed by the Prisoners, since there are many cases of abuse and violation of rights of Prisoners still persisting.
Name: Mahir Dani
New Law College, Bharti Vidyapeeth University
2nd Year, 3 year LLB Programme.
January 2021 Intern, at Sofia Bhambri and Associates.