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NATIONAL LAW UNIVERSITY ODISHA

SUBJECT: CONSTITUTIONAL LAW II

Semester-III

PROJECT TOPIC: Rights of Prisoners

SUBMITTED BY:

Piyush Katyal (18/BBA/034)


Gunika Agrawal (18/BBA/038)

SUBMITTED TO:

Prof. Ashit Kumar Shrivastava


(Assistant Professor of Law)
Prof. Subhaprad Mohanty
(Research Associate cum Teaching Assistant)

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ACKNOWLEDGEMENT

We are highly indebted to our Professor Ashit Kumar Shrivastava and Professor Subhaprad
Mohanty for their guidance and constant supervision as well as for providing necessary
information regarding the project and also for their support in completing the project. We have
taken efforts in this project. However, it would not been possible without the kind support of
many individuals and organization. We would like to extend our sincere thanks to all of them.”

We would like to express our gratitude to all the people who cooperated and encouraged us in
completion of this project.

Lastly, we would like to thanks almighty to confer upon us the required wisdom to complete this
project and make it a success.

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TABLE OF CONTENTS

Acknowledgement .......................................................................................................................... 2

Table Of Authorities ....................................................................................................................... 4

Presenting A Grim Picture Of The Reality Of Prisoners ................................................................ 5

Challenges Faced By Indian Prisoners ........................................................................................... 8

Perspective Of Judiciary- Landmark Judgements........................................................................... 9

Recommendations Of The Law Commission Of India Reports ................................................... 13

The Way Forward ......................................................................................................................... 15

Conclusion .................................................................................................................................... 16

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TABLE OF AUTHORITIES

Common Cause v. Union of India [2017] 3 SCC 501

Dilip Kumar Basu v. State of West Bengal [1997] (1) SCC 416

A. K. Gopalan v State of Madras [1950] AIR 27

NilabettiBehra v. State of Orissa [1993] (2) SCR 581

Rudal Shah v. State of Bihar [1983] (4) SCC 141

Bhim Singh v. State of J&K AIR [1986] SC 494

Hussainara Khatoon v. Home Secretary, Bihar [1979] SCR (3) 1276

Maneka Gandhi v. Union of India [1978] 2 SCR 621

Abdul Rehman Antulay v. R.S. Nayak [1991] (3) SCR 325

Khatri v State of Bihar AIR [1981] SC 928

M. H. Hoskot v State of Maharashtra AIR [1978] SC 1548

Prem Shanker Shukla v Delhi Administration AIR [1980] SC 1535

Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay [1984] (2) SCC 556

Ex Capt. Harish Uppal v. Union of India [1972] RD-SC 284

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PRESENTING A GRIM PICTURE OF THE REALITY OF PRISONERS

Being in a civilised society organised with law and a system as such, it is essential to ensure for
every citizen a reasonably dignified life. Thus every right is a human right as that helps a human
to live like a human being. Especially when the principles and objectives of criminology and
penology are acquiring a human face the enforcement of human rights assume a very great
relevance. Simply because a person is under a trial or convicted, his rights cannot be discarded as
a whole.

Section 1 of the Prison Security Act 19921, defines the term prisoner. The word prisoner means
any person for the time being in a prison as a result of any requirement imposed by a court or
otherwise that he be detained in legal custody. The 78th Report of Law Commission also
includes a person who is in judicial custody on remand during investigation in the definition of
an 'undertrial'.

The Constitution of India, the Universal Declaration of Human Rights and the Standard
Minimum Rules for Treatment of Prisoners clearly specify the standards of treatment with
prisoners on trial. Also, there are certain statutes which provides that certain rights of the
prisoners are enforced, like, Prisoners Act, 19002; Prisoners (Attendance in Courts) Act, 19553;
Prison Act, 18944 etc. There are also Prison and Police Manuals, which have certain rules and
safeguards for the prisoners, and it is an obligation on the prison authorities to follow these
rules.5 But observations and facts on prison conditions present otherwise.

