By Harshit Singh Jadoun, Institute of Law, Nirma University
Editor’s Note: The Constitution ensures the democracy of our nation by its three main organs namely legislative, executive and Judiciary that are integrated as they work in a tandem and function as a link between the “individual” and the “State”. Being a federal Constitution with few unitary features there is separation of powers and function between the organs. Article 13 of our constitution deals with Judicial Review which was borrowed from the constitution of United States, by virtue of which the Judiciary can strike down any law that it finds to be inconsistent with the law. The topic of research Judicial Activism basically means keeping an eye on the government wings that whether they are working under the ambit of their power as conferred by the constitution. The paper specifically puts in the picture the plights of the prisoners in Jail after being convicted by the court. Reformation of prisoners other than punishment is also one of the objectives that are considered behind sending the person to jail so that when he returns after his sentence is terminated he proves to be a useful person to the society therefore Judiciary’s role does not end after passing the sentence he also needs to ensure that the prisoner is being given his/her rights inside the jail and is not merely treated as the “Servant of the State”.
There have been various landmark judgments in this fragment leading to more and more awareness among people regarding the rights of a prisoner. Starting from the case of Platek vs. Aderhold in USA where the court stated that court has no power to interfere with conduct of prison or its rules and regulation up till the suit of Johnson vs. Avery where the court recognized certain rights of the prisoners, as the years have passed judicial system have become stern and severe vis-a-vis this issue and this matter has also been taken care in International Conferences of various countries. In Indian development, Sunil Batra vs. Delhi Administrationwas a revolutionary judgment given by a constitutional bench preserving the Fundamental Rights of the prisoners by invoking Article 14, 19 and 21 of the Constitution for guarding against the wretched environment of the jail.
The researchers aim is to analyze the Rights of prisoners as it in the recent past has been a cause celebre therefore the Apex Court has been very cautious regarding this issue because Article 21 endows Right to Life and Personal liberty which is the spine of the constitution and Judiciary has used this article several times in order to safeguard the victims of Human Rights Violation. This manuscript aspires to notify the privileges that even a prisoner being a citizen of the country is entitled to, with the analysis of various other judgments that have occurred all through these years but much of the efforts of the Judiciary has proved to be futile as there are still many prisons where the rights of an accused are compromised.
Prisoner’s Rights Law deals with the rights of inmates while behind bars. Many of these laws relate to fundamental human rights and civil liberties.
1. Cruel and Unusual Punishments – Every inmate has the right to be free under the Eighth Amendment from inhumane treatment or anything that could be considered “cruel and unusual” punishment. Unfortunately, the Eighth Amendment did not clearly define what “cruel and unusual” punishment includes, meaning much of the definition has derived from case law. Generally speaking, any punishment that is considered inhumane treatment, like torture or abuse, or a violation of a person’s basic dignity may be considered cruel and unusual within the discretion of the court.
2. Sexual Harassment or Sex Crimes – Inmates have a right to be free from sexual harassment or sex crimes, like being raped or molested while in custody. This applies to crimes or harassment from both inmates and prison personnel.
3. Right to Complain About Prison Conditions and Access to the Courts – Inmates have the right both to complain about prison conditions and to voice their concerns to prison officials and the courts.
4. Disabled Prisoners – Inmates with disabilities are entitled to certain reasonable accommodations under the American with Disabilities Act to ensure they receive the same access to prison facilities as those who are not disabled.
5. Medical and Mental Health Care – Prisoners are entitled to receive medical care and mental health treatment. These treatments are only required to be “adequate,” not the best available or even the standard treatment for those outside of incarceration.
5. First Amendment Rights – Inmates retain basic First Amendment rights (i.e., free speech and religion), but only to the extent that the exercise of those rights does not interfere with their status as inmates.
6. Discrimination – Inmates have the right to be free from discrimination while imprisoned. This includes racial segregation, disparate treatment based on ethnicity or religion, or preferences based on age, among others.
7. Rights to moral and physical Integrity – Torture is defined as any act by which severe physical or mental pain or suffering is intentionally inflicted on a person, other than that which is inherent in or incidental to lawful sanctions. Ill-treatment is defined as other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. Any act of torture committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, is a crime against humanity. No prisoner shall be subjected, even with his or her consent, to any medical or scientific experimentation which may be detrimental to health. Like torture and ill-treatment, enforced disappearances and summary executions are completely prohibited. All law enforcement officials shall be fully informed and educated about the prohibition of torture and ill-treatment.
