PROTECTION OF PRISONERS UNDER CRIMINAL JUSTICE ADMINISTRATION IN INDIA
PROTECTION OF PRISONERS UNDER CRIMINAL
JUSTICE ADMINISTRATION IN INDIA
Dr.
Goutam Barman
Every person by virtue
of his humanity is entitled to certain inalienable natural right although under
certain circumstances those rights are curtailed by law of the land. Under
modern penology crime is considered as a social disease and favors for
treatment of prisoners with non penal methods. Violation of prisoners’ rights
affects the core of human civilization and cause a wound to humanity. Hence
proper treatment of socially ill persons i.e. prisoners is required to develop
their humane personality to secure their reintegration into society after
release from jail.
Protection of prisoners
has become an international concerned and it has been recognized that all
inmates retain the fundamental freedoms and other rights enshrined in the UDHR,[1]
ICESCR,[2]
ICCPR[3]
and other optional protocol as well as other United Nations Covenants. The
basic principle which requires the government to protect the rights of
prisoners has been incorporated under Article 1 and 2 of the
UDHR which advocate that all human beings are equal in dignity, rights and are
entitled to all rights and freedoms contained in the instrument without
distinction of religion, race, color, sex, language, etc. Further, ICCPR states
that all persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.[4]
The Standard Minimum Rules for Protection of Prisoners is most significant as
it touch upon the core of prison administration all over the world. It lays
down the comprehensive legal framework for treatment of prisoners with
equitable, just and fair processes. The Code of Conduct of Law Enforcement
Officials imposes obligation upon the concerned authorities to discharge their
duties with due regard to human dignity of inmates. Similarly Principle of
Medical Ethics[5]
further imposes obligation upon the health personnel to strictly act with
medical ethics while dealing with prisoners as their patient. United Nations
Convention against Torture imposes obligation upon its member States to prevent
torture and cruel, inhuman treatment towards the prisoners. Thus, due to adoption
of several international instruments, the issues connected with protection of
prisoners have received adequate attention in international level.
It will be wrong to say
that Indian Government has not taken any step for protection of persons behind
bars. It is true that in ancient India regular prison system
as such was not in existence and imprisonment as a mode of punishment was not a
regular feature. In ancient India
accused persons/wrongdoers were kept in prisons for trial and judgment as well
as execution thereof. The main aim of imprisonment was to keep away the wrongdoers,
so that they may not defile the members of the social order. There was
no any system whereby the prisoners or the offenders could claim that being
human they have too some rights.
However, moral duly was imposed on the King by ‘Manu’ to consider the circumstances
of the crime and of the offender’s ability to bear a specific penalty. Even in medieval
India there
was no specific rules fixed for imprisonment. The treatment of prisoners was
varied from person to person based on their ranks, caste, community, etc.
Prisoners’ right as it is accepted today in our
country is a legacy of the British Rule. For the first time in 1835, prisoners’
rights tried to be secured by Lord Macauly by drawing attention of the Legislative
Council of India to the deplorable conditions of the Indian Jails. The Report
of the Prison Discipline Committee, which was constituted on 02-01-1836, reflected
on essentials of cleanliness, provision of food and clothing and attention to
sick prisoners in the prisons.
The imprisonment became a form of punishment on
uniform basis throughout India after passing of the Indian Penal Code 1860. Even
at that time violation of prisoners’ rights was a regular feature. To overcome
the problems of prison administration, Indian Government passed Prison Act,
1894 and Prisoners Act, 1900. Indian
Jail Committee 1919 suggested the ‘reformation’ and ‘rehabilitation’ of
prisoners as a major part of prison administration. However, after the passing
of Government of India Act 1935 prisoners were adversely affected as by this
statute subject of jails was transferred from the Central List to the control
of provincial governments without any effective control and supervision of Central
Government.
