HUMAN RIGHTS OF PRISONERS (CHAPTER-3)

 

HUMAN RIGHTS OF PRISONERS (CHAPTER-3)

Research Person- Dinesh Gardia

INTRODUCTION

The Constitution of India ensures that every person is treated equally under the law or provided

with equal legal protection while in India. This also applies to prisoners, who are guaranteed

certain rights and should be treated as individuals. Indian courts, including the Supreme Court,

acknowledge the fundamental rights of prisoners in India.The Supreme Court has emphasised that

regardless of the circumstances that led a person to commit a crime, prisoners must be treated with

respect and provided with basic human rights, dignity and compassion International human rights

laws protect people from racial discrimination, from torture and from enforced disappearances.

They also recognise the rights of specific groups of people, including women, children, and people

with disability, indigenous peoples and migrant workers. Some of these treaties are complemented

by optional protocols that deal with specific issues or allow people to make complaints.

 LEGAL RIGHTS OF PRISONERS UNDER INTERNATIONAL LAW

The recognition of human rights has been traced back to ancient period however more recognition

was given after Second World War. The violence committed against human being resulted in

acquisition of certain norms for protection of human being. The treatment of prisoners has become

issue worldwide concern. The UNO has accepted general principles of human rights under the

heading of Universal Declaration of Human Rights in the year 1948.The Second World War also

brings attention of intention community for protection of rights of prisoners. The Geneva

Convention for war prisoners was signed for protection of rights of war prisoners. As well as war.

1) Universal Declaration of Human Rights 1948(UDHR)

The General Assembly of the United Nations (UN) adopted the Universal Declaration of Human

Rights (UDHR) on December 10, 1948 to promote the human rights in the world. It has been stated

under Article 1 of the UDHR that all human beings are born free and equal in dignity and rights.

They are endowed with reason and conscience and should act towards one another in a spirit of

brotherhood. Article 2 of the UDHR provides that everyone is entitled to all the rights and

freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other

status. It would be clear that the term “all human beings” used in Article 1 and the term “everyone”

used in Article 2 also includes prisoners.

Article 3 of the UDHR states that everyone has the right to life, liberty and security of person.

Right to life is one of the basic human rights and is available to both either to prisoner or to

freemen. Prisoners are not subjected to torture, cruel, inhuman treatment in the prisons. It would

be clear from the language of the Article 5 of the UDHR which states that no one shall be subjected

to torture or to cruel, inhuman or degrading treatment or punishment.

affected persons. Number of international conventions, declaration, and resolution were signed for

treatment of prisoners. The U.N. organization gave model instruments for providing minimum

standards & protection & prohibition applicable to prisoners & prison conditions.

The prisoners being one of the vulnerable sections of society are out of sight because the treatments

of prisoners are being under the four walls of prisons, therefore they are easy target for continuing

violation of human rights. Most of instances to worldwide shows that prisoners are facing with

gross violation of human rights.

1) Universal Declaration of Human Rights 1948(UDHR)

The General Assembly of the United Nations (UN) adopted the Universal Declaration of Human

Rights (UDHR) on December 10, 1948 to promote the human rights in the world. It has been stated

under Article 1 of the UDHR that all human beings are born free and equal in dignity and rights.

They are endowed with reason and conscience and should act towards one another in a spirit of

brotherhood. Article 2 of the UDHR provides that everyone is entitled to all the rights and

freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other

status. It would be clear that the term “all human beings” used in Article 1 and the term “everyone”

used in Article 2 also includes prisoners.

Article 3 of the UDHR states that everyone has the right to life, liberty and security of person.

Right to life is one of the basic human rights and is available to both either to prisoner or to

freemen. Prisoners are not subjected to torture, cruel, inhuman treatment in the prisons. It would

be clear from the language of the Article 5 of the UDHR which states that no one shall be subjected

to torture or to cruel, inhuman or degrading treatment or punishment.

2) International Covenant on Civil & Political Rights 1966. –

Regarding the treatment of prisoners provisions are made in the International Covenant on Civil

and Political Rights (ICCPR) which has been adopted by the General Assembly of the United

Nations adopted on December 16, 1966 and came into force on March 23, 1976. Article 6(1) .

the ICCPR grants every human being whether prisoner or freemen inherent right to life. This right

shall be protected by law and no one shall be arbitrarily deprived of his life. It has been further

provided under Article 7 of the ICCPR that no one shall be subjected to torture or to cruel, inhuman

or degrading treatment or punishment.

Another important instrument for protection of rights of human beings and also in relation to

prisoners is known as International Covenant on Civil & Political Rights. This convention was

adopted by U.N. general assembly in 1966 so as to give specific effect to provisions of UDHR.

This convention provides for provisions for implementation of rights specified in the convention.

