CHAPTERISATION

 INTRODUCTION

 RIGHT AGAINST SOLITARY CONFINEMENT

 RIGHT AGAINST SPEEDY TRAIL

 RIGHT TO FAIR TRAIL

 RIGHT TO LIVE WITH HUMAN DIGNITY

 PROTECTION AGAINST INSTRUMENTS OF RESTRAINT

 HANDCUFFING OF UNNDER TRAIL PRISONER IS UNCONSTITUTIONAL

 NO NEED OF HAND CUFFING WHILE ESCORTING THE VOLUNTARY

SURRENDED PERSON

 RIGHT TO EDUCATION

 CONCLUSION

 BIBLIOGRAPHY
INTRODUCTION

Prisoners are also entitled to rights to some extent as a normal human being when they are
behind the prison. These rights are provided under the Constitution of India, the Prisons Act,
1894 etc. Prisoners are persons and have some rights and do not lose their basic constitutional
rights. In the case of State of A.P. v. Challa Ramakrishna reddy,1 It was held that a prisoner is
entitled to all his fundamental rights unless his liberty has been constitutionally curtailed. The
Supreme Court has emphasized that a prisoner, whether a convict, under-trial or detenu, does
not cease to be a human being and, while lodged in jail, he enjoys all his fundamental rights
guaranteed by the Constitution of India including the right to life guaranteed by the
Constitution. Even a person is convicted and deprived of his liberty in accordance with the
procedure established by law; a prisoner still retains the residue of constitutional rights.2

In the case of T.V. Vatheeswaran v. State of Tamil Nadu,3 it was held that the Articles 14, 19
and 21 are available to the prisoners as well as freemen. Prison walls do not keep out
fundamental rights.
Article 14 of the Constitution of India says that the State shall not deny to any person equality
before law or the equal protection of laws within the territory of India. Thus Article 14
contemplated that like should be treated alike, and also provided the concept of reasonable
classification. This article is very useful guide and basis for the prison authorities to
determine various categories of prisoners and their classifications with the object of
reformation.
Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India.
Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very
nature of these freedoms. But the “freedom of speech and expression” 4 and “freedom to
become member of an association.5

1 (2000) 5 SCC 712: AIR 2000 SC 2083.

2Jain M.P., “Indian Constitutional Law”, 5th Edition, Vol. 1, Wadhwa and Company,
Nagpur, 2003, p.1295.

3 AIR 1983 SC 361 : (1983) 2 SCC 68.

4
Article 19(1)(a) of the Constitution of India.
Article 21 of the Constitution of India says that No person shall be deprived of his life or
personal liberty except according to procedure established by law. This Article stipulates two
concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it
is clear that it is available not only for free people but also to those people behind the prison.
Following are the rights of prisoners, which are implicitly provided under the Article 21 of
the Constitution of India

Prisoners are not wholly denuded of all their fundamental rights but the enforceability of all
fundamental rights is restricted upon the fact of imprisonment.6 The protection of article 21 is
available even to convicts in jails. The convicts are not by mere reason of their conviction
deprived of all the fundamental rights, which they otherwise possess. Following the
conviction of a convict is put into the jail he may deprived of his fundamental freedoms like
the right to move freely through out the territory of India or the right to practice a profession.
But the constitution guarantees to them other freedom like the right to acquire; hold and
dispose of property for the existence of detention can be no impediment. Likewise, even a
convict is entitled to the precious right guaranteed by article 21 and he shall not be deprived
of his life or personal liberty except according to procedure established by law.
Following are the rights of prisoners, which are implicitly provided under the Article 21 of
the Constitution of India: -
 Right to free legal aid.
 Right to speedy trial.
 Right against cruel and unusual punishment.
 Right to fair trial.
 Right against custodial violence and death in police lock-ups or encounters.
 Right to live with human dignity.

5 Article 19(1)(c) of the Constitution of India.

6 Asfaq v state of rajasthan, AIR 2017 SC 4986.

Right against solitary confinement
In sunil batra(1) vs delhi administration7 the important question has been raised before the
supreme court was wether solitary confinement imposed upon prisoners who were under
sentence of death was violative of articles 14,19,20and 21 of the constitution. In this case the
two convicts who were confined in tihar central jail filed two writ petitions under article 32,
challenging the validity of section 30 and section 56 of the prisons act. Sunil batra was
sentenced to death by the district and sessions judge and his sentence was subject to the
confirmation by the highcourt and to a possible appeal to the supreme court, batra
complained the since by date of his convocation by sessions judge that was on 6th july 1976
he was kept in solitary confinement till the supreme court intervened onn 24th February,
1978. Charlessobhraj, a foreigner an under trail prisoners was challenged the action of the
superintendent of jail putting him into bar fetters. He was arrested on 6th july, 1976 and
detained under section 3 of MISA since the time has lodged in jail he was put in bar fetters
notwithstanding of the recomondation of the jail doctor that bar fetters be removed. It aws
contended the section 30 did not authorize prion authorities to impose the punishment of
solitaray confinement. The supreme court accepted the argument of the petitioners and held
that section 30 of the prisoners act did not empower the prison authorities to impose solitary
confinement upon a prisoner nder sentence of death. Under section 73 and 74 ipc. Solitary
confinement is itself a substantive punishment which can be imposed by court of law.

