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RIGHT AND REALITY BEHIND THE BAR: A LEGAL ANALYSIS
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RIGHT AND REALITY BEHIND THE BAR: A LEGAL ANALYSIS
AUTHORED BY
- VRINDA JOSHI & PRAYAG SANGWAN
BALLB (Hons) – Fourth Semester,
Christ (Deemed to be University), Delhi NCR
ABSTRACT
Even if someone is found guilty in
India, they cannot be deprived of all their rights because they are safeguarded
by the Supreme Court and the High Courts and are guaranteed by Article 21 of
the Constitution. Any breach of them is
considered to be a severe injustice to the victim. The everyday violations of
prisoners' rights and the way they are treated in prison are a reflection of
how ignored inmates are by higher authorities, and the numerous allegations of
their inhumane treatment expose the police officers' hypocrisy in society.
Treating inmates with such a lack of empathy will further damage the justice
system if the fundamental concept of criminal justice in India is reformative
which essentially entails the care of inmates and the protection of their human
rights. The article examines the circumstances of prisoners, the requirement
for prison reform, and the actions done by the judiciary.
Keywords: Criminal
justice, prisoner’s rights, judicial interpretation, reforms, human rights.
1.
INTRODUCTION
Human rights has finally grown to be
a living, breathing issue in the free world over the last few decades. There
have been many advancements connected to it, which are undoubtedly signs of the
progress of humanity. Respect for human dignity while defending the life span
and freedom that are guaranteed to each person by the Constitution.The records
of international conventions also demonstrate this. Through the provisions of
the Cr.P.C. and the Indian Constitution, the legislature attempted to guarantee
the rights of the accused. Inmates had little legal protection for their lives
within the prison until the 19th century. The ultimate aim of the criminal justice
system was to punish the accused for previous misdeeds. During the English
reign, reformatory legislation was implemented in India to regulate jail
administration in relation to prisoners' rights. Human rights essentially refer
to an individual's access to "capacity endowment"—provisions that
raise their chances of living longer—through constitutionally and legally
recognised laws on a national level.
The structure of modern prison
justice acknowledges that a person's basic human rights are not suspended when
they are imprisoned. A person may be subject to a shift in jail if they are
found legally responsible for committing any crime as a form of punishment. On
the suspicion that a person will likely cause a law enforcement difficulty
situation, they may face jail time. In such a situation, incarceration serves
as a deterrent. Undoubtedly, the Supreme Court of India has started its battle
for prison reform. But the truth is that inmates in India are typically denied
access to humane treatment. As a result, while trying to prevent it, prisons
actually encourage it. Fortunately, the Supreme Court chose not to remain a
silent observer and sparked a movement to uphold inmates' basic rights.
Prisoners are individuals with
certain rights, and although they are incarcerated, they do not lose their
fundamental constitutional rights or their access to basic human rights.
According to the Prisons Act of 1894 and Article 21 of the Constitution of
India Act 1950, respectively, certain rights are guaranteed. Except in cases
where constitutional restrictions have been made, a prisoner is entitled to all
of his fundamental rights. The Apex Court has emphasised that a prisoner,
whether a convict, an accused person, or a detainee, continues to be a human
being and is entitled to all fundamental rights provided by the Indian
Constitution, including the right to life, which is enshrined in Article 21. A
person's remaining constitutional rights are nonetheless protected even if they
are violated through the legal process of conviction and deprivation of
liberty. Article 21 states “No person shall be deprived of his life or personal
liberty except according to the procedure established by law”.[1] This
article serves as a reminder of one of the most well-known provisions of magna
carta: “No man shall be taken or imprisoned, disseized, or outlawed, or exiled
or in any way destroyed save by the law of the land”.[2]
This right has been considered as the cornerstone of our living constitution,
the most organic and forward-thinking clause, and the starting point of our
laws.[3]
2. PRISONERS AND HUMAN
RIGHTS
A lot of emotion is stirred up by the
subject of human rights and inmates. Why should someone who has been charged
with or found guilty of a crime have any kind of human rights? It is important
to comprehend the idea of human rights in general before diving into this
query.
The idea of human rights is not
novel. Over the course of human history, the idea of human rights has undergone
steady change. We may trace its genesis to the development of natural law. The
idea of "natural rights" was put out by philosopher John Locke in the seventeenth century.
