UNIVERSITY INSTITUTE OF LAWS,

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

RIGHTS OF PRISONERS

CLASS: B.A.LL.B. (Hons.) 9th SEMESTER

SUBMITTED TO: SUBMITTED BY:

DR. ADITI SHARMA
(Assistant Professor in Laws)
Harika Bansal(19/16Hsp)
Niharika Jain(40/16Hsp)
Muskaan Garg (56/16 F)
Shivam Sharma (91/16F)
Srishti (92/16F)

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 TABLE OF CONTENTS.
Sr. No. TOPIC PAGE NO.

1. ACKNOWLEDGEMENT 03

2. SYNOPSIS 04

3. CASES AND CITATIONS 06

4. ABSTRACT 07

5. INTRODUCTION 08

6. WHO IS A PRISONER? 10

7. INTERNATIONAL LAW PERSPECTIVE 11

8. CASE STUDIES 25

9. INDIAN CONSTITUTIONAL PERSPECTIVE 30

10. ROLE PLAYED BY JUDICIARY 32

10. THE PRISON ACT ,1894 37

11. CASE LAWS 48

12. CONCLUSION 50

13. REFERENCES 51

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 ACKNOWLEDGEMENT
We would like to express our special thanks of gratitude to our Professor, Dr. Aditi Sharma
who gave us the golden opportunity to do this wonderful assignment on the topic: RIGHTS
OF PRISONERS also helped us in doing a lot of Research and we came to know about so
many new things. We are really thankful. Our deepest gratitude goes out to our Teachers, we
have been amazingly fortunate to have advisors who gave us the freedom to explore on our
own and at the same time the guidance to recover from where our steps faltered.

Secondly, we would also like to thank our parents and friends who helped us a lot in
finalising this project within the limited time frame. We owe our gratitude to all those people
who have made this project possible and because of whom our experience has been one that
we will cherish forever.

THANK YOU

SYNOPSIS

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 1. ABSTRACT
2. INTRODUCTION
3. WHO IS A PRISONER?
4. INTERNATIONAL LAW PERSPECTIVE.
 THE UNITED NATIONS CHARTER.
 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS.
 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS.
 THE UNITED NATIONS STANDARD MINIMUM RULES FOR THE
TREATMENT OF PRISONERS.
 THE EUROPEAN CONVENTION FOR THE PREVENTION OF
TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT.
 THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR
HUMAN RIGHTS.
5. CASE STUDIES.
 MUHAMMAD SHOAIB RAZZAQ v. FEDERATION OF PAKISTAN
 TAYLOR v. ATTORNEY GENERAL
 MANNA v. THE PEOPLE OF ILLINOIS
6. RIGHTS OF PRISONERS - PROVISIONS UNDER THE INDIAN
CONSTITUTION
7. ROLE PLAYED BY INDIAN JUDICIARY
 RIGHT TO FREE LEGAL AID
 RIGHT TO SPEEDY TRIAL
 RIGHT OF PRISONERS TO BE TREATED WITH HUMANITY
 RIGHT AGAINST HANDCUFFING
 RIGHT AGAINST SOLITARY CONFINEMENT AND BAR FETTERS
 RIGHT TO HAVE INTERVIEW WITH FRIENDS, RELATIVES AND
LAWYER.
8. THE PRISONS ACT,1894
 MAINTENANCE AND OFFICERS OF PRISONS
 DUTIES OF THE OFFICERS
 SUPERINTENDENT OF JAIL
 MEDICAL OFFICER
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  JAILER
 DISCIPLINE FOR PRISONERS
 FOOD CLOTHING AND BEDDING OF CIVIL AND UNCONVICTED
CRIMINAL PRISONERS
 EMPLOYMENT OF PRISONERS
 VISIT TO PRISONERS
 OFFENCES IN RELATION TO PRISONS
 RULE MAKING POWER OF THE STATE GOVERNMENT
 CRITICAL ANALYSIS
9. CASE LAWS
 A.R. ANTULAY v. R.S. NAYAK
 SELVI v. STATE OF KARNATAKA
 JOGINDER KUMAR v. STATE OF U.P.
 KHARAK SINGH v. STATE OF UP
 PEOPLE’S UNION OF INDIA v. UNION OF INDIA
10. CONCLUSION
11. REFERENCES

CASES AND CITATIONS

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 1. A.R. Antulay v. R.S. Nayak (1992) 1 SCC 225
2. Charles Sobhraj v. Spdt, Central Jail, Tihar AIR 1978 SC 1514
3. Coleman v. Schwarzenegger [2006] Dist. Court, ED, Calf.
4. D.K. Basu v. State of West Bengal AIR 1997 SC 619
5. Hussaionara Khatoon v. Home Secretary AIR 1979 SC 1360
6. Ireland v. The United Kingdom January 18,1978
7. Joginder Kumar v. State of U.P. 1994 SCC (4) 260
8. Kharak Singh v. State of U.P. 1964 SCR (1) 332
9. Manna v. The People of Illinois 48III App. 2d 114 (1964)
10. M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548
11. Muhammad Shoaib Razzaq v. Federation of Pakistan WP No. 786 of 2019
12. People’s Union of India v. Union of India (1982) 3 SCC 235
13. Plata v. Schwarzenegger 603 F 3d 1088 (2010)
14. Prem Shankar v. Delhi Administration (1908) 3 SCC 526
15. Selvi v. State of Karnataka (2010) 7 SCC 263
16. Sheela Barse v. State of Maharashtra (1983) 2 SCC 96
17. Sunil Batra v. Delhi Administration AIR 1978 SC 1675
18. Taylor v. Attorney General [2015] NZHC 1706

ABSTRACT

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Known for the democracy and the rich culture, a developing country like India, has no strong
and specific legislation for prisoners. But the fact that the Judiciary has never ignored the
Rights of prisoners cannot be denied. Various rights of the prisoners have been mentioned by
the Hon’ble Court in many judgements and interpretation which are valuable and of utmost
importance. Furthermore, there has been a drastic change in the situation of prisoners along
with increasing consciousness regarding their rights with time.

