Prisoners Right A Human Rights Perspective, Study Guides, Projects, Research of Human Rights

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NATIONAL LAW INSTITUTE UNIVERSITY

KERWA DAM ROAD

BHOPAL

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TRIMESTER: VII TRIMESTER

SESSION: 2019 – 2020

SUBJECT:

HUMAN RIGHTS

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A PROJECT PAPER ON:

PRISONERS’ RIGHTS IN INDIA- HUMAN RIGHTS PERSPECTIVE

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SUBMITTED TO: SUBMITTED BY:

PROF. (DR.) UDAY PRATAP SINGH AAYUSH CHOUDHARY

ROLL NO. - 2017BALLB

ACKNOWLEDGEMENT

I owe a great deal of gratitude and indebtedness to everyone who helped me to successfully compile this project report and have been a massive pillar of support to me. First and foremost, I would like to profusely thank our mentor Prof. (Dr.) Uday Pratap Singh who have given me constant support and guidance and encouraged me during the execution of this project. I would like to thank him for assigning this project to me, as it helped me to understand and learn a great deal about the topic of the project and acquire considerable knowledge. Last, but with utmost sincerity, I would like to thank my Institute, Faculty Members and my friends for their unconditional support and kind guidance, without which the completion of this project would not have been possible. They have been a source of strength and confidence for me. Aayush Choudhary 2017BALLB

• INTRODUCTION
  •  Prisoner........................................................................................................................
  •  Prisoners’ Rights
• PRISONER’S RIGHTS AND INTERNATIONAL SCENARIO
  •  TORTURE
• PRISONER’S RIGHTS AND INDIAN SCENARIO
  •  THE CONSTITUTION OF INDIA,
  •  THE PRISONS ACT, 1894 AND THE PRISONERS ACT, 1900...........................
  •  MULLA COMMITTEE-...........................................................................................
  •  MODEL PRISON MANUAL (2003)
  •  The need of Human rights in prisons can be summed up as:
• JUDICIAL PRONOUNCEMENTS TO PROTECT PRISONERS RIGHT
  •  Right to Legal Aid
  • Torture..................................................................................................................................  Right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from
    •  Solitary Confinement
    •  Handcuffing and Bar fetters
    •  Torture
  •  Right to Speedy Trial
  •  Right to health and hygiene
    •  Exercise
  •  Right to expression
  •  Right to Reasonable Wages in Prison
  •  Right to meet friends and Consult Lawyer
    •  Right to be Present at Court
    •  Access to Lawyers
    •  Contacting the media
  •  Education
  •  Marriage and family
  •  Women Prisoners with Children
    •  Conjugal rights
  •  For assurance of rights in prison
    •  Maintaining Human Dignity
    •  Health Rights of prisoners
    •  Making prisons safe places
    •  Making the best use of prisons
    •  Prisoners contact with outside world
    •  Complaints and inspection
  •  Special categories of prisoners
    •  Women
    •  Juveniles
    •  Prisoners under sentence of death
    •  Persons under detention without sentence
  •  The administration of prison and prison staff
• CONCLUSION
• Bibliography

