CONSTITUTIONAL RIGHTS AND SOCIAL JUSTICE
Project on
RIGHTS OF PRISONERS
Submitted by:
Aswathy Jayaraj
10402, LLM (2022-23)
Submitted To:
Dr Mini S
Professor
National University of Advanced Legal
Studies
1
CONTENTS
Sl
no
1
2
3
4
5
6
7
8
9
10
11
Topic
Introduction
Who is a Prisoner
Why should their rights be protected
Issues faced by prisoners
Rights of Prisoners (in general)
Fundamental Rights of Prisoners (Art
14, 19, 21,21A, 22, 23)
Rights of Prisoners in light of Criminal
and Prison Laws
Important International Conventions
for the Protection of Prisoners’ Rights
Few Important Cases that deal with
Prisone’'s Rights
Conclusion
References
2
Pg
no
3
4
4
5
6
7
10
11
15
16
16
INTRODUCTION
The earlier view was that a person who is convicted of an offence was an ‘outlaw’ without
rights that are legally protected. The earlier theories of punishment i.e. the deterrent theory and
the retributive theory tried to address only a very peripheral issue of crime. Hence, the question
of prisoner’s rights were not of much importance. However, in the 19th century, due to the
influence of humanitarian values, reformative approaches and more sensitization, the prisoners
were also considered as a group of people who should be accorded protection. The Reformative
theory of punishment focuses on not merely punishing the culprit for the act done by him, but
rather to achieve a higher goal of ensuring peace and order in the society by nipping off the
root causes of this deviant behaviour right at the bud. Convicts go to prison as punishment and
not for punishment. Earlier the courts took a hands-off approach when it came to the rights of
prisoners. The courts felt that involving into the matters of the prisoners would be a violation
of the ‘Separation of Powers’ doctrine as prison authorities are a part of the executive.
Secondly, that, the judicial review of the actions of these prison authorities would seriously
hamper the power of the prison authorities. However, this approach was considered
inappropriate by the court themselves. A major shift towards this approach was seen in Coffin
v Reichard1 by the Circuit of Appeals for the Sixth Circuit Court, where the court said that the
prisoner retains all the rights that are available to a common citizens except those that are
expressly curtailed by the law. This approach was adopted by the Indian judiciary in the later
time.
The discussion on the rights of Prisoners would be incomplete if there is no mention of the
great Italian philosopher Cesare Beccaria, who was fundamental in the reformation of the
criminal justice system. To further that end he wrote his book “On Crimes and Punishment” in
1764. Beccaria believed that all people possessed free will, rationality, the power to have selfinterested thoughts etc. People commit crimes as they have a tendency to do acts that further
their self- interests. These choices sometimes conflict with the interests of society. Because
many of the criminal choices can be anticipated, society should take measures to manipulate
and discourage those choices. The rights of prisoners were often a neglected area. Due to the
indifference the society has towards prisoners, they remained one of those groups that faced
extreme physical and mental torture at the hands of the state authorities.
1
143 F. 2d 443 (6th Cir. 1943)
3
WHO IS A PRISONER?
Under the Model Prison Code, 2016, a prisoner is defined as “Any person confined in prison
under the order of a competent authority.” However, under the Prisons Act, 1894, the prisoners
can be classified into:
Criminal Prisoner is a prisoner who is committed to the prison by virtue of a writ,
warrant or any order of the Court or authority which is exercising criminal jurisdiction.
Convicted Criminal Prisoner is a prisoner who is serving sentence under the judgement
of a Court or Court Martial.
Civil Prisoner is a prisoner who does not fall under the category of a criminal prisoner.
In the common parlance, the prisoners can be categorized into- Undertrials, Detenue and
Convicts. It is easy to comprehend why an undertrial or a detenue should be given protectionthe guilt has not been established yet and so, there is every possibility of him being innocent.
However, in the case of Convicts, the case is different. The Constitution of India however does
not have provisions for Prisoners as such. The ‘guilt’ of the convicted prisoner has been
established before a competent court, due to which he was sentenced to imprisonment. In order
to answer this question, it is necessary to understand the concept of ‘Status of a Prisoner’ in
India.
WHY SHOULD THE PRISONERS RIGHTS BE PROTECTED?