He argued that some rights are "natural" to people as human beings
since they existed even in the state of nature before the construction of
communities and the emergence of the state .[4]
The Tablet of Hammurabi is one of the
earliest examples of a codification of laws that makes mention of individual
rights. The tablet was made by the Sumerian monarch Hammurabi some 4000 years
ago (1792-1750 BCE). One of the best cases of how human rights are protected is
this. People are safeguarded from unjust prosecution and sanctions by
precedent-setting documents with binding legal force.
The British Magna Carta, the great
charter of 1215, first established the rule of law and laid the groundwork for
fundamental liberties. Later came the British Bill of Rights, the American
Declaration of Independence, the French Declaration of the Rights of Man and of
the Citizen (1789), and the American Bill of Rights. The concept of outlining
in writing the rights of individuals with respect to the governing authority
can be traced back to these documents. Another important document in this area
is the UN charter. Adopting The Universal Declaration of Human Rights in the
year of 1948 can be marked as a strong move towards development and defence of
human rights worldwide. Since then, the fundamental premise that every human
being is born with the right to fundamental freedoms and human rights has
gained widespread acceptance and been enshrined in numerous international
agreements.[5]
The United Nations charter, which was
adopted on June 25, 1945, contains the first documented use of the term
"Human Rights." which gathered speed after the publication of the
Universal Declaration of Human Rights in 1948, and the 10th of December 1948 is
a significant date in history as it is marked as Human Rights Day.
3.
CONSTITUTIONALLY GUARANTEED RIGHTS
OF INMATES
The Indian Constitution is regarded
as the supreme or fundamental law of the land and serves as the basis for all
other legislation in the country. The Preamble, basic rights, and other
constitutional clauses contain language aimed at protecting human rights. All
navigators look to the Indian Constitution as their source of illumination, and
all interpretations of it must follow its objectives and purposes. According to
Article 21 of the constitution, "life" refers to the continued
protection afforded to each and every person, even those who are detained for
legal reasons and convicts. Additionally, they are only qualified to benefit
from the assurances within a reasonable constraint. As a result, a felon has
equal access to the fundamental constitutional rights.
3.1 Fundamental Rights of Prisoners
The Indian Constitution's Part III
protects a few basic, common, and unassailable rights that are available to the
general people of the country. The purpose of a pronouncement of fundamental
rights is to make a few core human rights unassailable and to prevent them from
becoming pompous in the face of shifting legislative majorities. The essence
and definition of "state" in Article 12 of the Constitution have been
generously and completely clarified by the courts. It includes every statutory
or non-statutory authority that can be considered a state agency.
3.2 Right of Protection with respect to conviction of offences
A shield is provided under Article 20
in terms of criminal punishment. The seventh schedule of the article imposes
limitations on the enclosed list. All types of people, including citizens and
non-citizens, can access it. The prosecution of crimes under ex post facto laws
is not prohibited. Due to this, Article 20(1) does not apply to laws that are
passed after a crime has occurred and that set forth a different process than
what is typically used for prosecution or trial. The safety measure contained
therein would only be available if the ensuing conditions are met and the
person in question has been charged with a "crime." It denotes
"any conduct or omission" that is sanctioned by a current law. In
addition to "double jeopardy," constitutional provisions also offers
fortification. The article is based on the common law maxim "Nemo debet
bis vexan," which states that someone should not essentially be exposed
twice to risk of committing the same offence. [6]
The person must have received
punishment after being tried in front of a tribunal or a court. The defence in
defiance of "double jeopardy" outlined in Article 20(2) would only be
available if the suspect had been both impeached and punished following such a
trial.
Analysis shows that in order to
comply with Article 20(2), there must be both prosecution and punishment. It
follows that if a person who has been impeached for misconduct is found not
guilty, he may still be impeached for "similar wrongdoing." The
supreme court ruled that the subsequent trial was not precluded since the facts
and fundamental factors were different.