INTRODUCTION

“Hate the Crime not the Criminal; Correctional Justice is always better than punitive justice.” The degree of civilization in a society can be judged by entering its prisons. --Fyodor Dostoyevsky Prisoners retain certain basic rights, which survive despite imprisonment. The rights of access to the courts and of respect for one’s bodily integrity - that is, not to be assaulted - are such fundamental rights. Others may be recognised as the law develops. Prisoners lose only those civil rights that are taken away either expressly by an Act of Parliament or by necessary implication. For example, one right taken away by statute is that prisoners detained following conviction do not have a right to vote. The test in every case is whether the right is fundamental and whether there is anything in the Prison Act 1952, the Prison Rules 1999 or elsewhere which authorises the prison authorities to limit such a right. The penal reforms in India during the past few decades have brought about a remarkable change in the attitude of people towards the offenders. The old concept about crime, criminal and convicts have radically changed. The emphasis has now shifted from deterrence to reformative of the criminal. The age old discriminatory and draconian punishments no longer find place in the modern penal system. Indian penologists are greatly impressed by the recent Anglo- American penal reforms and have adopted many of them in the indigenous system.^1 A prison today serves three purposes which may be described as custody, care and correctional. Though the last of these which concerns the use of imprisonment as a form of legal punishment, now takes the primary place, it is in historical perspective a comparatively a new conception, not all the implications of which have yet been worked out. In its origin prison served only the custodial functions; it was a place in which an alleged offender could be kept in lawful custody until he could be tried, and if found guilty punished.^2 (^1) Prof. N.V. Paranjape, Criminology and Penology, Central Law Publications, Allahabad, 12th Edition, 2006. (^2) Frank New Sam, “The Home Office” Allen and Unwin, London, 1954.

preserved.^4 A Prisoner is a person who is deprived of liberty against their will. The prisoner can be by confinement, captivity, or by forcible restraint. The term applies particularly to the on trial or serving a prison sentence The rights of civil and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the United Nations Minimum Rules for the Treatment of Prisoners, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment^5 and the Convention on the Rights of Persons with Disabilities. The prisoners are protected by the rights guaranteed by the International Conventions and Constitution of India, enacted by the legislatures like The Prisons Act, 1894, The Prisoners Act, 1900. The rights are also protected and interpreted by the Judiciary like an inmate is not ceased as a human being or cannot be treated as a slave or bounded labour, even though the person is in prison, all protections and rights are guaranteed.

Human Rights in Prisons

The protection of Human Rights Act, 1993 defined Human Rights as the rights relating to liberty, equality, and dignity of the individual guaranteed by the Indian Constitution as embodied in the Fundamental Rights and the International Covenants. Human rights are those minimal rights that every individual must have against the state or the other public authority by virtue of being a “member of human family” irrespective of any other consideration. These are the rights that are inalienable because the enlightened conscience of the community would not be permitted to surrender those rights by any citizen even of his/her own violation. These are the rights that are inviolable because they are not only vital for the development and the efflorescence of the human personality and for ensuring its dignity, but also because without them people would be reduced to the level of animals. Human rights are neither privileges nor gifts given at the whim of a ruler or a government. Neither can they be taken away by any arbitrary power. They cannot be denied nor can they be forfeited because an individual has committed an offence.

Why human rights in prison?

Prisons all over the country are managed in terms of the Prisoner Act, 1894 which is central law. Because of the uniformity in management structure, problems are also similar. They are (^4) A.K.Roy Vs Union of India and Anr., AIR 1982 SC 710 (^5) Howard Davis (2003),"Prisoners' rights", Human rights and civil liberties, Taylor & Francis.

the most critical area of human rights because of the very nature of the functions assigned to them by law. They not only execute sentences imposed by law courts on convicts but also detain those accused of criminal action. Prison conditions are such that it is not possible to easily accept that even basic human rights of inmates would be honoured. Above noted condition of overcrowding and lack of medical facilities, themselves cause human rights violations. Shortage of staff results in over reliance on so called star prisoners in matter of internal management, which cause problems relating to custodial violence. By and large, prison in this country are run through outdated structures, ill equipped personnel out moded methods and apparatus. It is therefore necessary to consider the question of human rights protection in prisons in the totality of institutional environment, besides the law on the subject. It is also necessary to consider them in the context of international Human rights Law so that we do not lose sight of our binding treaty obligations and remain an important part of the international community. Articles 14, 21and 22 of the constitution recognise the basic principles and aim at securing human rights contained therein. Even the right to liberty of movement and others freedoms guaranteed restriction in wider public interest. The Supreme Court has therefore affirmed that all fundamental rights are an enforceable reality even for prisoners though restricted by the fact of their imprisonment. Within this constitutional framework, the supreme court has declared that a prisoner in prison does not become a non-person and that such a person is entitled to all human rights other than those taken away of curtailed by the process of incarceration. State of Maharashtra v. Prabhakar^6 was perhaps the first case where the Supreme Court considers the right of a detenue to read and write and send the manuscript of his book out of jail for publication. Sunil Batra v. Delhi Administration^7 is a land mark decision holding that conviction for a crime does not reduce a person into a non-person whose rights are subject to the whim of the prison administration and hence imposition of any major punishment within the prison system is conditional upon observance of procedural safeguards under Art.21 of the constitution. It was held that even section 30(2) of the prison Act,1894 does not authorise prison authority to impose solitary confinement within the meaning of section 73 and 74 IPC. (^6) AIR 1966 SC 424 (^7) AIR 1978 SC 1675

