COMPARATIVE ANALYSIS OF PRISONERS’ RIGHTS TO SANITARY FACILITIES AND PERSONAL HYGIENE: BRIEF REVIEW ON INDIA AND BANGLADESH BY - CHOWDHURY SHAIRATASNIM
COMPARATIVE ANALYSIS OF PRISONERS’ RIGHTS TO SANITARY
FACILITIES AND PERSONAL HYGIENE: BRIEF REVIEW ON INDIA AND BANGLADESH
AUTHORED BY - CHOWDHURY SHAIRATASNIM
Apprentice Lawyer, Khulna Bar Council
Association
Faculty of Legal Studies, South Asian
University, New Delhi, India
Introduction
Conditions related to public health,
such as clean water to drink and sewage treatment, are referred to as
sanitation. Sanitation encompasses all of the practical instruments and
measures that contribute to maintaining a clean environment. According to the
World Health Organisation, Hygiene is the term used to describe the
circumstances and behaviors that support good health and stop the spread of
illness.[1]While
sanitation focuses on the proper disposal of human waste, which includes human
waste, hygiene primarily addresses illnesses and health. This goes beyond
simply maintaining our personal hygiene. This entails giving up any habits that
impair one's health such as dumping trash within specified and covered areas,
using the lavatory outdoors, and many other things. The purpose of both
sanitation and hygiene is to create a society free from disease and populated
by healthy individuals in accordance with public health. These two spectrum is
not only important in public health rather are also very important goal under
SDGs. The international community is working relentlessly to reduce poverty,
establish inclusive and sustainable development solutions, safeguard human
rights for everyone, and make sure that no one is left behind as part of the UN
2030 Agenda for Sustainable Development, which has 15 unique goals.[2]Sanitation,
cleanliness, and access to clean drinking water are essential to human health
and well-being and are also the cornerstones of sustainable development, which
is vital to both human and environmental survival. This goal aims to guarantee
not just drinking water, sanitation, and cleanliness, but also the quality and
sustainability of water resources globally, as well as livelihoods. It also
fosters the development of resilient communities that live in hygienic
surroundings. Furthermore, human rights depend heavily on these two crucial
health spectrums. Human rights include not only the freedom of speech, the
right to an unrestricted life, and the right to dignity, but also the right to
good health and a clean, hygienic environment. In 2015, the UN General Assembly
legally recognised the human right to sanitation as a distinct and autonomous
right. However, the JMP report on the state of clean water, sanitation, and hygiene
from 2000 to 2020 states that, as of 2020, one in four people worldwide lacked
access to securely managed drinking water in their homes, and nearly half of
the world's population lacked access to adequate sanitation.[3]
The position of neglected people in society in such rights is significantly
low. But prisoners are also parallelly entitled like other civilians living in
society. In 2009, 19 November, World Toilet Day, observed by the UN, emphasised
that everyone has the human right to access clean toilets, with special
emphasis on "forgotten" inmates and detainees housed in public
institutions.[4]In a
joint statement, three UN human rights experts on water and sanitation, health,
and torture stated that about 1.8 million fatalities occur annually due to improper
sanitation, and 2.5 billion people lack access to it globally whereas access to
sanitation is unquestionably a human rights issue.[5]
States are required to guarantee that everyone has access to sanitary
facilities, even those who are detained, without it, the fundamental human
dignity that forms the foundation of all human rights is violated by cruel
detention practices. But the question is if the persons detained, thus the
prisoners are getting access to these vital human rights and what is the
instance of the international community to ensure these rights of prisoners.
States must ensure that everyone, including those in detention, has access to
hygienic facilities; otherwise, harsh detention procedures would violate the
basic human dignity, which is the cornerstone of all human rights. But the real
question is whether those who are detained, and hence the prisoners, are able
to exercise these fundamental human rights, and if so, what action is being
taken to protect the rights of prisoners?