The protection and respect for the rights of a person depends upon his status, whether he is a
citizen or non-citizen, freeman or prisoner, child or adult, male or female, meaning the
enjoyment of some rights are not absolute but can be interfered with by the State.
International laws guarantee rights against forced labour, cruel, inhuman or degrading
treatment or punishment and the right to work, and wages. The question to ask is whether
these rights are extended to prisoners who are in the custody of the State? Also, the treaties
have not defined what “cruel, inhuman or degrading punishments” are. What amount to cruel
or inhuman punishment in one country may not be necessarily the same in another country?
Further, there is no yardstick in determining where forced labour stops and where cruel or
inhuman treatment or punishment commences. These issues will be discussed thoroughly in
this study by using exploratory and evaluative legal research as the methodology.

This paper further explains the international framework, the constitutional law of India
regarding prisoners and the statues and legislations so framed along with important case
studies in respect of the same.

KEYWORDS: Prisoners, UN Charter, UDHR, ICCPR, Indian Constitution, The Rughts

of Prisoners Act.

INTRODUCTION
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The Indian socio-legal mechanism is built on non-violence, liberty and dignity of the
individual. If a person has conflict of the laws by committing any act which is prohibited
under it, it is unfair to say, by committing an act which is prohibited by the law than the
person is not rejected as a human being and that he can be deprived of those aspects of life
which essential to maintain his human dignity. Being in civilized society availability with the
law and a system as such, it is essential for every citizen having human rights. Even if the
person is confined because of his crime, he is entitled to their rights unchanged by the
punishment for wrongs, simply because if a person under trial, his rights cannot be discarded
as a whole. It is a settled system that prisoners go to prison to be confined behind bars as the
punishment of their crime and not to get subjected to physical and mental abuse.

Other than the basic human needs, which have now been included in the area of right to life
under the Indian constitution due to the judgements of the Supreme Court, right to life also
allows a person to avail the guarantee of protection in cases of criminal justice
administration.1

“The said humanistic approach has not barred to the basic necessities of life like the right to
live with dignity, right to education, health, labour welfare etc., but it has also underlined the
other essential rights to live a dignified human life. The right to life includes the right to
justice which includes a fair trial.”2

Even though many policies have been formulated to recognize the rights of the prisoners, it
is, however, of grave importance that the present deficiency between the framed policies and
ones which are actually brought into practice is studied meticulously and acted upon
promptly.

It is obvious that during the late 18th century and towards the middle of the 20th century,
prisoners were regarded as properties of the State and thus, the treatment given to them was
similar to the treatment given to slaves. Since by virtue of their status as prisoners and being
treated as properties of the State resulted in the waiver of their rights, it was the position of
the courts that seeking judicial remedy for violating their rights was unenforceable. As a
consequence of a prisoner’s crime, he did not only forfeit his right to liberty but all other
personal rights but with the exception of those rights which the law in its humanity accorded
to him.3
1
https://www.lawaudience.com/rights-of-prisoners-in-india-a-legal-analysis/
2
Debarti Halder, “Rights of women prisoners in India: A legal analysis” 28 IJCC 12-13 (2007)
3
Quigley, W P, “Symposium, Prison Work, Wages and Catholic Social Thought: Justice

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Therefore, a prisoner during this period found himself in a restrictive and harsher condition
on the basis that such treatment or conditions were part of the penalty that the prisoner or
offender had to pay for his crime. The quest for the right against forced labour was broadened
after the First World War which led to the emergence of International Labour Organization
(“ILO”) in 1919 as an offshoot of the League of Nations. The main concern of the ILO at that
time was to eradicate slavery and all forms of forced labour.4

However, most or almost all the international treaties that bind State Parties have not clearly
demarcated the rights to be enjoyed by a prisoner and those that are not allowed to be
protected by the State Parties. International laws under various conventions and declarations
have guaranteed rights against forced labour, ill treatments or punishments (cruel, inhuman or
degrading treatment or punishment) and guaranteed the right to work and wages. The
question to ask is whether these rights as stated in the said laws extended to prisoners who are
in the custody of the State? More so, the laws and treaties have not defined what “cruel,
inhuman or degrading treatments or punishment” are. What amounts to cruel or inhuman or
degrading treatment or punishment in one country may not be necessarily the same in another
country.

WHO IS A PRISONER?

Demands Decent Work for Decent Wages, Even for Prisoners”, (2004) 44 Santa Clara L Rev
1159 at 1164.
4
Harding, R M, “The Enforcement of Prisoners’ Rights in the United States: An Access to
the Court Issue”, (1998), LJ 3(1), 10–16, 10.

