Prisoners Rights

PRISONERS RIGHTS

 

Introduction

 

Right to life and personal liberty has been guaranteed under the ARTICLE 21 of the Indian Constitution. It’s the most important right, hence it has guaranteed by all most all countries under the respective constitutions.

 

E.g.: 5th Constitutional Amendment of  US

 

This Right is a primary one. There is no absolute right. Most of the legal systems has rejected the absolute model if rights advocated by DAWKIN. There must be some limitations. Even the Right to life and personal liberty .One could deprive from his life and personal liberty.

 

E.g.: Prisoners

 

There are some limitations on their rights. Having said this deprivation of their rights can be done. But no doubt still they are seems to be human beings. Hence as a human being rights has to be provided also.

 

Who is a prisoner?

 

A Person who is a convicted, detained under the trials, suspects, accused...Etc.

 

No doubt they can be deprived from their Freedom of Movement. Though they are still seems to be human beings.

 

 Right to life and personal liberty has larger connotations. It is not merely freedom from physical torture and it’s something more than that. Even a prisoner, which ever they are, even they are deprived from their certain rights and liberties they should have certain rights.  Ultimately they are human beings. Prisoner’s rights shall be taken care of by the jail authority.

 

Freedom of Residence can be limited. Because they have put in a jail, prison, in custody or arrested. Just due to that cannot deprive from all rights. Certain rights also require by such categories also.

 

1st right

 

ICCPR

 

ARTICLE 10

 

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

It’s nothing but a right of prisoners’. Fundamental rights under the constitution impose a duty upon the state.

 

 

 

ARTICLE 10

 

2.      (1) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvinced persons;

 

UDHR:

 

ICCPR and ICESCR are part and parcel of UDHR. Unlike UDHR there is an implementation procedure. In a legal system there must be an enforcement mechanism.

 

Even deprived he has accorded with humanitarian respect for human dignity till he remains as a human being.  Human rights are essential conditions.

 

NO FREEDOM OF MOVEMENT and FREEDOM TO CHOICE THE RESIDENCE. But that does not he is band to exercise to all other rights also. For the sake of the prisoners’ rights or for the justice prisoner has categorized. It does not mean that they have equal status. They will not have equal access to whatever they want.

 

Even there are some classes in prisoners also. Convicted, suspects, and they may have life imprisonments, with hard work, imprisonment for some short period, under trail, Defines and under preventive detention, they do not make any crime.

 

E.g.: The day of election some people arrested for secure the peace, they didn’t do any Crime. Prisoners shall be segregated; accused person shall not be kept with the persons those who are convicted. Some are criminal in nature and death sentences awarded too. May be some are in the appeal process. Hence there are different categories of prisoners also. Therefore they must not keep together. Otherwise some innocent person also will be turned in to violence. Especially it said that the importance of keep separately. It’s their right. They are in different categories.

 

These rights also available under the constitution - ARTICLE 21 read as live with human dignity. It’s a self sufficient one.

 

ARTICLE 10 (1) of ICCPR is the residue of Prisoners Rights. Expressly or otherwise it’s a real right of prisoners.

 

MANEKA GANDHI v. UNION OF INDIA – Changed the whole context of Right to life and personal liberty. Therefore it’s needless to mention everything. ARTICLE 21 has become residue of all Fundamental Rights in any generation right. It is being held like with dignity.

 

Also later it was restated in several such cases. It’s not co-incident that terminology used in ARTICLE 10(1) and it has been read by judiciary ARTICLE 21.

 

SUNIL BATRA v. DELHI ADMINISTRATION - Prisoners who had accorded with barbaric and inhuman treatment by the Administration of the prison. Though they don’t have access to outside for sometime the petitioner got opportunity to send a post card to the CJ of India as a writ petition. No doubt deprivation from his life and liberty, no freedom to choose the residence. But it does not mean that they should treat as an animal .It’s not accepted in a civilized society.