However, after
independence our Constitution is taking the role of a guardian to protect the rights
of prisoners. Preamble of the Constitution pays more attention to
the social concern and it imposes duty on the Government to establish Welfare
State to protect all persons even though they are behind bars.
Article 14 of the Constitution of India contemplates
that like should be treated alike and also provides for the reasonable
classification. This article provides the basis for classification of prisoners
for the purpose of their reformation. The criminals do not take birth as
criminals rather they be so due to various factors like economic condition,
social condition, etc. These prisoners are not to be equated with the common
people.
Article 19 of the
Constitution provides 6 freedoms to the citizens of our nation. Among these
certain freedoms like minimum freedom of movement can’t be curtailed by using
handcuffs to the prisoners. The other fundamental rights like (a) freedom of speech
and expression, and (b) right to assemble peacefully without arms, can be
available to the prisoners.
Article 21 of the
Constitution guarantees right to life and personal liberty of any person and
thus it ensures prohibition of inhuman or degrading treatment towards the
prisoner. Life under Article 21 is not only restricted to the
mere animal existence of a person. Right to life includes the right to live
with human dignity. Moreover, Constitution provides various other provisions
though cannot directly be called as prisoners’ rights but are relevant. For
example, Article 22 provides procedural constitutional rights against arbitrary
arrest and detention. Article 23 secures prisoners’ rights to equitable wages
for prison labour. Prisoners’
right to freely profess, practice and propagate religion is fully protected
under Article 25.
If the fundamental rights of prisoners are violated then such prisoner as well
as public spirited citizen can move petition to Supreme Court or High Court
under Article 32 or 226, as the case may be. Article 39A provides for free
legal aid of all person including prisoners.
Under Article 72 and 161 of the Constitution, the prisoners can approach the
President or Governor, as the case may be, to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence to which the prisoners
are subjected.
Indian Government has formulated
various committees to achieve the goal of criminal justice system. In 1957, the
Government of India appointed All India Jail Manual Committee for framing All
India Jail Manual, examining the Prisons Act and other prison related laws and
suggesting legislation for prison reforms to be adopted all over India. In
1972, the Government of India constituted Working Groups on Prison for
examining the conditions of Prisoners in Indian Jails. The Government of India
appointed another committee in 1980 headed by Mr. Justice A.N. Mullah. The
committee’s report contained a number of recommendations with regard to
protection of prisoners. The Government of India further constituted a
Committee of Women Prisoners in May 1986 headed by Justice V.R. Krishna Iyer.
This committee also recommended several guidelines for protection of women
prisoners’ rights especially with regard to health of pregnant women prisoners
and children of women prisoners in jail. More recently, “Supreme Court
Committee on Prison Reform” has been constituted by the Supreme Court headed by
former Supreme Court judge Amitava Roy to look into jail reform across India.[6]
The Government of
independent India has also passed several enactments e.g. the Exchange of
Prisoners Act, 1948, Prisoners (Attendance in Court) Act,
1955, The Mental
Health Act, 1987, The
Repatriation of Prisoners Act, 2003,
Protection of Human Rights Act 1993 for governance of prisons and thereby protecting
prisoners’ rights. In addition to these legislations, Code of Criminal
Procedure, Indian Penal Code and Evidence Act also provide safeguards to
prisoner.
In order to ensure
basic uniformity in prison rules and regulations, Ministry of Home Affairs,
Government of India approved Model Prison Manual 2003 prepared by Bureau of
Police Research and Development and circulated to all States and Union
Territories to revise their existing Prison Manuals. More recently, Model
Prison Manual 2016 has been approved by the Ministry of Home Affairs, Govt. of
India to bring in basic uniformity in laws, rules and regulations governing the
administration of prisons and the management of prisoners all over India.