 TORTURE

Torture is a particularly barbaric violation of the right to physical and neutral integrity and represents a direct attack on the core of the human personality. It was therefore abolished during the Age of Enlightenment, and is prohibited, without exception even in emergency situations, by present international law.^13 The Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as, “The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” INTERNATIONAL HUMAN RIGHTS PROTECTIONS FOR THE PRISONER-ON- PRISONER ABUSES^14 In addition to the constitutional protections available to prisoners, numerous international human rights instruments protect the human rights of prisoners. At the forefront of such instruments are the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Both instruments unequivocally prohibit torture and cruel, inhuman, or degrading treatment or punishment. While there are no international law provisions that specifically pertain to prison rape, rape is covered by the prohibitions against torture and cruel, inhuman, or degrading treatment as defined in these instruments. Additionally, several international interpretive guidelines delineate the human rights of persons deprived of liberty. To ensure compliance with international treaty obligations, governments may turn to such documents for guidance. One (^13) Manfred Nowak, “Civil and Political Rights”, Course Material Human Rights, at pp- 96 - 97 (^14) Shara Abraham, “ Male Rape in U.S. Prisons: Cruel and Unusual Punishment”, Fall, 2001, 9 Human Rights Brief, 5

such document--the United Nations Standard Minimum Rules for the Treatment of Prisoners-

• constitutes an authoritative guide to binding treaties, including the ICCPR and the CAT. Various provisions of the ICCPR protect the human rights of detained persons. Art- 7 provides that no one shall be subject to torture or cruel, unusual, inhuman, or degrading treatment or punishment. Art- 9 guarantees the right to liberty and personal security. Art- 10 provides that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The CAT is particularly instructive with respect to whether prison authorities are responsible for preventing prisoner-on-prisoner abuses, including rape. The definition of torture and cruel, inhuman, or degrading treatment or punishment in the CAT includes acts committed by public officials as well as acts committed with their acquiescence (Art- 1(1) and 16(1)).

PRISONER’S RIGHTS AND INDIAN SCENARIO

The Protection of Human Rights Act, 1993^15 defined Human Rights as the rights relating to liberty, equality, and dignity of the individual guaranteed by the Indian Constitution as embodied in the Fundamental Rights and the International Covenants. Indian laws recognizing rights of prisoners - The Constitution of India, the Prisons Act 1894, Prisoners Act 1900 and the Judicial Pronouncements are some of the sources for the rights of prisoners (though the list is not exhaustive) framed for regulating the Indian prisons.

 THE CONSTITUTION OF INDIA, 1950

In the Constitution of India i.e. basic law of the land, the Articles, which give effect to the protection of rights of persons- the prisoners, are (the following two articles have a head on application to the rights of prisoners)- Article 14 - The state shall not deny to any person equality before law or the equal protection laws within the territory of India. Article 21 - Protection of life & personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law. (^15) The Protection of Human Rights Act, 1993, Section 2 (d)

 MODEL PRISON MANUAL (2003)

It was in the case of Ramamurthy v. State of Karnataka (1996) wherein the Supreme Court had emphasized the urgent need for bringing uniformity in laws relating to prisons and directed the central and state governments to formulate a new Model Prison Manual. The Bureau for Police Research and Development (BPR&D) constituted a Model Prison Manual Committee at the National level for the formulation of the Model Prison Manual in 2000. For developing prison system in the country as an effective instrument for the reformation and rehabilitation of offenders, the draft Model Prison Manual aims at:

