Rights of Prisoners: A Jurisprudential Study

Jurisprudence 4.6

Submitted by

Brijbhan Singh

UID- SM0116014

2nd year, 4th Semester

Submitted to

Mr. Saheb Chowdhury

National Law University, Assam

Rights of Prisoners: A Jurisprudential Study

Abstract- The state has so much control over the prisoners that they cannot think about their
rights, it is neither possible nor feasible for them to go and demand their rights as they are
being captive in the state’s mechanism, but human rights does not demarcate between any
person that he is a refugee or citizen or prisoner, human rights are available for all the
persons, besides human rights there are certain rights which must be available for the
prisoners as they are most vulnerable group of the society.

In this research researcher started with introduction in which he discussed about the
definition of prisoner and after that he emphasised on that why the state has to take prisoner’s
rights seriously, after that the researcher analysed the hands-off doctrine and after that the
researcher emphasised on the ideas of Jeremy Bentham and Michael Foucault that how these
jurists emphasised on the rights of prisoners. Researcher also analysed the Issues pertaining
to Violation of Prisoners’ Rights.

Researcher also laid emphasis on the different types of rights which are available to the
prisoners and how Indian judiciary is safeguarding those rights, researcher concluded by
explaining that why a codified law is necessary for rights of Prisoners.

Keyword- Prisoners, Rights, Judiciary.

Introduction- A Prisoner is a person who is deprived of his liberty and kept under
involuntary restraint, confinement, or custody1. The society’s attitude towards the prisoners
was barbaric in nature from the ancient time; they are treated as they did not have any right,
whenever any person was imprisoned his freedom as well as his rights were curtailed by the
state and the prisoner has to go with the inhumane punishment, the state does not take their
rights seriously and ill treated them.

The recognition of prisoner’s rights gradually evolves and many jurists opined that if any
person is convicted it does not mean that he lost all his rights, he cannot be deprived of basic
human rights which he is legally as well as morally entitled to it, there are certain provisions
in every constitution in which it is clearly reflected that the state cannot seize all right of the
prisoners, he is having certain fundamental rights which cannot be curbed by anyone, as in
India there is Article 21 of the constitution which guarantees/provides right to life with
dignity which is duly protected by Article 32 and Article 226 of the constitution.

There are rights available to prisoners but most of the prisoners are not aware of them and the
state is also not taking prisoner’s rights seriously as a report of ministry of home affairs states
that 11% of prisoners who died in prison die due to unnatural causes such as suicide, murder
by other inmates, deaths due to negligence/excess by jail personnel and others.2

The governments are more responsible for the prisoners then the free citizens because the
normal citizen have the liberty to do whatsoever they want but the prisoners are totally
depended on the state, so the state have to be vigilant for the rights of prisoners as it is the
custodian of rights of prisoners. Ethically as well as legally the government/state has to be
more vigilant so the rights of prisoners can be protected.

1
Merriam Webster Dictionary, retrieved from https://www.merriam-webster.com/dictionary/prisoner on 10 Apr,
2018.
2
Silvio Grochetti, Prison Conditions, retrieved from https://scroll.in/article/816678/death-behind-bars-1700-
died-in-overcrowded-indian-prisons-in-2014 on 10 Apr 2018.
Hands-off Doctrine- The hands‐off doctrine dominated thinking about correctional law in
America during the 19th century. American courts regarded inmates as “slaves of the state 3.”
Judges believed prisoners had no rights because they had forfeited them as a result of their
crimes, and judges didn't interfere with the administration of correctional institutions because
they didn't want to violate the principle of separation of power (in other words, the courts
didn't want to interfere with the authority of the executive branch to administer
prisons).During the 1960s and 1970s, the courts moved away from the hands‐off doctrine and
acknowledged that courts have a duty to resolve constitutional claims of prisoners. In
addition, the Court recognizes that prisoners do have certain rights. At the same time,
however, the Court holds that prisoners do have fewer rights than free citizens because taking
away rights is a legitimate punishment and because the restriction of rights is necessary to
maintain security in prisons.

