Title: Rights of Prisoners Vis a Vis Article 21 of the Constitution

Submitted by:
Rishi Maheshwari

1
Introduction
A society that believes in the worth of the individuals can have the quality of its belief judged
by the quality of its prisons. It is the human life that necessitates human rights. Being in a
civilised society organised with law and a system as such, it is essential to ensure for every
citizen a reasonably dignified life. Thus every right is a human right as that helps a human to
live like a human being. Especially when the principles and objectives of criminology and
penology are acquiring a human face the enforcement of human rights assume a very great
relevance. Simply because a person is under a trial or convicted, his rights cannot be
discarded as a whole.

In the Constitution of India, there is no specific guarantee of Prisoner’s Rights. But there are
certain rights given under Part-III of the Constitution, which are available to the prisoners
too, because a prisoner remains a ‘person’ in the prison. A “Prisoner” is a person who is
deprived of his personal liberty, due to the conviction of a crime, and imprisonment is the
most common method of punishment provided by all legal systems. Imprisonment makes the
prisoner repent about his past conduct. The judiciary protects the rights of prisoners and
recognizes their rights. They are protected from torture and solitary confinement. There are
certain statutes in the Constitution which provides that certain rights of the prisoners are
enforced, like, Prisoners Act, 1900; Prisoners (Attendance in Courts) Act, 1955; Prison Act,
1894 etc. There are also Prison and Police Manuals, which have certain rules and safeguards
for the prisoners, and it is an obligation on the prison authorities to follow these rules. 1
According to the Universal Declaration of Human Rights, “All human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience, and should act
towards one other in a spirit of brotherhood”2……

Less than 200 years ago, the attitude to prisons, prisoners and punishment was brutal and
barbaric. Recognition of the human being in the convicted offender is an idea that has been
accepted after a long struggle with the state.

The Indian socio-legal system is based on non-violence, mutual respect and human dignity of
the individual. If a person commits any crime, it does not mean that by committing a crime,
he ceases to be a human being and that he can be deprived of those aspects of life which
constitutes human dignity. Even the prisoners have human rights because the prison torture is
1
 AISWARYA T. RIGHTS OF PRISONERS - A MYTH OR REALITY?
http://www.answeringlaw.com/php/displayContent.php?linkId=1070 visited on 30-9-2013
2
Vijay K. Gupta. Perspectives on Human Rights. Vikas Publishing House, 1996

2
not the last drug in the Justice Pharmacopoeia but a confession of failure to do justice to
living man. For a prisoner all fundamental rights are an enforceable reality, though restricted
by the fact of imprisonment.

Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits
any inhuman, cruel or degrading treatments to any person whether he is a national or
foreigner. Any violation of this right attracts the provisions of Article 14 of the Constitution
which enshrines right to equality and equal protection of law. In addition to this, the question
of cruelty to prisoners is also dealt with specifically by the Prison Act, 1894. If any excesses
are committed on a prisoner, the prison administration is responsible for that. Any excess
committed on a prisoner by the police authorities not only attracts the attention of the
legislature but also of the judiciary. The Indian judiciary, particularly the Supreme Court in
the recent past has been very vigilant against encroachments upon the human rights of the
prisoners.3

Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits
any inhuman, cruel or degrading treatment to any person whether he is a national or
foreigner. Also Article 21 provides Protection of life and personal property i.e. No person
shall be deprived of his or personal liberty except according to procedure established by law.

3
Saurabh Kothari. http://www.legalserviceindia.com/articles/po.htm visited on 29-9-2013

3
STATEMENT OF PROBLEM

This research is directed on deep understanding the Rights of Prisoners, its origin and
developments, comparison with human rights then understanding how it was adopted by the
makers of the Constitution of India.

