HUMAN RIGHT AND PRISONER (CHAPTER -2)

 HUMAN RIGHT AND PRISONER (CHAPTER-2)

Research Person- Dinesh Gardia

INTRODUCTION

The world today, has accepted the notion that all human beings are entitled to and are empowered

for a dignified existence. It is a common phenomenon that human beings everywhere, demand the

realization of diverse values to ensure their individual and collective well-being. However, these

demands or rights are denied through exploitation, oppression, persecution, etc, in many countries

of the world.' Human rights gained attention at the international level following the Second World

War, where millions of people lost their lives. Horrified by the devastation of life caused by the

Second World War, members of the United Nations (UN) took a pledge to take measures for the

achievement of universal respect for and observance of human rights and fundamental freedoms

for all.

Human beings are rational beings. They by virtue of their being human possess certain basic,

inherent and inalienable rights which are commonly known as human rights. Human Rights are

defined as all those rights which are essential for the protection and maintenance of dignity of

individuals and create conditions in which every human being can develop his personality to the

fullest extent. Human rights become operative with the birth of an individual. These are moral

claims which are inalienable and inherent in all individuals by virtue of their humanity alone,

irrespective of caste, colour, creed, and place of birth, sex, cultural difference or any other

consideration. Because of their immense significance to human beings; human rights are also

sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth

rights.

HUMAN RIGHT’S MEANING AND DEFINATION

Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights, natural

rights and birth rights. They are essential for all individuals to protect themselves against the State

or public authority or against members of its own class. Human rights are characterized as

inalienable, connection with human dignity and necessary for the purpose of fulfillment of human

life. Human rights have been classified in different bases. Each right signify the awareness and

emancipation of a particular century. For eg. The development oriented rights belong to the

twentieth century which is essential to maintain world peace as well as right to clean and

wholesome environment along with environment protection and improvement.1

Definition of Human Rights There are various contemporary definitions of human rights. The UN

defined human rights as those rights which are inherent in our state of nature and without which

we cannot live as human beings.'Human rights belong to every person and do not depend on the

specifics of the individual or the relationship between the right-holder and the right guarantor.

Human rights are the rights that everyone has equally by virtue of their humanity. It is grounded

in an appeal to our human nature.

Christian Bay defined human rights as any claims that ought to have legal and moral protection to

make sure that basic needs will be met.^ Human rights can be defined as those minimum rights

which every individual must have against the state or other public authority by virtue of his being

a member of the human family.

Shree P. P. Rao said human rights are the inherent dignity and inalienable rights of all members of

the human family recognizing them as the foundation of freedom, justice and peace in the world.

For D. D. Raphael, human rights in a general sense denote the rights of humans. However, in a

more specific sense, human rights constitute those rights which one has precisely because of being

a human, is also directed towards the creation of social conditions by the state in which individuals

can develop their fullest potential.

NATURE AND CHARACTERISTIC OF HUMAN RIGHT

Human Rights are Inalienable - Human rights are conferred on an individual due to the very

nature of his existence. They are inherent in all individuals irrespective of their caste, creed,

religion, sex and nationality. Human rights are conferred to an individual even after his death. The

different rituals in different religions bear testimony to this fact.

1. Human Rights are Essential and Necessary - In the absence of human rights, the moral,

physical, social and spiritual welfare of an individual is impossible. Human rights are also

essential as they provide suitable conditions for material and moral upliftment of the

people.

2. Human Rights are in connection with human dignity - To treat another individual with

dignity irrespective of the fact that the person is a male or female, rich or poor etc. is

concerned with human dignity. For eg. In 1993, India has enacted a law that forbids the

practice of carrying human excreta. This law is called Employment of Manual Scavengers

and Dry Latrines (Prohibition) Act.

3. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken away

by any power or authority because these rights originate with the social nature of man

in the society of human beings and they belong to a person simply because he is a human

being. As such human rights have similarities to moral rights.

4. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a

purpose. The term “human right” is applied to those conditions which are essential for the

fulfillment of this purpose. No government has the power to curtail or take away the rights

which are sacrosanct, inviolable and immutable.

5. Human Rights are Universal – Human rights are not a monopoly of any privileged class

of people. Human rights are universal in nature, without consideration and without

exception. The values such as divinity, dignity and equality which form the basis of these

rights are inherent in human nature. 

6. Human Rights are never absolute – Man is a social

animal and he lives in a civic society, which always put certain restrictions on the

enjoyment of his rights and freedoms. Human rights as such are those limited powers or

claims, which are contributory to the common good and which are recognized and

guaranteed by the State, through its laws to the individuals. As such each right has certain

limitations.

ORIGIN AND DEVELPOMENT OF HUMAN RIGHT

The belief in the sanctity of human life has ancient precedents in many of the world's religions,

but the idea of human rights, that is, humans have a set of inalienable rights simply because they

are human.