Prisoners’ Rights to Sanitation and Personal Hygiene
A prison is a place of confinement
for a number of people convicted of acts referred to as crimes to keep law and
order of society in balance. In other words, it is a place of rehabilitation
for people convicted of crimes. Generally, it is presumed or expected that such
confinement will have two benefits, one for society to keep the balance of law
and orders and another is for the persons kept in detention, thus prisoners to
have another chance to rehabilitate themselves. So there exists no means to
consider them as less than any normal person living in society.
The intention of protecting the rights
of prisoners is not a new rather it has been under observation since the League
of Nations and even before. The League of Nations in 1929, first tried to
establish minimum rules relating to the treatment of prisoners.[6]The
successor of the League of Nations, after the Second World War, had adopted
‘Standard Minimum Rules for the treatment of Prisoners’ on the Prevention of
Crime and the Treatment of Offenders, held in Geneva in 1955 and later approved
by the Economic and Social Council in its resolutions 663 C (XXIV) 1957, and
2076 (LXII), 1977.[7]The
basics of this resolution are to eliminate discrimination, and institute
separate categories of prisoners, accommodation, personal hygiene, medical
services, food, and other features of rehabilitation and the prisoners are so
entitled to those rights. After almost three decades in 2010, the UN General
Assembly asked the Commission on Crime Prevention and Criminal Justice to
organize an open-ended intergovernmental expert group to produce rules or
principles to reform the standard minimum rules, as long as any reformations to
the regulations don't result in a reduction of the current requirements.[8]Later,
the United Nations Standard Minimum Rules for the Treatment of Prisoners, also
known as The Mandela Rules, were adopted by the UN-General Assembly in December
2015.[9]
This resolution consists of 122 rules reflecting the primary human rights for
prisoners including the rights of women prisoners. The Universal Declaration of
Human Rights (UDHR), International Covenant on Civil and Political Rights
(ICCPR), Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, European Convention on Human Rights, The European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, The European Prison Rules have also stated and provide rules for
the treatments of prisoner and their rights during any such confinement.
Rights of Sanitary Facilities and Personal Hygiene of
Prisoners
Several International Treaties and
resolutions have provided rules reflecting the treatment of prisoner and their
rights, such as the elimination of discrimination, and institution of separate
categories of prisoners, accommodation and sanitation, personal hygiene,
medical services, food, and other features of rehabilitation. The Mandela Rules
offer States comprehensive directives for safeguarding the rights of inmates.
The foundation of the Rules is to treat every prisoner with decency and respect
for their intrinsic worth as human beings and to forbid any kind of
mistreatment. They provide thorough advice on a broad range of topics, from
medical services to disciplinary actions. However, among those rights, the
right to proper sanitation facilities and personal hygiene are often neglected
whereas those rights are vital to maintain the good health of the prisoners.
The Mandela Rules 2015 has emphasized the facilities of sanitation and personal
hygiene. Rules 15 of this Resolution emphasized that lavatory facilities must
be sufficient for each prisoner to be able to appropriately and cleanly satisfy
their natural needs when they arise and Rule 18 emphasized that prisoners will
be expected to maintain personal hygiene, and in order to help them with this,
water and the personal hygiene products that they need, will be given and also
have access for men to facilities for frequent shaving and for taking proper
care of their hair and beard in order for convicts to retain a respectable
appearance.[10]Besides
men, women prisoners are more vulnerable in terms of diseases. They need more
facilities during any such confinement. The supplement to the Mandela Rules, UN
Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women
Offenders (Bangkok Rules) in article 5 emphasized about personal hygiene of
women and stipulated that the facilities and supplies needed to meet the unique
hygiene needs of women who are incarcerated. These supplies and amenities
include free sanitary towels, sanitary pads, and a consistent water supply for
the hygiene of women, especially those who cook and those who are pregnant,
nursing, or menstruating.[11]Juvenile
detention centers are very crucial rehabilitation centers for any country where