Jeremy Bentham and Panopticon- The end of economy determined that the panopticon
prison should be a private self-sustaining operation not requiring financial assistance from the
public purse. Security determined that the community be protected from convicted criminals,
and severity in punishment was to serve the ends of deterrence and reformation. But security
also required that the inmate be protected from cruel treatment, and humanity determined that
prisoners should be deprived only of liberty not health or life. Prisoners were to be kept clean
and their labour made productive and profitable, including the development of skills that
might be useful to them when released. In support of these objectives, Bentham invoked
several devices to effect transparency and accountability in prison government4. The chief
mechanism intended to bring the interest of the prison owner/administrator in line with his
duty to be humane is publicity, described as “the most effectual means of applying the force
of moral motives, in a direction tending to strengthen the union between his interest and the
humane branch of his duty; by bringing to light, and thus exposing to the censure of the law
and of public opinion, Bentham added the observation of the warden and his subordinates by
the public. Interested members of the public and members of parliament were to be
guaranteed free access to the prison, making the panopticon subject to “the great open
committee of the tribunal of the world5”.

3
Robert T. Chase, We Are Not Slaves: Rethinking the Rise of Carceral States through the Lens of the Prisoners’
Rights Movement, The Journal of American History, June 2015, pp. 73-86.
4
James E. Crimmins, Utilitarian Philosophy and Politics: Bentham's Later Years, pp. 99-100.
5
IBID.
Michael Foucault and theory of ‘Discipline and punish’- Discipline, according to
Foucault’s historical and philosophical analyses, is a form of power that tells people how to
act by coaxing them to adjust themselves to what is ‘normal’. It is power in the form of
correct training6. The exemplary manifestation of disciplinary power is the prison. For
Foucault, the important thing about this institution, the most ubiquitous site of punishment in
the modern world (but practically non-existent as a form of punishment before the 18th
century), is not the way in which it locks up the criminal by force. This is the sovereign
element that persists in modern prisons, and is fundamentally no different from the most
archaic forms of sovereign power that exert violent force over the criminal, the exile, the
slave and the captive. Foucault looked beyond this most obvious element in order to see more
deeply into the elaborate institution of the prison. He said that prisoners must be made to
know that they are subject to continual oversight. The purpose of constant surveillance is not
to scare prisoners who are thinking of escaping, but rather to compel them to regard
themselves as subject to correction. From the moment of morning rise to night’s lights out,
the prisoners are subject to ceaseless behavioural inspection. The crucial move of
imprisonment is that of coaxing prisoners to learn how to inspect, manage and correct
themselves. If effectively designed, supervision renders prisoners no longer in need of their
supervisors and the prisoners will become their own attendant.

Issues pertaining to violation of prisoners’ Rights-

In India there are certain rights which are guaranteed to every citizen and also apart from that
there are certain legislations which confers some rights to the prisoners, but these rights are
violated grossly in India, there are various issues which are enlisted below pertaining to the
violation of prisoners’ rights-

 80% prisoners are under trial- This is the 1st and foremost issue which violates the
prisoners’ rights, as per a report of Ministry of Home Affairs under trials have
increased 2.93 lakhs in 2016 from 2.82 lakhs in 20157, as per the report by NCRB in
2015 there were 3599 under trials who spent more than 5 years in prison8, they are
also unaware of the provision of section 436 A of Criminal Procedure Code which
give an under trial a right to seek bail if he completes more than half of the maximum