In spite of various
measures taken by the governments by away of committees, statutes, rules,
regulations, etc., maltreatment towards prisoners is going on. Indian judiciary
has given fervent judgments touching problems of prisoners. The Indian judiciary is forcefully reminding
the obligations of executive towards the prisoners. The judicial activism has
given more importance for the protection of fundamental rights of prisoners imparting
justice behind the bars. The Indian Judiciary has established prison
as punishment and not prison for punishment. In D. B. M. Patnaik v. State of A.P.[7] Supreme Court held that convicts
are not by mere reason of the conviction, denuded of all the fundamental rights
which they otherwise possess. In Punjab & Haryana High Court v.
The State of Punjab & Ors,[8] recognizing the rights
to compensation, Hon’ble Supreme Court held that the court has wide powers under Article
32 do complete justice by awarding
monetary compensation in appropriate cases.
The functioning of the judiciary has
laudably shown that it has great concern for protection of human dignity of
prisoners and it is imparting justice to all persons who are behind bars in
accordance with the cherished commitment of our Constitution. Recognizing the
protection of prisoners our Apex Court has held 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.[9]
In Rama Murthy v. State of Karnataka[10]
Apex Court reminded the society’s obligations towards the prisoners’
health. Government must secure the prisoners’ access to health services without
discrimination on the ground of their incarceration. It has also affirmed the
restricted right to interview the prisoners subject to their willingness to
attend the same.[11]
Apex Court has made serious anguish that overcrowding of prisons does not
permit segregation among convicts-those punished for serious offences and for
minor. The result may be that hardened criminals spread their influence over
others.[12] In State of Gujrat v. Hon’ble High Court of Gujrat,[13]
Hon’ble Supreme Court observed that although prisoners are not entitled to minimum wage fixed
under the Minimum Wages Act, but then there has to be some rational basis on
which wages are to be paid to the prisoners. In Sunil
Batra (1),[14]
the Apex Court has held that imposition of solitary confinement is highly
degrading and has dehumanizing effect on the prisoners and hence violative of
Article 21 of the Constitution. Further Apex Court warned that handcuffs
must be the last refuge as there are other ways for ensuring security.[15]
The Supreme Court has further held that any unreasonable
restrictions on the right to meet friends would be violative of Articles 21 and
14 of the Constitution.[16]
Long term detention of undertrial prisoners has been greatly condemned in the
case of Hussainara Khatoon
and Ors. v. State of Bihar[17] and the Apex
Court expressed its anguish saying that it is a crying shame on the judicial system which permits
incarceration of men and women for such long periods of time without trial. In Madhav Hayawadan Rao Hoskot v.
State of Maharashtra,[18]
Supreme Court observed that free
legal aid is the State’s duty and not Government’s charity. More recently the
Supreme Court in the Re-Inhuman
Conditions in 1382 Prisons Case,[19]
directed legal aid lawyers to engage with the system in order to release
undertrials. The Court remarked that the State and District Legal Service
Authorities should empanel competent lawyers, in order to prevent ‘legal aid
for the poor’ from becoming ‘poor legal aid’. Apex Court further held that the
law governing temporary release cannot be so construed as to permit its
operation harshly against the poor and advantageously in favour of the non-poor
in our Socialist Republic which aims at the establishment of an egalitarian
society based on social justice.[20]
The Supreme Court in its order dated 24 April, 2015 in Re-Inhuman Conditions in 1382 Prisons[21]
directed the National Legal Service Authority (NALSA), the Ministry of Home
Affairs and State Legal Services Authorities (SALSA) to ensure that Undertrial
Review Committees (UTRCs) are formed in every district of the country, and meet
every quarterly. This order also directed the UTRCs to review cases where
undertrials granted bail were not released because they were not able to
furnish sureties. The Supreme
Court also has also given more importance to protect the women prisoners and
their children in jail and made several guidelines for their protection.[22]
The most important
fact that have come into light is that judiciary is not agree to make the
prison comfortable and luxury rather its intension is to ensure human dignity
in prison where object of punishment is not lost. The court has maintained
balance between the right of the prisoner and the preservation of internal
order, discipline and maintenance of prison security against threat to lives
and escape attempts by prisoners.