4
OBJECTIVES

1. To study the Rights of Prisoners in depth and trace its origin

2. To study why were these Rights adopted by Indian Constitution.

3. To study how these Rights relate to article 21of the Indian Constitution.

5
HYPOTHESIS

Prisoner’s rights are enshrined in Article 21 of the constitution and the judiciary has through
various judgements has widened the scope of Article 21.

6
RESEARCH METHODOLOGY

The given research is a doctrinal research based on second hand data collection. Various
books and writings have been studied so as to develop a better understanding of the topic.
Afterwards, a conclusive viewpoint is formulated in hope of encompassing the different
methods of study.

7
Objectives and Findings:

Chapter 1

Evolution of Prisoners rights in India

According to Lord Macaulay, the author of IPC, stood for the deterrent and retributive theory
of punishment (like whipping, solitary confinement and death penalty), while Mahatma
Gandhi, the Father of Indian Nation, represented the humanist compassionate and
correctional policy as the only process to civilized justice. He considered that the aim of
imprisonment is to restore the imprison man to ordinary standards of citizenship. Till very
recently person convicted of a crime was considered to be legally dead. The conditions of
imprisonment and every aspect of institutional life were left the unregulated discretion of the
prison administrators. American Courts were reluctant to recognize the existence of
prisoner’s right in earlier times. This reluctance contributed to the dehumanizing conditions
in the prison. This situation was later changed by judicial intervention into the prison
conditions. These judicial interventions restricted the abuses of discretionary powers by
correctional authorities, and it established a belief that inmates have a place in the society.
Even though there are many benefits to the concept of prisoner’s rights, there are also several
factors which had prevented its growth and expansion. The courts were reluctant in
introducing modification to the correctional process as the Judges felt that they were lacking
the expertise necessity to run a prison. The courts cited the doctrine of separation of powers,
which made the responsibility of the penal system on the executive and legislative branches
of the government.

In the judicial pronouncements made by the US Supreme Courts in the decision made in
Lanza v New York4, the court held that right of privacy to a certain extent is deprived to the
prisoner while he is inside the prison. Prison security necessitates extreme restrictions on
personal property. Prisoners, although convicted of a crime, retain certain constitutional
rights, but they do not lose all civil rights, though; they are deprived of various other rights.

4
 370 U.S. 139 (1962)

8
In case of Bounds v Smith5, the Supreme Court held that the prisoners have a constitutional
right of access to the courts. This right of access includes right to legal assistance.

In Bell v Wolfish6 the US Supreme court recognized the rights of privacy as a fundamental
right. In the American Law the person’s rights are supreme and it could be only taken away
by the due process of Law. If a person, has been sentenced to imprisonment for more than
one year is disqualified for the membership of the House of Commons while serving the
sentence.

When an offender is convicted then he was forfeited of all his rights- this was the
presumption originally, and also, the prisoner was under the mercy of correctional
administrators. But this view was later changed by the development of prisoner’s right. In the
earlier centuries there was no authority by the court to interfere with the regulations of
punishments imposed upon a person. The prisoner gradually losses his civil rights too. But at
present in a sentence of imprisonment does not extinguish a prisoner’s right. The only
disability to a convicted person is that he is denied his right to vote for the duration of his
sentences. It is also seen that, in, a convict is unable to sue for torts, but in a convict could do
so.
If a prisoner suffers any injuries due to the other prisoners in the prison, as a result of breach
of prison rules, the prison authority are not having any cause of action for the damages.
Hence in due to breach of rules the prisoner is not entitled to sue for damages, in earlier
years. But now this situation has changed, (now there is a legal duty upon the government to
take reasonable cares for the safety of the prisoners, otherwise the prison authorities would be
held liable) i.e. the prison authorities has a duty to protect the interest of the prisoners in
accordance to the prison rules. In Gladstone committee, the need for better after care of
discharged prisoners was recommended. In Europe, as a means of reclamation, the Assembly
of the League of Nations stressed on the aspect of re-adaptation of offenders. The UN Charter
had given emphasize prisoners personhood and their rights. For the treatment of prisoners,
after the World War II, Standard Minimum Rules were drafted. In 1948, the General
Assembly of United Nations had adopted a Universal Declaration of Human Rights. In this
the basic principles of law which have to be applied by the courts in the process of
administration of justice is being provided. This includes right to life, liberty and security of
person, equality of treatment and the freedom from torture, cruel, in human or degrading