6
Michael Gallagher, Schooled Subject: Techniques of Power in a Primary School, PHD Thesis, The University
of Edinburgh.
7
Shemin Joy, Undertrial population in prisons on rise, DH News Service, Jan 08 2018.
8
IBID.
 punishment for which he is accused. In India’s most populated prison, Tihar Jail, only
20% are convicted criminals, the rest are behind bars awaiting start or completion of
their trial9.
 Bail is granted but prisoners not released- In some cases when an under trail is
granted bail still he is not released by the prison authority because he is unable to
comply with the conditions of the bail, but the importance of the rights of prisoners
under Article 21 of the Constitution, who have been accused even of serious crimes,
cannot be overlooked under any circumstance. The Article says that no person shall
be deprived of his life or personal liberty.
 Insufficient Provision of Medical-aid- The International Covenant on Economic,
Social and Cultural Rights (ICESR) states that prisoners have a right to the highest
attainable standard of physical and mental health but still Indian prisons are not
complying with it as the prisons are overcrowded and there is lack of proper medical
facilities, if we take a report of the Integrated Counselling and Testing Centre (ICTC)
In 2011, out of 11,800 inmates of Tihar jail, about 340 tested positive for HIV10.
 Harsh mental and physical torture- India has strict laws and procedures in place,
including directions from the Supreme Court and guidelines by the National Human
Rights Commission, to protect against police torture as well as to ensure
accountability in case of violations. But the police still often tortures suspects to
punish them, gather information, or coerce confessions. The Supreme Court has
repeatedly noted that with custodial crimes, producing evidence against the police is
very difficult. As the judges said in one such ruling, the police feels, “bound by its ties
of brotherhood11.” In both police custody and in jails, the accused are afraid to report
mistreatment because of reprisals. Families of custodial death victims, who choose to
pursue criminal complaints, often face intimidation
 Insensitive attitude of Jail authorities- Prison is a place for reformation of the
prisoners but they are ill treated by the authorities, when the relatives of the prisoners
wants to meet with the prisoner the authorities attitude is completely insensitive as
they thinks and acts in a manner that the prison system is their monopoly and they are
free to do whatever they want, the prison system is for law mechanism but there is
completely lawlessness in the prison system.
9
Prawesh Lama, Only 20% of 14,400 prisoners are convicted criminals in Tihar, the rest are all undertrials,
Hindustan Times, July 27 2017.
10
Neeraj Chauhan, 340 HIV Positive prisoners in Tihar, TOI, May 30 2011.
11
Dalbir Singh v. State of U.P & Ors., AIR 2009 SC 1674.
Rights available to prisoners- A prisoner when being imprisoned do not lose all rights.
They lose only a part of the right which are the necessary consequences of the confinement
and the rests of the rights are preserved12. The prisoner is not a slave or a bonded labour , he
is a prisoner it does not mean that he loses all rights because he is still a human being and
human being have certain entitlements which are called rights in general sense.

There are certain rights which are available to prisoners which are enlisted below-

 Right to Legal aid- The human rights which are so much discussed and debated would
become meaningless if a person who is accused of any crime is not provided with
adequate legal aid. The government is not doing charity by providing legal aid but it is
a constitutional right which every person is entitled to. Legal aid offers the poor to
redress their grievances and thus supports the basis idea of rule of law.
Article 142 read with article 21 and article 39-A of the Indian constitution is the basic
principle which deals pertaining to this matter, in M.H Wadanrao Hosket v. State of
Maharashtra13, the court termed legal aid as the part of the fair procedure.
 Right to speedy trial- As it is early discussed that 80% of prisoners are under trial the
right to speedy trial is necessary for the prisoners, so the apex court in Hussainara
Khatoon v. Home Secretary, State of Bihar14 states that Right to speedy trial is a
fundamental right of a prisoner which is implicit in article 21 of the constitution.
 Right against Solitary Confinement, Handcuffing- 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 society15. An
arrested person or under-trial prisoner should not be subjected to handcuffing in the
absence of justifying circumstances.
 Right against Torture- Custodial torture is a complete violation of human rights and
dignity, to a very large extent. Article 21 of the constitution provides that no person
shall be deprived of his life or personal liberty, the term life and personal liberty also
includes life with human dignity, it is a cherished right under Indian Constitution and
thus it would include within itself a guarantee against torture.