In the Constitution of India, there is no specific guarantee of Prisoner’s Rights. But there are
certain rights given under Part-III of the Constitution6, which are available to the prisoners too,
because a prisoner remains a ‘person’ in the prison. The judiciary protects the rights of prisoners
and recognizes their rights. They are protected from torture and solitary confinement. According

1
Prison Security Act 1992, s 1
2
Prisoners Act 1900
3
Prisoners (Attendance in Courts) Act 1955
4
Prison Act 1894
5
Vogelman, Richard P., ‘Prison Restrictions. Prisoner Rights’ (1968) The Journal of Criminal Law, Criminology,
and Police Science 59, no. 3 pp 386-96 <doi:10.2307/1141762> accessed on 23 September 2019
6
Constitution of India 1950, A 12-35

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to the Universal Declaration of Human Rights, “All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience, and should act towards one
other in a spirit of brotherhood”7

The Supreme Court in a recent judgment lamented the sorry state of prisoners in the jails of India
which includes the problems of over-crowding and delay in proceedings due to which under
trials sometimes spend more time awaiting their trial than they would have had to stay in prison
had they been convicted of the offence they are charged for. To add to this, is the harsh reality of
prison superintendents imparting torture, both physical and mental upon the inmates. This takes a
really ugly face when there are reports of female inmates being subjected to sex crimes like rape
and minors being subjected to forced labour of menial jobs or even worse, child sexual abuse.

Leave apart the provision of proper food and opportunity to sleep, under-trials find it difficult to
even breathe properly in the prison because of over-crowding. According to the apex court, the
Indian prisons are over-crowded by approximately 150%. In a decision given in November 2016,
the Supreme Court observed that, “Fundamental rights and human rights of people, however they
may be placed, cannot be ignored only because of their adverse circumstances. It is not only
tragic but also pathetic to find that prisons in the national capital, along with half a dozen states
across the country, are overcrowded by over 150 per cent and that their fundamental rights are
neglected in such a lackadaisical manner.”8

According to a National Crime Records Bureau (NCRB) study, “Crime in India” 9


in 2002,
nearly 220,000 cases took more than 3 years to reach court, and about 25,600 exhausted 10 years
before they were completed. A staggering number of prison inmates awaiting trial have already
been imprisoned longer than the most rigorous sentence that they could ever been given for the
offence they are alleged to have committed.

7
UN General Assembly, ‘Universal Declaration of Human Rights’ (Paris, 1948) 217 (III) A,
<http://www.un.org/en/universal-declaration-human-rights/ > accessed on 22 September 2016
8
Common Cause v. Union of India [2017] 3 SCC 501
9
Mrinal Sharma, ‘The state of Indian prisons’ (The Hindu, 25 June 2019) < https://www.thehindu.com/opinion/op-
ed/the-state-of-indian-prisons/article28138352.ece > accessed on 22 September 2019

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The most inevitable and perhaps predictable result of the gross violations of the fundamental
rights of the prisoners is the commission of suicides by the prisoners.10 In some cases, the
atrocities go so far as to cause custodial death of the prisoners by the authorities. Custodial
torture, observed the Court11, is a calculated assault on human dignity and whenever human
dignity is wounded, civilization takes a step backwards.

Using any form of torture for extracting any kind of information would neither be right nor be
just, fair or reasonable and hence impermissible and in violation of Article 21 of the
Constitution. A crime suspect, declared the court, may be interrogated and subjected to sustained
and scientific interrogation in the manner determined by the provisions of law, but, no such
suspect can be tortured or subjected to third degree methods or eliminated with a view to
eliciting information, extracting a confession or deriving knowledge about his accomplices,
weapons etc.

10
Rajesh V. Bardale and Pradeep G. Dixit, ‘Suicide behind bars: A 10-year retrospective study’ (2015) Indian J
Psychiatry 57(1) pp 81–84 <doi: 10.4103/0019-5545.148531> accessed on 21 September 2019
11
Dilip Kumar Basu v. state of west Bengal [1997] (1) SCC 416

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CHALLENGES FACED BY INDIAN PRISONERS

There are certain challenges that every under-trial prisoner and convict goes through in Indian
jails:

1. Prison Violence

Prisons are often dangerous places for those they hold. Group violence is endemic and riots are
also common. Meek and first time offenders are tortured and made to do all the menial tasks. In

the case of Sunil Batra v. Delhi Administration2 that the court had issued a writ directing the
authorities that the prisoners shall not be subjected to physical mishandling by jail officials and
they should be given adequate medical and health facilities.

2. Criminalizing effect of prison

It is an often given quote, “Prisons are universities of crime where people go in as under-
graduates and come out with PhDs. in crime.” First time, circumstantial and young offenders
often end up turning into full-fledged criminals.

