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1.c INTRODUCTION
2.c PRISONERS: CONVICTS OR UNDER TRIALS?
3.c RIGHT TO LIFE AND PERSONAL LIBERTY
4.c RIGHT AGAINST TORTURE
5.c RIGHT TO HEALTH CARE
6.c RIGHT TO LEGAL AID
7.c RIGHT TO SPEEDY TRIAL
8.c PRISONS IN INDIA
9.c LEGAL REMEDIES
10.cCONCLUSION
11.cBIBLIOGRAPHY

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The annual report of the National Human Rights Commission beautifully states:

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The preamble of the UN charter declares that ³reaffirmation of faith in fundamental human rights´ is
one of the objects of United Nations. The charter of United Nations does not define the contents of
human rights. The framers of charter left this task to the organisation itself and it was decided for this
purpose that an international bill of human rights comprises:

2c Universal Declaration of Human Rights (UDHR)


2c International Covenant of Economic, Social and Cultural Rights
2c International Covenants of Civil and Political Rights (ICCPR)
2c Optional Protocol, 1966, providing for the rights of individual to petition to the
international agencies.

The J  c Jcc c J  states in its preamble that recognition
of the inherent dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.

Human Rights are those minimal rights which every individual must have against the State or other
public authority by virtue of his being a ³member of human family´, irrespective of any other
consideration2. They are based on mankind¶s demand for a life in which the inherent dignity of the
human being will receive respect and protection. The concept of Human Rights is as old as the ancient
doctrine of natural rights founded on natural law. The expression ³Human Rights´ however is of
recent origin emerging from post second world war international charters and conventions. The
United Nations which arose like phoenix out of the ashes of the Second World War, declared the
promotion and fostering of Human Rights and basic freedoms as one of its goals.

The subject of human rights is by no means a limited subject. It covers a wide range of topics and has
far reaching consequences. The topic which we have chosen to deal with is one which is inextricably
woven with human rights, prisoner¶s rights.

1
Annual report 1993-94 of the National Human Rights Commission, Para 13.6
2
Human Rights in Constitutional Law ± Durga Das Basu (1994) page 5

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Dignity of a human, as an individual can be respected and maintained by others if they follow human
rights and human value. Every human being is entitled to his human rights. It goes without
controversy that every innocent, truthful, law abiding and non-corrupt person is entitled to human
rights.


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This principle of respect for all human beings, whatever wrong they might have done, was articulated
by a famous former prisoner and ex-President of South Africa, Nelson Mandela:

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There is no agreement on this issue. However now the Supreme Court in its recent judgement4 has
made it clear that with the degree of difference in application, even criminals are entitled to human
rights.

Recognition of the human being in the convicted offender is an idea that has been accepted after a
long struggle with the state. Less than 200 years ago the attitude to prisons, prisoners and punishment
was brutal and barbaric, going back to Hammurabic and Old Testament origins. In the western world
of 18th century, deviance, debtors, vagrants, petty thieves, and so called µwitches¶ were often pillared
and stockated without any trial. Most of them did not even reach prisons to be µheld¶ there. In 18th and
19th century India, the same patterns of µjustice¶ were imposed.

Macaulay¶s initiative lead to the 1838 jail discipline community report. In the 1860¶s came the Indian
penal code, which still remains valid, as also the prison act of 1894. The first authoritative study of
prison administration was the jail reforms committee report of 1919-20, which spelt out areas of
separation and classification of prisoners, including the new category of political prisoners, who now
begin to fill the jails. The humanization of prisons by setting certain standards in µtreating¶ offenders
became a part of public debate in England, where administrators and the elite communicated
responses to policy making and implementation. Granting these objectives and intentions in the
colonial set up, the ground realities of prison life did not radically change in India. The treatment of
the political prisoner as opposed to the convicted criminal marked a new inequality that became
distinguishable from the convicted criminal.

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Mandela N (1994),Long Walk to Freedom, Little Brown, London
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D. K. Basu v. State of W.B. 1996 (4) Crimes 233 (SC)

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Therefore all the police and jail authorities should now treat the accused person and prisoners with
human grace and dignity. They should not torture them by restoring 2/3rd or 4th degree torture and
strip them of their human rights. Thus right to dignity means the right to be honourably treated,
criminals also are entitled to be treated honourably by the police and jail authorities. It is clear that in
police custody or prison nobody can expect the right to liberty and equality. The police and jail
authorities don¶t believe in right to dignity and at times don¶t bother about the right to life, leading to
custodial deaths of the arrestees.

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Here in this paper we have understood the term µprisoner¶ in a broad prospective, including
both the convicts and under trials as the violation of the human rights of under trials is of the
same degree as it is of the convicts.

The term prisoner generally connotes to the convicts in the prison but there are three
categories under which a person is kept in jail:

2c The detenus
2c The under trial prisoners
2c Convicts

But whichever category a prisoner may belong to the condition of the prisoners in prison is
far from satisfactory.

In various parts of the world pre-trial prisoners make up more than half the prison population,
with rates in excess of 70% in countries like Honduras, Burundi, Mozambique and India.

The presence of a large number and convicted prisoners has continued to be a national
scandal for long. By the end of 1980, nearly 90,000 persons were being held in different jails
in India. On the government¶s own admission, 41.5% of all the prisoners in the country were
convicts; the remaining 58.5% were under trials. However, according to the unofficial
estimates, the under trials count for over 65% of the country¶s jail population. In almost every
jail, under trials prisoners outnumber the convicts.