1. Bringing in basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country;
2. Laying down the framework for both sound custody and treatment of prisoners;
3. Rationalisation of prison practices to cater effectively to various categories of prisoners;
4. Spelling out minimum standards of institutional services for the care, protection, treatment, education, training and resocialisation of incarcerated offenders;
5. Evolving such procedures for the protection of human rights of prisoners as they are entitled to within the limitations imposed by the process of incarceration;
6. Individualisation of institutional treatment of prisoners in keeping with their personal characteristics, behavioural patterns and correctional requirements;
7. Providing a scientific basis for the treatment of special categories of prisoners such as women, adolescents and high security prisoners;
8. Outlining an organisation of the Department of Prisons and orrectional Services which can conduct and meet its declared objective and to delineating the duties and functions of the staff at various levels;
9. Developing coordination between the Department of Prisons and correctional services and other components of the criminal justice system;
10. Ensuring availability of the necessary service inputs from other public departments in an efficient functioning of prisons;
11. Forging constructive linkages between prison programmes and community based welfare institutions in achieving the objective of the reformation and rehabilitation of prisoners;

12. Leaving flexibility in the suggested provisions so as to allow for adaptation to local conditions without undermining uniformity in rights and duties of prisoners. The Model Prison Manual sets standards for construction of prisons and provides for proper maintenance of prisoners in the form of specifying the nutritional aspects of diet which the state governments are supposed to follow.

 THE NEED OF HUMAN RIGHTS IN PRISONS CAN BE SUMMED UP AS:

 As a prisoner is also a human being.  Human rights are in inalienable; they must apply to all human beings without exceptions.  If once it is established that a prisoner is a human being he/she is entitled to be treated as human being and has all the rights with in the limitations of imprisonment.  Prisoners being under the control of their custodial are more vulnerable then the person outside, to the deprivation of human rights.  No person is born criminal. Crime is a reflection of the failure of society. By restoring human rights to prisoners the society corrects its own failure and ensures proper socialization of prisoners.  A prisoner should have human rights in order to learn to respect the human rights of others after release.  Whatever we require from them we should give them first.  Treatment of criminals is one of the tests of civilization of the country, so by maintaining the human rights of prisoners we contribute towards positive development of civilization.  If we debar a prisoner from human rights only because a prisoner has committed a crime, then we shall threaten our own society.

 A prisoner is sent to jail as a punishment and curtailment of liberty is itself a punishment

so prisoner can not be punished more by debarring him/her from human rights.

JUDICIAL PRONOUNCEMENTS TO PROTECT PRISONERS RIGHT

The Indian judiciary, particularly the Supreme Court in the recent past has been very vigilant against encroachments upon the human rights of the prisoners.

 Handcuffing and Bar fetters

In the case of Prem Shanker Shukla v. Delhi Administration^17 , Justice Krishna Iyer was of the opinion that, no doubt the petitioner is an under trial prisoner whose presence is needed in several cases, making periodical trips between jail house and magistrate’s courts inevitable and being in custody he may try to flee and so escort duty to prevent escape is necessary. But escorts, while taking responsible care not to allow their charges to escape, must respect their personhood. Here is a prisoner who bitterly complains that he has been publicly handcuffed while being escorted to court and invokes the court’s power to protect the integrity of his person and the dignity of his human hood against custodial cruelty contrary to constitutional prescriptions. And handcuffing was treated as a clear-cut violation of Art. 21 of the Constitution.

 Torture

Torture of a human being by another human is essentially an instrument to impose the will of the strong over the weak. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. In the case of Arvinder Singh Bagga v. State of U.P. and Others^18 , the court observed that: “Torture is not merely physical; there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even graver.”.

