However in India the origin of Prisoner Rights can be traced back in the land mark case of A.

K. Gopalan v State of Madras1. The main contention raised by the petitioner was on the
phrase “procedure established by law”, as contained in Art. 21 of the constitution; which
includes a ‘fair and reasonable’ procedure and not a mere procedure prescribed by the state
for the deprivation of life or personal liberty of individuals, as it was seen in Gopalan’s case,
where he was totally deprived of his personal liberty. Even the right to freedom of movement
was not available to him, which was a fundamental right.

Nilabati Behera v. State of Orissa2

A person under the police custody was found dead on the railway track near the prison with
severe marks of brutal torture and physical violence. His mother, Nilabati Behera filed a
writ petition on his behalf to claim compensation for this gross injustice that was meted out
on her son.

Justice A.S. Anand :

“….The precious right guaranteed by Article 21 of the Constitution of India cannot be
denied to convicts, under trials or other prisoners in custody, except according to procedure
established by law. The duty of care on the part of the State is strict and admits of no
exceptions. The wrongdoer is accountable and the State is responsible if the person in
custody of the police is deprived of his life except according to the procedure established by
law.”
Further in Rudal Shah v. State of Bihar3 and Bhim Singh v. State of J&K4, it was held that
award of compensation in a proceeding under Article 32 by this court or by the High Court
under Article 226 of the Constitution is a remedy based on strict liability for contravention
of fundamental rights to which the principle of sovereign immunity does not apply.

Hussainara Khatoon vs. Home Secretary, Bihar 5

Justices D.A. Desai and P.N. Bhagwati in their concurring judgement in the above case held
as follows:

1
1950 AIR 27, 1950 SCR 88
2
NilabettiBehra v. State of Orissa, 1993 (2) SCR 581.
3
4
5
Hussainara Khatoon vs. Home Secretary, Bihar, 1979 SCR (3) 1276.
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“It is not uncommon to find that under-trial prisoners who are produced before the
Magistrates are unaware of their right to obtain release on bail and on account of their
poverty, they are unable to engage a lawyer who would apprise them of their right to apply
for bail. It is now well settled that as a result of the decision of this Court in Maneka Gandhi
v. Union of India6, a procedure which does not make available legal services to an accused
person who is too poor to afford a lawyer and who would, therefore, have to go through the
trial without legal assistance, cannot possibly be regarded as 'reasonable, fair and just'. The
State is under a constitutional mandate, under article 21, to ensure speedy trial and whatever
is necessary for this purpose has to be done by the State. It is also the constitutional
obligation of this Court to enforce the fundamental right of the accused to speedy trial by
issuing the necessary directions to the State.”

Under article 21 the State is under a constitutional mandate to provide a lawyer to an

accused person if the circumstances of the case and the needs of justice so require, provided
of course the accused person does not object to the provision of such lawyer. It is
unfortunate that most of the States in the country have not taken note of this decision and
not provided free legal services to a person accused of an offence. Moreover, this
constitutional obligation to provide free legal services to an indigent accused does not arise
only when the trial commences but also attaches when the accused is for the first time
produced before the magistrate.

Abdul Rehman Antulay v. R.S. Nayak7

In this judgment, they clarified the position of the Indian judiciary on the ‘Demand Rule’,
which provides that a remedy in the form of speedy trial can only be provided by the court if
the aggrieved asks for it, that is, demands it and not otherwise. The bench held that this rule
does not apply to Indian jurisprudence.

Right to speedy trial is not enumerated as one of the fundamental rights in the Constitution
of India, unlike the Sixth Amendment to the U.S. Constitution which expressly recognizes
this right.

6
7
Abdul Rehman Antulay v. R.S. Nayak and another, 1991 (3) SCR 325.
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This decision establishes the following propositions:

1) Right to speedy trial is implicit in the broad sweep and content of Article 21.

2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be
reasonable, fair or just. Expeditious trial and freedom from detention are part of human
rights and basic freedoms and that a judicial system which allows incarceration of men and
women for long periods of time without trial must be held to be denying human rights to
such under-trials.