juveniles are rather nurtured for good and ethical behaviors than giving them
punishment. It is very important for such installations to have proper sanitary
facilities which would affect the mental or psychological improvement of those
juveniles. UN Rules for the Protection of Juveniles Deprived of their Liberty
in its rule 34 emphasized that the sanitary facilities should be situated and
maintained at a level that allows all minors to meet their bodily needs in a
private, orderly, and respectable manner when necessary.[12]
So regardless of sex and age, every detainee or prisoner is entitled to
facilities relating to sanitation and personal hygiene in time of need. This
impression includes solitary confinement as well. Other regional instruments,
such as European Prison Rights in its Rule 19 emphasized prisoner sanitary and
hygiene facilities. However, water scarcity, polluted water, and inadequate
sanitary facilities are common issues that prisons worldwide are facing,
particularly in post-conflict and low and middle-income nations which pose a
greater risk to those prisoners during any occasion of epidemic or pandemic. It
has been seen in various reports that toilets are frequently non-functional in
places like the Central African Republic, Malawi, Uganda, Ethiopia, and
Senegal, and water points for toilets and showers are occasionally built near
sanitation outflows and, in Lebanon, prisons also struggle with a lack of basic
hygiene supplies and clean water for cooking, drinking, and other purposes for
degrading political and economic situations.[13]
Additionally, a UN report from 2021 on Haiti described how inmates in small
spaces had no access to water and were forced to use buckets because there were
no latrines and in Colombia and Peru facilities relating to water, such as
sanitation and hygiene depend on supplies from nearby towns.[14]
The developed countries, it is generally expected that their detention center
or prisons will be facilitated by the minimum standard of sanitary facilities
and hygiene maintenance. The European Committee for the Prevention of Torture
discovered that when prisons were unable to provide their basic necessities,
detainees were expected to use their minimum-earned resources to buy bottled
water, added that water delivery might be erratic or stopped without sufficient
notice or backup plans, and that access to restrooms and showers can be
restricted which causes a great complication in accessing the facilities of
sanitary and hygiene needs.[15]Asian
Countries such as Turkey, Tanzania, and Iran, and, low-income countries, such
as Myanmar are no exceptions to the priors.[16]
Countries like Bangladesh, India, Pakistan, and other South Asian countries
often face troublein providing basic human rights e.g. sanitary facilities and
facilities in relation to personal hygiene to the prisoners.
After the two world war, the
international community felt the necessity of providing human rights to the
prisoners which resulted creation of several resolution that upheld the human
rights of prisoners including health facilities, e.g. sanitation and personal
hygiene. However, countries worldwide have not attained satisfactory
improvement or progress since the adoption of the Mandela Rules 2015.
Prisoners’ Access to The Sanitary Facilities and
Personal Hygiene in Bangladesh & India
The majority of outmoded laws and
repressive practices, many of which are remnants of the colonial past, are
imposed upon the imprisoned in the South Asian country's jails. Prisons in
South Asian countries have been transformed from places of reform and
correction into places of eternal torture due to overcrowding, inadequate
healthcare facilities, low-quality bedding, terrible sanitation and hygiene,
and limited privacy. The prison population suffers excessively even in normal
conditions since public health facilities are difficult to access and the
COVID-19 pandemic has made conditions for inmates in jails and detention
facilities throughout the region worse. India being the largest country, has
the highest number of prison or detention cells. On the other hand, Bangladesh
being highly populated, has overly crowded prisons and detention cells that struggle
to provide facilities stated in the Mandela Rules 2015. The facilities relating
to the rights of sanitation and personal hygiene are also very poor along with
other principle rules. An overview of facilities in relation to sanitation and
personal hygiene is given below.
1.
INDIA
Of the Asian countries, China, India,
and Thailand have the highest numbers of people in confinement and as the most
populous country in South Asia. Among these India has the lowest rates of
incarceration. The Constitution of Indiaguarantees the primary rightsof its
people. In a case namely States of A.P. vs. ChallaRamkrishna Reddy and Ors.