12
Sharon Shalev, A sourcebook on Solitary Confinement, pp. 9.
13
1979 SCR (1) 192.
14
1979 SCR (3) 532.
15
Supra note 8.
  Right to meet friends- The horizon of human rights is increasing day by day and
prisoners’ rights are not only protection from physical torture but also provide
prisoners to save them from mental torture, In Sunil Batra v. Delhi Administration16
the court observed that visits to prisoners by family and friends are a solace in
insulation, and only a dehumanized system can derive vicarious delight in depriving
prison inmates of this humane amenity. The court in Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi & others17 held that Personal liberty would
include 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.
 Right to reasonable wages- Every prisoner if he is doing any work in the prison he is
entitled to remuneration which cannot be less than the minimum wages, if the state is
not doing so then it would be forced labour within the meaning of article 23.
The “Mulla Committee report18 which was setup for the jail reforms states that All
prisoners under sentence should be required to work subject to their physical and
mental fitness as determined medically. Work is not to be conceived as additional
punishment but as a means of furthering the rehabilitation of the prisoners, there
training for work, the forming of better work habits, and of preventing idleness and
disorder. Rates of Wages should be fair and equitable and not merely nominal or
paltry. These rates should be standardized so as to achieve a broad uniformity in wage
system in all the prisons in cash State and Union Territory.
 Right to Expression- This means that the prisoners have the right to express
themselves, they may write a book and publish it accordingly because it is their
personal liberty as guaranteed by Article 21.

Judiciary as a custodian of these rights- The Indian Judiciary acts as a custodian of

prisoners’ rights, the supreme court which is the apex court of the country interprets
article 21 of the constitution many times and developed human rights jurisprudence for
the preservation and protection of prisoners, the supreme court while interpreting article
21 states that deprivation of life and liberty is justifiable according to procedure

16
1980 AIR 1579.
17
1981 SCC (1) 608.
18
Ministry of Home affairs, retrieved from http://mha1.nic.in/PrisonReforms/pdf/Mulla%20Committee%20-
implementation%20of%20recommendations%20-Vol%20I.pdf.
 established by law but the procedure cannot be arbitrary, unfair or unreasonable. The
Indian judiciary has a very keen interest and it is vigilant in protecting the human rights of
the prisoners.

A prisoner or an under trial can go to high court under article 226 or supreme court under
article 32 and demand compensation if there is violation of his fundamental rights, in case
of Rudul Sah v. State of Bihar19 the petitioner was detained illegally in prison for more
than 14 days, he filed habeas corpus before the court for his immediate release and
demand compensation, the court orders the state to release and compensate him.

The principles of natural justice is truly incorporated in the part III of constitution of India
as in the case of Abdul Azeez v. State of Mysore20 the honourable court held that if the
accused refuses the legal aid and is not represented by any advocate then it is the duty of
the court that it either question the witness himself or appoint a competent counsel to
assist the court.

It is the duty of the court to look at every aspect of the case and by looking into the fact
and circumstances of the case and after than to award proportionate sentence.

Why codification is needed- The Prisons Act 1894, is too old and does not provide
mechanism in many aspects which is needed, the judiciary many times comes as a
custodian for the rights of prisoners but still there should be a codified law which deals
with every aspects and matters relating to prisons which can lesser the burden of the
prisons which can provide for a speedy trial so the 80% of under trial can be reduced, so
the unnatural death can be curbed, so the irregularity by the prison authorities can be
checked and balanced.

19
1983 AIR 1086.
20
1975 CriLJ 335.
Conclusion- A person does not loses his all rights by the fact that he is convicted or
going under-trial for an offence, he is a human and by the fact he is entitled to certain
human rights which cannot be curtailed by the mere fact that he is a offender, in India
there is gross violation of prisoners’ rights and judiciary many times acts as a custodian
for their rights but still there is urgent need for the codification of prison laws which can
cover all aspects pertaining to prisoners’ rights so there shall be no violation of prisoners’
rights.

References-

 The Constitution of India

 Indian Penal Code, 1860
 The Code of Criminal Procedure, 1973
 The Prisons Act, 1894
 Judis.nic.in