By:
Anupama Sharma
The paper deals with the issue of prisoner’s rights. Before entering into the
technical aspects like constitutional backing and case laws let us ask
ourselves a simple question as to where do we place prisoners in our ideology.
The picture that comes in our mind immediately is not that flowery. A tense,
negative formulation grabs us. Who is a prisoner? A prisoner is a person who in the eyes of law
has committed a wrong and is thereby imprisoned. Now, from where does the
question of a prisoner’s rights emerge when he is the one responsible for breaching
somebody else’s rights? The answer is a prisoner doesn’t cease to be a human
being.
technical aspects like constitutional backing and case laws let us ask
ourselves a simple question as to where do we place prisoners in our ideology.
The picture that comes in our mind immediately is not that flowery. A tense,
negative formulation grabs us. Who is a prisoner? A prisoner is a person who in the eyes of law
has committed a wrong and is thereby imprisoned. Now, from where does the
question of a prisoner’s rights emerge when he is the one responsible for breaching
somebody else’s rights? The answer is a prisoner doesn’t cease to be a human
being.
The paper talks about the injustice done to the prisoners.
It questions the basic attitude of the people towards them and compels us to think whether a person’s act which
somehow crosses the limits set by law gives us a license to do anything with
them without caring about any limits whatsoever? Before discussing this in
reference to cases let’s throw some
light on how a person becomes a criminal... a person is never born as a
criminal... it is either the injustice
done to him by the society which sows the seeds of revenge against it , the
ambience in which he has been brought up.. , genetic disorder, poverty, etc.
that compels him to get involved in destructive activities. Now to punish them
and set an example before the entire society, we have the highly developed
legal system to control. We have over the years worked a lot on identifying the
different types of crimes, civil wrongs and their punishments….to the outer
society this is a pretty picture . A criminal is caught, tried and put behind
the bars and this marks the end of the issues. But does it actually mark the
end? I would beg to differ. It is from here that the actual story begins ….a
story of torture, of injustice, of violation of rights. The paper definitely is not intended to be
against the prisons or punishment; they are necessary to control a person and
his mistakes. But there has to be a limit to everything. Being put behind bars
is one thing, but being subjected to physical and verbal abuse by jail guards,
not being able to sign your own bail petition and kept absolutely ignorant
about prison laws, which in any case are antiquated, including the facilities
provided when in custody, impinge on human rights. In
India where rule of law is inherent in each and every action and right to life
and liberty is prized fundamental right adorning highest place amongst all
important fundamental rights, instances of torture and the use of third degree
methods upon suspects during illegal detention and police remand, casts a slur
on the very system of administration.
It questions the basic attitude of the people towards them and compels us to think whether a person’s act which
somehow crosses the limits set by law gives us a license to do anything with
them without caring about any limits whatsoever? Before discussing this in
reference to cases let’s throw some
light on how a person becomes a criminal... a person is never born as a
criminal... it is either the injustice
done to him by the society which sows the seeds of revenge against it , the
ambience in which he has been brought up.. , genetic disorder, poverty, etc.
that compels him to get involved in destructive activities. Now to punish them
and set an example before the entire society, we have the highly developed
legal system to control. We have over the years worked a lot on identifying the
different types of crimes, civil wrongs and their punishments….to the outer
society this is a pretty picture . A criminal is caught, tried and put behind
the bars and this marks the end of the issues. But does it actually mark the
end? I would beg to differ. It is from here that the actual story begins ….a
story of torture, of injustice, of violation of rights. The paper definitely is not intended to be
against the prisons or punishment; they are necessary to control a person and
his mistakes. But there has to be a limit to everything. Being put behind bars
is one thing, but being subjected to physical and verbal abuse by jail guards,
not being able to sign your own bail petition and kept absolutely ignorant
about prison laws, which in any case are antiquated, including the facilities
provided when in custody, impinge on human rights. In
India where rule of law is inherent in each and every action and right to life
and liberty is prized fundamental right adorning highest place amongst all
important fundamental rights, instances of torture and the use of third degree
methods upon suspects during illegal detention and police remand, casts a slur
on the very system of administration.