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Under International law, distinctions have been made between convicts and under trials.
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Government of India, Ministry of Home Affairs, the Report of the All India Committee on Jail Reforms
(1980-83) Vol. I and II
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An under trial prisoner is suppose to be in a better position as he is still enjoying the
presumption of his innocence. But reality is just the contrary.

In India, a lot of under trial prisoners have remained in the jail without trials for periods more
than the maximum term to which they would have been sentenced if found guilty by the
courts. In such cases, the court held that continues detention of under trials was illegal and
was violation of their fundamental rights under Art. 21. The court as such directed the jail
authorities to release such persons forthwith. This was held in m   )   *
where two petitioners have been enduring incarceration for over seven years in various jails
in Bihar ± neither any investigation took place nor any charge sheet presented before the
court contrary to section 167 (2) Cr. P. C which lays down 90 days maximum period of
detention.

In this case the Supreme Court observed,

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An under trial is after all an under trial; he is in captivity for the offence of which he is
accused waiting for the trial to commence, in which he may or may not be found guilty.
These bundles of µMay and may nots¶ make the under trial very different from convicts and

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Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369

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much similar to free persons. But unfortunately the under trials in India are the worst hit
people.

The prison regime has not changed much despite two dozen reports on prison reforms,
including the Mulla committee report 8. The report¶s introductory Chapter begins with
following observation:

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Putting a man in prison and forgetting his personhood, thereafter, depriving him of his
personal liberty for an arbitrary period without any kind of monitoring by the law, keeping
him is continued custody unmindful of just, fair and reasonable procedure, shake the faith of
the people in the rule of law and militate against the mandates of Chapter III of the
Constitution.

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Government of India, Ministry of Home Affairs, the Report of the All India Committee on Jail Reforms
(1980-83) Vol. I and II
9
Ibid, p.6

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The right to life and personal liberty is the most basic and fundamental of all rights that a man
can aspire. This right has been guaranteed under Article 21 of the Indian Constitution.

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In India, the right to life has been held available, to all convicts or under trial or even detenue,
as a fundamental right10

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of life¶ is more than mere animal existence. Even in a prison a person is required to enjoy all
the rights specified in Article 19 and 21 of the Indian Constitution. Any type of inhuman and
barbaric treatment will be regarded in the violation of the µright of life¶ as guaranteed under
the Article 21 of the Indian Constitution.

The right to life is not limited to only a right to exist but it implies right to exert.³it, includes
the right to live with  
               
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necessities of life such as adequate nutrition, clothing and shelter over the head and facilities

10
State of A.P. v. Challa Ramakrishna Reddy, AIR 2000 SC 2083
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(19uΠ0 SCC 100

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for reading, writing and expressing oneself in diverse forms, freely moving about and mixing
and commingling with 
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The main instrument of Indian Constitution guaranteeing the right to life and personal liberty
(Art. 21) has been borrowed from the American and Japanese Constitutions. It may be noted
that Art. 21 is the filterate of the mixture of the 5th and 14th Amendment of the American
Constitution and Article 31 of the Japanese Constitution.

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The petitioner, a lifer since 1949 being mentally unfit was transferred to another jail as a
µcriminal lunatic¶. He became fully sane in 1966 and the Jail Superintendent sent a medical
report recommending his discharge to the State Government. Instead of ordering his release,
the Government directed his further detention as µcriminal lunatic¶ for another period of three
years. This shows the malafied intention of the Government towards the protection of the
right to life of the prisoners. Therefore Justice Bhagwati deprecated the State Administration
in strong words and directed that petitioner be released forthwith.

  
   

Some prisoners had been in jail for periods ranging from 19 to 37 years. They were arrested
in connection to some offences and were declared insane at the time of their trial. They were
put in Central Jail with directions to submit half yearly reports about them. Some were
convicted; some were acquitted and against some other trials were pending. Although they
were declared sane yet no action commenced to release them for many years. In some cases,
even half yearly reports were not available. Thus, the prisoners remained in jail for no fault of
theirs because of the callous and lethargic attitude of the authorities. To remain in the prison
beyond a maximum period of sentence is a clear violation of the right to life of the prisoners.
Hence, the court ordered the release of all these prisoners.

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Francis  0 v. Union Territory of Delhi, AIR 1981 SC 746 (Para 7)

AIR 1982 SC 1470
10
AIR 1983 SC 339

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On 15th December, 1989, the General Assembly, adopted and proclaimed the second Optional
Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of
the death penalty.

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The subject of the abolition of death penalty is of an animated debate. There are two extreme
views regarding the capital punishment. One, for retaining the death sentence for certain
specified offences and the second is for its abolition. The first approach is based on deterrent
theory of punishment whereas the abolitionists have argued in favour of abolition of death
sentence because they consider this punishment as cruel and inhuman.

In the United Kingdom the Government Bill, 1969 has abolished death penalty. Similarly,
Portugal, Switzerland, Holland, Norway, Denmark, Finland, Belgium, Sweden, Queensland,
Urugway and several states of America have abolished the death sentence.

In India the Supreme Court has upheld the constitutionality of Capital Punishment in several
cases like in 2
 3 3 (' 4and   ' 3 ('%&In
, 3 3 '  *, the constitutional Bench held that death sentence was not
violation of article 21 but it should be awarded on ³rarest of rare case´.