5
 430 U.S. 817 (1977)
6
 441 U.S. 520 (1979)

9
treatment. The UN General Assembly had also adopted The Declaration of Protection from
Torture, 1975. In 1955, Amnesty International adopted certain standard rules for the
treatment of prisoners. This includes certain basic principles of law which are followed by
most of the democratic countries. It provides for the segregation of prisoners on the basis of
sex, age, nature of punishment and gravity of the offence committed. It also condemned the
punishment like solitary confinement which was earlier used by the prison authorities. These
rules also help for the social rehabilitation and after care programmes of the prisoners.

10
Chapter 2

Origin and Development of Prisoner rights in India

However in India the origin of Prisoner Rights can be traced back in the land mark case of A.
K. Gopalan v State of Madras7. 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.

In another important case of State of Maharashtra v Prabhakar Pandurang 8, the Supreme

Court held that the mere detention would not restrict other fundamental rights; the 
Apex Court also held that, the personal liberty (Article-21) has been violated in this case. In
this case, the respondent was detained in the jail in order to prevent him from acting in a
manner prejudicial to the defence of, public safety and maintenance of public order. From the
jail, he wrote a book in Marathi, which was based on scientific interest, and was not
prejudicial. The prisoner asked the government and the Superintendent to send the
manuscript outside the jail for publication, but was rejected. But, the High Court held the
view that, the civil rights and liberties of a citizen could not be curbed by the order of
detention. Similar view was also been undertaken by the Supreme Court also. 

The Supreme Court and the High Courts have commented upon the deplorable conditions
prevailing inside the prisons, resulting in violation of prisoner sights. Prisoners’ rights have
become an important item in the agenda for prison reforms. The Indian Supreme Court has
been active in responding to human right violations in Indian jails and has, in the process,
recognised a number of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39A
of the Constitution in a positive and humane way. The Hon’ble Supreme Court of India by
interpreting Article 21 of the Constitution has developed HR Jurisprudence for the
preservation and protection of prisoner’s right to human dignity. Although it is clearly
mentioned that deprivation of Article 21 is justifiable according to procedure established by
law, this procedure cannot be arbitrary, unfair or unreasonable.

7
1950 AIR 27, 1950 SCR 88
8
AIR 1966 SC 424

11
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. 

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.

In the case of Rudal Shah v State of Bihar12, the petitioner was acquitted by the Sessions
Court of Bihar on 3rd June, 1968, but he was released from jail on 16th October, 1982, i.e.,
14 years after he was acquitted. The Supreme Court, held the view that, this illegal detention
by the Police, is a violation of Article-21 (right to life and liberty), and hence a monetary
compensation is to be provided and also the State should take action against these officers.

It is no more open to debate that convicts are not wholly denuded of their fundamental rights.
However, prisoner’s liberty is in the very nature of things circumscribed by the very fact of
his confinement. His interest in the limited liberty left to him is then all the more substantial
conviction for a crime does not reduce the person into a non-person whose rights are subject
to the whims of the prison administration and therefore, the imposition of any major

9
AIR 1981 SC 928
10
AIR 1978 SC 1548
11
AIR 1980 SC 1535
12
1983 AIR 1086, 1983 SCR (3) 508

12
punishment within the prison system is condition upon the observance of procedural
safeguards. 