The idea that there is a human being originated in the period of early modern Renaissance

humanism. Previously, writs of habeas corpus were enshrined in the Magna Carta of 1215 AD.

The European Wars of Religion and the 17th-century English Civil War gave rise to liberal

philosophies, and the belief in human rights became a central concern of European intellectual

culture during the 18th-century Age of Enlightenment.

The idea of human rights was at the heart of the American and French revolutions that ushered in

an era of democratic revolution throughout the nineteenth century and paved the way for the

introduction of universal suffrage. After the war, there were human rights movements for special

interest groups, such as feminism and African-American civil rights. The human rights of members

of the Eastern bloc and workers' rights in the West emerged in the 1970s.

THE MIDDLE AGES

The period from the 5th to the 15th century is moderately estimated as the Middle Ages, a barren

age of human rights. Christianity had both positive and negative effects on the new socioeconomic

and political structures of the time. Concepts such as "all men are equal to God" and "all men must

be obedient to the rule of law" were established by Christianity and succeeded in bringing about

equality.

Magna carta

The most important medieval step in promoting human rights was taken with the passage of the

'Magna Carta'. It was the most famous written human rights document of the Middle Ages. This

was a constitutional act adopted by King John in 1215 AD and adopted by Edward III. was

declared. The Magna Carta required the King to waive certain rights, respect certain legal

processes, and accept that the King's will may be bound by law. There are 63 Articles including

the preamble, of which Articles 39 and 40 are very important.

Article 39 No honorary citizen shall be arrested, imprisoned, disqualified, deported, or harmed

in any way. Nor will we take action against him or cause others to take action, except on the

basis of the good judgment of his colleague or common law.

Influence of magna carta

Magna Carta was the first document guaranteeing people's freedom. It influenced many common

laws and other documents such as the United States Constitution and the Bill of Rights and is

considered one of the most important legal documents in the history of democracy. Almost every

basic principle of the British Constitution could be tested against the Magna Carta.

The petition of rights

The Petition of Rights is an important British constitutional document that establishes certain

freedoms that the King must not violate. A petition passed on June 7, 1628, including restrictions

on extra-parliamentary taxation, forced recruitment of soldiers, imprisonment without cause, and

the application of martial law. After a dispute between Parliament and Charles I over the conduct

of the Thirty Years' War, Parliament refused to provide subsidies to support the war effort, and as

a result Charles I was granted "the Those who collected "forced debts" and refused to pay were

arbitrarily detained. Additionally, the state of war in the country has led to the forced confinement

of soldiers in private homes and the imposition of martial law over large parts of the country.

Bill of rights

The Bill of Rights was passed by Congress on December 16, 1689. This was a restatement of the

Declaration of Rights presented to William and Mary by Parliament in March 1689, urging them

to become co-sovereigns of England. It limits the powers of sovereigns, establishes parliamentary

rights, regulates freedom of expression in parliament, the requirement for regular general elections,

and the right to petition the monarch without fear of reprisal. It restored the liberty of Protestants

to bear arms for their defence within the rule of law, and disarmed James II of England as "a

Protestant and an unlawful baptist at the same time." Some good subjects" were denounced. These

concepts of rights mirror those of the political thinker John Locke and quickly became popular in

England. It also establishes, or in the opinion of its drafters, repeats, certain constitutional

requirements of the King to obtain the consent of those represented in Parliament.

DEVELOPMENT OF HUMAN RIGHT IN INDIA

a)Human right during mediavle period

The Buddhist doctrine of non-violence in deed and thought says Nagendra Singh, "is a

humanitarian doctrine par excellence, dating back to the third century B . c . " ~Jainism too

contained similar doctrines. According to the Gita, "he who has no ill will to any being, who is

friendly and compassionate, who is free from egoism and self sense and who is even-minded in

pain and pleiasure and patient" is dear to God. It also says that divinity in hurnans is represented

by the virtues of non-violence

truth, freedom from anger, renunciation, aversion to fault-finding, compassion to living being:;,

freedom from covetousness, gentleness, modesty and steadiness -the qualities that a good human

being ought to have.The historical account of ancient Bharat proves beyond doubt that human

rights were as muck manifest in the ancient Hindu and Islamic civilizations as in the European

Christian civilizations. Ashoka, the prophet Mohammed and Akt~arcannot be excluded from the

geneology of human rights.

b) Human rights in british lndia

The modern version of human rights jurisprudence may be said to have taken birth in lndia at tile

time of the British rule. When the British ruled lndia, resistance to foreign ruie manifested itself in

the form of demand for fundamental fre.edoms and the civil and political rights of the people,

lndians were humiliatedand discriminated against by the Britishers. The freedom movement and

the harsh repressive measures of the British rulers encouraged the fight for civil liberties and

fundamental freedoms.