(2000), the Honorable Supreme Court of India held that whether
convicted or in the trial stage and in jail, he will enjoy every fundamental
right guaranteed by the Constitution of India.[17]
These fundamental rights include protection of health which extends to proper
sanitation facilities and personal hygiene. Further, the Prison Act, 1894 in
its section 4 expressed that prisoners have the right to have proper
accommodation constructed. Prison Manual 2016 provided rules about living
conditions with dignity in all aspects of life, e.g. sanitation and hygiene.
However, India is still struggling to provide the right to proper sanitation
facilities and personal hygiene, especially in relation to women's hygiene
facilities. From 1980 to 1983, the Mulla Committee focused on jail
reforms, and after almost two decades submitted another report on sanitation
and hygiene facilities with other aspects where it was expressed that in many
states like Haryana and Uttar Pradesh, the number of lavatories was 50% lower
than expected.[18]There is
also a significant reliance on open pan-based toilets; in fact, a significant
portion of the jail toilets in Tamil Nadu, Uttar Pradesh, and Haryana are of
this type.[19]The CGA,
comptroller of Auditor General had published a report mentioning the
lack of sanitation facilities in different states.[20]
India is also lagging behind in providing facilities related to women's health
and hygiene, e.g. menstrual hygiene facilities. The Mandela Rules and Bangkok
Rules have stated that prisoners, especially women have the right to have
sanitary facilities and personal hygiene facilities free of charge, women
prisoners had to pay 10 rupees to get sanitary pads.[21]The
infrastructure of prisons in India is also deficient in several areas,
including sanitary restrooms, enough dustbins, and a location to dispose of sanitary
napkins properly. There exist few programs in India that address the menstrual
health and hygiene management of women for the general public, but none of them
specifically target female prisoners .However, India is constantly trying to
overcome the crisis relating to sanitation and hygiene in prison. In its model
prison manual, the Bureau of Police Research and Development (BPRD) recommended a
number of steps to enhance sanitation in Indian jails.[22]
In the 2011 National Seminar on Prison Reforms, the National Human Rights Commission
(NHRC) provided recommendations.[23]
In these two recommendations, both BPRD and NHRC show concern about the
reformation and improvement of sanitary facilities and personal hygiene for men
and women, and this suggestion extends to the improvement of sanitary
facilities and personal hygiene for juveniles in detention.
2.
BANGLADESH
In South Asia, Bangladesh is a small
and highly populated country with a high crime rate. So it is obvious that all
the prison cells are overcrowded in Bangladesh with about triple in a number
from the prescribed number of inmates. The South Asia Peace Action Network (SAPAN),
a forum of South Asian human rights activists, convened a discussion on the
rights of the incarcerated in South Asia in 2021 which claimed that
Bangladesh's jails are among the worst in all of South Asia and have the
largest rate of jail occupancy among South Asian Nations.[24]Such
occupancy clearly posed a high risk on the availability of sanitation
facilities and personal hygiene. However, Bangladesh pledges, to ICCPR
to uphold the intrinsic dignity of every human being and to treat all those who
are deprived of their freedom with humanity. Every person who is deprived of
their freedom is entitled to compassion and respect for the intrinsic value of
every human being, as stated in Article 10(1) of the ICCPR, and According to
Article 10(3) of the ICCPR, reforming and socially
rehabilitating prisoners should be the aim of the criminal justice system. Like
India, Bangladesh has enacted the Prison Act, 1894 which provides rules to
regulate the prison in a condition that the prisoners are living a safe and
healthy life with proper sanitation and hygiene facilities. Regretfully,
Bangladesh's jail system and conditions do not model any efforts towards reform
and the social rehabilitation of inmates. Further, the Appellate Division of
the Supreme Court of Bangladesh makes an important observation on the subject
of a prisoner's human rights in the case of Bazlul Huda v. The State (2000)
by stating that the prisoner's basic human rights should not be overlooked
because his conviction for a crime does not make him a non-person.[25]Those
rights include sanitation and hygiene facilities and to enjoy those rights, a
prisoner has to spend almost 30 thousand taka every month.[26]The
Jail Authority charged each prisoner Tk. 16,000 a month for the bare minimum of
space needed to sleep comfortably, and sanitary and hygiene facilities, e.g.