8. Right to adequate Standard of living – All prisoners deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person. All person deprived of liberty shall have an adequate standard of living, including adequate food, drinking water, accommodation clothing, and bedding. Prisoners required to share sleeping accommodation shall be carefully selected and supervised at night. Clothing as a component of the right to an adequate standard of living is a human right.
9. Health rights of prisoners – The enjoyment of the highest attainable standard of physical and mental health is a human right. It is a basic requirement that all prisoners should be given a medical examination as soon as they have been admitted to prison or place of detention. Any necessary medical treatment should then be provided free of charge. Prisoners should generally have the right to request a second medical opinion. Prisoners and all detained persons have the right to the highest attainable standard of physical and mental health. Prisoners should have free access to the health services available in the country.
Decisions about a prisoner’s health should be taken only on medical grounds by medically qualified people. The medical officer has an important responsibility to ensure that proper health standards are met. He or she can do this by regularly inspecting and advising the director of the prison on the suitability of food, water, hygiene, cleanliness, sanitation, heating, lighting, ventilation, clothing, bedding and opportunities for exercise. Every prison should have proper health facilities and medical staff to provide for a range of health needs, including dental and psychiatric care.
10. Prisoners contact with the outside world – No one shall be subjected to arbitrary interference with his or her privacy, family, home or privacy. All prisoners shall have the right to communicate with the outside world especially their families. A prisoner’s request to be held in a prison near his or her home shall be granted as far as possible.
11. Complaints and Inspection Procedures – Every prisoner shall have the right to make a complaint regarding his or her treatment, and unless the complaint is evidently frivolous, to have it dealt promptly and if requested, confidentially. If necessary complaint may be lodged by the prisoners family or legal representative. Every prisoner would be explained the rule and procedures in a language in which he/she understands and if possible may be told orally. If the complaint is rejected or not responded timely, the complainant shall be entitled to bring it before judicial or other authority. The state shall ensure a prompt and impartial investigation whenever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed.
The terms “prison” and “jail” are used interchangeably in India, perhaps reflecting the fact that no significant effort is made to separate “undertrials,” as those awaiting trial are known, from convicts. Separation of undertrials from convicts is required by a decision of India’s Supreme Court, but this decision is widely ignored in practice.
The leading court case on the right to counsel in India is M.H.Hoskot v. State of Maharashtra, 1978, 3 S.C. 544. It provides that the defendant shall “have legal assistance assigned to him in any case where the interests of justice shall require” at no cost if the defendant cannot pay. Though the Court’s opinion, by Justice Krishna Iyer, explicitly cites bail motions as among the circumstances where justice “would be well-nigh impossible” without legal aid, free legal assistance is not made available at this stage in India. The Legal Services Authority Act of 1987, though enacted, has not been brought into effect and implemented at this writing more than three years later.
For all practical purposes, the legal aid movement started in 1980 with the appointment of the Committee for Implementing Legal Aid Schemes (“CILAS”), which was headed by Justice P.N. Bhagwati. CILAS drafted model schemes which were used by many states to formulate their own legal aid and advice programs. The general gist of these programs, which are still used today, is the utilization of panels of voluntary lawyers (who would receive minimal honoraria, and not actual remuneration, for their services rendered) who represent certain individuals eligible for legal aid (determined by “means,” “social criteria,” i.e. scheduled tribes and castes, women, etc., or “special circumstances” tests). Because of the voluntary nature of such representation and the low (and difficult to obtain) honorarium provided, very few lawyers participate in the legal aid panels and therefore many persons who are deserving of legal aid must represent themselves.
“Article 20(3) of the Constitution provides that no person accused of any offense shall be compelled to be a witness against himself. Moreover, Sections 25 to 27 of the Evidence Act guard against this danger. Section 25 provides that no confession made to a police officer shall be proved against a person accused of any offense. Section 26 provides that no confession made by any person while he is in the custody of the police shall be used as evidence against him. However, Section 27 provides that when any fact is discovered in consequence of information received from an accused in custody of the police, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
One victim of the grotesque failure of legal and penal management was a man called Ram Chandra. He was arrested in 1952 for riding on a train without a ticket and spent thirty years in a Bihar jail awaiting trial. The police had forgotten about him. His case papers were lost….Had his case not been unearthed by a civil liberties group, and his release ordered by a high court judge, he would be locked up to this day A leading Indian court case dealing with torture is Sunil Batra (II) v. Delhi Administration 1980 3 S.C. 488, in which a prisoner was tortured by the insertion of a baton in his anus. The victim was tortured because of “an unfulfilled demand for money.” In his opinion for the Supreme Court, Justice Krishna Iyer wrote that this suggested: “that bribery, at the point of barbarity, is a flourishing trade within the house of punishment itself.”