3. Health Problems

Most of the prisoners found in prisons come from socio- economically disadvantaged sections
of the society where disease, malnutrition and absence of medical services are prevalent. A
sample study conducted by the National Human Rights Commission of India in 1998 revealed
that 76% of deaths in Indian prisons were due to the scourge of Tuberculosis.12 There is also the
danger of fresh prisoners being inducted into drug abuse which doesn’t just affect them
physically but also mentally.13

12
Seena Fazel and Jacques Baillargeon, ’The health of prisoners’ (2010) Lancet 2011; 377 pp 956–65
<DOI:10.1016/S0140- 6736(10)61053-7> accessed on 24 September 2019
13
Anju Gupta and N.K. Girdhar,’ Risk Factors of Suicide in Prisoners’ (2012) DELHI PSYCHIATRY JOURNAL
Vol. 15 No.1 <http://medind.nic.in/daa/t12/i1/daat12i1p45.pdf> accessed on 25 September 2019

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PERSPECTIVE OF JUDICIARY- LANDMARK JUDGEMENTS

In India the origin of Prisoner Rights can be traced back in the land mark case of A. K. Gopalan v
State of Madras14. The main contention raised by the petitioner was on the phrase “procedure
established by law”, as contained in Art. 21 of the constitution; which includes a ‘fair and
reasonable’ procedure and not a mere procedure prescribed by the state for the deprivation of life
or personal liberty of individuals, as it was seen in Gopalan’s case, where he was totally deprived
of his personal liberty. Even the right to freedom of movement was not available to him, which
was a fundamental right.

Nilabati Behera v. State of Orissa15

A person under the police custody was found dead on the railway track near the prison with
severe marks of brutal torture and physical violence. His mother, Nilabati Behera filed a writ
petition on his behalf to claim compensation for this gross injustice that was meted out on her
son.

Justice A.S. Anand:

“….The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to
convicts, under trials or other prisoners in custody, except according to procedure established
by law. The duty of care on the part of the State is strict and admits of no exceptions. The
wrongdoer is accountable and the State is responsible if the person in custody of the police is
deprived of his life except according to the procedure established by law.”

Further in Rudal Shah v. State of Bihar16 and Bhim Singh v. State of J&K17, it was held that
award of compensation in a proceeding under Article 32 by this court or by the High Court
under Article 226 of the Constitution is a remedy based on strict liability for contravention of
fundamental rights to which the principle of sovereign immunity does not apply.

14
A. K. Gopalan v State of Madras [1950] AIR 27
15
NilabettiBehra v. State of Orissa [1993] (2) SCR 581
16
Rudal Shah v. State of Bihar [1983] (4) SCC 141
17
Bhim Singh v. State of J&K AIR [1986] SC 494

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Hussainara Khatoon v. Home Secretary, Bihar18

Justices D.A. Desai and P.N. Bhagwati in their concurring judgement in the above case held as
follows:

“It is not uncommon to find that under-trial prisoners who are produced before the Magistrates
are unaware of their right to obtain release on bail and on account of their poverty, they are
unable to engage a lawyer who would apprise them of their right to apply for bail. It is now well
settled that as a result of the decision of this Court in Maneka Gandhi v. Union of India 19, a
procedure which does not make available legal services to an accused person who is too poor to
afford a lawyer and who would, therefore, have to go through the trial without legal assistance,
cannot possibly be regarded as 'reasonable, fair and just'.

The State is under a constitutional mandate, under article 21, to ensure speedy trial and
whatever is necessary for this purpose has to be done by the State. It is also the constitutional
obligation of this Court to enforce the fundamental right of the accused to speedy trial by
issuing the necessary directions to the State.”

Under article 21 the State is under a constitutional mandate to provide a lawyer to an accused
person if the circumstances of the case and the needs of justice so require, provided of course
the accused person does not object to the provision of such lawyer. It is unfortunate that most of
the States in the country have not taken note of this decision and not provided free legal
services to a person accused of an offence. Moreover, this constitutional obligation to provide
free legal services to an indigent accused does not arise only when the trial commences but also
attaches when the accused is for the first time produced before the magistrate.