3.3 Right to Free Legal Assistance
The trademarks of Article 39-A
include equal justice for all and free legal assistance. The Apex Court stated
that "every step that makes the right of appeal fruitful is held
obligatory and every action or inaction which stultifies it, is unfair and
unconstitutional"[7] while
maintaining that the criminal procedure code's provision allowing for a first
appeal from the Sessions Court to the High Court has been a fundamental element
of fair procedure and civilised jurisprudence.[8]
3.4 Right to Bail
Due to the importance of bail as a
fundamental right protected by Article 21 of the Indian Constitution, a delay
in the trial's completion itself may be a basis for granting bail to an
accused. The Supreme Court ruled in Babu Singh v. the State of U.P [9] that a
person's "personal liberty" would be violated under Article 21 if bail
was denied to an accused without good cause.
3.5 Right against handcuffing
It has been determined that
handcuffing is fundamentally unjust, excessively harsh, and, on the surface,
arbitrary. In Prem Shanker v. Delhi Administration, [10]
it was determined that it was unjustified and in violation of Article 21. In
this regard, the Union of India was ordered by the court to give suitable
guidelines. In this instance, the Supreme Court unanimously overturned
Paragraph 26.22 of the Punjab Police Rules, 1934 on the grounds that it
violated Articles 14, 19, and 21.
3.6 Right against Bar Fetters
Although there are numerous meanings
for "right" in the ordinary sense, it is typically understood to
indicate "the norm of permissible activity within a specific domain."
Its definition as a legal phrase is "the norm of legal permissible
action." [11]
The Supreme Court ruled in Sunil
Batra v. Delhi Administration [12] that
treatment of a human being that violated human dignity, subjected the subject
to needless pain, or degraded him to the status of a beast would unquestionably
be arbitrary and subject to scrutiny under Articles 21 and 14. Therefore, it
would not be permissible to place a prisoner in bar fetters for an excessively
lengthy time without taking into account the prisoner's safety and security.
3.7 Right against Solitary confinement
The right to interact with family and
friends has been interpreted to fall under the definition of "personal
liberty" in Article 21. Of course, this right is subject to any lawful
prison regulations, which must comply with Articles 14 and 21 and be fair and
non-arbitrary. It also includes the detainee's right to seek legal advice from
a lawyer of his choosing for whatever reason, including obtaining release from
custody or starting a writ petition or case, whether civil or criminal. This
privilege is not just applicable to criminal defence. [13]
3.8 Right against Torture and Third Degree Treatment
All civilised communities have
traditionally been quite concerned about violence in detention facilities.
Third-degree tactics to obtain information could be used as forms of custody
violence.[14] In a
number of cases, the Supreme Court expressed grave concern over the inhumane
treatment of inmates and gave the prison and police officials the necessary
instructions to protect the rights of those in custody, especially women and
children. The worst type of human rights violation, according to some reports,
is when someone is tortured, assaulted, injured, or even dies while being held
by the police.
It is asserted that torture committed
while a person is being held violates their fundamental human rights and is a
violation of their dignity. Any civilised nation's reputation suffers as a
result. Without decisive action, civilisation would be in danger of descending
into absolute collapse, anarchy, and dictatorship that would be reminiscent of
savagery. [15]
3.9 Right against Public Hanging
The execution of a death sentence by
publicly hanging at the Stadium Ground or Ramlila Ground in Jaipur was ordered
by the Rajasthan High Court. A further directive stated that the execution
should take place following extensive media coverage. After receiving a
certified copy of the aforementioned order, the Supreme Court ruled in Attorney
General of India v. Lachma Devi, [16] that the
directive to carry out the death penalty was against Article 21 and hence
illegal. Furthermore, it was made apparent that public hanging would be a cruel
method of execution.
3.10 Right against delayed execution
It has been determined that prolonged
confinement in order to await the execution of a death sentence is unjust,
unfair, and unreasonable and violates Article 21. The Supreme Court ruled in
Shivaji Jaising Babar v. the State of Maharashtra,[17]
that the death sentence must be changed to a life sentence of imprisonment
since there was a more than four-year delay in the President deciding the mercy
plea under Article 72.