Sunil Batra versus Delhi Administration 13In this decision, Justice D.A.Desai, speaking for
himself, the Hon’ble Chief Justice of India and two Hon’ble Judges observed that a convict is
in prison under the order and direction of the Court and the Court has, therefore, to strike a
just balance between the dehumanizing prison atmosphere and the preservation of interval
order and discipline, the maintenance of institutional security against escape, and
rehabilitation of the prisoners. The Hon’ble Court also held that observed “Prisons are built
with stones of law”, and sort behoves the Court to insist that, in the eye of law, prisoners are
persons, not animals and punish the deviant “guardians” of the prison system where they go
berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and
the Indian Constitution cannot be held at bay by Jail officials “dressed in a little, brief
although when part III is invoked by a convict. For when a prisoner is traumatized, the
constitution suffers a shock. The Supreme Court further held that the Court has power and
responsibility to intervene and protect the prisoner against may how, crude behaviour.

The court in the above case also gave some Directives for the prison staff for the welfare of
the prisoners. These directives can be enumerated as follows:

At this stage, we may refer to the directives given to the state and prison staff:-

(i) Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the
Supreme Court will be given all facilities for interviews, visits and confidential
communication with prisoners subject to discipline and security considerations. This has
roots in the visitorial and supervisory judicial role. The lawyers so designated shall be bound
to make periodical visits and record and report to the concerned court results which have
relevance to legal grievances.

(ii) Within the next three months, Grievance Deposit Boxes shall be maintained by or under
the orders of the District Magistrate and the Sessions Judge which will be opened as
frequently as is deemed fit and suitable action taken on complaints made. Access to such
boxes shall be afforded to all prisoners.

(iii) District Magistrates and Sessions Judges shall, personally or through surrogates, visit
prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances,
13
AIR 1978 SC 1675

13
shall make expeditious enquiries there into and take suitable remedial action. In appropriate
cases reports shall be made to the High Court for the latter to initiate, if found necessary,
habeas action.

(iv) It is significant to note the Tamil Nadu Prison Reforms Commission's observations:
“38.16. Grievance Procedure: — this is a very important right of a prisoner which does not
appear to have been properly considered. The rules regulating the appointment and duties of
non-official visitors and official visitors to the prisons have been in force for a long time and
their primary function is ‘to visit all parts of the jail and to see all prisoners and to hear and
enquire into any complaint that any prisoner may make’. In practice, these rules have not
been very effective in providing a forum for the prisoners to redress their grievances. There
are a few non-official visitors who take up their duties conscientiously and listen to the
grievances of the prisoners. But most of them take this appointment solely as a post of honour
and are somewhat reluctant to record in the visitors' book any grievance of a prisoner, which
might cause embarrassment to the prison staff. The judicial officers viz. the Sessions Judge
and the Magistrates who are also ex-officio visitors do not discharge their duties effectively.”
We insist that the judicial officers referred to by us shall carry out their duties and
responsibilities and serve as an effective grievance mechanism.14

(v) No solitary or punitive cell, no hard labour or dietary change as painful additive, no other
punishment or denial of privileges and amenities, no transfer to other prisons with penal
consequences, shall be imposed without judicial appraisal of the Sessions Judge and where
such intimation, on account of emergency, is difficult, such information shall be given within
two days of the action.

Article 21 guarantees protection of life and personal liberty. Though couched in the negative
it confers the fundamental right to life and personal liberty.

In Maneka Gandhi versus Union of India15, Justice Bhagwati observed that if a law depriving
a person of personal liberty and prescribing a procedure for that purpose within the meaning
of Article 21 has to stand the test of one or more of the fundamental rights conferred under
Article 19, which may be applicable in a given situation, exhyopthesis it must also be liable
to be tested with reference to Article 14.