Gunnar Myrdal, who wrote about the corruption of the Indian police in his classic Asian Drama had this experience in New Delhi that illustrated the long-standing reputation of the police for corruption. He complained to the chief of police “about the local taxi drivers who broke all the traffic regulations. Why did he not order his policemen to enforce the rules? ‘How could I?’ was the reply, ‘if one of them went up to the taxi driver he might be told ‘Getaway or I will tell the people that you have asked me for ten rupees! If the policeman objected that he had not done it, the taxi driver would come back with ‘Who would believe you?'”.
It is very sad to see the caste discrimination being done even in the jails, A study conducted over a ten month period in 1985-6 of the male inmates in all of Orissa’s prisons who had been confined two years or longer found that 32.40 percent were members of scheduled tribes; 17.87% were members of scheduled castes, and 11.53% were lower caste.
The confinement of juveniles in Tihar Jail led to a court decision, Sanjay Suri v. Delhi 1987 (2) SC 276. Judge Ranganath Misra noted in his decision a previous case in which the courts had found “a shocking state of affairs in so far as juvenile prisoners are concerned. The District Judge has interviewed some of the juvenile prisoners in regard to whom he learned that they had been subjected to sexual assault by the adult prisoners. The juvenile prisoners who made statements before the District Judge have expressed apprehension that they might get into difficulties if their names are disclosed” Though an effort had been made in the earlier case to protect the juveniles in Tihar Jail, Judge Misra determined that it had not been effective and issued new orders in an attempt to protect them by maintaining strict segregation within the jail.
MEASURES TO BE TAKEN REGARDING PRISONERS RIGHTS
The difficulty in dealing with abuses in police detention and in the prisons is exacerbated by the decentralization of authority in India. A determination to correct these abuses at the central government level would not suffice. The governments of the various states would have to decide to end torture by the police and to end the mistreatment of lower class Indians who make up the bulk of the prison population, and enforce those decisions.
As an organization that seeks to promote human rights internationally, Asia Watch (and its parent, Human Rights Watch) has less ability to influence the various state governments of India than the central government. The state governments do not have a foreign policy; they are generally not direct beneficiaries of international assistance programs, and they lack representation at the United Nations or foreign embassies. Accordingly, Asia Watch has little opportunity to embarrass those state governments directly by calling attention internationally to abuses for which they are responsible.
Under such circumstances, it is even more true of the problems considered in this report than is ordinarily the case with human rights abuses generally that the momentum to secure change must come from within the country. That is one reason that we discuss the Indian human rights movement in this report. Despite its weaknesses, it must play a leading role in attempting to see to it that abuses in police detention and the prisons are curbed. Indian human rights organizations themselves, of course, hardly need advice from outsiders as to the seriousness of the problems or the importance of dealing with them.
As we have noted, these organizations already do excellent work in documenting abuses and bringing to the courts the problems of police torture and mistreatment in the prisons. Indeed, it is the information compiled by Indian human rights organizations on which we have principally relied in making the findings we set forth here. What outsiders may be able to contribute to enhancing the efforts that the Indian human rights movement is currently making to deal with these issues is support to enable that movement to establish itself more solidly in institutional terms. Though we recognize the importance of the concerns that were expressed to us about the delegitimizing effect of foreign funding and foreign interference, it may nevertheless be possible for outsiders to find ways to provide assistance.
If such ways are to be found, it will have to be through exploration between representatives of the Indian human rights movement and outsiders concerned with human rights in India. We express our eagerness to take part in such an exploration. In some respects, the problems in the prisons, such as their class system, seem relatively susceptible to change. One reason is that the prison population is small. Again, we recognize that it is not only India’s apparently low crime rate that accounts for the low rate of incarceration; it is also the substitution of summary punishment by the police for imprisonment. Even so, with a small prison population, the cost of making changes should not be prohibitive. This is of obvious importance in a country that is not affluent.
A factor that may have contributed to the perpetuation up to now of the class system in the prisons is fear by some of those concerned with the prisons that its elimination would reduce all the inmates to the conditions now provided to Class C prisoners: that is, leveling down rather than leveling up. Such fear is legitimate, and it would be a terrible consequence of ending the class system if that were to happen. Yet it must be eliminated. The conditions provided currently to Class B prisoners are the least that are required to comply with the United Nations Standard Minimum Rules. Compliance with Indian law, as well as the Standard Minimum Rules also demands an end to the confinement of juveniles with adults; and of undertrials with convicts.