3.11 Right to recover Damages caused by Violation of Article 21
In order to give a new dimension and dynamism to the fundamental rights contained in Article 21, the Supreme Court has recognized the right of victims to seek monetary compensation for violations of their rights.[18]
In the case Kewal Pati v. the State of U.P., [31] the Supreme Court granted the
petitioner compensation for her husband's passing by a co-defendant while the
dead was serving his sentence under Section 302, I.P.C. [19]
4. ABUSE OF RIGHTS OF
PRISONERS
4.1 Custodial Torture
The procedure or approach utilised by
the police to coerce an offender or a suspect into confessing to a crime is a
blatant illustration of the superiority of strong people over the weak, with
complete disregard for the rights of the offender or the suspect in any
criminal case. The following incident included the police suspecting several
individuals of committing the crime of theft and placing them under arrest. One
of the suspects died as a result of torture while being questioned. According
to the medical examiner, asphyxiation was the cause of death. The police
investigator was given a life sentence after being found guilty under section
302 of the I.P.C. The court determined that torture committed while in custody
violates Article 21.(Raghbir Singh v. State of Haryana, 1984). Torture in
detention is a flagrant breach of human dignity and degrading, and it severely
damages the victim's personal life. (D.K. Basu v. State of West Bengal, 1996)
The petitioner, a
journalist, complained of custodial violation of women prisoners and they were
assaulted by the police. The court held that women suspects should be guarded
by female constables and interrogation must be carried out in front of the
female police officer/constable. The session Judge should make surprise visits
to the prison periodically. The prisoners should be provided legal assistance
and the magistrate must inquire to the arrested person if there was any police
torture when the person was in custody.[20]
4.2 Solitary Confinement
Solitary
confinement is among the cruellest and most excruciating forms of punishment.
The petitioner, who had been found guilty of murder and was facing the death
penalty, was kept in a single cell completely isolated from the other
prisoners, violating the right against solitary confinement. He contested the
quasi-solitary detention and claimed that section 30 of the Prison Act of 1894
violated the constitution's articles 14, 19, and 21. The court rejected the
argument and determined that placing a prisoner in solitary confinement is not
solitary confinement because it is simply a step in the process of carrying out
a death sentence as indicative in the case of Sunil Batra v. Delhi
Administration. [21]
4.3 Under trial Prisoners
In the present day,
dealing with prisoners awaiting trial has reached a new degree of difficulty.
There are many prisoners serving sentences that are longer than the maximum
that they might have received who are waiting for trials or confessions.
Nevertheless, a prisoner is entitled to a speedy trial under Article 21 of the
Constitution. A person commits an offence against them if they are jailed
without being found guilty of any crimes. The judiciary or police's
incompetence or delay is one of the main factors contributing to the trials'
hardship and suffering for those involved.
4.4 Police Encounters
One of the most heinous
abuses of human rights occurs during police encounters. Every encounter raises
the question of whether the action was required or justifiable. The police's
actions are a clear breach of the law. According
to the two-judge bench, deaths during police encounters undermine the
legitimacy of the rule of law and the administration of the criminal justice
system. They also clearly violate the right to life and the dignity of the
person as guaranteed by Article 21 of the Indian Constitution. .
5. ROLE OF THE HONOURABLE SUPREME COURT
In the last 15 to 20 years, the
supreme court has played a noteworthy role in bringing forth imprisonment
reforms that safeguard prisoners' rights. We are all aware that while
incarcerated, inmates are still entitled to certain basic rights. He has the right
to read the books and correct them. [22]
They are completely entitled to be protected against torture. Without noting
what was decided in Mohd. Giasuddin v. State of A.P, [23]
where the corrective aspect was highlighted by stating that the state must
rehabilitate rather than exact revenge, the judicial work performed on the
issue at hand would not be complete. There is also the undeniable right of
inmates who are awaiting trial to a prompt trial. These include releasing
someone after a drawn-out trial.
Its pursuit of jail justice is likely
a product of its efforts to restore liberty after putting it out of commission
in the Habeas Corpus case. In reality, the Supreme Court had observed in that
case during the emergency crisis that the detainees had received treatment that
was almost maternal. In the case of ADM Jabalpur v. ShivKant Shukla, [24] The
Supreme Court upheld the ruling that Article 2I is the only source of life and
liberty and that, in times of emergency when liberty is suspended. In the case
of Prem Shankar Shukla vs Delhi Administration, [25]
The Supreme Court overturned a practice of the Punjab Police that made a
distinction between rich and poor prisoners while deciding who should be
handcuffed.