14
Justice T.S.SIVAGNANAM, RIGHTS OF PRISONERS AND CONVICTS UNDER THE CRIMINAL JUSTICE
ADMINISTRATON, National Judicial Academy Regional Judicial Conference, Held on 24.02.2012 to 26.02.2012
15
AIR 1978 SC 579

14
Justice V.R. Krishna Iyer in Charles Sobraj v. Supdt., Central Jail16, observed that
imprisonment does not spell farewell to fundamental rights although, by a realistic re-
appraisal, Courts will refuse to recognize the full panoply of part III enjoyed by free citizens.
Further, observed that the axiom of prison justice is the Court’s continuing duty and authority
to ensure that the judicial warrant which deprives a person of his life or liberty is not
exceeded, subverted or stultified. It is a sort of solemn covenant running with the power to
sentence. Referring to the decision of Supreme Court in Menaka Gandhi, it was observed that
Prisoner’s retain all rights enjoyed by free litigants except those lost necessary as an incident
of confinement, the rights enjoyed by prisoner’s under Article 14, 19 and 21 though limited,
are not static and will rise to human heights when challenging situation arise.17

Also the Supreme Court spelled out four quasi-mandates:-

(a) The State shall take early steps to prepare in Hindi, a prisoner's handbook and circulate
copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how
improvements and facilitative programmes are brought into the prison may create a
fellowship, which will ease tensions. A prisoners' wallpaper, which will freely ventilate
grievances will also reduce stress. All these are implementers of Section 61 of the Prisons
Act.

(b) The State shall take steps to keep up to the Standard Minimum Rules for Treatment of
Prisoners recommended by the United Nations, especially those relating to work and wages,
treatment with dignity, community contact and correctional strategies. In this latter aspect,
the observations we have made of holistic development of personality shall be kept in view.

(c) The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the
Model Manual being out of focus with healing goals. A correctional-cum-orientation course
is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches
and tension-free management.

(d). The prisoners' rights shall be protected by the court by its writ jurisdiction plus contempt
power. To make this jurisdiction viable, free legal services to the prisoner programmes shall
be promoted by professional organisations recognised by the court such as for example. Free
Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep a cell for
prisoner relief.
16
AIR 1978 SC 1514
17
Supra note 14

15
These quasi-mandates ensured that the Prison facilities were made better and the prisoners
were not ill treated.

The Supreme Court in several decision held that the expression “procedure established by
law” in Article 21 envisages an expeditious procedure. Therefore, a procedure in which the
trial was unduly delayed for no fault of the petitioner was held to be an anti-thesis of an
expeditious procedure, termed as a blatantly slow procedure, shocks judicial conscience and
casts a very sad reflection on the judicial system. The right to speedy criminal trial is one of
the most valuable fundamental rights guaranteed to a citizen under the Constitution, which
right is integral part of right to life and liberty guaranteed under Article 21.

In Abdul Rahman Antulay vs. R.S.Nayak18, the Constitution Bench laid down the following
propositions intended to serve as guidelines:-

(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves the social interest also, does
not make it any the less the right of the accused. It is in the interest of all concerned that the
guilt or innocence of the accused is determined as quickly as possible in the circumstances.

(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage
of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has
understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused

are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other
words, the accused should not be subjected to unnecessary or unduly long incarceration prior
to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself,
whether on account of death, disappearance or non availability of witnesses or otherwise.

18
(1992) 1 SCC 225

16
(4) At the same time, one cannot ignore the fact that it is usually the accused who is
interested in delaying the proceedings. As is often pointed out, “delay is a known defence
tactic”. Since the burden of proving the guilt of the accused lies upon the prosecution, delay
ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of
evidence by lapse of time really work against the interest of the prosecution. Of course, there
may be cases where the prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the
first question to be put and answered is — who is responsible for the delay? Proceedings
taken by either party in good faith, to vindicate their rights and interest, as perceived by them,
cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous proceedings or proceedings
taken merely for delaying the day of reckoning cannot be treated as proceedings taken in
good faith. The mere fact that an application/petition is admitted and an order of stay granted
by a superior court is by itself no proof that the proceeding is not frivolous. Very often these
stays are obtained on ex parte representation.

