PRIONER’S RIGHTS AND LEGISLATIVE INSTRUMENTS ALIGNING WITH JUDICIAL PRECEDENTS BY - VIVEK KUMAR SHUKLA
AUTHORED BY - VIVEK KUMAR SHUKLA
Research Scholar (Law)
B.S.A. College, Dept. of Law, Mathura, DBRAU, Agra
Abstract
The Prisons in India are not
considered as a house for incarceration to deter criminal behavior. On the
subject of Crime, Mahatma Gandhi, our father of our nation, had once said
"Crime is the outcome of a diseased mind and jail must have an environment
of a hospital for treatment and Care." Indian Prison Administration is
having a strong faith in this principle. Sentence of imprisonment would be
justifiable only if it ultimately leads to social defense against crime. Such
an aim could be achieved only if incarceration motivates and prepares the
offender for a law abiding and self supporting life after his or her release.
Imprisonment deprives the offender of his liberty and self determination and
the prison system should not be allowed to aggravate the suffering already
inherent in the process of incarceration. Hence the prison should endeavor to
reform and re-assimilate the offender in the social milieu by giving them
appropriate correctional treatment.
Keywords - Constitution, Fundamental Rights, Right to Privacy, Indian
Constitution, International Organization, Prisoner, Rights, Violation and
Remedial Measures, Human Rights, UDHR and etc.
Introduction
Criminal Justice System is
an organized reaction of the society against the crime and the criminal. Crime
and punishment are interrelated to each other. Various theories of punishment
were exercised at various times. The principal object of punishment is to
protect the society from the potential wrong doer primarily through the process
of removing the causes of crime.
In early history,
punishment was never awarded with the object of correction and the criminals
were treated as persons who cannot be corrected. But now the punishment in
terms of imprisonment is regarded as a means of correction. The old theories of
punishment have since been discarded and given way to the theory of
reformation. The prisons are not functioning as penal institutions but as
reformatories. The basic object of the correctional administration is to
reform, rehabilitate, re-socialize and reintegrate the offender in the society.
It is an accepted principle that the process of reformation and rehabilitation
of offender commences from the date on which he enters the prison and it cannot
be postponed till the date of release. It was Gandhiji who said that Prison should function as hospital as
offenders are very much like sick people and need to be treated.
Lord Lytton in recently
speaking about Jails to the Rotarians of Calcutta said that just as we send our
sick in body to hospitals and not to Jails, so we must ‘provide moral doctors
and moral hospital’ for sick in mind, i.e. criminals. His Excellency introduced
his subject the ideal i wish to set before me, stated in the briefest and
simplest form, is just this, - the substitution of reformation for retribution
as the basis of our Penal Code.
Punishment can instill fear
and enforce habits – it cannot inspire goodness. As a means of moral
regeneration, therefore, it is worse than useless and should be abandoned. A
morality which is only enforced by pains and penalties is a false morality, and
those who would secure the acceptance of moral standards should employ other
methods’’.
Limitation of punishment
Lord Lytton said: “Punishment, if resorted to at all, must always be aimed at
teaching habits necessary for the well- being of the individual or discipline
necessary to the well-being of a community, I do not say that punishment will
always succeed; the form of punishment selected in any particular case may be
well or badly suited for the attainment of its object. Again, I do not say that
punishment is the only way of achieving this object, what I say is that those
are the only objects which can be obtained by punishment
Gandhi on Prison
Reforms-“Let it be remembered that we are not seeking to destroy jails as such.
I fear that we shall have to maintain jails even under Swaraj. It will go hard
with us, if we let the real criminals understand that they will be set free or
be very much better treated when Swaraj is established. Even in reformatories
by which I would like to replace every jail under Swaraj, discipline will be
exacted”[1]
Legislative Enactments
Administration of the
prisons-Prison administration is one among the four wings of the Criminal
Justice System viz. Legislature, Judiciary, Executive and the Correctional
Administration. The Prisons are placed as State subject under article 246 of
the Constitution of India, including it in the Seventh Schedule, List II (i.e)
State List, and Entry IV which read as follows: Prisons, Reformatories, Borstal
Institution and other institution of the like nature, and person detained
therein; arrangements with other States for the use of Prisons and
Institutions.
For the purpose of carrying
out the management of Prisons in India, the Government of India enacted The
Prisons Act, 1894 and Prisoners Act, 1900 for guidance of all the State
Governments. As per the power vested under section 59 of the Prisons Act, 1894,
each State Government passed their own Rules for the management of their
Prisons.
If any State does not have
its own Prison Manual, the existing Central Act, i.e. The Prisons Act, 1894 is
being followed. Model Prison Manual, 1960 is being taken as guidance in the
Prison Administration.