In T.V. Vatheeshwaran v State of Tamil Nadu2, , Sunil Batra v Delhi Administration3, State
of Maharashtra v. Prabhakar Pandurang Sanzgir4, Charles Sobaraj v. Supdt Central Jail Tihar5,
Francis Corahe Mullin v. The Administrator, UT Delhi6, the Supreme Court has reiterated that
the status of a Prisoner do not become “a non person” on imprisonment and thereby, the
fundamental rights which are available to every “person” cannot be seized from them.
However, by reason of their incarceration, the fundamental rights cannot be enjoyed by the
prisoners in their full capacity.
Moreover, a convicted person has come to the prison as punishment for his deviant behaviour.
He is already bearing the brunt of his behaviour. He has not come to prison for punishment.
2
1983 AIR 361, 1983 SCR (2) 348
(1978) 4 SCC 409
4
1966 AIR 424, 1966 SCR (1) 702
5
1978 AIR 1514, 1979 SCR (1) 512
6
1981 AIR 746, 1981 SCR (2) 516
3
4
When it comes to an under-trial prisoner, his guilt is not established. There are high chances of
the court acquitting him of the charges. In case of a detenue too, there is no element of ‘guilt’.
There is already curtailment of their rights by the process of law. In prisons, there is an
overarching fear of life and peace due the highly guarded and apparent closed setup of the
prison premises. In this situation, therefore, it is necessary that the prisoners’ rights are
protected.
ISSUES FACED BY THE PRISONERS
Overcrowding of prisons is one of the most pressing issues that the prisoners face. Due to this
overcrowding, a lot of allied problems come forward such as- unhygienic prison rooms, spread
of contagious diseases, disrupts correctional services, larger incidence of indiscipline and
violence etc. This overcrowding of prisons is a worldwide syndrome brought in mostly due to
the population of under-trials who occupy prisons. Non completion of investigation within the
proper time coupled by the extremely slow pace at which trial happens contribute to the issue
of over crowding of prisons. Deaths that happen in jail due also causes worry to the other prison
inmates who are already in a psychologically unstable state from being in the jail. The deaths
in jail can be natural or unnatural. Increased incidents of violence between the jail inmates are
also a factor contributing to these unfortunate events like death. Not a single prison can claim
that it has sufficient water for daily use as given in the prison manual. The inadequacy of
facilities and the level of overcrowding mean that in the prisons of Madikeri, Bidar, Gulbarga,
Bellary and Bangalore, about 75 inmates are forced to use a single toilet on any given day.7
Since the water available for the inmates are also scarce, the inmates go on withing bathing or
brushing for days together. Inmates being locked up for 23 hours a day as there are no security
persons to guard them, coupled with living in stinky environment due to the wet or half dried
clothes etc add to the already pitiable state the prisoners are in. Lack of counsellors or other
medical practitioners who can render medical help to the inmates, lack of adequate nutritious
food, lack of physical exercise etc add to the dire state of the prisoners. Physical abuse of
prisoners is another jarring issue that is to be addressed. Dr Kiran R Naik, in his study8 about
the conditions of prisoners in India brings to focus the different cruel practices that are adopted
by the prison authorities towards the prisoners- blindfolding the prisoners with clothes soaked
7
Dr Kiran R Naik, The Problems of Prisoners: An Analysis, 2019 International Journal of Research and Analysis
Reviews, June 2019, Volume 6, Issue 2
8
Dr Kiran R Naik, The Problems of Prisoners: An Analysis, 2019 International Journal of Research and Analysis
Reviews, June 2019, Volume 6, Issue 2
5
in glycerin, making them stand in water for hours, assaulting them brutally etc are only few of
them.
A study Health Status of the Prisoners in the Central Jail of South India9 was conducted to
assess the state of health of the prisoners in the Central Jail, which showed that 9.6% prisoners
suffered from acute upper respiratory tract issues, Ascariasis was found among 18% of the
inmates. 84% of the inmates had anaemia. All pointing out to the deplorable state of conditions
of living and health of these inmates.
RIGHTS OF THE PRISONERS (In General)
The handbook published by the Ministry of Home Affairs summarises the rights of the
prisoners in general.
Right to Human Dignity, which includes right to be treated as a person, right against
torture or any other forms of physical or mental aggression.
