PROTECTION OF PRISONERS: A SILENT STRUGGLE OF JUDICIARY
PROTECTION OF PRISONERS: A SILENT
STRUGGLE OF JUDICIARY
Dr. Goutam Barman
1.
INTRODUCTION
Judiciary
has recognized that fundamental rights do not flee the person as he enters the
prison although they may suffer shrinkage necessitated by incarceration. A person is sent to prison when he is found by the
judicial process to have committed an offence. Whenever a criminal is sent to prison layman feels justice
and take a breath of peace thinking that our administrators are maintaining
rule of law in the society. People deserve punishment of offender. At the same
time, common people expect that human rights of all persons including prisoners
are protected. No prisoner is to be treated inhumanly.
However, it can’t be denied that ultimate control and
prevention of crime depends upon the proper utilization of the prison system.
Excessive recognition of prisoners’ rights is likely to defeat the very object
of penology. If the difference between the life inside and outside prison is
narrowed down beyond a certain limit, it is bound to culminate into
catastrophic result.[i]
2. DEFINITION
OF PRISONER
A prisoner, (also known
as an inmate or detainee) is a person who is deprived of liberty against his or
her will. This can be by confinement, captivity, or by forcible restraint. The
term particularly applies to those on trial or serving a prison sentence in a
prison.[ii] The Prisons Act, 1894 has not defined the term prisoner. However it has
classified the prisoners into 3 categories as follows:[iii]
(i) “Criminal prisoner” means any prisoner duly committed
to custody under the writ, warrant or order of any Court or authority
exercising criminal jurisdiction, or by order of a Court martial.
(ii)
“Convicted
criminal prisoner” means any criminal prisoner under sentence of a Court or
Court martial, and includes a person detained in prison under the provisions of
Chapter VIII of the Code of Criminal Procedure, 1882, (10 of 1882) or under the
Prisoners Act, 1871 (5 of 1871).
(iii) “Civil prisoner” means any prisoner who is not a
criminal prisoner.
3. JUDICIAL
APPROACH FOR PROTECTION OF PRISONERS IN INDIA
The
judiciary plays an important role in the protection of fundamental rights of
the citizen alike. Prisoners’ hopes on judiciary to protect their life and
secure justice held their lamps of life burning. Judicial pronouncements have
established the prison as punishment and not prison for punishment. Even if a
prisoner is kept in prison as punishment, it does not mean that all his human
rights will be suspended. The judicial decisions relating to rights of
prisoners are mainly clarification of principles to which a democratic
government should adhere. Indian Judiciary has created a new era for prisoners
where their rights are respected and hence protected.
3.1 RIGHTS AGAINST
TORTURE AND CUSTODIAL VIOLENCE
The treatment of a human being
which offends human dignity, imposes avoidable torture and reduces the man to
the level of a beast, would certainly be arbitrary and questionable under Art.
14. Justice Krishna Iyer remarked that society must strongly condemn crime
through punishment, but brutal deterrence is fiendish folly and is a kind of
crime by punishment. It frightens, never refines; it wounds never heals.[iv]
As
regards the torture and custodial violence, the Apex Court in D.K. Basu v. State of W.B.,[v] has clearly ruled that
"Custodial torture" is a naked violation of human dignity and
degradation which destroys, to a very large extent, the individual personality.
It is a calculated assault on human dignity. In all custodial crimes what is of
real concern is not only infliction of body pain but the mental agony which a
person undergoes within the four walls of Police Station or lock-up.