C) human rights in india post independece

The Constitution of India, in Part III, encompasses a range of fundamental rights accessible to

Indian citizens. This approach aimed to make the Universal Declaration of Human Rights (UDHR)

legally enforceable within the country. Articles 14-30 in Part III outline potential rights for

citizens. Moreover, Part IV incorporates Directive Principles, offering the State supplementary

suggestions to ensure the well-being of its populace.

Initially, the judiciary had a rigid stance in handling cases. However, they later embraced the

concept of “Audi Alteram Partem” to approach cases more flexibly and introduce subjectivity.

This shift is evident in the interpretation of Article 21. The following judgments will help you to

understand the history and development of human rights in India in the contemporary era.

In the case of A.K GOPALAN, Article 21 was narrowly interpreted, almost equating the right to

life with mere animal existence. Yet, the landmark case of Maneka Gandhi v Union of India

expanded the scope of Article 21, linking it to Articles 14 (Right to Equality), 19 (fundamental

freedoms) and 21 (Right to Life and Liberty). The concept of the Right to Life now encompasses

an individual’s culture, tradition and guards against potential violations of fundamental rights.

WHAT IS PRISON

The oldest penal institution is actually the ‘Jail’ which is also commonly called a ‘prison’ in

many lands. In the early stage jail functioned as a place for detaining prisoners awaiting trial and

execution of sentence. Getting off to a slow start in the sixteenth century imprisonment as a form

of punishment became the major form of punishment of the nineteenth century. From nineteenth

century onwards and following in the twentieth century, certain individualized measures of

offenders were introduced into prison. SentencesThus began concept of institutional correction.

WHO IS A PRISONER

A prisoner (also known as an inmate or detainee) is a person who is deprived of liberty against

their will. This can be by confinement or captivity in a prison, or forcible restraint (handcuffs or

shackles). The term usually applies to one serving a sentence in prison.

"Prisoner" is a legal term for a person who is imprisoned.

In section 1 of the Prison Security Act 1992, 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.

"Prisoner" was a legal term for a person prosecuted for felony. It was not applicable to a person

prosecuted for misdemeanour. The abolition of the distinction between felony and misdemeanour

by section 1 of the Criminal Law Act 1967 has rendered this distinction obsolete.

Glanville Williams described as "invidious" the practice of using the term "prisoner" in reference

to a person who had not been convicted.

According to the Model Prison Manual 2016. A prisoner is anyone who is confined in a prison

under the authority of a competent body. In simpler terms, a prisoner is a person held in jail or

prison because they have committed an act prohibited by the law of the country.

CLASSIFICATION OF PRISONERS

The classification of prisoners involves essentially the study of their deviant behaviour and

causation with a view to starting appropriate correctional programmes in prisons. This requires

very sound background in human psychology and behavioral sciences. Therefore, it is necessary

that the experts in this field may be associated with the classification process. Ideally, classification

should be handled by a committee with members drawn from prison administration/corrections

and experts in behavioral social sciences.

The following categories of prisoners can be mentioned here

1.HABITUAL AND CASUALS

2.CONVICTS,

3.UNDER-TRIALS

4.WOMEN PRISONERS

1. Habitual and casual

A habitual offender is a person who has repeatedly committed the same crime. The nature,

scope and type of habitual offender statutes vary but generally they apply 97 when a person has

been convicted a minimum of twice for various crimes. Habitual offender laws may provide for

mandatory sentencing in which a minimum sentence must be imposed, or may allow judicial

discretion in allowing the court to determine a proper sentence'^. The practice of imposing longer

prison sentences on repeated offenders than on first time offenders who commit the same crime is

not an innovation.

2. Convicted prisoners

Our country shares a universally held view that the sentence of imprisonment would be

justifiable only if it ultimately leads to the protection of society against crime. But those who are

imprisoned spend half of their d guilty of a crime and sentenced by a court.

3. Under-trials

ight from the introduction of modem prison system, under-trial prisoners are kept in prisons in

our country. It has suggested by the Draft National Policy on Prisons^^ that provisions shall be

made for the timely production of the under-trial prisoners before the court(s) to facilitate speedy

disposal of their cases.

Conclusion

The rights of prisoners in India are enshrined in both the Constitution and the Code of Criminal

Procedure. These rights include the right to be treated with dignity, access to legal representation,

a speedy trial, medical examination to prevent torture, and the right to be present during trial

proceedings.

Additionally, prisoners have the right to be informed about the grounds of their arrest, access to

bail, and to be released on probation for good conduct. The principle of bail over jail is emphasised,

especially for indigent or poor prisoners. These rights of prisoners safeguard the fundamental

principles of justice, fairness, and human rights, ensuring that even individuals in custody are

treated with respect and due process under the law.