In India, the Indian Penal Code provides for death penalty for seven types of offences. 18
Generally other punishments are also provided for the same offence depending upon the
circumstances of each case.

Further the President of India under article 72 of the Constitution has been empowered to
grant pardons, commute, suspend or remit death penalty in appropriate cases. In addition to
this there are several other procedural safeguards. Thus basic human right to µlife¶ is well
protected in India.

15
AIR 1973 SC 947
16
AIR 1979 SC 916
17
AIR 1980 SC 898
18
for the offence of wagering war against the government of India (sec. 121); for abetment of mutiny by a
member of the armed forces (sec.132); for giving false evidence leading to conviction of an innocent person and
his execution (sec.194); for murder punishable with death (sec.302); for abetment of a person under eighteen
years of age or of an insane or delirious or idiot or intoxicated person (section 306); for an attempt to murder by
a life convict(sec. 307 para 2); and for dacoity accompanied by murder( sec 396)

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In the USA it has been held that suffering inflicted upon a prisoner which is unrelated to, or
in excess of the requirement of security, order and rehabilitation, amounts to cruel
punishment as well as an affront to the prisoner¶s human dignity.19

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Article 22 under Indian Constitution provides the minimal procedural requirements that must
be included in any law enacted by the Legislature in accordance with which a person may be
deprived of his life and personal liberty. Thus Art.21 has to be read as supplemented by
Art.22. Article 22 deals with two separate matters:

(a)c Persons arrested under the ordinary law of crimes; and

(b)c Persons detained under the law of µPreventive Detention¶

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US v. Bailey, (19Œ9 000 US ë90 (02ë

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Clause (1) and (2) of Art.22 of the Indian Constitution, guarantees four rights to the persons
who are arrested under an ordinary law. These are:

(a)c The right to be informed µas soon as may be¶ of grounds of arrest;

(b)c The right to consult and to be represented by a lawyer of his own choice;

(c)c He right to be produced before a magistrate within 24 hours and;

(d)c The freedom from detention beyond the said period except by the order of the
Magistrate.

The rights given to arrested person under clause (1) and (2) are not available to the following
persons:

(a)c An enemy alien

(b)c A person arrested and detained under the Preventive Detention Laws

There is no authoritative definition of the term µPreventive Detention¶ in Indian law. It is not
a punitive but a preventive measure. While the object of the punitive detention is to punish a
person for what he has already done, the object of preventive detention is to intercept him
before he does it and to prevent him from doing it. No offence is proved nor any charge is
formulated. The sole justification of such detention is suspicion or reasonable probability of
the detenue committing some act likely to cause harm to the society or endanger the security
of the Government, and not criminal conviction which can only be warranted by legal
evidence. c

Our constitution has ironical contradictions. On the one hand, no one can be deprived of his
life or personal liberty except by procedure established by law which must be fair, just and
reasonable. On the other hand a person can be arrested under the preventive detention, under
Art.22 of the Constitution. The preventive detention is labelled as a Draconian Law which

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confers extra-ordinary powers on the Government to physically restrain any person according
to the subjective satisfaction of an officer concerned. To this extent, preventive detention
certainly neutralises the right of personal liberty.

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The Indian Government has made certain reservation to the International Covenant on Civil
and Political Rights regarding protection against arbitrary arrest and detention. The combined
effect of Article 21 and 22 is the same as is given in the Article 9 of this covenant.

However, Art.9 (5) of the Covenant on Civil and Political Rights has provided for
enforceable right to compensation in case of unlawful arrest or detention. Here Indian has
made very clear in the Para II of the Declaration that ³under the Legal System, there is no
enforceable right to compensation for persons claiming to victims of unlawful arrest or
detention against the state´. Therefore, the provisions relating to preventive detention
stipulated in the Covenant (in spite of the fact that they may be identical with Article 21 and
22 of the Constitution) including that of the compensation would not be applicable to India.

20
A. K. Roy v. Union of India, AIR 1982 SC 710 (Para. 75)

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There is a special UN Convention dealing with torture,  j 
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defines µtorture¶ in relation to:

2c The degree and nature of suffering: That severe pain or suffering is inflicted which
can be physical or mental.

2c Intentional acts of public officials: The pain and suffering is intentionally inflicted by
a public official or with, at least, the acquiescence of a public official.

2c Purpose: The pain or suffering is inflicted for a purpose such as obtaining information
or a confession, for purposes of punishment, intimidation or coercion, or for a reason based
on some form of discrimination.

The word µTorture¶ means the infliction of severe bodily pain as punishment or means of
persuasion21.

Recently the Supreme Court has observed that the word µTorture¶ has not been defined in the
       or in any other penal laws.

Torture of a human being by another human being essentially is an instrument to impose the
will of the µstrong¶ over the µWeak¶ by suffering. The word µTorture¶ today has become
synonymous with the darker side of human civilisation.

.In Ireland v. United Kingdom22, torture is defined as µdeliberate inhuman treatment causing
very serious and cruel suffering.¶ Torture is a particularly serious form of inhuman treatment,
distinguished by the degree of suffering caused and the deliberateness with which it is
applied. Consequently, it is behaviour to which a special stigma is attached.