Right to Basic Minimum Needs, which includes right to food, clean drinking water,
hygienic living conditions, personal hygiene etc.
Right to Access to Law, which includes right to know the grounds for detention,
access to counsel of one’s choice, right to receive all the documents that are necessary
for filing an appeal, revision etc.
Right to communication, Communication can be made by the prison inmates to the
outside world, his family or friends, have periodic interviews
Right against arbitrary prison punishment, every convict comes to the prison as
punishment and not for punishment. The prison authorities have no right to inflict any
form of arbitrary prison punishment upon the prison inmates.
Right to meaningful and gainful employment in the prison- right to wages for the
work done, the prisoner is prohibited from being employed for domestic works of the
prison officers or others. Though monetary benefit is provided for such acts, the same
does not fall within the purview of ‘meaningful and gainful employment’.
Right to be released on the due date
9
Sunil D Kumar, Santhosh A Kumar, Jaishree V Pattankar, Sreenivas B Reddy, Murali Dhar, Health Status of the
Prisoners in the Central Jail of South India, Indian Journal of Psychological Medicine, 2013, Oct-Dec 35(4), 373377
6
FUNDAMENTAL RIGHTS OF PRISONERS
Prisoners, as said above are treated on par with the ordinary citizens when it comes to
exercising their fundamental rights. However, certain fundamental rights cannot be enjoyed
by them by reason of their incarceration.
Article 14- Right to Equality
Articles 14 to 18 of the Indian Constitution embodies the principle of Equality. The English
and American concepts of ‘Equality before Law’ and ‘Equal Protection of Law’ are embodied
in the Article. Article 14 includes within it the concept of ‘Reasonable Classification’, wherein
the action taken by the State should not be arbitrary or unreasonable and that there should be
nexus between the action taken by the State and the object it seeks to achieve. Article 14 of the
Constitution does not make any distinction between free persons and the imprisoned and hence
the protection of Article 14 is guaranteed in its full force to the prisoners also. Madhu Limaye
v Superintendent, Tihar Jail Delhi10 .
Similarly, it can be seen that under the Prisons Act ,1894, the prisoners are classified into three
groups, Undertrials, Detenue and Convicts.
Article 19- Right to Freedom
Article 19 of the Constitution which talks about the different freedoms are not available to the
prisoners in their full sense by the reason of their incarceration. Out of the 6 freedoms that are
guaranteed by the Constitution, Article 19(1) a- Freedom to Speech and Expression, Freedom
to form Associations are available to the prisoners, though they are partially limited by the
prison laws. By virtue of their incarceration, the other freedoms such as- forming a peaceful
assembly, reside and settle in any part of the country etc is not available to them.
The Fundamental Right to speech and expression, though theoretically is given to the prisoners,
the are practically curtailed by the prison laws. For example, one subrule in Chapter VIII of the
Model Prison Code, 2016 titled “Contacts with the Outside World” goes as follows:
8.03. On admission, every prisoner should submit a list of persons who are likely to interview
him/her and the interview shall be restricted to such family members, relatives and friends. The
conversation at the interviews shall be limited to private and domestic matters and there shall
be no reference to prison administration and discipline and to other prisoners or politics. The
10
AIR 1975, SC 1505
7
number of persons who may interview a prisoner at one time shall ordinarily be limited to
three.11
This one rule which restricts the prisoners from actually communicating with their friends and
family the realities of the prison administration, is in my opinion, a curtailment of the freedom
of speech and expression of the prisoners. Apart from this, the letters that are sent by the
prisoners and those that are delivered to the prisoners go through scrutiny of the prison
authorities. The Model Prison Code prescribes the manner in which letters have to be written
and also specifies the number of letters that a prisoner can send to the outside world. Though
the prisoners are given the right to be interviewed under the Prison Code, the code itself places
a lot of restrictions on this right. Rule 8.22 in the same chapter goes as followsEvery interview with a convicted prisoner shall take place in the presence of an experienced
prison officer, who shall be positioned at a place from where he can see and hear what passes
between the prisoner and his interviewer and he shall prevent any article being passed between
the two parties. A lady Deputy Superintendent, a Matron, an Assistant Matron or a female
warder shall be present when female prisoners are interviewed.