Abdul Rehman Antulay v. R.S. Nayak20

In this judgment, they clarified the position of the Indian judiciary on the ‘Demand Rule’,
which provides that a remedy in the form of speedy trial can only be provided by the court if the
aggrieved asks for it, that is, demands it and not otherwise. The bench held that this rule does
not apply to Indian jurisprudence.

18
Hussainara Khatoon v. Home Secretary, Bihar [1979] SCR (3) 1276
19
Maneka Gandhi v. Union of India [1978] 2 SCR 621
20
Abdul Rehman Antulay v. R.S. Nayak [1991] (3) SCR 325

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Right to speedy trial is not enumerated as one of the fundamental rights in the Constitution of
India, unlike the Sixth Amendment to the U.S. Constitution which expressly recognizes this
right.

This decision establishes the following propositions:

1) Right to speedy trial is implicit in the broad sweep and content of Article21.

2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be
reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights
and basic freedoms and that a judicial system which allows incarceration of men and women for
long periods of time without trial must be held to be denying human rights to such under-trials.

Rudal Shah v. State of Bihar21

Rudal Shah’s case is a landmark judgment in the jurisprudence of state liability. It is considered
particularly important as it led to the emergence of compensatory jurisprudence for the violation
of fundamental rights under the Constitution. It is noteworthy in this context that there is no
express provision for awarding compensation in the text of the Indian Constitution, and that this
judgment was on the basis of the Court’s interpretation of the extent of its remedial powers. This
was the first case since the inception of the Supreme Court that awarded monetary compensation
to a person for the violation of his fundamental rights guaranteed under the Constitution. The
grant of such monetary compensation was in addition, and not to the exclusion, to the right of the
aggrieved person to bring an action for damages in civil law or in tort.

In the landmark case of Khatri v State of Bihar22, this is popularly known as Bhagalpur Blinding
Case, the Supreme Court held that, the right to free legal aid is an essential ingredient of fair, just
and reasonable procedure for a person accused of an offence, and this right has been guaranteed
under Article 21, of the Constitution. In this case, a number of persons were put under prison. It
was also held in this case, that the State has to provide compensation to the blinded prisoners, as
there was a violation of their right to life and personal liberty, under Article 21.

21
Rudal Shah v. State of Bihar [1983] (4) SCC 141
22
Khatri v State of Bihar AIR [1981] SC 928

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In M. H. Hoskot v State of Maharashtra23, Supreme Court held that right of appeal is an integral
part of the fair procedure as given in Art. 21 of the Constitution. It also was critical about the
silent deprivation of liberty caused by unreasonableness, arbitrariness and unfair procedures
inside the jail. This procedure says that the indispensable essence of liberty and natural justice. In
this case the Supreme Court laid down that the constitutional mandate under Art. 21 read with
Art. 19 (1) (d) prescribes certain to the prisoners undergoing sentence inside the jail.

In Prem Shanker Shukla v Delhi Administration24, Supreme Court struck down the provision of
determining who was to be handcuffed on the basis of whether the prisoner is rich or poor. The
Supreme Court in this case gave a number of directions with a view to reforming and
humanizing jail administration and also held that the procedure of handcuffing is a violation of
Article-21. Handcuffing is permitted only in extraordinary circumstances.

23
M. H. Hoskot v State of Maharashtra AIR [1978] SC 1548
24
Prem Shanker Shukla v Delhi Administration AIR [1980] SC 1535

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RECOMMENDATIONS OF THE LAW COMMISSION OF INDIA REPORTS

Law Commission of India 266 Report25 - March 2017

The prevailing situations in the courts are a real eye opener and ironically it is one of the reasons
for pendency of about 2.5 crores cases in subordinate courts. The Supreme Court had
consistently been declaring that advocates do not have a right to call for strikes and held that the
lawyers’ strikes are illegal and that effective steps should be taken to stop the growing tendency.
Innumerous cases beginning from Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra, Bombay26 to Ex Capt. Harish Uppal v. Union of India27, it was held that the
advocates have no right to go on strike. The Courts are under no obligation to adjourn matters
because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters
on their boards even in the absence of lawyers. In other words, Court must not be privy to strikes
or calls for boycotts. It was held that if a lawyer, holding a vakalatnama of a client, abstains from
attending Court due to a strike call, he shall be personally liable to pay costs which shall be in
addition to damages which he might have to pay his client for loss suffered by him.