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Oxford Complete Word Finder from Reader Digest (1994) page 1648
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(1978)2 EHRR 25

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1 Each State Party shall take effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction.

2 No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal


political instability or any other public emergency, may be invoked as a justification of
torture.

3 An order from a superior officer or a public authority may not be invoked as a justification
for torture.

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Each State Party shall ensure that education and information regarding the prohibition against
torture are fully included in the training of law enforcement personnel, civil or military,
medical personnel, public officials and other persons who may be involved in the custody,
interrogation or treatment of any individual subjected to any form of arrest, detention or
imprisonment.

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Law enforcement officials may use force only when strictly necessary and to the extent
required for the performance of their duty.

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Whenever the death or disappearance of a detained or imprisoned person occurs during his
sentence or imprisonment, an enquiry into the cause of death or disappearance shall be held
by a judicial or other authority, either on its own motion or at the instance of a member of the
family of such a person or any person who has knowledge of the case.

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In this case the petitioner was a lifer who complained in his petition of terror let loose on him
by other prisoners by a crypto-criminal combination of senior officials and superior prisoner.
Justice Krishna Iyer wrote the judgement of the court.

23
AIR 1981 SC 1967

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Krishna Iyer J. Said that time had come for lawyers and legal aid societies and public spirited
citizens to take up the course of prisoners.

³What makes law a force is a lawyer with a cause.´

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Sunil Batra complained that A.Singh the Head Warden of Tihar Jail had pushed his baton up
the anus of Premchand, a prisoner and thereafter attempted to hush up the crime. The
conditions inside Tihar Jail were monstrous. There was overcrowding. As compared to
sanctioned maximum capacity of 1,273 the actual number of inmates was 2,500.There was no
proper classification into under trials, females, habitual, casuals, juveniles and political
prisoners. The staff was untrained. The total absence of social workers was deplorable while
the courts laid down specific recommendations no time period for their implementation was
insisted upon. They were:

1. That a Prisoner¶s Handbook should be published in Hindi and circulated. Jail bulletins
regarding habilitative and improvement programmes should likewise be printed and
circulated. Prisoners ought to be permitted to set up a wall paper to ventilate grievances.

2. The State was to keep upto norms and standard consistent with the Standard Minimum
Rules for treatment of prisoners.

3. The Government was advised to reform the Prison¶s Act and completely overhaul the
Prison¶s Manual.

4. The Government was advised to set up free legal aid societies.

Krishna Iyer J. Held that bar fetters are a barbarity generally and like whipping, must vanish.
Solitary confinement and cellular segregation are inhuman irrational.

Inspite of the above and some more of such landmark judgements, very little has changed.

24
1980 3 SCC 488

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The little Hitler found lingering around Tihar Jail in Sunil Batra¶s case is now fully grown
and well fed.

As this happens the story foretold by Krishna Iyer in ½  3 : case25 may well come
true;

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AIR 1983 SC 339

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Those who are imprisoned retain their fundamental right to enjoy good health, both physical
and mental, and they retain their entitlement to a standard of medical care which is at least the
equivalent of that provided in the wider community.

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ood health is important to everyone. It affects how people behave and their ability to
function as members of the community. It has a particular significance in the closed
community of a prison. By its nature the condition of imprisonment can have a damaging
effect on both the physical and mental wellbeing of prisoners. Prison administrations have a
responsibility, therefore, not simply to provide medical care but also to establish conditions
which promote the wellbeing of both prisoners and prison staff. Prisoners should not leave
prison in a worse condition than when they entered. This applies to all aspects of prison life,
but especially to healthcare.

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Prisoners, whatever the nature of their offence, retain all those fundamental rights to which
they are entitled as human persons, including the right to enjoy the highest attainable
standards of physical and mental health. Specific international instruments set out more
clearly what this implies in terms of the healthcare provision to be made by prison
administrations.

Basic Principles for the Treatment of Prisoners, Principle 4:

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Statement from the heads of government at the 4th Baltic Sea States Summit on the Threat of Communicable
Diseases Issued at St. Petersburg, 10 June 2002

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The responsibility of prisons for the custody of prisoners and for the protection of society
against crime shall be discharged in keeping with a State¶s other social objectives and its
fundamental responsibilities for promoting the well-being and development of all members of
society.

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Four prisoners who were HIV-positive brought a case to the South African High Court in
1997 because they argued that they and other HIV-positive prisoners were not receiving
proper medical care for their condition including special medication like AZT. They argued
that they should be given such treatment free of charge. The Correctional Services

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Department argued that the money was not available to provide such a high level of care. The
Judge ruled in favour of the prisoners and said that they should receive the appropriate
medical treatment at State expense.27

Jt is an important principle of prison health care that all necessary medical care and treatment
should be provided free of charge (UN Body of Principles, Principle 24). This may require
special attention in those jurisdictions where the free provision of medical care in civil
society is limited.

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Van Biljon v Minister of Correctional Services 1997 SACR 50 (C)

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In M.h. Hoskot v. State of Maharashtra2829 Supreme Court held that where the prisoner is
disabled from engaging a lawyer, on reasonable grounds such as indigence or in
communicado situation, the court shall if the circumstances of the case, the gravity of the
sentence and the ends of justice so require, assign competent counsel for the prisoner¶s
defence, provided the party does not object to that lawyer. In Hussainara Khatoon v. State of
Bihar the court held that a procedure which does not make available legal services to an
accused person who is too poor to afford a lawyer and who would have to go through the trial
without legal assistance cannot possibly be regarded as reasonable, fair and just. The right to
free legal services is therefore, clearly an essential ingredient of µreasonable, fair and just
procedure for a person accused of an offence and it must be held implicit in the guarantee of
Article 21.