 

 

 

Court hearing that under ARTICLE 32(2) issued writ of HABEAS CORPUS for the enforcement of Fundamental Right. Hence it was issued against the illegal detention by the Supreme Court of India to stop the barbaric inhuman treatment to the prisoners.  Supreme Court of India refashioned itself reposition itself. There is no difference with ARTICLE 10(1) and this decision.

 

Herein Justice Krishnaiyer observed that:

 

I am bars of the prisoners of this court rather instance, this court is competent enough to brake those iron bars and inside the prison to stop the inhuman barbaric treatment by prison Administration as such.

 

This case is nothing but the incorporation/application of ARTICLE 10(1) of ICCPR under ARTICLE 21 by the court.  Justice Krishnaiyer observed that: Human rights are for human, they are certain conditions to live like a human being. Prisoners are to be human beings. Hence though deprived from their personal liberty they also need certain essential conditions to live with human dignity. No one can deprive under any circumstances. Hence it’s nothing but ARTICLE 10(1) restated by the supreme court.

 

Right to life and personal liberty is a dynamic concept of rights. Cannot be away of this right completely. Hence it does not mean deprivation of complete right. Human Rights have certain aspects. Cannot be compromised under any circumstances. That’s why fundamental rights cannot be waived. Because the personality is remain forever. Therefore must be treated with humanitarian and certain human dignity. That means Right to life and personal liberty is available to even to a prisoner.

 

2nd right  

 

                                                                 “FREE LEGAL AID”

 

ARTICLE 14 of ICCPR

 

3 (4) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

 

It says free legal aid for the prisoners. State authorities and legal systems obligated by virtue ARTICLE 14 of ICCPR to provide free legal aid. Because of the poverty of a citizen state cannot denied him from this right.

 

 ARTICLE  21  is available for both citizens and non-citizens.

 

Directive Principles and State Policy

 

operation of the legal system promotes justice, on a basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Legal aid may be required in various stages. To dissolve their disputes, courts, tribunals, or approach to any other authority.

 

Legal Servicers Authorities Act-1987

 

Provides for legal aid - Civil, criminal, advance matters.

 

KHATRI V.STATE OF BIHAR (Bhagalapura binding case) It was the duty of a trial court to inform the accused that he is entitled to free legal aid service or a lawyer of his choice.

 

Judicial Activism – M.H.HASKOOT v. STATE OF MAHARASTRA

 

 Wherein Indian Supreme Court held that, when ever an under trial an accused as a prisoner are unable to defend themselves, then it is the obligation of the state to provide free legal assistant to such prisoner. Why because even though, they have been deprived from their liberty by the state the free and fair is a part and parcel of - ARTICLE 21. Therefore free legal assistant go hand in hand or along with free trial. Otherwise it would be anti-national. How can we discriminate due to they don’t have anybody to appear on behalf of them. That is the role of government advocates.

 

 

 

3rd right

 

                                     “FREEDOM OF SPEECH AND EXPRESSION”

 

As a Fundamental Right  it remains with the Prisoners Rights.

 

STATE OF MAHARASTRA v. PRABHAKAR PONDURNG – As being a prisoner all rights of freedom of speech and expression was deprived. The petitioner prisoner wanted to publish his own biography. Matter came before the court. Court held that, though he is a prisoner still he seems to be a human being. Under ARTICLE 19(1) – FREEDOM OF SPEECH includes to FREEDOM OF SPEECH AND EXPRESSION also. ARTICLE 21 is still available too. Therefore it’s available to a prisoner.

 

O.RAJ GOPAL v. STATE OF TAMIL NADU (Autoshankar case)

 

There was a serial killer with the stone in the prison and he wanted to write certain articles to papers as a series about relationship/support/expose criminals and police. Held that though is a prisoner freedom of speech and expression is available to him as following above decision too.

 

KAUTILYA’S ARTASASTRA points out to the fact that prisons be construed in the capital having separate residential facility of both men and women.