clean water for toiletries and bathing and additional Tk. 14,000 was charged
for food that included protein.[27]
According to the Bangladesh Jail Code and the Mandela Rules for the prisoners,
each prisoner to which he or she is entitled without charge while incarcerated
has to manage the money to enjoy the minimal rights. Further, due to a lack of
sanitary facilities, e.g. unclean toilet, a damp environment, and inadequate
lighting, heating, and ventilation inside the prisons, prisoners suffers from a
variety of illnesses and due to the lack of facilities relating to personal
hygiene such as clean bathing water, clean bedding, prisoners suffer from skin
diseases.[28]The most
challenging inmates in these jails are female. Not only are there woefully
insufficient cells for female inmates, but there are also appalling hygienic
facilities and no designated spaces for children who accompany their moms to
the jail. Despite the fact that many jail facilities have reached the end of
their useful lives, a subpar hygienic system has allowed many inmates, even
those awaiting trial, to live inside, e.g. the 1840-built Rajshahi Central Jail is
currently in extremely poor shape and there are only 2 bathrooms for female
prisoners in the jail but in 2023, Rajshahi central jail established 8
women friendly toilet.[29]However,
the approach of Bangladesh toward eliminating the problems regarding accommodation,
sanitation, and personal hygiene is not satisfactory. Bangladesh has to walk a
long road to overcome or partly overcome such a humanitarian crisis.
The right to personal hygiene, and
sanitation is one of the prisoners' primary human rights but those facilities
can roughly be accessed by prisoners in India and Bangladesh. Despite having
enacted laws, both countries cannot provide the required amount of facilities
relating to sanitation and hygiene. The main cause behind such failure is
ignorance of the administrative body, continuous corruption in the regulation
of prisons, lack of funding for a new installation of lavatories, and
facilities relating to personal hygiene e.g. clean water supply for cooking,
drinking, wash basin and women's sanitary facilities and hygiene facilities
during menstruation. The juvenile detention centers are also neglected by both
of these countries and they should get priority relating to any
reformation.
Conclusion
Since prisoners are human, treating
them with compassion may encourage them to undergo self-reformation. However,
the primary barrier preventing inmates from reforming is the current jail
system. The denial of the right to sanitation to imprisoned populations is not
only a form of punishment, torture, and abuse, but it also occurs because there
are inadequate and unhygienic sanitation facilities. Government intervention is
required to guarantee that jails and prisons have sufficient and safe sanitary
facilities, as well as that all inmates can use them on a regular basis and
maintain their personal hygiene without fear by offering a clean, healthy
atmosphere, cozy sleeping quarters, and wholesome food. Governmental
organizations, non-governmental organizations, and civil society should take
the lead in transforming the current prison system into a correctional
facility. Women and juvenile offenders ought to receive the same treatment.
Though sanitation and personal hygiene facilities are not vital for reforming
prison cells into rehabilitation centers only, by improving those facilities,
prisoners can start living with dignity which is their constitutional right.
[1]Sanitation, World Health
Organization.
Available at: https://www.who.int/news-room/fact-sheets/detail/sanitation
(Accessed: 28 October 2023).
[2]Sustainable development goals,
International Partnerships.
Available at:
https://international-partnerships.ec.europa.eu/policies/sustainable-development-goals_en
(Accessed: 28 October 2023).
[3]WHO/UNICEF joint monitoring program
for water supply, sanitation and hygiene (JMP) … Available at:
https://www.unwater.org/publications/who/unicef-joint-monitoring-program-water-supply-sanitation-and-hygiene-jmp-progress-0
(Accessed: 28 October 2023).
[4]Protecting the human rights of
prisoners (2018) UNESCO.
Available at:
https://en.unesco.org/courier/2018-4/protecting-human-rights-prisoners
(Accessed: 31 October 2023).