AIR 1978 SC 1548
29
AIR 1979 SC 1369

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Speedy trial is a Fundamental Right and in a manner an ingredient of Article 21. The
Supreme Court has advanced further and held that the provision of speedy justice is an
obligation of the state, for; otherwise the operation of the legal system would not promote
justice.30 The Supreme Court directed for the release of under trial prisoners under NDPS
Act, except those charged under Section 31 and 31-A, languishing in jails in the State of
Maharashtra for a period exceeding half of the punishment provided under that Act and also
laid down terms and conditions therefore 31. The Supreme Court firmly maintained the right
for speedy trial has, however taken a turn and did not found favour with the earlier view
whereby time bound disposal of cases was ordered and directions issued. It may be made
clear that the right of a prisoner to have a speedy trial shall encompass all the stages of trial
and would be applicable even at the stage of investigation, enquiry, trial, appeal, revision and
re-trial 32.

The shocking and dismaying picture of administration of justice was depicted by Hussainara
Khatoon in which the writ petition filed before the Supreme Court disclosed that a large
number of men and women, including children, were behind prisons for years awaiting trials
in courts of law. They had languished in jail for a period for which they would have been
detained had they been tried for the offences committed by them. The highest judiciary was
shocked that while it was climbing the steps of activism, such anguishing state of affairs still
33
existed. In Hussainara Khatoon(III) V. State of Bihar . The court found that continued
detention of the under trial prisoners could not be justified as they had already been in jail for
a period longer than what they would have been sentenced to suffer, if convicted. It was
observed:

This discloses a shocking state of affairs and betrays complete lack of concern for human
values. It exposes the callousness of our legal and judicial system which can remain unmoved
by such enormous misery and suffering resulting from totally unjustified deprivation of
personal liberty.

ë0
S.C advocates on record association v. union of India, AIR 1994 SC 268; (1993) 4 SCC 441)
ë1
supreme court legal aid committee v. union of India (1994) 6 SCC (Cri) 39
ë2
mahendra lal das v. state of bihar, 2002 (1) SCC 149
ëë
AIR 1979 SC 1369

[Type text]
20

Therefore the court directed to release the under trials as continuance of their detention was
violative of their fundamental rights under Article 21.

The judicial decisions in Hussainara cases proved to be a Magna Carta to the 1,20,000 under
trial prisoners languishing in jails for years without trial.

One may ask speedy means how speedy? How long a delay is too long? These questions were
raised in A.R. Antulay v. R.S. Naik34. The Constitution Bench delivered illuminating and
exhaustive judgement which has traversed the entire ground. In regard to speedy trial the
Supreme Court has laid down following propositions which will go a long way to protect the
human rights of the prisoners:

1.c Fair, just and reasonable procedure implicit in article 21 of the Constitution creates a
right in the accused to be tried speedily.
2.c Right to speedy trial encompasses all the stages, namely the stage of investigation,
inquiry, trial, appeal, revision and retrial.
3.c The concerns underlying the right to speedy trial from the point of view of the
accused are
(i)c The period of remand and pre-conviction detention should be as short as possible.
(ii)c The worry, anxiety expense and disturbance to his vocation and peace, resulting
from unduly prolonged investigation, inquiry or trial should be minimal.
(iii)c Undue delay may well result in impairing of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of
witnesses or otherwise.
4.c It is usually the accused who is interested in delaying the proceedings because the
µdelay is known defence tactic¶. Of course, there maybe cases where the prosecution,
for whatever reasons, also delays the proceedings.
5.c While determining whether undue delay has occurred one must have regard to all the
attended circumstances, including nature of offence, number of accused and
witnesses, the work load of the court concerned and prevailing local conditions.
6.c Each and every delay does not necessarily prejudice the accused. However, inordinate
long delay may be taken as presumptive proof of prejudice.

ë0
AIR 1992scb1701

[Type text]
2G

7.c The ³demand´ rule cannot be recognised or give effect to. Hence, an accused¶s plea of
denial of speedy trial cannot be defeated by saying that the accused did at no time
demand a speedy trial.
8.c Court after weighing or balancing several relevant factors determine in each case
whether the right to speedy trial has been denied in a given case.
9.c Ordinarily speaking, where the court comes to the conclusion that the right to speedy
trial of an accused has been infringed, the charges or conviction, as the case may be,
shall be quashed. But this is not only course open. The nature of the offence and other
circumstances in a given case may be such that quashing of proceedings may not be in
the interest of justice. In such a case, it is open to the court to make such other
appropriate order, including the order to conclude the trial within a fixed time where
the trial is not concluded or reducing the sentence where the trial has concluded, as
may be deemed just and equitable in the circumstance of the case.
10.cIt is neither advisable nor practicable to fix any time limit for trial of offences. In
every case of complaint of denial of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay. Non-fixing of outer limit does not
infringe the right to speedy trial.
11.cAn objection based on denial of right to speedy trial and for relief on that account
should first be addressed to the High Court which should dispose of such proceedings
on priority base.