Under this context it can be easily discerned that the manner in which the prisoners are allowed
to exercise their fundamental right to speech and expression is totally different from the way
in which a free man expresses. By the virtue of the prison laws, the rights are virtually restricted
in every sense to the prisoners. When it comes to the other freedoms, though the Freedom to
form association is guaranteed to the prisoners’ also, its application cannot be found in the
Indian context as an issue of that nature has not come before the Courts as of now.
Article 21- Right to Life and Personal liberty
Article 21 was the article that was used the most number of times to uphold the rights of
prisoners. The right of speedy trial to the accused was read in light of Article 21 in the case of
Hussainara Khatoon v Home Secretary, State of Bihar12. In Charles Sobharaj v
Superintendent, Central Jail, Tihar13, the Supreme Court held that solitary confinement of a
prisoner totally depriving him of his camaraderie of other inmates was a gross violation of
Article 21. Public hanging of the convict was held as barbaric and violative of Article 21 in
Attorney General v Lachna Devi14. In Prem Sankar Shukla v Delhi Administration15,
11
Model Prison Code, 2016
1979 AIR 1369, 1979 SCR (3) 532
13
1978 AIR 1514, 1979 SCR (1) 512
14
(1989) Suppl.(1) SCC 264
15
(1980) 3 SCC 526
12
8
handcuffing of the accused was considered to be a gross, inhumane and humiliating way of
treating him. The same was considered as violative of Article 21. Multiple other rights of these
prisoners were also read into Article 21.
Article 21A- Right to Education
Since, right to education as a fundamental right is not available to the adult prisoners but only
to children from 6 to14 years of age, this provision can be seen in connection with the children
who are in conflict with law i.e. children who are in correction homes. Correction homes find
there constitutional scheme in Article 15(3). Juveniles have a fundamental right to education
like any other child. The 1985 United Nations Standard Minimum Rules for Administration of
Juvenile Justice Rules ( The Beijing Rules) and the 1990 United Nationals Guidelines for the
Prevention of Juvenile Delinquency( The Riyadh Rules) emphasise on correctional education
for the juveniles. The ideal approach that is to be taken is to provide individual attention to the
children in correction homes. But one practical difficulty is that, since the correction home
authorities would themselves not know when the child would be released, it is difficult for them
to plan an individual-care strategy for the child. A lot of these students do not have a formal
educational background, so, devising an educational plan that attends to the very primary level
of education is a daunting task. Since the juveniles in the correction homes are of different ages
and have different educational needs, have a scheme of educational plan that would cater to all
their needs is a laborious task.
Another issue with regards to education in correction homes is with regards to the language of
instruction. Since educational instruction is given in the native language of the state, the
children in correction homes who belong to other states will not be in a position to understand
what is being taught.
Though education is a right of these children too, practically how far this right can be realised
is still a question.
Article 22- Protection against Arrest and Detention
Article 22 envisages the following rights:
* Shall not be detained in custody without being informed about the grounds of arrest.
* Right to be consulted and be represented by the lawyer of his choice.
* Every arrested person has the right to be produced before the nearest Magistrate within 24
hours of his arrest.
9
* He shall not be detained in custody more than the period of 24 hours without the permission
of the Magistrate.
However, when it comes to persons who are arrested under the preventive detention laws, the
first two rights are unavailable to the detenue. The Constitution provides for another
mechanism - the detenue cannot be kept in custody for a period of more than 3 months without
it being authorised by an Advisory Board.
Article 23- Prohibition of Traffic Against Human Beings and Forced Labour
Question arises if ‘rigorous imprisonment’ falls within the ambit of forced labour. The question
was considered and answered in negative by the Supreme Court as well as High courts. But
however, when it comes to making the prisoners work, it is mandatory that they be paid wages
for the work they do. In Deena v Union of India16, it was held that non payment of requisite
wages to the prisoners for the work they do is ‘bonded labour’ under Article 23 of the
Constitution.
RIGHTS OF PRISONERS IN THE LIGHT OF INDIAN CRIMINAL & PRISON
LAWS
Criminal LawsMany provisions in the Indian Penal Code, 1860, protect the rights of the prisoners indirectly.