Some of the important rights as are provided in UDHR are specified & protected by this

convention are as follows.

>Article 7 – provides for freedom from in human or degrading treatment of punishment.

> Article 10 – provides for Rights of detainee to be treated with humanity.

> Article 14 – protects right to a fair trial.

> Article 15 – provides for non retroactive application of criminal law.

Under this convention Article 10 specifically provides that –

“All persons deprived of their liberty shall be treated with humanity & with respect for the inherent

dignity of the human person. An accused person shall in exceptional circumstances be segregated

from convicted persons & shall be subject to separate treatment appropriate to their status as

unconnected persons.

3) Convention against Torture & Other Cruel, Inhuman or Degrading

Treatment or Punishment 1995.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment entered into force on 1 March 2002. The Convention establishes the European

Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the Committee). The Committee is permitted to visit all places of detention, defined by the convention

as “any place within its jurisdiction where persons are deprived of their liberty by a public

authority.” Once a state government is notified of the intention of the Committee to carry out a

visit it is required to allow access to the territory with the right to free travel without restriction,

full information of the facility in question, unlimited access to the facility and free movement

within it, the right to interview any person being held within the facility, communicate freely with

any person whom it believes can supply relevant information and access to any other information

which the Committee feels is necessary to carry out its task. All information gathered is

confidential. In exceptional circumstances a state may make representations based on grounds of

national defence, public safety, and serious disorder in custodial facilities against a visit to a certain

place or at a certain time.

This convention was adopted by General Assembly of U.N. in 1975 provides for protection and

prohibition of human being from any type of torture, cruel, treatment or punishment. It impose

obligation on state parties to take effective legislative, judicial, administrative and other measures

to prevent act torture. No torture can be allowed or even defense of public emergency or political

instability cannot be consider as ground for allowing torture in any form. Even order from public

authority or superior force cannot be defense or justification for torture. The convention provides

for rigorous provisions for implementation of provisions of this convention. A committee was

established known as committee against torture to handle the issue relating to torture.

4) UN Standard Minimum Rules For The Treatment Of Prisoners (OHCHR, 1955) –

These minimum standard rules were initially adopted by U.N. congress on the prevention of crime

& the treatment of offenders in 1955, which was approved by United Nations Economic & Social

council in 1957. These standard minimum rules are not treaty, however it may constitute as a

recognized guide to binding treaty standards. Though these standards are not legally binding in

nature however it has great importance throughout the world as it was considered as inspiration

for national legislation as well as of practice guidance for prison management.The basic principle

provided in these standards is that there shall be no discriminations on ground of race, color, sex,

language, religion, political & other opinion, national or social origin, property, birth or other

status.These standard minimum rules are divided in three parts.

5) United Nations Basic Principles for the Treatment of Prisoners

Apart from these above international instruments concerning the rights and treatment of prisoners,

there is a United Nations Basic Principles for the Treatment of Prisoners which has been adopted

by the General Assembly on December 14, 1990 which clearly states that all prisoners should be

treated with due respect for their inherent dignity and value as human beings without

discrimination of any kind. They should be accorded with all the human rights and fundamental

freedoms set out in universally recognized international instruments except the freedom of

movement.

 LEGAL RIGHTS OF PRISONERS IN INDIA

Prisoner's Rights under the Prisons Act, 1894

The Prisons Act, of 1894 is the first legislation regarding prison regulation in India. The

provisions of the Prisons Act, 1894 contain the provisions for the welfare and protection of

prisoners.Under this Act, the prisoners (both convicts and undertrials) have various rights.

1. Right to accommodation for prisoners (Section 4):

The prisoners have the right to be provided accommodation constructed and maintained

according to the provision of the Prisons Act, 1894.The Model Prison Manual (2016) also

mentions that living conditions in every prison shall be compatible with human dignity in all

aspects such as accommodation, hygiene, sanitation, food, clothing, medical facilities, etc.

2. Right to shelter and safe custody of the excuss number of prisoners who cannot be

safely kept in any prison (Section 7)

If the number of prisoners in any prison is more than required and it is not convenient to

transfer the excess number to some other prison, then shelter and safe custody should be

provided in temporary prisons to the prisoners.Also if there is any outbreak of epidemic

disease within any prison, prisoners should be provided temporary shelter and safe custody.