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Under the Indian Penal Code, these offences can lead to a maximum sentence of one year in
prison or a $45 fine or both. But Yadav, now in his 70s, has been languishing on remand in the
state for more than 20 years.

An amendment to existing prison laws, however, promises to come to his help.

Under the provision, inmates must be released if they have served time on remand equal to half
the maximum prison tariff for the offence they are to be tried for. The measure, which came into
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BBC News, Delhi and Patna, &c
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effect last weekend, does not apply to those charged with offences for which the death sentence is
a possible punishment.

Authorities and human rights activists reckon that the law will help speed up justice and free up
India's overcrowded prisons.

Jaldhar Yadav is not alone in his misery - 87% of prisoners in Bihar's prisons are on remand
awaiting trial.

In the central prison in the town of Bhagalpur, where Yadav is being held, there are some 15
remand prisoners, all above 70 years of age.

Yadav's plight exemplifies the fate of seven out of 10 Indian prisoners - nearly 70% of 322,000
inmates in India's 1,135 prisons are awaiting trial.

This is higher than South Asian neighbours, Bangladesh (67%), Pakistan (66%) and Sri Lanka
(49.3%).

India jails 31 people per 100,000 of population, compared with a figure of 145 per 100,000 in
England and Wales. But only 17.3% of inmates in England and Wales are on remand.

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Human rights activists say there are many reasons behind the rising remand population - the
police take months to file charges, lawyers delay filing cases, judges are absent leading to
frequent adjournments and the accused are not produced in time.

Most of Bihar's 55 jails, for example, simply do not have enough prison vans to transport
prisoners to the courts.

Trials also drag on because of a shortage of judges - India has only 10.5 judges per million
people. Since 1987, the government has been talking about increasing the ratio to 50 judges per
million, but it has not happened.

India's National Police Commission has said 60% of arrests are either unnecessary or unjustified
as police see imprisonment as an easy solution to check spiralling crime.

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Applying even the most retrogressive standards, Indian prisons are in a terrible condition.
Rape, buggery, torture, custody without legal sanction, bars and fetters, detention far in
excess of the sentence, increasing use of the death penalty, solitary confinement, lunacy, the
brutal treatment of women and children are common in Indian prisons. If the complete
absence of human rights in India has escaped notice it is because the prison system hides
behind an iron curtain. The press, the public and the social activist are debarred.

The conditions in jails, solitary confinement, the refusal to make condoms available in Tihar
jail on the ground that homosexuality is an offence in law and this would be seen as fostering
an illegality, the inhuman treatment of prisoners, including their being kept in leg irons, for
instance overcrowding of prisons, the right of prisoners, including under trials, to vote are
issues that have been raised repeatedly over the years. The courts have been the arena of
contest.

The inadequacy of medical services in prisons, often resulting in the death of prisoners has
been much of evidence. Statistics in the Annual Reports of the NHRC reveal that there are
much larger number of deaths in judicial custody than there is in police custody. Given the
frequency and seriousness of the complaints about medical services in prisons, it would bear
investigation to find out how many of the deaths in judicial custody are, in fact, occasioned
by medical negligence.

The condition of persons on death row does not appear to have been investigated so far. Nor
the effect that execution of prisoners has on their families. The inaccessibility to legal
services that is endemic in most prisons, has been identified as a human rights issue, but has
not been resolved yet. There are reports of prison riots which were allegedly caused by the
poor conditions in prisons including insufficient provision of food, and the maltreatment,
including the brutalising, of prisoners. On November 17, 1999, for instance, a riot broke out

[Type text]
29

in Chennai Central Prison. It left at least nine persons dead, and one more succumbed to
injuries on November 19, 1999. There were at least seven prisoners with bullet injuries who
were referred to the government general hospital. The figures of those injured and dead in the
riots varies, but it appears to be around100 prisoners. The deputy jailor was killed in the riots.
The simmering discontent seems to have had to do with inadequate food, the meagre water
supplied to the prisoners, and the torture meted out to them by the prison staff. The death of a
prisoner tortured and killed in the Central Prison in July 1999, which was explained away
without an enquiry as being a suicide, seems to have caused resentment and anger among the
prisoners. It was the death of Boxer Vadivel, a prisoner believed to have been tortured for
over three days between 12th and 15th of November, and the torture of two other prisoners
by the Deputy Jailor which sparked off the riots. Jeyakumar was burned alive. The prisoners
claimed to a fact-finding team that the rebellion had already come under control when antiriot
police were brought in and prisoners were indiscriminately targeted. For instance, a prisoner
who was physically disabled, and could not have posed any threat to the police, was shot at
point blank range.

The anatomy of a prison riot, and what it means in the context of human rights, and of
punishment, calls to be investigated in full, and addressed. Prison riots have been erupting
sporadically, leaving little reason to doubt that they are symptomatic of a systemic malaise.