[5]Ibid.
[6] Standard minimum rules for the
treatment of prisoners
Available at: https://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners (Accessed: 28 October 2023).
[7]Ibid.
[8]"UN General Assembly
Resolution 65/230". United Nations. 21 December 2010. A/RES/65/230
[9]"UN General Assembly
Resolution 70/175". United Nations. A/RES/70/175
[10]The United Nations Standard Minimum
Rules for the treatment of prisoners.
Available at: https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf
(Accessed: 29 October 2023).
[11]Bangkok Rules - United Nations
Office on Drugs and Crime. Available at:
https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf
(Accessed: 29 October 2023).
[12]United Nations rules for the
protection of juveniles deprived of their ...
Available at:
https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-rules-protection-juveniles-deprived-their-liberty
(Accessed: 29 October 2023).
[13]Water and sanitation (2022) Penal
Reform International. Available at:
https://www.penalreform.org/global-prison-trends-2022/water-and-sanitation/
(Accessed: 29 October 2023).
[14]Ibid.
[15]Water and sanitation (2022) Penal
Reform International.
Available at:
https://www.penalreform.org/global-prison-trends-2022/water-and-sanitation/
(Accessed: 29 October 2023).
[16]Ibid.
[17]States of A.P. vs. ChallaRamkrishna
Reddy and Ors. (2000) 5 SCC 712
[18]Implementation of the
recommendations of All-India Committee.
Available at:
https://www.mha.gov.in/MHA1/PrisonReforms/NewPDF/Mulla%20Committee%20-implementation%20of%20recommendations%20-Vol%20I.pdf
(Accessed: 31 October 2023).
[19]Ibid.
[20]AnujaJaiswal / TNN / Jul
31, 2015 (no date) 1 toilet for 12 prisoners: CAG pulls up state for poor
sanitation in jails: Raipur News - Times of India, The Times of India.
Available at: https://timesofindia.indiatimes.com/city/raipur/1-toilet-for-12-prisoners-cag-pulls-up-state-for-poor-sanitation-in-jails/articleshow/48288672.cms
(Accessed: 29 October 2023).
[21]For most women in prisons,
menstrual hygiene is still a dream (2020) Youth Ki Awaaz. Available at:
https://www.youthkiawaaz.com/2020/09/for-most-women-in-prisons-adequate-menstrual-hygiene-management-is-a-utopian-dream/
(Accessed: 30 October 2023).
[22] The Indian Police Journal - Bureau
of Police Research and Development. Available at:
https://bprd.nic.in/WriteReadData/userfiles/file/202301120450341100261Oct-Dec-2021.pdf
(Accessed: 30 October 2023).
[23]MINUTES & RECOMMENDATIONS OF
THE NATIONAL SEMINAR
ON ‘PRISON REFORMS’, New Delhi, 2011
[24]November, F.B.S. and Siddique, F.B.
(2021) We should be concerned about the prisoners’ human rights in Bangladesh,
The Business Standard. Available at: https://www.tbsnews.net/thoughts/we-should-be-concerned-about-prisoners-human-rights-bangladesh-333892
(Accessed: 30 October 2023).
[25]Major Md. Bazlul Huda (Artillery)
Vs. State, 2009, 38 CLC (AD)
[26]Islam, S. (2023) Nothing free in
prison, The Daily Star. Available at:
https://www.thedailystar.net/long-read/news/nothing-free-prison-1225216
(Accessed: 30 October 2023).
[27]Ibid.
[28]Development of prison
administration in Bangladesh, part 5 The Lawyers & Jurists.
Available at: https://www.lawyersnjurists.com/article/development-of-prison-administration-in-bangladesh-part-5/
(Accessed: 30 October 2023).
[29]04 May, 2023, Women-friendly
toilets to be built in Rajshahi City, Daily Sun
Available at: https://www.daily-sun.com/printversion/details/687452/Womenfriendly-toilets-to-be-built-in-Rajshahi-city
(Accessed: 30 October 2023).