3.2 RIGHT TO SPEECH AND EXPRESSION
Prisoners alike others can access
many human rights made in Universal Declaration of Human Rights and
International Covenants. Indian judiciary had also recognized the right of a
prisoner to enjoy the freedom of speech and expression.[vi] A
Writ Petition was filed under Art. 32 of the Constitution by the chief reporter
of Hindustan Times Smt. Prabha Dutt seeking a writ of mandamus or order
directing the respondents Delhi Administration and Superintendent, Tihar jail
to allow her to interview two convicts Bill and Ranga who were under a sentence
of death, whose commutation petition to the President were rejected. The Court
affirmed the restricted right to interview the prisoners subject to their
willingness to attend the same.[vii] The
freedom of press person to interview an under trial prisoner will not be alike
that of the prisoner sentenced to death. Supreme Court remarked that the right
to interview a prisoner will not become an exclusive right as in the case of
life convict and it should be decided on merits depending on each case.[viii]
3.3 RIGHT TO REASONABLE WAGES FOR PRISON LABOUR
Commenting
on the wage for Prison Labour, Supreme Court Justice D.P. Wadhwa in State of Gujrat v. Hon’ble High Court of
Gujrat,[ix]
observed that there will
be no violation of Article 23 if prisoners doing hard labour when sentenced to
rigorous imprisonment are not paid wages. Wages are payable only under the
provisions of Prisons Act and rules made there under. Though prison reforms are
must and prisoners doing hard labour are now being paid wages but the message
must be loud and clear and in unmistakable terms that crime does not pay. This
the prisoners and the potential offenders must realize. One cannot make prison
a place where object of punishment is wholly lost. It was further observed that
putting a prisoner to hard labour while he is undergoing sentence of rigorous
imprisonment awarded to him by a court of competence jurisdiction cannot be
equated with 'beggar' or 'other similar forms of forced labour' and there is no
violation of clause (1) of Article 23 of the constitution. Clause (2) of
Article 23 has no application in such a case. Constitution, however, does not
bar a State, by appropriate legislation, from granting wages (by whatever name
called) to prisoners subject to hard labour under courts' orders, for their
beneficial purpose or otherwise.
It is imperative that the prisoners
should be paid equitable wages for the work done by them. In order to determine
the quantum of equitable wages payable to the prisoners the State Government
shall constitute wage fixation body for making recommendations. All the State
Governments were directed to fix the rate of interim wages within six weeks.
The Supreme Court also directed the State concerned to make law for setting
apart a portion of the wages earned by the prisoners to be paid as compensation
to the deserving victims of the offence.[x]
3.4
RIGHTS AGAINST SOLITARY CONFINEMENT
The
courts have strong view against solitary confinement and held that imposition
of solitary confinement is highly degrading and have dehumanizing effect on the
prisoners. The courts have taken the view that it could be imposed only in
exceptional cases where the convict was of such a dangerous character that he
must be segregated from the other prisoner.[xi]
3.5
RIGHTS TO PROTECTION AGAINST INSTRUMENTS OF RESTRAINT HANDCUFFS, BAR-FETTERS,
ETC.
Instruments of restraints i.e.
handcuffs, bar-fetters, chains, irons, chains, strait jackets and other
instruments of restraints are not to be used as a punishment and irons and
chains are not to be used as a means of restraint. To prevent the escape of the
under-trial is in public interest, reasonable, just and cannot, by itself, be
castigated. But to bind a man’s hand and foot, fetter his limbs with hoops of
steel, shuffle him along in the streets and stand him for hours in the courts is
to torture him, defile his dignity, vulgarise society and foul the soul of our
constitutional culture.[xii]
The Supreme Court in Sunil Batra (I) Case,[xiii]
strongly reacted against putting bar fetters to the prisoners. The court
observed that continuously keeping a prisoner in fetters day and night reduced
the prisoner from human being to an animal and such treatment was so cruel and
unusual that the use of bar fetters was against the spirit of the Constitution
of India.
In
Citizens for Democracy through its President
v. State of Assam and Others,[xiv]
Supreme Court declared that
handcuffs or other fetters shall not be forced on a prisoner - convicted or
undertrial while lodged in a jail anywhere in the country or while transporting
or in transit from one jail to another or from jail to court and back. The
police and the jail authorities, on their own, shall have no authority to
direct the hand-cuffing of any inmate of a jail in the country or during
transport from one jail to another or from jail to court and back. Where the
police or the jail authorities have well-grounded basis for drawing a strong
inference that a particular prisoner is likely to jump jail or break out of the
custody then the said prisoner be produced before the Magistrate concerned and
a prayer for permission to handcuff the prisoner be made before the said
Magistrate. A person arrested by police
shall not be handcuffed unless special orders in that respect are obtained from
the concern Magistrate at the time of the grant of the remand.
3.6
RIGHT TO HAVE INTERVIEW WITH FRIENDS, RELATIVES AND LAWYERS
The Supreme Court in Sunil Batra (II)[xv] case
recognized the right of the prisoners to be visited by their friends and
relatives. The Court observed that visits to prisoners by family and friends
are a solace in insulation, and only a dehumanized system can derive vicarious
delight in depriving prison inmates of this humane amenity.
In
Francis Coralie Mullin v. Administrator,
Union Territory of Delhi,[xvi]
the Supreme Court,
while considering the scope of right to have interview with a lawyer and the
members of his family,
observed that right to life includes the right to live with human dignity. The
court further held that any unreasonable restriction on the right to meet
friends would be violative of Articles 21 and 14 of the Constitution.