The condition of medical care in prisons is woeful, and cases before the High Courts and the
NHRC testify to this fact. The inordinately large number of deaths in judicial custody, as
reflected in the figures set out in the Annual Reports of the NHRC, is also an indicator. That
prisons are death traps becomes apparent. Overcrowding of prisons, with a large population
of under trial prisoners spending extended periods in jail ± a recent press report cites a survey
conducted by the State (Jail) Department in Bihar which shows 154 under trial prisoners in
Bhagalpur jail for over 20 years awaiting trial and they are now over 70 years old - only
strains the system further. Systemic changes and bold initiatives are imperative. So far, the
Supreme Court¶s directive in 1979 to release under trial prisoners on personal recognisance
bonds, and periodic intervention thereafter by the Supreme Court, has provided ad hoc relief.
There is little to indicate that there has been any fundamental re-thinking on this matter. On
the other hand, recent legislation is severe in matters of bail, and persons arrested under the
NDPS Act 1985, for instance, regardless of the nature of their participation in the offence, are
not entitled to bail.

[Type text]
ë0

In Mumbai, social workers reported that they have been allowed access to prisoners to help
them re-establish, and maintain, contact with their families, and to provide related support
services to the prisoners. They admitted to shutting their eyes to human rights violations in
prisons (and in lock-ups) since any intervention of that nature would jeopardise even the
services they are now able to provide. In Chennai and in Mumbai, the µ80s and a part of the
µ90s saw active provision of legal aid to prisoners; in Chennai, the High Court legal aid board
was engaged in this process. In Delhi, legal literacy, literacy, meditation and yoga and legal
aid have reached Tihar jail. The setting up of the NHRC appears to have had some impact on
the accessibility of prisons, as have the many PILs which challenged the conditions within.

Coming out strongly against human rights violations of prisoners, the National Human Rights
Commission (NHRC) said that rights such as medical assistance and contact with family
members must be respected.

Illegal detention, the commission added, was still one of the biggest challenges that they were
countering.

NHRC member B.C Patel said that the commission keeps receiving far too many complaints
on human rights violations of detainees in prisons from across the country.

Reiterating a part of the report on detention which the commission released, as two other
reports on mental health care and rehabilitation of displaced persons, Patel said that a suspect
kept in police custody, before he is being sent to judicial custody, is often subjected to unfair
treatment.

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   Patel said.

Also referring to a report by the National Police Commission (NPC), Patel said:

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Suggesting reforms, Baroness Vivien Stern, honorary president of Britain¶s Penal Reforms
International, who was the chief guest at the workshop, said there should be mandatory
inspections in prisons by rights bodies such as the NHRC.

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Jc Jcc
A person whose rights have been violated while being arrested or held in custody may pursue
several legal remedies. These include:

Ɣ seeking a writ of habeas corpus for release of a person who has been illegally detained

Ɣ Seeking compensation under the constitution for the violation of fundamental constitutional
rights.

Ɣ seeking civil damages from the arresting officer for illegal arrest, false imprisonment,
illegal confinement, etc

Ɣ pursuing criminal charges against the police officers

Ɣ making a complaint to the NHRC.

A.c PETITIONS PROTESTING ILLEGAL ARREST/DETENTION


Writ of habeas corpus

If a person is arrested or detained illegally, he or she may petition the supreme court under
article 32 of the Constitution, or ask the High Court under Article 226 of the Constitution.
Under these Articles, a petitioner may ask the court to issue a writ for enforcement of his or
her fundamental rights, under Part III of the Constitution. In particular the court has the
power to issue a writ of habeas corpus.

The writ of habeas corpus is now the most usual remedy by which a man is restored to his
liberty, if he has been, against law, deprived of it. It is perhaps the most important writ
affording as it does a swift and imperative remedy in all cases of illegal restraint or
confinement.

Its function has been to provide a prompt and efficacious remedy for whatever society deems
to be intolerable restraints. Its root principle is that in a civilised society, government must
always be accountable to the judiciary for a man¶s imprisonment. If the imprisonment cannot
be shown to conform with the fundamental requirements of law, the individual is entitled to
his immediate release.

[Type text]
ëë

Sunil Batra¶s case36 changed the picture of habeas corpus. Previously it used to be available
to help the release of the person. But now it can be evoked to save the prison from torture and
moreover no formal procedure is needed now.

B. COMPENSATION FOR VIOLATION OF CONSTITUTIONAL RIGHTS

In effort to curb illegal police conduct, the courts have awarded compensation to victims of
human rights violations at the hands of the police and to the victims¶ families.

For example: in the case of Rudul Sah v. State of Bihar37 the petitioner was released from
jail after he was detained illegally for more than fourteen years after he was acquitted. The
Supreme Court held that compensation for deprivation of a fundamental right can be granted
under Article 32 of the Constitution. The petitioner was awarded thirty-five thousand rupees
in compensation from the government.

Similarly in the case of Nilabati Behera v. State of Orissa38 the body of the Petitioner¶s son
was found on a railway track after he had been taken into police custody. The Supreme Court
held that it had power under Article 32, or the High Court under Article 226 of the
Constitution, to award monetary compensation where the human rights and fundamental
freedoms have been violated by the state and its agencies. This is a remedy available in
public law, based on strict liability for contravention of the guaranteed basic and indefeasible
rights of the citizen. The State of Orissa was ordered to pay the petitioner Rs. 1, 50, 000.

C. CIVIL DAMAGES
If a person is arrested illegally, he or she may bring a private, civil suit for damages against
the person who made the arrest.39 Under the common law of torts, the arrested person may be
able to sue the delinquent officer for false imprisonment, assault, or wrongful death,
depending on the specific circumstances of the case. The same act may be both a civil wrong
and a criminal act. Pursuing civil damages will not absolve the delinquent officer from the
criminal charges stemming from the act in question.