Rape,buggery, torture, custody without legal sanction, bars and fetters, detention
exceeding the sentence, solitary confinement, lunacy, the brutalization of
children, woman, drug trafficking and
the various other rackets run by the superintendents are but the daily routine
of prison life. To substantiate the certain cases marked in the Indian legal
history which are crying aloud and describing their plight.
exceeding the sentence, solitary confinement, lunacy, the brutalization of
children, woman, drug trafficking and
the various other rackets run by the superintendents are but the daily routine
of prison life. To substantiate the certain cases marked in the Indian legal
history which are crying aloud and describing their plight.
1. Raghubir
Singh v. State of Haryana : He was beaten by
police in custody and was tortured on both sides of the soles of his feet and
strangulated resulting in his death.
Singh v. State of Haryana : He was beaten by
police in custody and was tortured on both sides of the soles of his feet and
strangulated resulting in his death.
2. Khatri
and Others v. State of Bihar and Others:
The famous Bhagalpur blinding case where the suspects in custody were tortured
to that extent by the police that they ended up losing their eyesight.
and Others v. State of Bihar and Others:
The famous Bhagalpur blinding case where the suspects in custody were tortured
to that extent by the police that they ended up losing their eyesight.
Besides torture and other complaints of unhygienic food and improper medical care there are cases of illegal detention, and yes
not to forget the plight of under trials: another big inefficiency of our legal
system is pendency of cases; which compels the under trials to live a life like
a prisoner and at times even worse than that. It is perhaps misunderstood that
an under trial is a convict. But the truth remains; his case is yet to be
decided, he might just turn out to be not guilty.
not to forget the plight of under trials: another big inefficiency of our legal
system is pendency of cases; which compels the under trials to live a life like
a prisoner and at times even worse than that. It is perhaps misunderstood that
an under trial is a convict. But the truth remains; his case is yet to be
decided, he might just turn out to be not guilty.
The plight of the prisoners definitely calls for the reformation and rehabilitative
strategy with respect to prison justice. Custodial torture is a
naked violation of human dignity and degradation which destroys, to a very
large extent, the individual personally.
strategy with respect to prison justice. Custodial torture is a
naked violation of human dignity and degradation which destroys, to a very
large extent, the individual personally.
Fundamental rights occupy a place of pride in the Indian Constitution.
Article 21 provides that ‘no person
shall be deprived of his life or personal liberty except according to procedure
established by law.’ Personal liberty, thus, is a sacred and cherished right
under the Constitution. The expression life or personal liberty has been held
to include the right to live with human dignity and thus it would also include
within itself a guarantee against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest and detention in
certain cases and declares that no person who is arrested shall be detained in
custody without being informed of the grounds of such arrest and he shall not
be denied the right to consult and defend himself by a legal practitioner of
his choice.
Article 21 provides that ‘no person
shall be deprived of his life or personal liberty except according to procedure
established by law.’ Personal liberty, thus, is a sacred and cherished right
under the Constitution. The expression life or personal liberty has been held
to include the right to live with human dignity and thus it would also include
within itself a guarantee against torture and assault by the State or its
functionaries. Article 22 guarantees protection against arrest and detention in
certain cases and declares that no person who is arrested shall be detained in
custody without being informed of the grounds of such arrest and he shall not
be denied the right to consult and defend himself by a legal practitioner of
his choice.
It has been held in a catena of judgments that just because a
person is in police custody or detained or under arrest, does not deprive of
him of his basic fundamental rights and its violation empowers the person to
move the Supreme Court under Article 32 of the Constitution
of India.
person is in police custody or detained or under arrest, does not deprive of
him of his basic fundamental rights and its violation empowers the person to
move the Supreme Court under Article 32 of the Constitution
of India.