(5) While determining whether undue delay has occurred (resulting in violation of Right to
Speedy Trial) one must have regard to all the attendant circumstances, including nature of
offence, number of accused and witnesses, the workload of the court concerned, prevailing
local conditions and so on — what is called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State includes judiciary as well, but a
realistic and practical approach should be adopted in such matters instead of a pedantic one.

(6) Each and every delay does not necessarily prejudice the accused. Some delays may
indeed work to his advantage. As has been observed by Powell, J. in Barker “it cannot be said
how long a delay is too long in a system where justice is supposed to be swift but deliberate”.
The same idea has been stated by White, J. in U.S. v. Ewell38 in the following words: ‘... the
Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and
has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay
in completing a prosecution amounts to an unconstitutional deprivation of rights depends
upon all the circumstances.’ However, inordinately long delay may be taken as presumptive
proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant
fact. The prosecution should not be allowed to become a persecution. But when does the
prosecution become persecution, again depends upon the facts of a given case.

17
(7) We cannot recognize or give effect to, what is called the ‘demand’ rule. An accused
cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an
accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at
no time demand a speedy trial. If in a given case, he did make such a demand and yet he was
not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy
trial cannot be put against the accused.

(8) Ultimately, the court has to balance and weigh the several relevant factors — ‘balancing
test’ or ‘balancing process’ — and determine in each case whether the right to speedy trial
has been denied in a given case.

(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of
an accused has been infringed the charges or the conviction, as the case may be, shall be
quashed. But this is not the only course open. The nature of the offence and other
circumstances in a given case may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to make such other appropriate order
— including an order to conclude the trial within a fixed time where the trial is not concluded
or reducing the sentence where the trial has concluded — as may be deemed just and
equitable in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such
rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden
of proving justification on to the shoulders of the prosecution. In every case of complaint of
denial of right to speedy trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the court to weigh all the circumstances of a given
case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly
refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think
that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account,
should first be addressed to the High Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature.
Such proceedings in High Court must, however, be disposed of on a priority basis.

18
In another case of Prem Shankar Shukla Vs. Delhi Administration19, the Supreme Court
struck down the provisions of the Panjab Police rules which discrimina-ted between the rich
and the poor prisoner in deter-mining who was to be handcuffed. The Court also held that in
the absence of the escorting authority re-cording why the prisoner is being put under
handcuffs, the procedure of handcuffing is a violation of Article 21. The court concluded with
the observation : "We clearly declare and it shall be obeyed from the Inspector General of
Police and Inspector General of Prisons to the escort constable and the jail warder-that the
rule regarding a prisoner in transit between prison house and court house is freedom from
handcuffs and the exception, under conditions of judicial supervision we have indicated
earlier, will be restraints with irons to be justified before or after. We mandate the judicial
officer before whom the prisoner is produced to interrogate the prisoner as a rule, whether he
has been s ubjected to handcuffs or other 'irons' treatment, and if he has been, the official
concerned shall be asked to explain the action forthwith in the light of this judgement."

19
Supra note 11

19
Chapter 3

Various Committee Reports For The Protection Of Prisoners’ Rights

Various committees have been already set up so as to seek that there is a protection of
prisoner’s rights in India. These committees analysed the situation and recommended some
alternatives so as to improve the conditions of the Rights of the Prisoners.

The first Committee on Prison Reforms was appointed in 1836, with Lord Macaulay as one
of its member. The next committee was appointed in 1864. In 1877, there was a conference
of experts to enquire into prison administration. Another committee was appointed to
examine jail administration in 1888-89. On the basis of this report, the Prisons Act 1894 and
the Prisoners Act 1900 were passed. The Indian Jails Committee examined the conditions of
prisons not only in but also in other countries.