By condemning and punishing the illegal acts of public servants, the law system ensures
indirect protection to prisoners’ rights. S.340 and s.342 of the Indian Penal Code deals with
Wrongful confinement and its punishment. Whenever, a person has been detained without the
authority of law, the person is said to be wrongfully confined. IPC prescribes a punishment of
imprisonment up to a period of 1 year, fine or both. The Code of Criminal Procedure, 1973
also has multiple safeguards to ensure that the rights of the prisoners, which includes the
undertrials, are not violated- mandating the police authorities to produce him before the
magistrate within 24 hours of his arrest, bail provisions, s.167(2) which deals with the
statutory bail etc are the examples.
Prison LawsPrison’s Act, 1894- The number of prisoners in the prison shall be determined in
accordance with the health, safety and convenience of the prison inmates. S.14 of
16
1983 AIR 1155, 1984 SCR (1) 1
10
the Act makes its obligatory to have the services of a medical officer to report
instances where he has reason to believe that the mind of the prisoner has been so
injuriously affected by the treatment he is subject to. The Medical officer also has a
responsibility of reporting in detail in case of death of a prison inmate. (s.15)
Medical services have to be mandatorily provided by the prison authorities for all
those inmates who are sick. The medical officer is also duty bound to maintain a
record of the health and fitness details of the prison inmates, any wounds, cuts or
scars on his body etc. The jailor is responsible for the safe custody of all the
documents pertaining to the prison inmates, their belongings etc.
Prison Manuals- The prison manuals regulate the day to day administration of
prisons. Through various judgements and well as the international agreements and
conventions, a lot of rights are recognised as the basic rights of prisoners- right to
food, clean drinking water, sanitation and personal hygiene, bedding and clothing
ete.
IMPORTANT INTERNATIONAL CONVENTIONS FOR THE PROTECTION OF
PRISONER’S RIGHTS
International conventions are very important sources of law for the protection of the rights of
prisoners. Article 25317 empowers the Parliament to make laws for the purpose of
implementing any international treaty, agreement etc. Article 51A of the Constitution
requires the State to foster respect for international treaties and other instruments. In Visakha
v State of Rajasthan18, the Supreme Court opined that if the international conventions reflect
the spirit of fundamental rights, then the same has to be enlarged and read into to give a wider
scope with the aim of furthering our constitutional values.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) (1948)
UDHR declares certain rights that a person owns and enjoys by virtue of him being a human
being. Article 1 of UDHR talks about the right to dignity to a person. Article 3 talks about the
protection of life and liberty of a person. Article 5 provides protection against any form of
torture or inhuman or degrading treatment of human beings. India was a signatory to the
17
18
The Constitution of India
(1997) 6 SCC 241
11
UDHR. Our Indian Constitution have heavy influences of UDHR. Taking inspirations from
the various articles in the UDHR, we have recognised many rights as fundamental rights
under the Constitution.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
(1966)
Article 7 of the ICCPR also talks about the rights of human beings against cruel, inhuman
and degrading treatment. Article 9 of the ICCPR also talks about the rights that are
specifically available to a person facing criminal prosecution- the person’s liberty shall not be
curtailed except according to the procedure established by law, he has the right to be
represented by a lawyer of his choice, he shall be informed about the grounds of arrest and
the charges that are levelled against him. It is mandatory for the person so arrested to be
produced before a magistrate and his trial shall commence as early as possible. Any person
who has been illegally detained shall have a right to compensation that is enforceable. Article
10 also mandates, treating the persons whose liberty has been curtailed, with respect. Article
14 of the ICCPR deals mostly with the rights of the under-trial prisoners. It casts an
obligation on the legal system of the country to presume the innocence of the accused before
he is declared guilty. The article requires the accused to be given ample opportunity to be
heard and defend himself in the criminal prosecution. He has the right to be informed about
the charges and the allegations levelled against him in a language that is known to him. He
has the right to examine the witnesses. He has the right to take help of an interpreter free of
cost if the language of the court is unknown to him. He also has the right not to be compelled
against accepting the guilt or testifying against him. He also has the right to appeal before a
higher authority with regards to his conviction. The concept of ‘double jeopardy’ also finds
place in this Article. No person shall be tried or punished twice for an offence in which he
was already either convicted or acquitted.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS ( ICESC), 1966
ICESC guarantees to all human beings economic, social and cultural rights. Article 12 is the
article relevant to the rights of prisoners, where, there is an obligation cast upon the state to
ensure highest attainable standard of physical and mental well being of people and take steps
to further this.