The main rights available to a prison under Indian Legal system
are:
are:
- Right
to legal aid: If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39-A of the Constitution, power to assign council for such imprisoned individual for doing complete justice. The basic philosophy of legal aid envisages that the machinery of administration of justice should be easily accessible and should not be out of the reach of those who have to resort to it for the enforcement of their legal rights. In fact legal aid offers a challenging opportunity to the society to redress grievances of the poor and thereby law foundation of Rule of Law. - 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. In
Hussainara Khatoon (II) v. Home
Secretary, State of Bihar , the Court while dealing with the cases of
under trials who had suffered long incarceration held 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
against Solitary Confinement, Handcuffing & Bar Fetters and Protection
from Torture: Solitary
Confinement in a general sense means the separate confinement of a
prisoner, with only occasional access of any other person, and that too
only at the discretion of the jail authorities. In strict sense it means
the complete isolation of a prisoner from all human society. - Right
to meet friends and Consult Lawyer:
In the case of Sunil Batra (II) v. Delhi Administration
, the Supreme Court recognized the right of the prisoners to be visited by
their friends and relatives. The court said that:
Personal liberty would include the right to socialize with members of the
family and friends subject, of course, to any valid prison regulations and
under Art. 14 and 21 such prison regulations must be reasonable and
non-arbitrary. - Right
to Reasonable Wages in Prison:
Government of India had set up in
1980 a Committee on jail reforms under the Chairmanship of Mr. Justice
A.N. Mulla, a retired judge of the Allahabad High Court. The report
submitted by the said Committee is known as ‘Mulla Committee Report’. All
prisoners under sentence should be required to work subject to their
physical and mental fitness as determined medically. Work is not to be
conceived as additional punishment but as a means of furthering the
rehabilitation of the prisoners, there training for work, the forming of
better work habits, and of preventing idleness and disorder. Work and
training programmes should be treated as important avenues of imparting
useful values to inmates for their vocational and social adjustment and
also for their ultimate rehabilitation in the free community... Rates of
Wages should be fair and equitable and not merely nominal. These rates
should be standardized so as to achieve a broad uniformity in wage system
in all the prisons. Where a person provides labour or service to another
or remuneration which is less than the minimum wage, the labour or service
provided by him clearly falls within the scope and ambit of the words
"forced labour” under Article 23.
The Maneka Gandhi case proved out to be a boon for the prisoners struggling with
under trials. A survey in the Bihar jail
brings out the bitter truth that while some of them have never been produced
before the courts while others have spent more time in the jails as under
trials compared to the maximum punishment that would have been imposed on them
had they been convicted. The Supreme
Court in the writs of habeas corpus
for under trials stated: “what faith can these lost souls have in a judicial
system which denies them a bare trial for so many years and keeps them behind
bars, not because they are guilty, but because they are too poor to afford bail
and the courts have no time to try them. There can be little doubt after the
dynamic interpretation placed by this court on Article 21 in Maneka Gandhi v. Union of India 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
conflict with the requirement of the article.”
under trials. A survey in the Bihar jail
brings out the bitter truth that while some of them have never been produced
before the courts while others have spent more time in the jails as under
trials compared to the maximum punishment that would have been imposed on them
had they been convicted. The Supreme
Court in the writs of habeas corpus
for under trials stated: “what faith can these lost souls have in a judicial
system which denies them a bare trial for so many years and keeps them behind
bars, not because they are guilty, but because they are too poor to afford bail
and the courts have no time to try them. There can be little doubt after the
dynamic interpretation placed by this court on Article 21 in Maneka Gandhi v. Union of India 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
conflict with the requirement of the article.”
The former Supreme Court judge, V.R. Krishna Iyer, has said that
custodial torture is worse than terrorism because the authority of the State is
behind it.
custodial torture is worse than terrorism because the authority of the State is
behind it.