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The word prisoner means any person who is kept under custody in jail or prison because
he/she committed an act prohibited by law of the land. A prisoner also known as an inmate is
anyone who against their will is deprived of liberty. This liberty can be deprived by forceful
restrain or confinement. Prisoners’ rights deal with the rights of the inmates while behind
bars. Prisoners have basic legal rights that can't be taken away from them. 5 The basic rights
include right to food and water, right to have an attorney to defend himself, protection from
torture, violence and racial harassment. Section 1 of the Prison Security Act 1992, defines the
term prisoner. The word prisoner means any person for the time being in a prison as a result
of any requirement imposed by a court or otherwise that he be detained in legal custody.

The prisoner is an individual who is restrained from enjoying his liberty and capture under
the prison or detention as a punishment for crime. Being a convict or being under trial does
not reject the need for human rights for the survivals and protection of life.

The term ‘prisoner’ could be used to refer to any person who has breached the law of the land
and is thus in police custody restraining his liberty for the welfare of the society. A person in
the jail is left to suffer in the most inhuman and derogatory conditions. They suffer human
rights abuse while in jail. But we need to remember that prisoners in modern democracy do
not have civil rights but they must be allowed reformative approaches.6

INTERNATIONAL LAW PERSPECTIVE

5
https://www.legalservicesindia.com
6
https://blog.ipleaders.in/prisoner-rights-india-v-world/

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 According to International Laws, a number of treaties and conventions suggests Prisoner
rights. Several Civil rights were being denied when World Wars took place and a number of
prisoners were forced labourers or murdered recklessly. This brought about a change in the
International prisoner laws. The United Nations laid down certain minimum requirements for
the treatment of the prisoners. It offers rules stating proper food, good hygiene, bedding,
medical facilities for the prisoners.

Basic human rights that are conferred to every individual are violated on a day-to-day basis in
the prisons. They are let to suffer in a congested environment in the small cells of prison with
the other prisoners. Custodial rapes are increasing in jails wherein a place which confines a
person for society’s welfare, the person ends up losing one’s dignity. Physical tortures and
the amount of violence faced by prisoners is unbearable and sometimes it leads to what we
call as custodial deaths.

Genocide, slavery and murdering prisoners in name of encounters are witnessed in several
jails across the world. Right to life which is a fundamental requirement is infringed. Another
cause of death in prison is malnutrition. No proper food and hygienic environment are
provided to them. Taking various examples of different prisons in the world could explain
human rights abuse.

In Venezuelan prison, rape and extortion are faced by the inmates and only one guard looks
after 150 people. In Panama’s Modelo Prison it was seen that the prison contained more
people than its capacity.

In the United States of America, ACLU looked into the matter of solitary confinement
matters of prisoners and says that an end to the stemming violation is quite necessary. In Iraq,
there were certain accusations of prison abuse in 2003 and they said prisoners were forced to
strip and subjected to inhuman tortures.7

The rights of prisoners are available under the provisions of following international law
instruments:

THE UN CHARTER:

The charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations conference on international organization, and came into
7
https://blog.ipleaders.in/prisoner-rights-india-v-world/

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force on October 24 1945. The basic principles for The Treatment of Prisoners 8 was adopted
and proclaimed by General Assembly resolution 45/111 of 14 December 1990. The principles
are as follows:

 Prisoners shall be treated with inherent dignity and valued as human beings.
 No discrimination on the grounds of race, sex, colour, language, religion, political,
national, social origin, property, birth, or other status.
 Respect the religious beliefs and cultural precepts of the group to which the prisoners
belong.
 The responsibility of the prisons for the custody of the prisoners and for the protection
of the society against crime and its fundamental responsibilities for promoting the
well-being and development of all members of the society.
 All prisoners shall retain the human rights and fundamental freedoms set out in
UDHR, ICESCR, ICCPR and the optional protocol as well as such other rights as are
set out in other United Nations covenants.
 Right of the prisoners to take part in cultural activities and education aimed at the full
development of the human personality.
 Abolition of solitary confinement as a punishment, or to the restriction of its use,
should be undertaken or encouraged.
 Prisoners to undertake meaningful remunerated employment which will facilitate their
reintegration into the country’s labour market and permit them to contribute to their
own financial support and to that of their families.
 Access to health services without discrimination on the grounds of their legal
situation.
 With the participation and help of the community and social institutions and with
regard to the interest of victims, favourable conditions shall be created for the
reintegration of the ex-prisoner into society.

The above principles shall be applied impartially.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR):

Universal Declaration of Human Rights (UDHR) was implemented by the UN General

Assembly on 10 december,1948 with a view to promote Human Rights in the world. In 1948

8
https://www.un.org.

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a movement was started in the United Nations in the form of Universal Declaration of Human
Rights which was adopted in the General Assembly of the United Nations. This organic
document is also called as Human Rights Declaration. This important document provides
some basic principles of administration of justice. It stated the following under the said
articles:

 Article 1 states that, “in dignity and rights all human beings are born free and
equal.”
 Article2 states that, “everyone shall have the right, without dissimilarity of any
kind, to all the rights and freedoms provided for in this Declaration, such as
race, colour, sex, language, religion, political or another opinion, national or
social origin, property, birth or other status.”
 Article 3 states that, “every person has the right to life, freedom, and personal
security.”
 Article 5 states that, “no one shall be subjected to torture, or cruel, inhuman or
humiliating treatment or punishment.”

The document further provides that No one shall be subjected to arbitrary arrest, detention or
exile. Every one charged with a penal offence has the right to be presumed innocent until
proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defence.