12
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT (CTCID), 1984
Article 10 of the Convention talks about sensitizing and informing the persons who may be
involved in the custody and interrogation of persons that they are forbidden from inflicting
any forms of physical or mental torture upon the persons under custody or during
interrogation. There must be a periodic review of the rules of interrogation, methods,
practices of custody in its jurisdiction so as to ensure that there the chances of torture being
inflicted are prevented( Article 11). Article 12 of the Convention says that if there is a
reasonable suspicion of any unfortunate incident of torture, then, the authorities have to begin
a prompt, impartial and effective investigation into it. Article 13 and 14 of CTCID talks
about the right of a victim of torture to complain about the torture and the right to seek fair
and adequate compensation for the acts of torture committed upon him. In case, the victim
dies in the act of torture, then his dependents are entitled to claim compensation. Article 15
also declares a in important provision that, a statement that is extracted from a person by
subjecting him to torture shall not be considered or received in evidence.
UN STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS
(1955)
These set of rules prescribes the minimum standard of treatment of prisoners and also about
the management of the prison institutions.
Right to accommodation- cells that are for the single occupancy of a prisoner shall not
have more than one extra prisoner in exceptional circumstances like temporary over
crowding of the prison. The facilities shall be provided inside the prison keeping in
mind the climatic conditions of the place.
Right to sufficient light and fresh air- the places where the prisoners have to work or
live shall have large windows that brings in natural light and fresh air. Artificial light
shall also be provided for prisoners to do their work or read without injury to the eye.
Right to Personal Hygiene- The prisoners have to be provided with toilets, bath areas
and other articles that are necessary for maintaining personal hygiene.
Right to clothing and bedding- If the prisoners are not allowed to wear their own
clothing, prison authorities shall provide them with clean clothing suitable to the
climatic conditions of that area. They shall ensure that the clothes are fit and clean for
13
use. The prison authorities are also cast with the duty of ensuring that the prisoners
are provided with bedding that is clean and in good condition to use.
Right to food and drinking water- The food so served should have nutritional value
for the adequate health of the prison inmates. The water given to the inmates should
be clean and consumable.
Right to medical services- it does not include services for the physical ill-wellness. It
also includes providing health services for the mental wellbeing.
THE STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS (
NELSON MANDELA RULES), 2015
There are 122 rules that regulate the prison administration and the basic standard of treatment
of prisoners. Article 1 of the Nelson Mandela rules, talks about , considering prisoners as
human beings and ensuring, respecting and protecting their basic rights. Whatever the
justification be, torture in any form upon a prisoner in any form cannot be allowed. The
Nelson Mandela rules also point out rules to ensure the security and safety of the prison staff,
service providers and the visitors.
UN BODY OF PRINCIPLES FOR THE PROTECTION OF ALL PERSONS UNDER
ANY FORM OF DETENTION OR IMPRISONMENT (1988)
These body of principles also reiterate the basic idea that prisoners are human beings and
have to be treated with dignity. It asserts that only the official authorised by law shall have
the right to curtain the liberty of another person. All measures or any form of detention where
the human liberty has to be curtailed, shall be ordered and be kept under the effective control
of a judicial officer or any other authority. The laws that are in place for according special
treatment to certain groups of people such as pregnant women, age old persons, nursing
mothers etc shall not be treated as being discriminatory. This body of principles also
condemns any act of physical or mental violence or torture inflicted upon a person under
imprisonment, whatsoever be its justification. Principle 10 talks about the rights of the person
whose liberty is so curtailed to be informed about the grounds of arrest and the charges that
are levelled against him. Article 19 talks about the right of the prisoner to be visited by his
family and friends and have communication with the outside world. (subject to the prison
laws)
14
FEW IMPORTANT CASES THAT DEAL WITH THE RIGHTS OF PRISONERS
M.H. Hoskot v State of Maharashtra19- This was a landmark decision of the
Supreme Court wherein the Supreme Court by reading in ‘Right to legal aid’ into
Article 21 especially for the prisoners. In this matter, though the petitioner’s sentence
was upheld by the High Court, it did not give him copies of the necessary documents
to appeal to the Supreme Court and had to suffer imprisonment for 4 years. This
judgement held that a person convicted of an offence has the right to free legal
assistance and also the right to receive free copies of the judgement. The accused is
also to be assisted by the prison authorities for appealing his matter.