The Existing Statutes-
·
Indian Penal Code, 1860;
·
The Prisons Act, 1894;
·
The Prisoners Act, 1900;
·
The Identification of Prisoners
Act,1920;
·
The Tamil Nadu Borstal Schools
Act, 1925;
·
The Exchange of Prisoners
Act,1948;
·
The Constitution of India,
1950;
·
The Transfer of Prisoners Act,
1950;
·
The Representation of People’s
Act, 1951;
·
The Prisoners (Attendance in
Courts) Act, 1955;
·
The Probation of Offenders Act,
1958;
·
The Model Prison Manual, 1960;
·
The Extradition Act, 1962;
·
The Code of Criminal Procedure,
1973;
·
The Mental Health Act, 1987;
·
The Juvenile Justice (Care and
Protection), 2000;
·
The Repatriation of Prisoners
Act, 2000
Fundamental Rights
Prisoners are basically
human beings. They being, human beings are to be entitled to human rights and
constitutional rights except those that are to be necessarily denied because of
their condition of imprisonment. The State is under a Constitutional obligation
to honor and to protect their rights, particularly their right to live with
human dignity.
The accused, under- trials,
suspects and convicts do not cease to be human beings just because they are so
named. Hence their rights as human beings are to be protected and respected.
The fundamental rights, which are available to the prisoners, are not defined
in the Indian Constitution in particular. The Judiciary, however, through the
process of Judicial Activism has expanded the scope of various freedoms
guaranteed to individuals in relation to prisoners by expanding the horizons of
article 21 of the Indian Constitution and also taking into consideration the
relevant provisions of International Covenants formulated for monitoring and
supervising the prisoners.
A.
Right to Equality – Article
14,15,16,17, & 18
B.
Right to Freedom - Article 19,
20, 21, & 22
C.
Right against Exploitation –
Article 23 & 24.
D.
Right to Freedom of Religion. -
Article 25, 26, 27 & 28
E.
Cultural and Educational Right
– Articles 29 & 30
F.
Right to Constitutional
Remedies – Article 32.
Judicial Precedents
State Of Andhra Pradesh V. Challa Ramakrishna
Reddy: - In this
case the deceased challa Reddy and his son was a offender, They were arrested
and send to the judicial custody On 5th and 6th May 1977 some person miscreants
inter into the jail and hurled the bomb as a result of which challa Reddy was
dies after some day. The son file a petition for damages but the state denied
by saying it was a sovereign function. But the court held that the right to
life and personal liberty which has been given under article 21 of the Indian
constitution does not exist, it also available when the person send to the
jail.
Kharak Singh V. State Of UP - The court in the aforementioned case
decided that "life" refers to more than just an animal's existence.
One could argue that the right to life extends beyond just an animal existence.
It implies something more than just a being's physical survival.
Mohammad Giasuddin V. State Of AP - The state government was order to investigate the type of labour and work
supplied to the convicts and also held that the work must "not of a
monotonous, mechanical, intellectual or like type mixed with a title manual
labour" The high court additionally ruled those convicts who are
interested in pursuing higher or more advanced education must also be provided
with the opportunity to connect via correspondence courses. Additionally,
rudimentary education in areas like doll-making, needlework, and tailoring should
be made available to the female convicts. Additionally, opportunities for
mental-plus-manual productive labour should be provided for the educated
convicts.
Rajgopal V. State Of Tamil Nadu - Gauri Shankar was sentenced to death penalty by
the court for the murder of 6 people. While incarcerated at Chenglepat Sub-Jail
in 1991, Auto Shankar penned his 300-page autobiography. With the knowledge and
consent of the jail staff, he gave the autobiography to his wife, Smt.
Jagdishwari, who then gave it to his lawyer, the prisoner asked his attorney to
see that the petitioners' journal, Nakkheeran, published his memoirs. The same
was accepted by the petitioners. In multiple letters to his counsel and the
original petitioner, Auto Shankar expressed this intention. The prisoner's
tight relationship with a number of IAS, IPS, and other officers, some of whom
were actually his criminal partners is detailed in the autobiography. However
after some time the jail official denied of permission which was given in the
beginning and also impose restrictions on Publication on the ground of
defamation.
The Supreme Court held that prisoner having
right to publish its autobiography, if there will be anything which is not true
about the person against whom he is written he may afterward file a suit for
defamation.
A R Antulay V. Rs Nayak
The Supreme Court established thorough
criteria for those who were set up shamefaced in a felonious case, but it
didn't specify a set quantum of time for the offense's trial. The court ruled
that Article 21 gives rise to the right to a prompt trial, and that this right
covers all phases of an disquisition, including the inquiry, trial, appeal,
review, and retrial. It was held by the court that a defendant's right to a
speedy trial cannot be denied on the grounds that he didn't request one. It was
also emphasized that the period for trial must be notified taking into account
a number of factors, including the nature of the offence, the number of indicted
the number substantiations. The court held that if the speedy trial of accused
has been violated the charges against him should be quashes.