The UDHR uses the phrase “No one” a general phrase without making exclusion to some
categories of people and UDHR is not a binding declaration among member States.

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

(ICCPR):

It is offered by the ICCPR that every person has the right to life by birth, whether he is a
prisoner pr a liberator. This right is protected by the law and nobody is forcibly deprived
of his or her life. Therefore, this very important document provides for:

 Article 7 states that, “no one shall be tortured or subjected to cruel, inhuman or
humiliating treatment or punishment.”

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  Article 10, being the most important article related to the prisoner treatment,
offers that, “all people deprived of their freedom are treated with humanity and
with respect for the human person’s inherent dignity.9

The Committee stated in the General Comment 20 that Article 7 allows no limitation and it
affirms that even in a situation of public emergency as contained under Article 4 of the
ICCPR, no derogation is allowed, the provisions of Article 7 remain in force, there is no
circumstance that will or may warrant any justification for violating the said Article 7. The
Committee went further to advocate that the prohibition in Article 7 is not only on causing
physical pain but also includes causing mental suffering. More so, Article 7 should not be
read in isolation without taking into account Article 10 of the same ICCPR as provided in
paragraph 2 of the General Comment 20. It provides that the prohibition under it is
supplemented by the constructive requirements of Article 10(1) of the ICCPR. Therefore,
since prisoners were denied their right to liberty, they shall be treated with humanity meaning
they should not receive cruel, inhuman or degrading treatments or punishment. Nevertheless,
if the prison system is based on retribution, then there is presumption that the system will
change the prisoners’ behaviour and attitude in order to avoid future criminal acts.10

In the United States, in the case of Coleman v Schwarzenegger11, the court held that:
California prison’s medical and mental health care available to the prisoners was woefully
poor and insufficient that it constitutes a violation of right against cruel, inhuman or
degrading treatment.

In a related development, it has held in the case of Plata v Schwarzenegger12 that inadequate
medical screening facilities, lack of access to medical care, insufficient medical personnel
and untimely responses to emergencies constitute a violation of the right against cruel,
inhuman and degrading treatment.

Justice Fitzmaurice in the case of Ireland v The United Kingdom13, observed that for a
treatment or punishment to be inhuman, it must be a treatment that “no member of the human
species ought to inflict on another or could so inflict without doing grave violence to the

9
The International Covenant on Civil and Political Rights, art. 10, para.1.
10
May, D C, Minor, K I, Ruddell, R and Mathews, B A, Corrections and the Criminal Justice
System, (Sudbury, Massachusetts: Jones & Bartlett Publishers, 2008), p 209.
11
[2006] Dist Court, ED California.
12
603 F 3d 1088 (2010).
13
January 18, 1978, Series A No 25, Separate Opinion of Justice Fitzmaurice, para 26.

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human, as opposed to the animal, element in his or her make-up” and Waldron has the same
view with Justice Fitzmaurice.

With respect to the lack of a clear yardstick or mechanism to determine where the legal
forced labour stops and where inhuman, cruel or degrading punishment commences, the
proviso under Articles 2(2)(c) of the Forced labour Convention and 8(3) of the ICCPR must
take into account of Article 7 of the ICCPR. In other words, forced labour based on the
sentence imposed by the court should not in any way encroach upon the right of a prisoner
against cruel, inhuman and degrading punishment which is a non-derogable right. Further, the
purpose of Article 7 of the ICCPR is to safeguard the dignity, physical and mental integrity of
individuals.14

Similarly, General Comment No 21 on Article 10 of the ICCPR states that the protection of
the right against cruel, inhuman or degrading treatment or punishment applies to any person
deprived of his liberty under the laws and confined in prisons, detention and correctional
institutions among others.

It imposes a positive obligation on State parties to protect the vulnerable, i.e., those who were
deprived of their right to liberty, against cruel, inhuman or degrading treatment or
punishment.43 The application of Article 7 of the ICCPR among the State parties should not
be based on the material resources available in the State but it should be applied without any
form of distinction.15

THE UNITED NATIONS STANDARD MINIMUM RULES FOR HE

TREATMENT OF PRISONERS:

The UN Standard Minimum Rules on the treatment of Prisoners contain so many rules
concerning prisoner’s rights. They are also known as the Nelson Mandela Rules. These
were revised by the UN in 2015. They are stated as below16:

 Rules 1-5 provide for –

 prisoners must be treated with respect for their inherent dignity and
value as human beings.
 Torture or other ill-treatment is prohibited.

14
Comment 1 of the General Comment No 20 on Article 7 of the ICCPR.
15
Comment 4 of the General Comment No 21 on Article 10 of the ICCPR
16
https://cdn.penalreform.org/wpcontent/uploads/2016/01/PRI_Nelson_Mandela_Rules_Short_Guide_WEB.pdf