In sunil batra ( no 2) vs delhi administration

The Hon’ble Supreme Court again held, where an undertrial prisoner challenged the action of
Superintendent of jail putting him into bar fetters and kept him in solitary confinement was
an unusual and against the spirit of Constitution and declared it a violation of right of
locomotion
It was held that the practice of keeping under trails with convicts in jails offended the test of
reasonableness in article 19 and fairness in article 21. The under trail are presumably
innocent until convicted and if they are kept with criminals in jails it violates the the test of
fairnesss of article 21. Krishna iyer j delivering the majority judgement, held that integrity of
physical person and his mental personality is an important right of a prisoner, and must be
protectedfrom all kinds of atrocities. In that case the petitioner did not seek his release from

7 AIR 1978 SC 1675

the jail because he was undergoing a sentence of life imprisonment but he did not seek his
release from the jail because he was under going sentence of life imprisonment but he did not
seek protection from inhuman and barbarous treatment inflicted upon him in jail. The
petitioner was subjected to physical torture by a warden of tihar jail as means extract money
from the petitioner batra a convict came to know this act and brought the incident to the
knowledge of a court through the letter.

Right to speedy trial:

In Hussainara Khatoon (No. l) Home secretary vs State of Biliar,8 a petition for a writ of
habeas corpus was filed by number of undertrial prisoners who were in jails in the State of
Bihar for years awaiting their mag, Supreme Court held that "right to a speedy trial" a
fundamental right is implicit in guarantee of life and personal liberty enshrined in Article 21
of the Constitution. Speedy trial is the essence of criminal justice. In United States speedy
trial is one oft};e constitutionally guaranteed right under the Sixth Amendment. Bhagwati.
held that although, unlike the American Constitution speedy trial is not specifically
enumerated as a fundamental right. it is implicit in the broad sweep and content of Article 21
as interpreted in Maneka Gandhi’s case. No procedure which does not ensure a reasonable
quick trial can be regarded as ‘reasonable. fair or just'. For this reason the Court ordered the
Bihar Government to release forthwith the undertrial prisoners on their personal bonds.
In Husainara Khatoon (No. 2)9and Husainara Kliatoon (No. 3)‘10 cases the Court reiterated
the same view. In a significant judgment in Abdul Rehman Antuley v. R.S. Nayak,’11 the
Supreme Court has laid down detailed guidelines for speedy trial of an accused in a criminal
case but it declined to fix any time limit for trial of offences. The burden lies on the
prosecution to justify and explain the delay. The Court held thatthe right to speedy trial
flowing from Article 21 is available to accused at all stages namely the stage of investigation,
inquiry, trial, appeal, revision and retrial.

The concerns underlying the right to speedy trial from the point of view of the accused are
:(a) the period of remand and pre-conviction detention should be as short as possible. In other

8 AIR 1979 SC 1360

9 AIR 1979 SC 1369
10 AIR 1979 SC 1377
11 AIR 1992 SC 1630
words, the accused shall not be subjected to unnecessary or unduly long detention point of his
conviction;
(b) The worry, anxiety, expense and disturbance to his vocation and peace resulting from an
unduly prolonged investigation, inquiry or trial shall be minimal; and
(c) undue delay may result in impairment of the ability of the accused to defend himself
whether on account of death. Disappearance or non-availability of witnesses or otherwise.
The Court said that the accused cannot be denied the right of speedy trial merely on the
ground that he had failed to demand a speedy trial.
As regards the time limit the Court said that it has to be decided by balancing the attendant
circumstances and relevant factors. including nature of offence, number of accused and
witnesses, the workload of the Court etc. No time limit can be fixed for ‘speedy trial. If the
Court comes to the conclusion that the right to speedy trial of an accused has been infringed
the charges for the conviction shall be quashed. But this is not the only course open. The
nature of offence and other circumstances may be such that quashing of proceedings may not
be in the intrest of justice. In such case it may take an order that the trail may be concluded
with in a fixed time and where it is concluded reducing the sentence.