Right To Legal Aid - An indicted person awaiting trial, or any
internee or con, for that matter, depends heavily on legal aid. Free legal
services were fitted into the Indian Constitution as part of Composition 39A
under the heading Directive Principles of State Policy by the 42nd Amendment
(1976). The State is needed to bear this composition in mind while establishing
laws and morals for detainees, malefactors, or cons.
In 1987, the Legal Services Authorities Act
was passed by the congress, furnishing legal aid. Also, it instructed different
state governments to produce Legal Aid and Advice Boards and design programmers
intended to offer Free Legal Aid. This was done in order to give effect to
Composition 39- A of the Constitution. Legal aid has a wider compass and is
applicable in matters involving civil, executive, or fiscal issues as well as
felonious bones according to the mortal rights law of India[2].
Justice Krishna Iyer emphatically declared
that “Right to free legal aid is the State 's duty and not Government's charity
".
A.K.Gopalan[3] case -It examined the issue immediately after the commencement of the
Constitution. It expressed the view that the prisoners are non- persons and
fundamental rights under the Constitution are not available to them by their
being incarcerated. The Court declared that a person loses his right to
personal liberty by way of detention under valid law enacted by a competent
legislature and so long as he remains under such detention, he ceases to be
entitled to enjoy his other fundamental rights.
In Nilabati Behera vs. State of Orissa[4], the Supreme Court
observed that “it is axiomatic that convict prisoners or under-trials are not denuded
of fundamental rights under Article 21 and it is only such restrictions, as are
permitted by law, which can be imposed on the enjoyment of the fundamental
rights by such persons. It is an obligation of the state to ensure that there
is no infringement of the indefeasible rights of a citizen to life, except in
accordance with law while the citizen is in its custody. This right guaranteed
by Article 21 of the Constitution of India cannot be denied to convict,
under-trials or other prisoners in custody, except according to the procedure
established by law.
International Covenants Regarding Prisoner’s Right
§ Third Geneva Convention (came into force in 1924 significantly
amended in 1949).
§ Charter of United Nations (1945).
§ Universal Declaration of Human Rights (1948).
§ United Nations Standard Minimum Rules for the Treatment of Prisoners
(1955).
§ International Covenants on Civil and Political Rights (1966).
§ Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (1984).
§ Basic principles for the Treatment of Prisoners (1990).
§ Basic principles on the use of Force and Fire Arms by Law
Enforcement Officials (1990).
Conclusion/Suggestion
The Prisons in India are
not considered as a house for incarceration to deter criminal behavior. On the
subject of Crime, Mahatma Gandhi, our father of our nation, had once said
"Crime is the outcome of a diseased mind and jail must have an environment
of a hospital for treatment and Care." Indian Prison Administration is
having a strong faith in this principle. Sentence of imprisonment would be
justifiable only if it ultimately leads to social defense against crime. Such
an aim could be achieved only if incarceration motivates and prepares the
offender for a law abiding and self-supporting life after his or her release.
Imprisonment deprives the offender of his liberty and self-determination and
the prison system should not be allowed to aggravate the suffering already
inherent in the process of incarceration.
·
Incorporating the Principles of
Management of Prisons and Treatment of Offenders in the Directive Principles of
the State Policy embodied in Par IV of the Constitution of India.
·
Including the subject of
Prisons and allied Institutions in the Concurrent List of the VII Schedule of
the Constitution of India.
·
Enacting a new uniform and
comprehensive Central Law by replacing the old Acts relating to Prisons and
Prisoners viz. Prisons Act,1894, Prisoners Act, 1900, Identification of
Prisoners Act, 1920, Exchange of Prisoners Act, 1948, Transfer of Prisoners
Act,1950, and Prisoner (Attendance in Court) Act, 1955
·
Revising the good old manuals
of States / Union Territories where the revision has not been taken up on the
lines of model prison manual.
·
Extensive use of Probation
Services in deserving cases by amending the appropriate provisions of the
Probation of Offenders Act, 1958, adequately strengthening the infra structure
of the Probation Services and arranging sensitization programmers regularly for
judicial Officers, Prosecuting Officers and Police Officers.
·
Insertion of a new Section
357-A in the Cr.P.C.,1973 for the payment of compensation to the victims of
crime out of the earnings of the Prisoners under Wage Earning Scheme.
·
Amending the existing section
320 (1) of the Cr.P.C., so as to declare more offences compoundable.
·
Expediting the work carried out
at present in different Jails regarding the renovation, repairs, construction
of additional accommodation and new Jails.
·
To assess the feasibility
of constructing additional accommodation in the existing Jail and constructing
new Jails in other areas wherever required.
·
Diversification of
institution should be evolved for the basic segregation and treatment of
homogenous group of Prisoners
·
Prison Work Programmers and
Vocational training should be integrated with National Economic Plans.
·
Public participation in
prevention of crime and treatment of offenders should be made a part of the
National Policy on Prisons.
·
Relieving the Custodial
Officer from all the clerical work as their primary duty is to supervise
Prisoners and maintain security in the Prison.