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  Prisoners should be treated according to their needs, without
discrimination.
 The purpose of prison is to protect society and reduce reoffending.
 The safety of prisoners, staff, service providers and visitors at all
times is paramount.
 Rule 7 and 8 provides for registration and states that, “Information that
should be collected and entered into the prisoner file now includes, for
example, names and location of family, and any visible injuries or
complaints about prior ill-treatment.”
 Rule 11 provides for categorisation and states that, “Certain groups of
prisoners must be housed separately as a means of protection and to
facilitate adequate individual treatment. This applies to men and women,
pre-trial and convicted prisoners, children and adults.
 Rule 15, 16, 18-21 provides for hygiene and states that. “Every prison
must have clean bathroom facilities in the interests of dignity and hygiene.
Access to water, toilet items (including sanitary towels for women),
adequate clothing and bedding must also be provided.”
 Rules 22,35, 42, 43 provides for food and water and states that, “Prisoners
must be provided with nutritious food of wholesome quality and also
drinking water whenever they need it. Food and water cannot be restricted
as a disciplinary sanction and must be provided without exception.”
 Rule 43-46 provides for solidarity confinement and states that, “Given its
devastating effect on physical and mental health, the Rules stipulate that
solitary confinement should only be used in exceptional cases, as a last
resort, for as short a time as possible, after authorisation by a competent
authority, and subject to independent review. Indefinite and prolonged
solitary confinement (of more than 15 days) is prohibited entirely. For
some groups, e.g., pregnant or breast-feeding women, any use of solitary
confinement is prohibited. The Rules define solitary confinement as
confinement for more than 22 hours per day without meaningful human
contact. Interpretation of ‘meaningful human contact’ should recognise the
suffering that any person will experience if isolated from and deprived of
contact with other human beings.

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The rules also contain the provisions prohibiting corporal punishment, punishment by placing
in the dark cell, and all cruel, inhuman or degrading punishments. Further, the provision as to
right to contact with their family and a reputed lawyer is also contained in the Rules.

THE EUROPEAN CONVENTION FOR THE PREVENTION OF TORTURE

AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT:

The convention establishes the European Committee for Torture Prevention and Inhuman
and Degrading Treatment or Punishment. The committee may visit all the custody places
and, justified by the convention as, “any place within the jurisdiction in which the public
authority deprives persons of their freedom.”

Once a state government has been informed of the committee’s intention to conduct a
visit, it must allow access to the territory with the right to free travel without restriction,
full information about the facility in question, unlimited access to the facility and free
movement with it, the right to interview any person held in the facility freely
communicates with any person who believes that they can provide relevant information
and access to any other information that the committee considers necessary to carry out
its task. All the collected information is confidential.17

THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR

HUMAN RIGHTS:

Human rights derive from the inherent dignity of the human person. All persons deprived of
their liberty shall be treated at all times with humanity and with respect for the inherent
dignity of the human person. No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. There are no exceptions.18 Torture is defined as any act
by which severe physical or mental pain or suffering is intentionally inflicted on a person,
other than that which is inherent in or incidental to lawful sanctions. 19 Ill-treatment is defined
as other acts of cruel, inhuman or degrading treatment or punishment which do not amount to
torture.20

17
https://www.lawaudience.com/rights-of-prisoners-in-india-a-legal-analysis/
18
7 UDHR, article 5; ICCPR, article 7; Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment [hereinafter “CAT”], preamble and article 2; Code of Conduct, article 5.
19
CAT Art.1
20
CAT Art.16

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Any act of torture committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack, is a crime against humanity. 21 No prisoner
shall be subjected, even with his or her consent, to any medical or scientific experimentation
which may be detrimental to health.22 All prisoners shall be provided promptly with written
information about the regulations which apply to them and on their rights and obligations. 23
The families, legal representatives and, if appropriate, diplomatic missions of prisoners are to
receive full information about the fact of their detention and where they are held. 24 All
prisoners shall be offered a proper medical examination and treatment as soon as possible
after admission.25

 RIGHT TO AN ADEQUATE STANDARD OF LIVING:

 All persons deprived of their liberty shall have the right to an adequate
standard of living, including adequate food, drinking water, accommodation,
clothing and bedding.26
 Accommodation for prisoners shall provide adequate cubic content of air,
floor space, lighting, heating and ventilation.27
 Prisoners required to share sleeping accommodation shall be carefully selected
and supervised at night.28
 All prisoners shall be provided with wholesome and adequate food at the usual
hours and with drinking water available whenever needed.30
 Clothing as a component of the right to an adequate standard of living is a
human right. All prisoners not allowed to wear their own clothing shall be
provided with suitable clothing. There shall be facilities for keeping clothing
clean and in proper condition. There must be facilities to wash and dry
clothing and bedding regularly.29

21
Rome Statute of the International Criminal Court, article 7
22
Principles on Detention or Imprisonment, principle 22.
23
Principles on Detention or Imprisonment, principle 13; SMR, rule 35
24
3 Principles on Detention or Imprisonment, principle 12; Principles on Summary Executions, principle 6
25
Principles on Detention or Imprisonment, principle 24; SMR, rule 24.
26
UDHR, article 25; International Covenant on Economic, Social and Cultural Rights [hereinafter “ICESCR”],
article 11; Convention on the Rights of the Child [hereinafter “CRC”], article 27; Guidelines and Measures for
the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa
[hereinafter “Robben Island Guidelines”], paragraph 34.
27
SMR, rule 10
28
SMR, rule 9 (2)
29
SMR, rule 20. ICESCR, article 11. SMR, rule 17 (1). SMR, rules 17 (2) and 18.SMR, rule 19