RIGHT TO FAIR TRAIL

Fair trial is the heart of criminal jurisprudence and, in a way, an important facet of
democratic polity that is governed by the Rule of Law, Denial of fair trial is crucification of
human rights. It is ingrained in the concept of due Process of law.’12

Fair trial does not mean limitless stretching of trial.---The concept of fail. trial cannot be
limitlessly stretched. Thus, the witnesses cannot be recalled merely because the accused
persons were in prison and the defence due to his illness changed the Counsel. There was
failure to put certain questions to witnesses.13

Fair trial includes fair investigation.-ln Nirmal Singh Kahlon v. State of Punjab,3 the Court
has held that fair trial includes fair investigation. Fair investigation and fair trial are

12 Rattiram vs state of M.P through inspector of police, AIR 2012 SC 1485

13 State of harayana v ram mehr, AIR 2016 SC 3942
concomitant to preservation of fundamental right of an accused under Article 21 of the
Constitution. But the State has a larger obligation, i.e., to maintain law and order, public
order and preservation of peace and harmony in the society. A victim of a crime, thus, is
equally entitled to a fair investigation.

Speedy Trial and fair Trial-A qualitative difference-“Speedy Trial” and “fair trial” to a person
accused of a crime are integral part of Article 21 but there is a qualitative difference between
the right "speedy trial" and right “fair trial”. Unlike the right of the accused to fair trial,
deprivation of the right to speedy trial does not per se prejudice the accused in defending
himself.14

Precedence of trial for an offence under an Act in preference to the Trial of other offence;
In Dharmendra Kirthal v. State of U.P.,15the constitutional validity of Section 12 of the U.P.
Gangsters and Anti-social Activities (Prevention) Act, 1988 was involved under which the
trial for any offence under this Act was to have precedence and to be concluded in
preferences to the trial of other offence. The Supreme Court held-The legislature thought it
appropriate to provide that the trial of such other case shall remain in abeyance. “Any other
case” against the accused in “any other court” does not include the special Court. The
legislature has incorporated this provision so that an accused does not face trial in two cases
simultaneously and a case before the Special Court does not linger due to clash of dates in
trial. The Special Court has also been conferred jurisdiction under Section 8 (l) of the Act to
try any offence with which the accused may, under any other law, for the time being in force,
have been charged and proceeded at the same trial. The trial is not hampered by the abeyance
of trial in other courts by the legislative command. There is no question of procrastination of
trial as when the trial is in progress the accused would have the fullest opportunity to defend
himself and there cannot be denial of fair trial. The provision does not frustrate concept of
fair and speedy trial.

Compensation for denial of speedy trial.--In Hardeep Singh v. State of M.P.16

The accused was acquitted of the charge of cheating after more than ten years of stretched
trial. The single Judge dismissed his writ. The Division Bench held that the delay in tril

14 Dharmendra kirthal v state of U.P; AIR 2013 SC 2569

15 AIR 2013 SC 2569 at pp. 2578, 2579
16 AIR 2012 SC 1751
proceedings for five years was caused due to prosecution in not taking timely steps to
produce and examine witnesses before the trail court. The divison of bench found that the
petitioner had been hand cuffed by the police for which there was no justification. It however
held that an undue delay of five years in concluding the trail but the liberty of the accused
had not been affected in as much as he was not in jail but on bail. On an overall view, the
appellant was held not entitled to huge amount of compensation but he has awarded a
compensation of rs of 70000 without prejudice to any claim for damages. The supreme court
did not grant the prayer of sending the accused, the collector, Jabalpur behind the bars
without sanction of the government but it en hanced the compensation to rs 20000 thinking it
to be just.

Right to live with human dignity :

In new dimension of Article 21, the Hon’ble Supreme Court held that “right to live” does not
mean mere confinement to physical existence but it includes within its ambit the right to live
with human dignity. While expending this concept, the Hon’ble Supreme Court held that the
word ‘life’ includes that it goes along with; namely the bare necessaries of the life such as
adequate nutrition, clothing and shelter over the head and facilities for reading, writing
expressing oneself in diverse forms, freely moving about and mixing and commingling with
fellow human beings. After some time, the Supreme Court extended the concept of ‘life’ and
held that ‘life’ is not limited up to death but, when a person is executed with death penalty
and doctor gave death certificate and dead body was not lowered for half an hour after the
certificate of death, is violating of right to life under Article 21.The Supreme Court held that
right to life is one of the basic human rights, guaranteed to every person by Article 21 and not
even the State has authority to violate it. A prisoner does not cease to be a human being even
when lodged in jail; he continues to enjoy all his fundamental rights including the right to
life. It is no more open to debate that convicts are not wholly denude of their fundamental
rights. However, a prisoner’s liberty is in the very nature of things circumscribed by the very
fact of his confinement his intrest in the limited liberty left to him is the more substantial.