The “convict officer” system is inherently abusive and must be ended. We call also for the elimination of cruel forms of punishment, such as handcuffing and the use of fetters. Other abuses which are particularly glaring include the confinement of rape victims in protective custody; the confinement of non-criminal lunatics in prisons; and the sexual exploitation of women prisoners, often for corrupt purposes. As to reforming police detention, the place to start is by eliminating the practice of remanding detainees to police custody after they are arraigned before magistrates. This practice amounts to a judicial invitation to the police to engage in torture and, in the case of women, rape.
The 24-hour rule must be enforced; free legal assistance must be provided to indigent defendants at pre-trial proceedings, including bail hearings and remand hearings; magistrates must use arraignments to ascertain the physical conditions of detainees; the presumption should be that detainees should then be released on bail or on personal recognizance if the circumstances indicate they can be reasonably relied upon to appear to stand trial; bail should not be used as a punitive sanction against the poor; and those detainees who do not post bail, or who are not released pending trial because of a reasonable basis for believing that they may abscond, should be remanded to pre-trial detention facilities under the jurisdiction of the courts, not the police.
Undertrials who are not brought to trial within six months to a year (depending on the seriousness of the alleged offense) should be freed unless delays are due to the efforts of defendants and their lawyers. Also, it is essential that police or other officials who abuse detainees should be vigorously prosecuted; and that independent doctor should conduct post mortem examinations that are made available to the families and attorneys of those who die in custody. The reforms we propose with respect to police detention will require more sweeping changes than those we call for with respect to the prisons. Yet such reforms are urgent. Police detention in India is a disgrace. Despite India’s well-founded claim to be the world’s largest democracy, the systematic torture of detainees by the police is worse than we have encountered in many of the world’s most repressive dictatorships. It must end.
Judiciary has an important watchdog role to play in ensuring that fundamental rights are not denied even to a group as politically powerless as prisoners. Yet, it is reasonable to wonder whether the courts and Congress went too far in cutting back on inmates’ rights in the 1980s and 1990s. The deference that is reflected in both the Supreme Court opinions and in the PLRA is unlike that given to any other department of government. Ironically, deference has been granted to the very institution that, because of its all-controlling nature, poses a greater risk of abuse than virtually any other institution of government. The opposition to the current deferential doctrine was well expressed by Justice Brennan who wrote that a high level of deference to prison officials is not justified. Justice Brennan explained, “The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing” (O’Lone v. Estate of Shabbaz, 482 U.S. 342, 356).
In the years ahead, these factors might compel the courts and the legislative branch to extend greater protections to prisoners’ rights than is the case currently. With so many hundreds of thousands of Americans going into and coming out of prison every year, the well-being of the larger society demands no less.
Formatted on 15th February 2019
- Platek vs. Aderhold, 73 F.2d 173 (5th Cir. 1934)2. Johnson vs. Avery, 393 U.S. 493(1969)
- Sunil Batra vs. Delhi Administration, 1980 AIR 1597, 1980 SCR(2) 557
- International Covenant on Civil and Political Rights [hereinafter “ICCPR”], article 2, para. 3.
- Charter of the United Nations, Preamble, Article 1 and Article 55 (c)
- Universal Declaration of Human Rights [hereinafter “UDHR”], preamble and article 1; ICCPR, preamble
- UDHR, article 5; ICCPR, article 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereinafter “CAT”],
Preamble and article 2; Code of Conduct, article 5.
- Principles on Detention or Imprisonment, principle 24; SMR, rule 24
- UDHR, article 2; ICCPR, article 3; Convention on the Elimination of All forms of Discrimination against Women [hereinafter “CEDAW”], articles 1, 2 and 3; Declaration on the Elimination of Violence against Women [hereinafter “Declaration on Violence against Women”], article 3
- UDHR, article 11; ICCPR, article 14, para. 3 (b) and (d); Principles on Detention or Imprisonment, principles 17 and 18; SMR, rule 93.
- http://law.jrank.org/pages/1766/Prisoners-Legal-Rights-Conclusion.html last seen 18/08/2105 at 23:15
- https://www.law.cornell.edu/wex/prisoners_rights last seen 18/08/2015 at 23:54.
- http://legal-dictionary.thefreedictionary.com/Prisoners’+Rights last seen 18/08/2015 at 1:23am.w
- ww.lac.org.na/projects/alu/Pdf/prisonerrights.pdf , Understanding Prisoners Rights.
- http://www.internationalpenalandpenitentiaryfoundation.org/Site/documents/Stavern/05_Stavern_Contribution%20Van%20Kempen.pdf, Positive obligations to ensure the human rights of prisoners