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  All prisoners shall be provided with a separate bed and clean bedding, with
facilities for keeping bedding clean.30
 HEALTH RIGHTS OF PRISONERS:
 The enjoyment of the highest attainable standard of physical and mental health
is a human right. It is a basic requirement that all prisoners should be given a
medical examination as soon as they have been admitted to a prison or place
of detention.31
 Any necessary medical treatment should then be provided free of charge.
Prisoners should generally have the right to request a second medical
opinion.32
 Prisoners and all detained persons have the right to the highest attainable
standard of physical and mental health.33
 The medical officer has an important responsibility to ensure that proper
health standards are met. He or she can do this by regularly inspecting and
advising the director of the prison on the suitability of food, water, hygiene,
cleanliness, sanitation, heating, lighting, ventilation, clothing, bedding and
opportunities for exercise.34
 All prisoners shall be provided with facilities to meet the needs of nature in a
clean and decent manner and to maintain adequately their own cleanliness and
good appearance.35
 MAKING PRISONS SAFE PLACE:
 Use of force, including use of firearms, to prevent escape should only be
applied when less extreme means are insufficient to prevent the escape.36
 Restraints may be used only as a precaution against escape during transfer, for
no longer than strictly necessary, and provided that they are removed when the
prisoner appears before a judicial or administrative authority; or on medical
grounds.37

30
SMR, rule 19.
31
Principles on Detention or Imprisonment, principle 24; SMR, rule 24
32
Principles on Detention or Imprisonment, principle 24-25.
33
UDHR, article 25; ICESCR, article 12.
34
SMR, rule 26.
35
4 SMR, rules 12 to 16.
36
6 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [hereinafter “Principles on
Force and Firearms”], principle 9.
37
SMR, rule 33

19 | P a g e
  Prisons should be safe environments for all who live and work in them, in
other words for prisoners and staff, and for visitors.38
 No prisoner shall be punished before being informed of them alleged offence
and having the opportunity to present a proper defence.39
 All cruel, inhuman or degrading punishments are completely prohibited,
including corporal punishment or placing in a dark cell.40
 Punishment by close confinement or reduction of diet shall never be inflicted
unless the prisoner is certified by the medical officer as medically fit to sustain
it.41
 COMPLAINTS AND INSPECTION PROCEDURE:
 Every prisoner shall have the right to make a complaint regarding his or her
treatment and, unless the complaint is evidently frivolous, to have it dealt with
promptly and, if requested, confidentially. If necessary, the complaint may be
lodged on behalf of the prisoner by his or her legal representative or family.42
 Every prisoner on admission shall be provided with written information on
regulations and on complaints and disciplinary procedures in a language
which he or she understands. If necessary, these rules should be explained
orally.43
 If a complaint is rejected or not responded to in a timely manner, the
complainant shall be entitled to bring it before a judicial or other authority.44
 States shall ensure a prompt and impartial investigation whenever there are
reasonable grounds to believe that an act of torture or ill-treatment has been
committed.45
 There shall be thorough, prompt and impartial investigation of all suspected
cases of extra-legal, arbitrary and summary execution, including cases where
complaints by relatives or other reliable reports suggest unnatural death in the
above circumstances.46

38
SMR, rule 27
39
SMR, rule 30 (2).
40
SMR, rule 31.
41
SMR, rule 32.
42
Principles on Detention or Imprisonment, principle 33; SMR, rule 36.
43
SMR, rule 35.
44
Principles on Detention or Imprisonment, principle 33, para. 4
45
CAT, article 12; Principles on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, principle 2.
46
Principles on Summary Executions, principle 9

20 | P a g e
  Prisons shall be inspected regularly by qualified and experienced inspectors
from a competent authority separate from the prison administration.47
 Every prisoner shall have the right to communicate freely and confidentially
with inspectors, subject only to the demands of good order and discipline in
the institution.48
 SPECIAL CATEGORIES OF PRISONERS:
 NON-DISCRIMINATION: Everyone has the right to freedom of thought,
conscience and religion and persons belonging to ethnic, religious or linguistic
minorities have the right to their own culture, religion and language. Prisoners
who are foreign nationals shall be allowed reasonable facilities to
communicate with diplomatic representatives of their State. Prisoners who are
nationals of States without diplomatic representation in the country or
refugees or stateless persons shall be allowed reasonable facilities to
communicate with the diplomatic representative of the State which takes
charge of their interests or any national or international authority whose task it
is to protect such persons.49
 WOMEN IN PRISON: Women are entitled to the equal enjoyment and
protection of all human rights in the political, economic, social, cultural, civil
and all other fields.102 Women prisoners shall not suffer discrimination and
shall be protected from all forms of violence or exploitation.103 Women
prisoners shall be detained separately from male prisoners.104 Women
prisoners shall be supervised and searched only by female officers and
staff.105Pregnant women and nursing mothers who are in prison shall be
provided with the special facilities which they need for their condition.106
Whenever practicable, women prisoners should be taken to outside hospitals
to give birth.50
 JUVENILE S IN DETENTION: Children who are detained shall be treated in
a manner which promotes their sense of dignity and worth, facilitates their

47
Principles on Detention or Imprisonment, principle 29, para. 1; SMR, rule 55.
48
SMR, rules 36 (2) and 55; Principles on Detention or Imprisonment, principle 29, para. 2.
49
UDHR, article 18; ICCPR, articles 18 and 27. SMR, rule 38 (1)- 38 (2).
50
UDHR, article 2; ICCPR, article 3; Convention on the Elimination of All Forms of Discrimination against
Women [hereinafter “CEDAW”], articles 1, 2 and 3; Declaration on the Elimination of Violence against
Women [hereinafter “Declaration on Violence against Women”], article 3. CEDAW, articles 1, 6 and 7;
Declaration on Violence against Women, articles 2 and 4. Principles on Detention or Imprisonment, principle 5;
SMR, rule 8 (a). SMR, rule 53 and 23(1).