 In 1956, the Government of India set up the All India Jail Manual Committee. This
committee prepared the Model Prison rules in 1959 for the guidance of the State
governments.
 In 1977, Ismail Committee (constituted by the Tamil Nadu government) in its report
submitted the allegations of ill treatment and beating. This committee made
suggestions for prison reforms and rights of the prisoners. According to Justice Ismail,
the state has a duty to spend for the rehabilitation and reformation of prisoners and
making them to re enter into the mainstream of the society.
 In 1979, the Tamil Nadu Prison Reforms Commission was constituted and it
suggested that all persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity and rights of human persons. This Committee had
made some progressive suggestions with regard to women prisoners and also
suggested that short term prisoners should be given wages for their work. It also
suggested that accused persons shall be segregated from convicted persons and must
be given the status of a non convicted person.
 The Government of India, has brought to the notice of the Law commission of India
in its 78th report, the need for undertaking suitable judicial reforms and changes in
law in order to deal with the problem concerning with a large number of under trial
prisoners in Indian jails. This Commission has recommended speedy investigation of
the case, and separate places of detention for under trial prisoners.

20
  In 1983, Justice A. N Mulla Committee of Jail Reforms made suggestions for the
modernization of prisons in, and hence suggested the setting up of National Prison
Commission. According to this Committee there was a total ban on heinous practice
of clubbing together juvenile offenders with the hardened criminals in prison; and it
also suggested the removal of the diarchy of prison administration at a union and state
level. Justice Mulla Committee suggested that the classification of prisoners in jail
should be rational as well as scientific.
 In 1986-87, National Expert committee on Women prisoners was constituted. This
Committee was headed by justice V R Krishna Iyer. In 1988, this Committee
submitted its report to the Union Government. It suggested that, in police force the
number of women must be increased. This Committee made recommendations to
make aware among the women in custody about their rights and duties while in
custody. In this view, the Committee suggested that literate prisoners must be given
an easy readable text in which the fundamental rights of prisoners are contained in. 
Socio-legal counselling and legal aid camps are established in the prisons to support
women inmates.
 In 1991-93, the 9th Kerala Legislature Estimate Committee, made certain suggestions
with regard to the rights of prisoners in the state of Kerala. This Committee submitted
its report on 28th January, 1993. This Committee had taken into consideration an
objective of imprisonment sufficient opportunities to be provided to the prisoners as a
reformative move. It also made suggestions that the prison labour can be made more
profitable if certain necessary provisions are made, in accordance with the ability and
taste of the prisoner. The Committee also made recommendation to the government to
enhance punishment for those prisoners who violates the conditions of parole.
 In Kerala, the Travancore- Cochin Prisons Act, 1915 was enforced which extends to
the whole area of the State of Travancore– Cochin.
 In the Malabar District including the State of Madras, the Central Act 9 of 1894 was
enacted.

Even though the judiciary was much cognizant of the prisoners’ rights in all the countries, it
is important to note that the contribution of the legislation has not been substantial enough in
this process. In this context, the judiciary has been influenced by the deliberations and
recommendations that have been made in the Human rights Conventions. Various other

21
recommendations have also been made by other Prison reform Committees and these have
considerably influenced the Indian judiciary especially at the apex court, being the Supreme
Court. This is clearly evident from the judgment that was delivered by the Supreme Court in
relation to the prisoners’ rights. Thus by making a value oriented interpretation of the
provisions contained in the Indian Constitution; the judiciary has made many significant
changes in the arena of prisoners’ rights.

22
CONCLUSION:

Life is not merely animal existence. The souls behind the bars cannot be denied the same. It
is guaranteed to every person by Article 21 of the Constitution and not even the State has the
authority to violate that Right. A prisoner, be he a convict, does not cease to be a human
being. They also have all the rights which a free man has but under some restrictions. Just
being in prison doesn’t deprive them from their fundamental rights. Even when lodged in the
jail, he continues to enjoy all his Fundamental Rights. On being convicted of crime and
deprived of their liberty in accordance with the procedure established by law, prisoners still
retain the residue of constitutional rights.