In Smt. Prabha Dutt v. Union of India,[xvii] Supreme Court of India observed
that right of press to interview convicts in jail is not absolute but inter alia subject to consent of the
interviewee and rules and regulations of Jail Manual. The authorities can deny
such interviews on weighty reasons which must he recorded in writing. In case
of unjustified refusal of interviews, Court can direct the jail authorities to
grant interviews to the prisoners.
3.7 RIGHT TO FREE LEGAL AID
Right to
free legal aid is one of the most important rights of the prisoners. Legal aid
may be taken to mean free legal assistance to the poor persons in any judicial
proceedings before the Courts or Tribunals. Actually it intends to provide free
legal assistance to the poor persons who are not able to enforce the rights
given to them by law.[xviii]
In Madhav
Hayawadan Rao Hoskot v. State of Maharashtra,[xix]
Supreme Court observed that free
legal aid is the State’s duty and not Government’s charity. If a prisoner is
unable to exercise his constitutional and statutory right of appeal including
Special Leave to Appeal for want of legal assistance, the court will grant such
right to him under Article 142, read with Articles 21 and 39A of the
Constitution. Court has power to assign counsel to the prisoner provided that
such prisoner does not object to the lawyer named by the court. The State must
pay the lawyer an amount as fees fixed by the court.
3.8
RIGHT FOR PAROLE AND FURLOUGH
The parole and furlough rules are
part of the penal and prison system with a view to humanize the prison system.
Those rules enable the prisoner to obtain his release and to return to the outside
world for a short prescribed period. In
the case of Poonam Lata v. M.L.
Wadhawan and Ors., the Supreme Court observed that the release on parole is a
part of the reformative process and is expected to provide opportunity to the
prisoner to transform himself into a useful citizen. The parole, though is a creation of Rules, but essentially is a right
attached with a prisoner automatically for the reason that every prisoner is a
part of society and the society being a larger agency to watch welfare of its
every member is under obligation to make all efforts to bring the convicts in
main stream of the society through their rehabilitation. The parole, therefore,
is a mode to make efforts to rehabilitate convicts and it is not a concession
but a human right. [xx]
4.
CONCLUSION
It is seen that all the rights
that have been recognized as the prisoners’ rights are nothing but the basic
human necessities. They are sent to
prison so that they realize their unsocial behavior. We should not think that
they are the forgotten human. These rights have been recognized with the object
so that love for humanity is not suspended for them for any reason. At the same
time people keep notice on the prisoners’ situation of life. If the society
feels that life in prison is better than the free world, then the actual
purpose of imprisonment will be destroyed. The Indian Judiciary has tried its
best to make a balance between these two types of reverse interests. Thus, the prisoners must have some rights
which are essential as a human being and at the same time it is also to be kept
in the mind that in the name of human rights, more luxurious, more comfortable
life is not given to the prisoners.
[i]
Pranajape, N.V., Criminology & Penology, Central Law Publications,
Allahabad, 2005, p.32
[ii] Prisoner, Wikipedia, available at https://en.m.wikipedia.org/wiki/Prisoner, accessed on 15-08-2018 at 7.12 A.M.
[iii] Section 3 of the Prisons Act, 1894
[iv] Iyer, V.R. Krishna, “Justice in Prison: Remedial Jurisprudence and Versatile Criminology”, Sage Publications, New Delhi, First Edition, 2009, p.58
[v] AIR
1997 SC 610
[vi] The
State of Maharashtra v. Prabhakar Prandurang Sanzgiuri and another, A.I.R. 1966
SC 424
[vii] Prabha
Dutt v. Union of India, A.I.R. 1982 SC 6
[viii]State,
through Supdt. Central Jail New Delhi v. Charulatha Joshi and another, AIR 1999
SC 1379
[ix] AIR 1998 SC 3164
[x] State
of Gujrat v. Hon’ble High Court of Gujrat, AIR 1998 SC 3164
[xi] AIR
1978 SC 1675
[xii] Khedat Mazdoor Chetana Sangthan v. State of Madhya Pradesh and Others, AIR 1995 SC 31
[xiii] Sunil
Batra (II) v. Delhi Administration, AIR 1980 SC 1579
[xiv] AIR
1996 SC 2193
[xv]
Supra
Note 13
[xvi] AIR
1981 SC 746
[xvii] Supra Note vii
[xviii]
Rai, Kailash, “Public Interest Lawyering, Legal Aid and Para-Legal Service,”
Central Law Publications, Second Edition, 2003, p.153
[xix] M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544