Sunil Batra v Delhi Administration20 - was another landmark case that higlighted
various other aspects of the prisoner’s rights. The Court urged for bringing in prison
reforms, provide the prisoners facilities for placing their complaints and grievances,
periodic visits should be conducted by the Sessions Judge and District Magistrates to
the prisons. Court rejected the hands-off doctrine and reiterated that the fundamental
rights are not taken away from a person once he enters the prison.
Francis Coralie v Delhi Administration21- in this case, the petitioner was arrested
and detained under the COFEPOSA22. She was virtually restrained from meeting her
family and consulting her lawyer by the imposition of very strict rules that need to be
complied with. The Supreme Court in this matter held that the need to comply to
extremely strict rules to have an interaction with the petitioner’s lawyer and family
was considered arbitrary and violative of Article 14 and 21 of the Indian Constitution.
Hussainara Khatoon v Delhi Administration23- A significant number of undertrial
prisoners were behind bars for many years alltogether, awaiting trial. A lot of
prisoners were behind bars as they could afford to appoint a lawyer or have enough
monetary basis to be enlarged on bail. Court understood the deplorable state of the
criminal justice system and held that Right to Speedy trial was a fundamental right
under Article 21 and that the State has a duty to provide free legal aid to the indigent
and poor accused.
19
1978 AIR 1548, 1979 SCR (1) 192
(1978) 4 SCC 409
21
1981 AIR 746, 1981 SCR (2) 516
22
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, repealed
23
1979 AIR 1360, 1979 SCR (3) 169
20
15
CONCLUSION:
From the areas covered, it can be very safely said that India has been very proactive in
recognising and supporting the rights of prisoners. The Indian Constitution, though, does not
have specific provisions for the protection of prisoners, it has fairly covered the issues of
prisoners in the existing provisions itself. The judiciary through intelligent interpretation of
the Constitution as well as the other statutes have taken a pro prisoner approach. All this
being said, an important thing to be remembered here is that though we have the rights of
prisoners in statute books and other international documents, how far they are seen put to
practice is a question. Prisons should not be centres that create or harden existing criminals.
They should be seen as centres of reformation which aims at striking at the root of the issue
of deviant activities. Treat the patient, not just the disease!
REFERENCES
Legislations, Manual, Documents
 The Constitution of India
 The Code of Criminal Prodecure, 1973
 The Prisons Act, 1894
 Indian Penal Code, 1860
 Model Prison Manual, 2016
 Handbook on Prisoner’s Rights and Obligations, published by the Bureau of
Police Research and Development, Ministry of Home Affairs
Articles
 A.G. Noorani, A Guide to Prisoner’s Rights, Economic and Political Weekly ,
Aug. 8, 1981, Vol. 16, No. 32 (Aug. 8, 1981), pp.1303-1304
 Dr Kiran R Naik, Problems of Prisoners: An Analysis, , 2019 International
Journal of Research and Analysis Reviews, June 2019, Volume 6, Issue 2
 Richard P Vogelman, Prisoner Restrictions. Prisoner Rights, The Journal of
Criminal Law, Criminology, and Police Science , Sep., 1968, Vol.59, No. 3
(Sep., 1968), pp. 386-396.
16
 Sunil D Kumar, Santhosh A Kumar, Jaishree V Pattankar, Sreenivas B Reddy,
Murali Dhar, Health Status of the Prisoners in the Central Jail of South India,
Indian Journal of Psychological Medicine, 2013, Oct-Dec 35(4), pp. 373-377
Online Websites, Magazines and Blogs
 Law Audience, https://www.lawaudience.com/rights-of-prisoners-in-india-alegal-analysis/
 The Bastion, https://thebastion.co.in/politics-and/education/of-empathy-ineducation-interventions-in-a-juvenile-home-in-gujarat/
 The Times of India, https://timesofindia.indiatimes.com/blogs/lawtics/prisonersrights-in-india/
 EPW: Engage, https://www.epw.in/engage/article/prisoners-right-write-why-scrulings-should-be-considered
 Study.com, https://study.com/academy/lesson/cesare-beccarias-on-crimes-andpunishments-and-the-rise-of-utilitarianism.html
17