3. Examination of prisoners by qualified Medical Officer (Section 24 and Section 26

a) Every prisoner shall be examined by the Medical Officer and he shall enter in a book, to be

kept by the Jailer, a record of the state of the prisoner's health, and of any wounds or marks on his

person, the class of labour he is fit for if sentenced to rigorous imprisonment and any observations

which the Medical Officer thinks fit to add. (Section 24 (2))

b) Female prisoners have the right to be examined by a lady matron under the special or general

orders of the Medical Officer. (Section 24 (3))

4. Separation of prisoners, containing female and male prisoners, civil and criminal

prisoners and convicted and undertrial prisoners (Section 27).

a). In a prison containing female as well as male prisoners, the females shall be imprisoned in

separate buildings, or separate parts of the same building.in such a manner as to prevent their

seeing, or conversing or holding any intercourse with the male.

b). In a prison where male prisoners under the age of twenty-one (21 years) are confined, means

shall be provided for separating them altogether from the other prisoners and for separating those

of them who have arrived at the age of puberty from those who have not;

c). Undertrial prisoners shall be kept apart from convicted criminal prisoners (convicts); and

d) Civil prisoners shall be kept apart from criminal prisoners.

5. Sick prisoners (Section 37)

(1) The sick prisoners or those who are appearing to be out of health in mind or body who desire

to see the Medical Subordinate (doctor) shall, without delay, be reported by the officer in

immediate charge of such prisoners to the Jailer.

(2) The Jailer shall, without delay, call the attention of the Medical Subordinate to any prisoner

desiring to see him, or who is ill, or whose state of mindor body appears to require attention, and

shall carry into effect all written directions given by the Medical Officer or Medical Subordinate

respecting alterations of the discipline or treatment of any such prisoner Hospital (Section 39)

In every prison a hospital or proper place for the reception of sick prisoners shall be provided.

 Visits to civil and undertrial criminal prisoners. (Section 40)

The prisoners (convicts as well as undertrials shall be allowed to meet persons whom they may

desire to communicate with in the prison at proper times and under proper restrictions.

The Prisoners Act, 1990

For the purpose of prison reformation and prison justice under this Act,

following provisions are relevant to mention:

> That all reference to prisons or the imprisonment or confinement shall be construed as referring

also to reformatory schools to detention therein.

> That it is the duty of Government for the removal of any prisoner detained under any order or

sentence of any court, which is of unsound mind to a lunatic asylum and other place where he

will be given proper treatment.

> That any court which is a High Court may in case in which it has recommended to Government

the granting of a free pardon to any prisoner, permit him to be at liberty on his own cognizance.

The Prisoners (Attendance in Courts) Act, 1955

This Act contains provisions authorizing the removal of prisoners to a civil or criminal court for

giving evidence or for answering to the charge of an offence Thus, apart from the substantive

prison laws, the Government of India appointed a National Expert Committee on women prisoners

in 1968 to 1987 under the chairmanship of Justice Krishna Iyer to examine the conditions of

women prisoners. The committee among other things recommended the following suggestions

particularly towards reformation and rehabilitation of women prisoners.

> In women's rehabilitation, employment training has a pivotal role. Consequently, work in

prison has to be given such potential economic worth and utility that all women in custody are

willing to engage in work programmes.

> Training of women prisoners in an area of great relevance to correctional work and to the

process of restoration of dignity of the women offender.

> Probation, Parole and other non-institutional modalities of corrective treatment shall be widely

used in case of women offenders. Government of India had set up in 1980 a Committee on jail.

Rights During trial

a) Right to receive copies U/s – 207, 154, 161, 164, 173, 208, 200, 202. As per section 207 of

Cr.P.C, accused has the right to be furnished with the following in case the proceeding has been

initiated on a police report: the police report; the first information report recorded under section

154; the statements recorded under sub-section (3) of section 161; the confessions and statements,

if any, recorded under section 164; any other document or relevant extract thereof forwarded to

the Magistrate with the police report under sub-section (5) of section 173 And as per section 208

of CrPC, when a case not instituted by a police report but when the offence is triable exclusively

by the Court of Sessions. The statements recorded under section 200 or section 202, or all persons

examined by the Magistrate; the statements and confessions, if any, recorded under section 161 or

section 164; any documents produced before the Magistrate on which the prosecution proposes to

rely.

b) Right to discharge when no sufficient grounds Sec. 227. As per section 227 of CrPC, when the

judge is convinced that there is no sufficient ground for proceeding against the accused after duly

considering the case, it is the right of the accused that he be discharged.

c) Right to present evidence. 243 (1) According to section 243(1) of CrPC, the accused has the

right to present his evidence and defend his case. The magistrate is duty bound to record written

statements put by the accused.

d) Right to be present when evidence is taken Sec. 273. Section 273 of CrPC makes it obligatory

on the part of the Magistrate to ensure that all evidence taken in the course of the other proceeding.

shall be taken in the presence of the accused or, when his personal attendance is dispensed with,

in the presence of his pleader.

e) Right to be defended. Section 303 of CrPC and Article 22(1) of the Constitution of India

provides a right to all the accused persons, to be defended by a pleader of his choice.

f) Right to legal aid at expenses of state. This is not a right available to all the accused but to certain

category of accused as a privilege. So where, in a trial before the Court of Session, the accused is

not represented by a pleader, and the court believes that he does not have sufficient means to

engage a pleader, it shall assign a pleader for his defence at the expense of the State, under section

304 of CrPC.

g) Right to cross examine witnesses the accused in order to test the veracity of the testimony of a

prosecution witness has the right to cross-examine him. Section 138 of Indian Evidence Act, 1872

gives accused has a right to confront only witnesses. This right ensures that the accused has the

opportunity for cross- examination of the adverse witness. Section 33 of Indian Evidence Act tells

when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by

issuing commission. The testimony at a formal trial is one example of prior testimonial statements

which can be used as documentary evidence in a subsequent trial.