It has been recommended in the 177th Law Commission Report by the
16th Law Commission that requisite amendments should be brought about in the
Code of Criminal Procedure making it the duty of the police officers in whose
custody there are arrested persons that they should ensure their safety and
holding them responsible for failure of the same. Thirty years hence, this
amendment has still not been incorporated.
16th Law Commission that requisite amendments should be brought about in the
Code of Criminal Procedure making it the duty of the police officers in whose
custody there are arrested persons that they should ensure their safety and
holding them responsible for failure of the same. Thirty years hence, this
amendment has still not been incorporated.
Thus, if the complete absence of human rights moorings in India has escaped it is
only because the state has through law and lathi shrouded the prison system
with an iron curtain through which only those may pass who have no hope of
returning. And while the press, the public and the social activist is debarred,
the courts turn a blind eye. As a consequence the criminalization of the prison
administration proceeds apace and is the main factor contributing to the
hardening of the offender and to the inmate’s physical and psychological
breakdown.
only because the state has through law and lathi shrouded the prison system
with an iron curtain through which only those may pass who have no hope of
returning. And while the press, the public and the social activist is debarred,
the courts turn a blind eye. As a consequence the criminalization of the prison
administration proceeds apace and is the main factor contributing to the
hardening of the offender and to the inmate’s physical and psychological
breakdown.
Attempts have been made time and again to regulate and put control over the increasing
torture activities either through bringing in acts or forming committees and
their suggestive recommendations. One such recent step taken is the Prevention
of Torture bill 2010 which has been passed in the Lok Sabha but is yet to become
an Act. If we do careful analysis of this proposed bill one would notice that The Prevention of Torture Bill had been introduced by the
Minister for Home Affairs which makes torture a punishable offence. The
Statement of Objects and Reasons of the Bill states that the Bill is being
introduced to ratify the UN Convention against Torture of 1975 to which
India is a signatory. The bill basically seeks to provide for punishment for
torture committed by government officials or with their consent. In furtherance
to that it defined ‘torture’ and lays down conditions under which courts can
admit complaints for acts. Here are the main
and important shortcomings of the proposed bill.
torture activities either through bringing in acts or forming committees and
their suggestive recommendations. One such recent step taken is the Prevention
of Torture bill 2010 which has been passed in the Lok Sabha but is yet to become
an Act. If we do careful analysis of this proposed bill one would notice that The Prevention of Torture Bill had been introduced by the
Minister for Home Affairs which makes torture a punishable offence. The
Statement of Objects and Reasons of the Bill states that the Bill is being
introduced to ratify the UN Convention against Torture of 1975 to which
India is a signatory. The bill basically seeks to provide for punishment for
torture committed by government officials or with their consent. In furtherance
to that it defined ‘torture’ and lays down conditions under which courts can
admit complaints for acts. Here are the main
and important shortcomings of the proposed bill.
- Restrictive
definition of torture: The definition of
torture under Section 3 of the PTB, 2010 is narrow and restrictive. It
does not capture the spirit and essence of the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT). Despite the prevalence of custodial deaths as a result
of torture, it makes no reference to death as a result of torture. This
means that the sentences may not incorporate the gravity of the crime of
torture as the cause of death. Similarly, there is no reference to ‘other
cruel, inhuman or degrading treatment or punishment’ anywhere in the Bil
Further, the definition is not consistent with the Indian Penal
Code which also provides sentences for voluntarily causing hurt (Section 323),
voluntarily causing hurt by dangerous weapons or means (Section 325),
voluntarily causing hurt to extort property, or to constrain to an illegal act
(Section 327), causing hurt by means of poison etc with an intent to commit an
offence (328). However, by restricting definition of torture strictly to “grievous hurt”, the
Prevention of
Code which also provides sentences for voluntarily causing hurt (Section 323),
voluntarily causing hurt by dangerous weapons or means (Section 325),
voluntarily causing hurt to extort property, or to constrain to an illegal act
(Section 327), causing hurt by means of poison etc with an intent to commit an
offence (328). However, by restricting definition of torture strictly to “grievous hurt”, the
Prevention of
Torture Bill, 2010 has excluded other forms of torture
recognized under the Indian Penal Code.
recognized under the Indian Penal Code.