 RIGHT TO SPEEDY TRIAL

Right to speedy trial is a fundamental right of a prisoner implicit in article 21 of the Constitution. It ensures just, fair and reasonable procedure. The fact that a speedy trial (^17) (1980) 3 SCC 526 (^18) AIR1995SC

is also in public interest or that it serves the social interest also, does not make it any the less right of accused. In the case of Hussainara Khatoon (I) v. State of Bihar^19 , a shocking state of affairs in regard to the administration of justice came forward. An alarmingly large number of men and women, including children are behind prison bars for years awaiting trial in the court of law. The offences with which some of them were charged were trivial, which, even if proved would not warrant punishment for more than a few months, perhaps a year or two, and yet these unfortunate forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging from three to ten years without as much as their trial having commenced. The Hon’ble Supreme Court expressed its concern and said that: “That a procedure, which keeps such large number of people behind, bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21.”

 RIGHT TO HEALTH AND HYGIENE

The Mulla Committee has dealt with this aspect in Chapter 6 and 7 of its Report, a perusal of which shows the pathetic position in which most of the jails are placed insofar as hygienic conditions are concerned. Most of them also lack proper facilities for treatment of prisoners. The society has an obligation towards prisoner’s health for two reasons. First, the prisoners do not enjoy the access to medical expertise that free citizens have. Secondly, because of the conditions of their incarceration, inmates are exposed to more health hazards than free citizens. Prisoners therefore, suffer from a double handicap.

 Exercise

Convicted prisoners no longer have a statutory right to one hour's exercise each day. There is a right to one hour's physical exercise a week and it is aimed to allow one hour's exercise in the open air a day if circumstances permit. Health care advice is that this period should not normally be reduced to less than half an hour a day. (^19) AIR1979SC

(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not. (2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose. (3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State to do so as early as possible. (4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction. (5) State concerned should make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

 RIGHT TO MEET FRIENDS AND CONSULT LAWYER

A prisoner is entitled to communicate subject to prison rules, include the right to be ; lodged in a prison close to their homes ; right to communicate with the members of the family , friends and legal representatives and the access to the books, newspaper, radio, T.V and the like and right to read and write.

 Right to be Present at Court

At present, if you are a prisoner acting without a solicitor and wish to be produced at court to present your case in person you must apply to the prison governor by completing the relevant request form. This includes a requirement that you undertake to pay the costs of your production. These costs should be limited to production from the prison nearest to the court and the level at which they are set should have regard to what you can actually afford to pay. The courts have recognised that there may be an

appearance of bias if the Home Office refused to produce at court a prisoner who was unable or who had refused to give an undertaking as to costs in an action when the Home Office is the defendant to the action. If you are faced with this difficulty you should apply to the court that is to hear your action for guidance. Any refusal to produce a prisoner, particularly when the action is against the Home Office, may be in breach of Article 6 of the convention, the right to a fair trial.

 Access to Lawyers

As a prisoner you have an absolute right to have visits from and to correspond with your solicitor. You do not have to tell the prison authorities why you wish to contact your solicitor, nor make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognised by the ECHR and any attempts to interfere with such access are closely scrutinised by the courts. This right also includes preserving the confidentiality of any legally privileged material held by prisoners in their possession in prison.

 Contacting the media

Prisoners are not generally allowed to telephone the media from card phones and must make an application for permission to do so to the governor. The High Court has held that in exceptional cases, it would be wrong for such a request to be refused but that in most cases, a written letter from the prisoner to the press would be sufficient. Letters sent to the media can be stopped if they contain information about your past criminal offences or of others, identify members of staff or are sent in return for payment. Serious comment on the criminal justice system is allowed. Visits from journalists can now be permitted on application to the prison governor. The visits will normally be allowed if the prisoner wishes to discuss a matter relating to their conviction or sentence, but may be more difficult to obtain in other circumstances. A refusal to allow a journalist to visit may potentially breach Article 10 of the Convention and, if the visit is concerned with a miscarriage of justice, Article 6.