21 | P a g e
 reintegration into society, reflects their best interests and takes their needs into
account. Children shall not be subjected to corporal punishment, capital
punishment or life imprisonment without possibility of release. Children who
are detained shall be separated from adult prisoners. Accused juveniles shall
be separated from adults and brought for trial as speedily as possible. Special
efforts shall be made to allow detained children to receive visits from and
correspond with family members. The privacy of a detained child shall be
respected, and complete and secure records are to be maintained and kept
confidential. Disciplinary procedures shall respect the child’s dignity and be
designed to instil in the child a sense of justice, self-respect and respect for
human rights.51
 PRISONERS UNDER SENTENCE OF DEATH: In countries which have not
abolished the death penalty, it shall be imposed only for the most serious
crimes and after a final judgement rendered by a competent court. The death
penalty shall not be imposed for crimes committed by persons below the age
of eighteen and shall not be carried out on pregnant women, new mothers or
persons who have become insane.52
 LIFE AND LONG-TERM PRISONERS: The essential aim of the treatment of
prisoners shall be their reformation and social rehabilitation.123 Life
imprisonment without possibility of release shall not be imposed for offences
committed by persons below eighteen years of age.124 The regime of the
institution should seek to minimize any differences between prison life and
life at liberty which tend to lessen the responsibility of the prisoners or the
respect due to their dignity as human beings.125 Treatment shall be such as to
encourage long-term prisoners’ self-respect and to develop their sense of
responsibility.126 Prisoners shall be allowed under necessary supervision to
communicate with their family and reputable friends at regular intervals, both
by correspondence and by receiving visits.127 Life-sentence prisoners should
be eligible for release into society once they have served a sufficient period of
time in custody to mark the seriousness of their offences.53
51
CRC, articles 3 and 37; United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules) [hereinafter “Beijing Rules”], rules 1, 5 and 6; United Nations Rules for the Protection of
Juveniles Deprived of their Liberty [hereinafter “Rules for Juveniles”], rules 1, 4, 14, 31, 79 and 80.
52
ICCPR, article 6, para. 5; Death Penalty Safeguards, para. 3.
53
ICCPR, article 10, para. 3. CRC, article 37 (a). SMR, rule 60 (1). SMR, rules 65 and 66. SMR, rule 37.
Resolution (76) 2 of 17 February 1976 of the Committee of Ministers of the Council of Europe on the treatment

22 | P a g e
  PERSONS UNDER DETENTION WITHOUT SENTENCE:
 Anyone who is arrested shall be informed, at the time of arrest, of the reasons
for the arrest and of his or her rights. Anyone who is arrested shall be
promptly informed of any charges.54
 Anyone who is arrested shall be brought promptly before a judicial authority
for the purpose of having the legality of his or her arrest or detention reviewed
and shall be released if the detention is found to be unlawful.55
 Anyone who is arrested has the right to trial within a reasonable time or to
release. All arrested or detained persons shall have access to a lawyer or other
legal representative and adequate opportunity to communicate with that
representative.56
 Untried prisoners shall be allowed immediately to inform their families of
their detention and shall be given all reasonable facilities for communicating
with their families and friends. Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons and shall be subject to
separate treatment. Untried prisoners shall sleep singly in separate rooms, with
the reservation of different local custom in respect of the climate.57
 Untried prisoners may, if they so desire, have their food procured at their own
expense from the outside. Untried prisoners shall be allowed to wear their own
clothing if it is clean and suitable. If an untried prisoner wears prison clothing,
it shall be different from that supplied to convicted prisoners. Untried
prisoners shall always be offered the opportunity to work, but shall not be
required to work. Untried prisoners shall generally be allowed to procure at
their own expense books, newspapers and writing materials.58

of long-term prisoners
54
ICCPR, article 9, para. 2, and article 14, para. 3 (a); Principles on Detention or Imprisonment, principle 10.
55
ICCPR, article 9, para. 4; Principles on Detention or Imprisonment, principle 37.
56
UDHR, article 11; ICCPR, article 14, para. 3 (b) and (d); Principles on Detention or Imprisonment, principles
17 and 18; SMR, rule 93.
57
SMR, rule 86.
58
SMR, rule 87,88-90; Principles on Detention or Imprisonment, principle 28.

23 | P a g e
  Untried prisoners shall generally be allowed visits from their own doctor or
dentist. Persons awaiting trial shall not be detained in custody as a general
rule. Release pending trial shall be envisaged as early as possible.59
 A pre-trial prisoner shall have the right to appeal to a judicial or other
independent authority against his or her detention. Persons arrested or
imprisoned without charge shall be accorded the same protection and facilities
as pre-trial prisoners and those awaiting trial.60
 NON-CUSTODIAL MEASURES:
 Non-custodial measures should be applied without discrimination on the grounds
of race, colour, sex, age, language, religion, political or other opinion, national or
social origin, property, birth or other status.61
 There should be suitable mechanisms to facilitate linkages between services
responsible for non-custodial measures and other relevant agencies in the criminal
justice system, social development and welfare agencies, both governmental and
non-governmental, in such fields as health, housing, education and labour, and the
mass media.62
 The criminal justice system should provide a wide range of non-custodial
measures, from pre-trial to post-sentencing dispositions, in order to avoid the
unnecessary use of imprisonment. Pre-trial detention shall be used as a means of
last resort in criminal proceedings, and alternatives to pre-trial detention should be
employed as early as possible.63
 Sentencing authorities, when considering non-custodial measures, should take into
consideration the rehabilitative needs of the offender, the protection of society and
the interests of the victim, who should be consulted whenever appropriate. The
development of new non-custodial measures should be encouraged and closely
monitored and their use systematically evaluated.64