Although the law of torts does exist in India, court cases are often subject to lengthy time
delays. A civil case may take a number of years before a final judgement is reached, with
additional delays in the enforcement of the judgement being common. Due to the prevalence
ë^
1980 3 SCC 488
ëu
AIR 1983 SC 1086
ëŒ
(1993) 2 SCC 746
ë9
Anwar hussain v. Ajoy kumar mukherjee , AIR 1965 SC 1651

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ë0

of delays and the cost of seeking damages under tort law, even if a person files a civil suit
against the offenders who have violated his or her rights, he or she may also wish to pursue
criminal charges.

D. CRIMINAL CHARGES

Along with being liable for the payment of civil damages, delinquent officers may also be
subjected to criminal charges. Any public servant who has the authority to make an arrest and
knowingly exercises this authority in contravention of the law to effect an illegal arrest, can
be prosecuted under S. 220 IPC. A police officer or other person who makes an illegal arrest
is guilty of wrongful confinement and could be punished with a prison term of up to three
years and or fine.40 A police officer who uses violence against any person in his custody may
be charged for offences under the IPC relating to criminal force, and will also be liable to
punishment under S. 29 of the Police Act, 1861. a person who causes a police officer to arrest
another person without sufficient grounds, may be ordered to pay compensation, not
exceeding one hundred rupees, to the person arrested.41

If an arrested person¶s rights are violated while in custody, he or she may file a complaint
when brought in front of the magistrate. Additionally, criminal proceedings against the
delinquent officer(s) may be commenced by the filing of an FIR at a police station. If the
police officer-in-charge of the station where the FIR was filed fails to act on it, the
complainant may contact the Superintendent of Police or the District Magistrate and request
both an enquiry and additional legal action against the police officer.

E. FILING A COMPLAINT WITH THE NHRC

Another avenue that a person may pursue in bringing charges against police officers who
have violated his or her rights is by filing a complaint with the National Human Rights
Commission (NHRC). The NHRC was created under the Protection of Human Rights Act
1993 and has been charged with investigating and intervening in cases involving the violation
of human rights, including abuses committed by public servants.

After completion of the inquiry, the Commission may:

00
Ss. 340, 342-344 IPC
01
S. 358 CrPC)

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ëG

1.c Recommend prosecution by the concerned government against the delinquent


officer(s)
2.c approach the Supreme Court or the High Court concerned for such directions, orders
or writs as that Court may deem necessary
3.c Recommend to the concerned Government or authority for the grant of such
immediate interim relief to the victim or the members of his family, as the
Commission may consider necessary.

[Type text]
ë^

Jc
No doubt, the Supreme Court has elevated various human rights embodied in the
International Covenants to the status of the human rights of the prisoners, through its active
and dynamic interpretation. However it seems that these judicial pronouncements have less
impact on the executive, more particularly on the law enforcing machinery. Hence, it is
submitted that the legislature or amendments to the constitution and in the existing laws as
quick as possible, giving effect to the decisions of the Supreme Court. Mere passing of laws
is not sufficient to protect the right, at the same time men should fight for their laws as for the
wall of their city. 42

The following suggestions with humble submission need to be considered for the effective
implementation of the aforesaid human rights of prisoners.

1.c TO DELETE PREVENTIVE DETENTION PROVISIONS OF THE


CONSTITUTION
Under the present circumstances, when ruling Congress (I) party at the Centre is not so
strong a collective effort should be made by all political parties to repeal Constitutional
provisions relating to preventive detention laws. Some stringent provisions, if needed,
may be added in the Indian Penal Code to deal with anti-social elements who deserve
severe punishment; for them preventive detention laws are inadequate. Therefore, clauses
(4) to (7) in article 22 of the Indian Constitution must be deleted so that ruling party may
not misuse it.

2.c INCORPORATION OF DUE PROCESS OF LAW


Indian Courts feel handicapped to further develop the right to life by liberal interpretation
of article 21 due to the presence of phase µprocedure established by law¶ whereby courts
can only check fairness of the procedure and not substance of law in strict sense of terms.
To check violations of this right and to develop it in its finest form the expression
µprocedure established by law¶ should be replaced by µdue process of law¶.

3.c NON-DEROGABILITY OF RIGHT TO LIFE

02
Roscoe Pound, 199Œ, c c cc
  cccUniversal Law Publishing Co. Pvt. Ltd, p. ëG

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The non-derogability of right to life should be strictly enforced to that in future the
wrongful acts of ruling elite, like 59 th Constitution Amendment Act, should have no place
under the Indian Legal System.

4.c IMPROVEMENT IN THE CONDITIONS OF JAILS


All the three categories of inmates of jails, i.e., detenus, under trials and convicts need
separate attention by the jail authorities. They cannot be clubbed together. The position of
jails in India is worse than zoo where at least animals enjoy some freedoms and are
properly nourished whereas in jails men are forced to perish. The custodian violence has
reached unimaginable heights and therefore jail staffs behave like cannibals. These
techniques or tyranny are barbaric. Jail staff should be made responsible guardians of jail
inmates. Various causes like over-crowding, understaffing, corruption in the study and
distribution of water, lack of health facilities, lack of trained wardens, ineffective
supervision, lack of proper facilities for work and education etc. need to be removed to
ameliorate the plight of inmates of jails.

[Type text]