Supreme Court has gone a long way fighting for their rights. However the fact remains that it
is the police and the prison authorities who need to be trained and oriented so that they take
prisoner’s rights seriously.

Thus we see that there is no doubt that it is the democratic legitimacy which characterizes our
era. Liberty and freedom are the elements of prisoner’s human right and democracy. In so far
as developing countries are concerned it has to be observed that must believe in democracy
and human rights of prisoners.

Suggestions

There is a well known saying in law that, ‘justice delayed is justice denied’, this means that,
when these prisoners are denied speedy trial, there can be no procedure, which is reasonable,
fair and just, according to Article-21. Detainees are not prisoners, as they are kept in prison
even though they have not been yet convicted of a crime. This leads to an increase in the
number of inmate of the prison. Also, the torture inflicted on the prisoners may make them
hardened criminals.

 The scheme of prison administration has to be regulated in a proper manner. The

prison authorities must make sure that, the prison regulation is maintained without
injustice and arbitrariness
 It is a mere belief that after a prisoner is discharged from prison, after the terms of his
punishment, then he would lead a good and useful life, as this view is not always true.
The social stigma will continue to be with them, as the society still considers them to
be a prisoner, now and forever. There are many correctional and rehabilitative

23
 techniques available to the prisoners. Prisoners should be trained in some activities so
that they can lead a respected life after they are out.
 The anti-social outlook of these prisoners should be changed so that when they are out
they have a different perspective otherwise they continue to be a nuisance in the
society and do not change.
 Infliction of Custodial violence is illegal as well as unconstitutional, but even then, it
is still in practice. Sometimes it forces these people to become hardened criminals.
This practice is a violation of the Human Rights of the prisoners and should be
abolished as soon as possible.
 Even though there are a number of articles in constitution and many sections in the
Criminal Procedure Code, 1973, Indian Penal Code, 1860 which safeguards the
interest of the prisoners, the question of whether there is a proper implementation, is
an important aspect to be noted. Even in this present scenario, we find many cases of
torturing to death in the police stations, infliction of custodial violence upon the
prisoners. These articles and section must be taken a note and should be implemented
so that it helps these prisoners and makes the conditions of these jails better.

24
References:

Cases Cited:

 Lanza v New York 370 U.S. 139 (1962).

 Bounds v Smith 430 U.S. 817 (1977).

 Bell v Wolfish 441 U.S. 520 (1979).
 A. K. Gopalan v State of Madras 1950 AIR 27, 1950 SCR 88.
 State of Maharashtra v Prabhakar Pandurang AIR 1966 SC 424.
 Khatri v State of Bihar AIR 1981 SC 928.
 M.H.Hoskot v State of Maharashtra AIR 1978 SC 1548.
 Prem Shanker Shukla v Delhi Administration AIR 1980 SC 1535.
 Rudal Shah v State of Bihar 1983 AIR 1086, 1983 SCR (3) 508.
 Sunil Batra versus Delhi Administration AIR 1978 SC 1675.
 Maneka Gandhi versus Union of India AIR 1978 SC 579.
 Sobraj v. Supdt., Central Jail AIR 1978 SC 1514.
 Abdul Rahman Antulay vs. R.S.Nayak (1992) 1 SCC 225.

Books Reffered:

Vijay K. Gupta. Perspectives on Human Rights. Vikas Publishing House, 1996

Articles:

Justice T.S.SIVAGNANAM, RIGHTS OF PRISONERS AND CONVICTS UNDER THE

CRIMINAL JUSTICE ADMINISTRATON, National Judicial Academy Regional Judicial
Conference, Held on 24.02.2012 to 26.02.2012

HUMAN RIGHTS OF PRISONER’S UNDER INDIAN CONTITUTION— Dr. Kalpana

Bharadwaj

Web sites referred:

Manupatra.com

25