Additionally, the court
has referred to Article-39A, which governs free legal assistance. By claiming
that it is unable to provide the same due to financial and administrative
reasons, the government cannot escape its obligation to provide "free
legal assistance" to an individual. The unusual must also be seen by the
court and informed that he has a chance for legal advice. During the trial and
prior to it starting, the accused has the right to legal counsel. Granting
someone bail does not eliminate the requirement of informing the person why he has
been held.
The court has set forth a
number of directives to enhance various aspects of jail administration and the
situation of detainees. The tendency to keep people around for a long time even
after they need to become mentally stable has been strongly condemned by the
supreme court. The court has stressed that there should be enough amenities
inside the prison for those inmates who are mentally sick. Additionally, since
a detention facility is hardly a location for treating such people, it is best to
avoid transferring someone with an unstable mind there for protection.
6. CONCLUSION
One of the main foundations of the
Indian justice system, which embodies the principle of the reformative justice
system, is the criminal justice system. Prisoners are forced to live in an
unpleasant, unsanitary, and hostile environment where their human rights are
not respected, which results in abhorrent conditions. The guards at the prison
treat them as inanimate objects with no existence or legal status. There must
be a better atmosphere inside the prison walls that gives the inmates a better
quality of life to flourish both physically and intellectually if they are to
become better people and be accepted by the community. Prisoners have the right
to live their life in conformity with the fundamental liberties protected by
the Indian Constitution as fellow human beings. Prisoners who are not yet on
trial, those who are, and those who have been found guilty each have unique
advantages. Inmates continue to have access to their remaining constitutional
rights even after being found guilty of the offence and deprived of their
freedom in accordance with the legal process. The Supreme Court has made
significant progress in defending their rights. However, the truth remains that
in order for them to take prisoners' rights seriously, the officials and the
prison administration need to be educated and trained. Any effort to change the
criminal justice system must take into account human rights. The humanistic
viewpoint should be considered by a penitentiary administration. The basic
principles of the Indian Constitution are enhanced by safeguarding the
prisoner's rights.
[2] Durga Das Basu, Introduction to the Constitution of
India (LexisNexis Butterworths Wadhwa Nagpur 2020).
[3] I.R. Coelho v. State of Tamil Nadu, (1999) 7 SCC 580
[4]Asia Human, Introducing Human Rights (Oxford
University Press 2006).
[5] S. Gopalan, India and the Human Rights, 3, Lok Sabha
Secretariat, 1998.
[6] Yadav A, ‘PRISONERS’ RIGHTS in INDIA: AN ANALYSIS of
LEGAL FRAMEWORK Some of the Authors of This Publication Are Also Working on
These Related Projects: PRISONERS’ RIGHTS in INDIA: AN ANALYSIS of LEGAL
FRAMEWORK View Project’
[7] Aslam M, ‘Legal Dimensions of Prisoner’s Right in the
Light of Article 21 of the Constitution of India’
[8] M.H. Hoskot v.
State of Maharashtra, (1978) 3 SCC 544
[9] (1978) 1 SCC 579
[10] (1980) 3 SCR 855
[11] Dr. B.N. Tripathi, Jurisprudence-Legal Theory, 271
(Allahabad Law Agency, Haryana, 18th ed., Reprinted 2010)
[12] (1978) 4 SCC 409
[13] Francis Coralie v. Union Territory of India, (1981) 2
SCR 516.
[14] Re-Inhuman Conditions In 1382 .v. State Of Assam,
(2013) 5 GLT 602
[15] Smt. Shakila Abdul Gafar Khan v. V.R. Dhoble, JT
(2003) 7 SCC 749
[16] (1989) (S1) SCC 264
[17] (1991) 4 SCC 375
[19] (1995) 3 SCC 600
[20] Amrit P and others, ‘Prisoner’s Rights and Prison
Reform in India’ [2022] International journal of health sciences 10933
[21] ibid 409
[22] State of Maharashtra v. Prabhakar, (1966)1 SCR 702
[23] (1977) 3 SCC 287
[24] (1976) 2 SCC 521
[25] ibid 85
Article Information
RIGHT AND REALITY BEHIND THE BAR: A LEGAL ANALYSIS
Authors: VRINDA JOSHI, PRAYAG SANGWAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/03
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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