National Human Rights
Commission is trying its best to prevent the violation of human rights of
prisoners and it has imposed penalties on the concerned authorities who are
responsible for the violation of human rights of the prisoners. It is to be
mentioned here that the NHRC seems to be handicapped as it acts as a
recommendatory body and its recommendations are not strictly followed by the
Government.
Prisons in Assam was
governed under the Prisons Act 1894 but recently Government of Assam has passed
Assam Prisons Act, 2013 incorporating the guidelines specified in the Model
Prison Manual 2003. But the Government of Assam has not incorporated the new
provisions of Model Prison Manual 2016 in the prison laws. Although Assam
Prisons Act, 2013 has been passed, rules and regulations framed under the old
Prison Act, 1894 are still in force.[23]
Thus, there is doubt how the real objects for passing the Assam Prisons Act,
2013 will be fulfilled if new rules and regulations are not framed complying with the Model Prison
Manual.
There is no doubt that the judiciary is forcefully reminding the
executive of its obligation to the prisoners. To a great extent the Courts have
been able to give voice to the voiceless prisoners whose rights have been
violated. It is the onerous duty of the Court to ensure that prisoners’
fundamental rights should not be violated at any time. The basic problems of prisoners
need to be tackled in order to humanize the prison. To improve prison
conditions does not mean that prison life should be made soft; it means that it
should be made sensible.
In a similar vein, it is
said:
“Treating prisoners not as
objects, but as the human beings they are, no matter how despicable their prior
actions, will demonstrate an unflagging commitment to human dignity. It is that
commitment to human dignity that will, in the end, be the essential
underpinning to any endeavor to transform prison cultures.”[24]
***
[1] Universal Declaration of Human Rights
[2] International Covenant on Economic, Social and Cultural Rights
[3] International Covenant of Civil and Political Rights
[4]
Article 10(1) of ICCPR.
[5]
Principle of Medical Ethics relevant to the role of Health Personnel,
Particularly physician in the Protection of Prisoners and Detainees against
torture and other Cruel, Inhuman or Degrading Treatment of Punishment.
[6]
Judgment dated 15th Sep., 2017, Writ Petition (Civil)-406 of 2013,
Re: Inhuman Conditions in 1382 Prisons, Supreme Court.
[7] AIR
1974 SC 2092.
[8] 1996 SCC (4) 742, 1996 SCALE (4)416.
[9] D.K. Basu v. State
of W.B. AIR 1997 SC 610.
[10] AIR
1997 SC 1739 p.1746.
[11] Prabha
Dutta v. Union of India, A.I.R. 1982 SC 6.
[12] Rama
Murthy v. State of Karnataka, AIR 1997 SC 1739 at p.1746.
[13] AIR
1998 SC 3164.
[14] AIR
1978 SC 1675.
[15] Prem
Shankar Shukla v. Delhi Administration, 1980
AIR 1535.
[16] In
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC
746.
[17] AIR 1979 SC 1360.
[18] (1978)
3 SCC 544, AIR 1978 SC 1548.
[19]
Supreme Court, Order dated 5th February, 2016, Re-Inhuman Conditions in 1382 Prisons, WPC 406 of 2013.
[20] Kesar Singh Guleria v. The State of
Himachal Pradesh, 1985 CriLJ 1202.
[21]
Supreme Court, Order dated 5th February, 2016, Re-Inhuman Conditions in 1382 Prisons, WPC 406 of 2013.
[22] R.D. Upadhyay v. State of A.P. & Ors., AIR
2006 SC 1946.
[23] By
virtue of Sec.92 of Assam Prisons Act, 2013.
[24] The
Mess We’re In: Five Steps Towards the Transformation of Prison Cultures by Lynn
S. Branham, Indiana Law Review, Vil.44, P.703, 2011 which is cited in Re:
Inhuman Conditions in 1382 Prisons (W.P.(C) No.406 of 2013 at Supreme Court).