- Lenient punishment
for torture:
Section 4 of the PTB, 2010 provides for a maximum of 10 years imprisonment
for those who are convicted of torture. The Bill once again does not take
into account Indian realities of custodial deaths as a result of torture.
For India to comply with the UNCAT, punishments for torturers should
reflect the gravity of the crimes committed, as stated in UNCAT Article
4(2). If torture leads to death, will the law enforcement personnel be
still awarded 10 years imprisonment? The Bill equates crimes by law
enforcement personnel, including torture, with normal crimes. This is a
serious omission considering that law enforcement personnel exercise the
sovereign power of the state. Through being entrusted with carrying out
duties by the state, they are afforded special powers and, thus, have a
higher level of responsibility.
- Limitation for
cognisance of offences falls far below national law:
In section 5
The limitation of six months for taking cognizance is less than that for
other comparable crimes under the Criminal Procedure Code (CrPC) of India.
In its definition, the Prevention of Torture Bill, 2010 includes ‘grievous
hurt’ as part of infliction of torture. However, for normal crimes of
grievous hurt there are no limitations under Section 468 of the CrPC.
Since the punishment given under the Prevention of Torture Bill, 2010 is maximum
of 10 years, the limitation of six month for taking cognizance is contrary
to the CrPC and therefore, illegal.
Suggestions : Before concluding the paper I would like to put forward certain suggestions, some of which has already been before recommended by the committees set up like one of being
Malimath committee. The suggestions are as follows:
Malimath committee. The suggestions are as follows:
- prison
laws should normally be available at the prison library. - Prisoners should
be given opportunity of literary classes, visit to their families and
providing them the basic needs, reconciliation within the family,
medicines, inter-faith prayer services during the various festivals,
improving prison conditions and provide a prison manual, full-time legal
aid cell, midway rehabilitation centre to aid the prisoner once he is out
of prison and trade certificates by prison authorities. - Proper monitoring
mechanisms to ensure that guidelines and judicial decisions relating to prisoners are implemented.
- While prisoners serve their terms their inner creativity should be developed so that whenthey are released they can be more easily integrated into society.
- Provisions should
be made for effective informal mechanisms for redress of human rights
violations of prisoners, as for example, the Independent Complaints
commission set up in South Africa to investigate serious complaints
against the police.
Conclusion
But work doesn’t end here, many committees have been set up, many reports have been submitted, but the condition remains the same. Why? Has anyone asked the administration the reasons and explanations behind not effectuating those recommendations or suggestions. If the answer is yes we have worked then where are the results and if the answer remains lack of
resources, lack of machinery then has anything been done to curb that lack? No
matter how many questions are put up there is no answer to them because there
is no realization. Thus, to sum up, the paper doesn’t undermine the importance
of imprisonment but tries to highlight the atrocities or injustices done to
these prisoners in the name of imprisonment. Our legal system stands paralyzed
when it comes to not only create but also maintain the standards set for the
torture and punishment to the prisoners.
resources, lack of machinery then has anything been done to curb that lack? No
matter how many questions are put up there is no answer to them because there
is no realization. Thus, to sum up, the paper doesn’t undermine the importance
of imprisonment but tries to highlight the atrocities or injustices done to
these prisoners in the name of imprisonment. Our legal system stands paralyzed
when it comes to not only create but also maintain the standards set for the
torture and punishment to the prisoners.
Remember: A Prisoner DOESN’T CEASE TO BE A HUMAN BEING…!!