Law Commission Report 26828 - May 2017

The grant or refusal of bail on economic conditions i.e. monetary surety, violates Articles 14
and 15 of the Constitution of India and runs contrary to the constitutional ethos. Further, it has
no correlation with the objectives ought that is, assurance of appearing at every stage of the trial
along with the presumption of innocence until proven guilty. “Everyone has the right to life,
liberty and security of person”. It is the constitutional obligation upon the state to protect and
preserve the liberty and the security of the citizens against arbitrary arrest and detention. In
order for the detention to be lawful and not arbitrary, it must be consistent with the substantive

25
Law Commission, The Advocates Act, 1961 (Regulation of Legal Profession) (Law Com No. 266, 2017)
26
Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay [1984] (2) SCC 556
27
Ex Capt. Harish Uppal v. Union of India [1972] RD-SC 284
28
Law Commission, Amendments to Criminal Procedure Code 1973 (Law Com No. 268, 2017)

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rules of national and international laws as well as the principles and guidelines preserving
fundamental rights.

In less serious offences, namely those which attract a sentence of less than three years, it is
rational and just to release an arrested person on bail at the earliest. This is particularly so when
the crime in question was non-violent and there was no threat to peace because of the release of
a detained individual.

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THE WAY FORWARD

The problem gets aggravated because the recommendations provided by the reports of various
committees and guidelines laid down by the Supreme Court in various judgments has not been
complied with religiously. An example would be that even today the order of Dr. A.S. Anand
(former CJI) on holding Special Courts in Jails for prisoners involved in petty offences and
willing to confess to their guilt is not being implemented. If implemented and followed
judiciously, it can bring lot of succor.29

Since no straight jacket formula can be applied to solve this problem overnight, only a
wholesome application recommendations and suggestions made by various authorities would
lead to eradication of this problem. In cases of violation of Fundamental Right of any ward of the
government in correctional home, adequate compensation should be provided to the victim.

The decision of the National Human Rights Commission (NHRC) to establish human rights cells
in state police headquarters is a move in the right direction. The Cells can be headed by officers
of the rank of Additional Directors General/Inspectors General of Police, who act as links
between the Commission and the State Police.

This reiterates what has long back been said in the report of “Justice V.S. Malimath Committee
on Reforms of Criminal Justice System” (2003), which emphasized the use of modern science
and technology in harnessing criminal investigation and training to improve basic process which
would benefit the under trials. For instance, through the Integrated Services Digital Network
[ISDN] technology, courts and prisons can be connected through video linkage. 30 The
establishment of full-fledged e-courts in taluks and higher courts, and the use of technology in
analyzing and grouping cases pending in courts, are equally urgent needs.

29
‘Chairperson writes to Chief Justices of High Courts on under-trial prisoner situation in jails’ (2005) NATIONAL
HUMAN RIGHTS COMMISSION, INDIA <http://nhrc.nic.in/press-release/chairperson-writes-chief-justices-high-
courts-undertrial-prisoner-situation-jails> accessed on 22 September 2019
30
‘Seldom do sexually-harassed women get justice thanks to the labyrinthine criminal justice system’ (The
Economic Times, 13 January 2017)
<//economictimes.indiatimes.com/articleshow/56512985.cms?from=mdr&utm_source=contentofinterest&utm_medi
um=text&utm_campaign=cppst> accessed on 25 September 2019

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CONCLUSION

Life is not merely animal existence. The souls behind the bars cannot be denied the same. It is
guaranteed to every person by Article 21 of the Constitution31 and not even the State has the
authority to violate that Right. A prisoner, be he a convict, does not cease to be a human being.
They also have all the rights which a free man has but under some restrictions. Just being in
prison doesn’t deprive them from their fundamental rights. Even when lodged in the jail, he
continues to enjoy all his Fundamental Rights. On being convicted of crime and deprived of their
liberty in accordance with the procedure established by law, prisoners still retain the residue of
constitutional rights.

Supreme Court has gone a long way fighting for their rights. However the fact remains that it is
the police and the prison authorities who need to be trained and oriented so that they take
prisoner’s rights seriously.

Thus we see that there is no doubt that it is the democratic legitimacy which characterizes our
era. Liberty and freedom are the elements of prisoner’s human right and democracy. In so far as
developing countries are concerned it has to be observed that must believe in democracy and
human rights of prisoners.

31
Constitution of India 1950, A 21

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