 

 

 

 

 

4th right

 

“RIGHT TO SPEEDY TRIAL”

 

Article 14 of ICCPR

 

 

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

14th USA CONSITUTION AMEDMENT: recognized the right to speedy trial.

 

Under the Indian constitution it does not provided. But through judicial activism it has become a part and parcel of Article 21.Hence became a FR. And further the trial must be just fair and reasonable. It was held in the case of HUSSEN KHATOON by justice Bhagawatee. Also stated that delaying justice means denying justice.

 

When a prisoner kept for a long time there is a mental harm to him. It’s a kind of torture. Hence it is a violation of FR.

 

Delay to trail: Where trail could not start for 31 months and accused for bail on ground of delay in trail and it was groan that trial could not start because jail authorities failed to produce co accused, court issued guidelines for checking recurrence of such incidents. 

 

5th right

 

“RIGHT TO COMPENSATION”

 

ARTICLE 9(5)

 

For Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation

 

India - no express provision but it comes under the judicial activism.

 

 RADAL SHAH v. STATE OF BIHAR – awarded 35000/= as compensation.

 

For this purpose the judiciary adopted certain measures to provide respect to prisoner’s rights. Thus the state is under an obligation to compensate to the victim for the violation of their rights. Therefore it protects HR.  

 

BHIM SINGH v. J & K awarded 50000/= as compensation to the victim for the wrongful detention.  

 

KHATRI V.STATE OF BIHAR (Bhagalapura binding case) For the 1st time compensation jurisprudence evolved.

 

NEENAWATEE BEHERA v. STATE OF BIHAR – This is considering as compensation jurisprudence in India. Awarded separate compensation for the 1st time. Further held compensation as a part and part of FR.

 

6th right

 

“RIGHT TO HEALTH”

 

Mostly prisoners do not enjoy a right to free and qualified, frequent medical attention. They don’t have choice to have physician of their own unless when his condition is critical then the doctor may come. They have no opinion on treatment. Thus they have become ‘double hand cap’. It violates right to health of a prisoner. Right to life does not include right to die without right to health. By not providing right to health, the state shall be promoting right to die.

 

VEENA SETHI v. STATE OF BIHAR - Supreme Court held the importance of medical care to prisoners.

 

Other important facts

 

SUPERINTENDENT, CENTRAL JAIL GWALIOR 1992 –Held the precious rights guaranteed by Article 21 are available to a prisoner taken in custody by the state and in the event of failure of negligence on the part of the police in guarding a prison property, state should be liable in damages and the invocation of the Doctrine of sovereign immunity by the state would not be permissible.

 

JAIL MANUAL

 

1. To be full filed by the jail authority.

 

2. To be full filed by the Prisoner.

 

# According to Jail manual: A good quality of food should be provided and adequate clothing should be provided to s prisoner.

 

Article 5 of American Convention on HR

 

juveniles or minors in the case of  must be separated from adults and brought to trial as speedily as possible before ‘specialised tribunals’ the penitentiary system should aim at there formation and social rehabilitation of convicted prisoners:

 

 

 

European level,

 

The European Convention for the Prevention of Torture is significant with respect to the protection of prisoners. Under the Convention, the European Committee for the Prevention of Torture (ECPT) was created ‘to examine the treatment of persons deprived of their liberty with the view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.’ The ECPT has the power to visit places of detention of any kind including prisons, police cells, military barracks and mental hospitals, with the aim of examining the treatment of detainees and, when appropriate, to make recommendations to the states concerned.

 

 

 

The General Assembly adopted The Basic Principles for the Treatment of Prisoners in 1990 GA resolution no 45/111.

 

 

 

Geneva Convention relating to the Treatment of Prisoners of War 1949

 

 

 

 

 

Conclusion

 

“They are good people-they are bad people-they are however the same people”. Hence it’s the duty of the society of protect their rights.

 

 

 

                         

About the author

SAKHILA THILANTHI WERANIYAGODA. LLB