State of A.P vs challa Ramakrishna reddy: known as prisoners murder case the supreme
court held that in the process of judicial advancement. In this case a prisoner who had
informed the jail authorities that he apprehended danger to his life but no action was taken on
this information and no measures were taken on this information and no measures were taken
on this information and no measures were taken for his safety and he was killed in the prison
. it was also found that a police officer was a party to conspiracy to kill the prisoner which
was hatched in the prison. The court held that in case of violation of fundamental right the
defence of soverign immunity which is an old archaic defence cannot be accepted and the
government and the police are liable to compensate the victim.
The court said that personal liberty should be given supremacy over soverign immunity
which has been rejected in several cases by the supreme court.

Protection against instruments of restraint:

Instruments of restraint, such as handcuffs, chains, irons and straitjacket, shall never be
applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other
instruments of restraint shall not be used except in the following circumstances :
(a) As a precaution against escape during a transfer, provided that they shall be removed
when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner
from injuring himself or others or from damaging property; in such instances the director
shall at once consult the medical officer and report to the higher administrative authority.
The patterns and manner of use of instruments of restraint shall be decided by the central
prison administration. Such instruments must not be applied for any longer time than is
strictly necessary.17

Handcuffing of undertrial prisoner is unconstitutional:

17 Rules 33 and 34 of standard minimum rules for the treatment of prisoners

The Hon’ble Justice Krishna Iyer, while delivering the majority judgement held that the
provisions of Punjab Police Rules, that every undertrial who was accused on non-bailable
offence punishable with more than three years jail term would be handcuffed, were violative
of Articles 14, 19 and 21 of the Constitution of India. Hence they were held
unconstitutional.37 The Hon’ble Supreme Court again held, where an undertrial prisoner
challenged the action of Superintendent of jail putting him into bar fetters and kept him in
solitary confinement was an unusual and against the spirit of Constitution and declared it a
violation of right of locomotion

No need of handcuffing, while escorting the voluntary surrendered person :

In case of Sunil Gupta the petitioners were educated social workers. They were handcuffed
and taken to the court from the jail and back from court to the prison by escort party. They
had voluntarily submitted themselves for arrest from “dharana”. They had no tendency to
escape from the jail. In fact, they even refused to bail but chose to continue in prison for the
public cause. It was held that this act of the escort party was violative of the Article 21 of the
Constitution. There was reason recorded by the escort party in writing for this inhuman act.
The court directed the Government to take appropriate action against the erring escort party
for having unjustly and unreasonably handcuffing the petitioner.18

Right to education :

Right to higher education:

The Hon’ble Supreme Court directed the State Government to see within the framework of
the Jail Rules, that the appellant is assigned worknot of a monotonous, mechanical,
intellectual or like type mixed a title manual labour...” and said that the facilities of liaison
through correspondence course should be extended to inmates who are desirous of taking up
advanced studies and woman prisoners should be provided training in tailoring, doll-making
and embroidery. The prisoners who are well educated should be engaged in some mental-
cum-manual productive work.19
In an interim order dated 21st February, 2005, the Gujarat High Court allowed an undertrial
to appear in the board examination commencing from 14 April, 2005 and passed a mandatory

18 sunil gupta vs state of mp (1990) 3 SSC 119

19 mohammad giasuddin v state of ap
interim order directing the Gujarat Higher Secondary Education Board (GSEB) to accept
Gandhi’s form, even if it was late by 9 days and issue a provisional seat number. One of the
accused Mitesh Gandhi (accused of murder) filed an application before the High Court
pleading that he should be allowed to appear in the class XII (Commerce) examination, while
he was refused bail. It was submitted in the court that nine days delay on the part of the
applicant in filling up of form was because he could not get proper information in the jail
about the schedule. Rejection of the form amounted to violation of inmate’s fundamental
right. Undertrial prisoner Hitesh Gandhi (20 years) was given temporary bail by Hon’ble
High Court to appear in HSC Exam begins on 14th March, 2005.20 Again, in 2006, he was
allowed to appear at the Exam

20 Ahmedabad Ed. 23rd Feb and 11th march,2005

CONCLUSION
It can be said that the prisoners are also entitled to all his fundamental rights while they are
behind the prisons. Indian Constitution does not expressly provides for the prisoners’ rights
but Articles 14, 19 and 21 implicitly guaranteed the prisoners’ rights and the provisions of the
Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners. The
Court has ruled that it can intervene with prison administration when constitutional rights or
statutory prescriptions are transgressed to the injury of the prisoner. Supreme Court in many
cases held that prisoner is a human being, a natural person and also a legal person. Being a
prisoner he does not cease to be a human being, natural person or legal person. Conviction
for a crime does not reduce the person into a non-person, whose rights are subject to the
whim of the prison administration and therefore, the imposition of any major punishment
within the prison system is conditional upon the absence of procedural safeguards.