Shoorvir Tyagi, The Code of Criminal Procedure, 1973, Central Law Agency, Allahabad, 1994

Section 311 of CrPC gives the accused (and the prosecution) full right to cross examine a witness

called by the Court. Under section 243(2) of CrPC, if the accused applies to the Magistrate to issue

any process for calling any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. Section 138 of Evidence Act says that the right of cross-examination available to opposite party is a distinct and independent right.

When accused declined to cross-examine witness and thereafter the said witness is not available

for cross-examination, the evidence of such witness recorded is admissible in evidence but that

will have to be true to that account.

h) No influence to be used to induce disclosure. As per section 316, the accused shall not be

subjected to any sort of influence by means of any promise or threat or otherwise, to induce him

to disclose or withhold any matter within his knowledge.

i) Right to have reasoned decisions.

j) Right to speedy trial.

Right to consult and be defended by a lawyer

An ordinary person does not have the requisite knowledge and skills to defend himself in court, against the prosecution, who is a skilled professional. Thus, underArticle 22(1)of the Constitutionand Section 303 of the Criminal Procedure Code, the accused has the right to consult and be defended by a legal

practitioner, of his choice. It is indispensable to a fair trial. In India, where people are fighting poverty, it is implied that a lot of people cannot afford to take help from a lawyer.  For them, Article 39 of the Indian Constitution provides for free legal aid to ensure that no person’s right to access to justice is denied because of his financial situation.

Right not to be handcuffed: Our criminal justice system is based on the presumption of

the accused to be innocent until proven guilty beyond reasonable doubt, as enumerated

under Sections 101 to 105of the Indian Evidence Act, 1872. Hence, an under-trial

prisoner should not be handcuffed. In Prem Shankar Shukla casethe Supreme Court held

that handcuffing a person is objectionable.

● Right to a fair trial: The under-trial prisoner must get a fair and reasonable trial. It must

be fair to the prosecution, as well. It is inevitable to the interests of society. A fair trial

ensures that the accused is not convicted without reasonable proof to believe that he is

guilty.

● Right to bail under default clause: As enumerated in Section 167 (2)[12] of the Criminal

Procedure Code, if the prosecution fails to file a charge-sheet within 60 days or 90 days,

as the case may be, the under-trial prisoner will be released on bail on grounds of such

default.

● Right to Speedy Trial: Often have we heard ‘justice delayed is justice denied’. The trials

of under-trial prisoners are delayed over and over again. According to Section 437 (6) of

the Code of Criminal Procedure, if an accused is charged with a non-bailable offence and

his trial is ongoing for 60 days, he would be released on bail. Unfortunately, it just lessens

the suffering of the accused and does not really improve the status quo of pending cases. It

is just applicable in cases before a magistrate. In Hussainara Khatoon v. Home Secretary,

State of Bihar[14], the Supreme Court held that the huge number of cases pending before

the courts is not reasonable and does not conform to Article 21of the Indian Constitution.

● Right to security inside prison

Article 21 of the Indian Constitution applies to all, including under-trial prisoners. If the

security of an under-trial prisoner is hampered and his life is taken away, the government

must compensate for it to the dependents of the person.

● Right to be informed and meet family and friends

Article 22(1) of the Indian Constitution and Section 5 of the Code of Criminal

Procedure provides that an accused should be informed on what grounds he has been

arrested. In Sunil Batra case], the Supreme Court recognised that it is the right of the

prisoners to be visited by their friends and family.

● Presumption of Innocence 

India has adopted adversarial form of adjudication system which was known as

accusational system in criminal procedure, which is considered to be an accused oriented

criminal judicial system. The central nation of this system is the principle of presumption

of innocence until guilt is proved. It is a benefit given to the accused till he found guilty at

the end of public trial on legal evidence, bycompetent tribunal or authority. This principle

is safeguard provided to accused for protection against arbitrary arrest & detention by state.

This principle impose specific obligation on state i.e. on prosecution to prove guilt of

accused beyond reasonable doubt & if any doubt remains, the benefit of doubt is always

being given to he accused as he is said to be innocent until guilt is proved.