Rudal Shah v. State of Bihar8

Rudal Shah’s case is a landmark judgment in the jurisprudence of state liability. It is
considered particularly important as it led to the emergence of compensatory jurisprudence
for the violation of fundamental rights under the Constitution. It is noteworthy in this context
that there is no express provision for awarding compensation in the text of the Indian
Constitution, and that this judgment was on the basis of the Court’s interpretation of the
extent of its remedial powers. This was the first case since the inception of the Supreme
Court that awarded monetary compensation to a person for the violation of his fundamental
rights guaranteed under the Constitution. The grant of such monetary compensation was in
addition, and not to the exclusion, to the right of the aggrieved person to bring an action for
damages in civil law or in tort.

In the landmark case of Khatri v State of Bihar9, this is popularly known as Bhagalpur
Blinding Case, the Supreme Court held that, the right to free legal aid is an essential
ingredient of fair, just and reasonable procedure for a person accused of an offence, and this
right has been guaranteed under Article 21, of the Constitution. In this case, a number of
persons were put under prison. It was also held in this case, that the State has to provide
compensation to the blinded prisoners, as there was a violation of their right to life and
personal liberty, under Article 21.

8
Rudal Shah v. State of Bihar, 1983 (4) SCC 141.
9
AIR 1981 SC 928
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In M.H.Hoskot v State of Maharashtra10, Supreme Court held that right of appeal is an
integral part of the fair procedure as given in Art. 21 of the Constitution. It also was critical
about the silent deprivation of liberty caused by unreasonableness, arbitrariness and unfair
procedures inside the jail. This procedure says that the indispensable essence of liberty and
natural justice. In this case the Supreme Court laid down that the constitutional mandate
under Art. 21 read with Art. 19 (1) (d) prescribes certain to the prisoners undergoing sentence
inside the jail.

In Prem Shanker Shukla v Delhi Administration11, Supreme Court struck down the provision
of determining who was to be handcuffed on the basis of whether the prisoner is rich or poor.
The Supreme Court in this case gave a number of directions with a view to reforming and
humanizing jail administration and also held that the procedure of handcuffing is a violation
of Article-21. Handcuffing is permitted only in extraordinary circumstances.

Law Commission of India 266 Report - March 2017

The prevailing situations in the courts are a real eye opener and ironically it is one of the
reasons for pendency of about 2.5 crores cases in subordinate courts. The Supreme Court
had consistently been declaring that advocates do not have a right to call for strikes and held
that the lawyers’ strikes are illegal and that effective steps should be taken to stop the
growing tendency. In numerous cases beginning from Pandurang Dattatraya Khandekar v.
Bar Council of Maharashtra, Bombay12 to Ex Capt. Harish Uppal v. Union of India13, it was
held that the advocates have no right to go on strike. The Courts are under no obligation to
adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to
go on with matters on their boards even in the absence of lawyers. In other words, Court
must not be privy to strikes or calls for boycotts. It was held that if a lawyer, holding a
vakalat nama of a client, abstains from attending Court due to a strike call, he shall be
personally liable to pay costs which shall be in addition to damages which he might have to
pay his client for loss suffered by him.

10
AIR 1978 SC 1548
11
AIR 1980 SC 1535
12
13

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Law Commission Report 268 - May 2017

The grant or refusal of bail on economic conditions i.e. monetary surety, violates Articles 14
and 15 of the Constitution of India and runs contrary to the constitutional ethos. Further, it
has no correlation with the objectives ought that is, assurance of appearing at every stage of
the trial along with the presumption of innocence until proven guilty. “Everyone has the
right to life, liberty and security of person”. It is the constitutional obligation upon the state
to protect and preserve the liberty and the security of the citizens against arbitrary arrest and
detention. In order for the detention to be lawful and not arbitrary, it must be consistent with
the substantive rules of national and international laws as well as the principles and
guidelines preserving fundamental rights.

In less serious offences, namely those which attract a sentence of less than three years, it is
rational and just to release an arrested person on bail at the earliest. This is particularly so
when the crime in question was non-violent and there was no threat to peace because of the
release of a detained individual.

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