CASE STUDIES
59
Principles on Detention or Imprisonment, principle 39; United Nations Standard Minimum Rules for Non-
custodial Measures (The Tokyo Rules) [hereinafter “Tokyo Rules”], rule 6.2
60
SMR, rule 95.
61
Tokyo Rules, rule 2.2
62
Tokyo Rules, rule 22
63
ICCPR, article 9, para. 3; Tokyo Rules, rules 5 and 6.
64
Tokyo Rules, rule 8.1. and 2.4.

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 1. MUHAMMAD SHOAIB RAZZAQ

V.

FEDERATION OF PAKISTAN,65

FACTS:

Hours before release of Indian Air Force pilot Wing Commander Abhinandan Varthaman, the
Bench of Athar Minallah, CJ. was hearing petition filed by a Pakistani citizen under Article
199 of the Constitution of Islamic Republic of Pakistan, seeking to stop Prime Minister Imran
Khan’s government from handing him over to Indian authorities.

Wing Commander Varthaman was captured by Pakistan Army on 27-02-2019 after his MiG
21 fighter jet crash-landed in PoK following a fierce dogfight with F-16 fighter jets of
Pakistan Air Force which had intruded into Indian airspace. India had categorically rejected
Imran Khan’s call for a dialogue, saying there would be “no deal” on Wing Commander
Varthaman’s release. Amid mounting international pressure, PM Imran Khan , in a joint
session of Majlis-e-shoora (Parliament) on 28-02-2019, announced the release of Wing
Commander Abhinandan as a “ Peace Gesture”.

ARGUMENTS:

The petitioner appeared in person and argued that PM of Pakistan was not competent to take
this decision; the Parliament was not taken into confidence; and the decision had been taken
ignoring aspirations of the people of Pakistan. It was argued that Wing Commander
Varthaman violated the sovereignty of Pakistan by unauthorizedly entering into its territory
which was an act of war; and that he was liable to be proceeded against and court-martialed
in Pakistan.66

DECISION:

The Court67 noted that release of Wing Commander Varthaman was announced on floor of
the House during joint session of Parliament, deliberately keeping in mind tense situation at
the border. Not a single member of the National Assembly or Senate had raised any objection
to the said announcement. The decision pertained to matters of foreign policy, defence and

65
WP No. 786 of 2019, Order dated 01-03-2019
66
https://www.scconline.com/blog/post/tag/article-199-of-the-constitution-of-islamic-republic-of-pakistan/
67
www.livelaw.in

25 | P a g e
security of Pakistan; and such issues were neither justiciable nor fell within the domain of a
High Court for interference under Article 199 of Constitution.

Further, Majlis-e-Shoora represents every citizen of Pakistan. Patriotism of its members is

beyond doubt and, therefore, petitioner’s apprehensions in this regard were misplaced and not
warranted. Majlis-e-Shoora is competent to affirm policies of the Government and after such
affirmation, they cannot be subjected to judicial review. It is the Parliament alone which
represents will of the people of Pakistan, and other organs of the State are expected to respect
and bow to its decisions. Thus, petitioner’s arguments were misconceived. Lastly, the
Court Held that petitioner had not been able to satisfy this Court that his fundamental rights
would be violated if the detained pilot of the Indian Air Force was handed over to Indian
authorities. Also, the Pakistan was bound by the Geneva Conventions to release him and until
released treat him properly.68

In view of the above, the petition was dismissed.

What is Geneva Convention?

The Geneva Convention69 specifies a broad scope of safeguards for Prisoners of War . It
defines their rights and thorough guidelines for their treatment and final release. International
humanitarian law also protects other persons deprived of liberty as a result of armed conflict.

The status of POW only applies in international armed conflict. POWs are members of the
armed forces of one Country to a war who fall into the hands of the opposing country. The
third 1949 Geneva Convention also categorizes other classes of persons who have the right to
POW status or may be treated as POWs. POWs cannot be made accused for taking a part in
conflicts. Their custody is not a form of punishment, but only aims to prevent further
participation in the conflict. They must be released and deported without delay after the
conclusion of conflicts. The detaining power may accuse them for possible war crimes, but
not for acts of violence that are lawful under IHL.

Prisoner of Wars must be treated humanely in all circumstances. They are protected against
any act of violence, as well as against intimidation, insults, and public curiosity. IHL also

www.legalservicesindia.com
68

69
https://www.mondaq.com/india/terrorism-homeland-security-defence/786258/geneva-convention-prisoner-of-
war-status-and-its-applicability-in-the-case-of-iaf-wing-commander-abhinandan-varthaman

26 | P a g e
defines minimum conditions of detention covering such issues as accommodation, food,
clothing, hygiene and medical care.

What are his rights as POW?

A POW must be free once conflicts between both sides end. Geneva Conventions formed in
1929 and amended in 1949 after the WWII, lays down the rules which participants of the UN
should follow.

There are 4 Geneva Conventions. The 3rd Geneva Convention describes in detail who can be
declared as a POW and how the POW must be treated.

Article 13 of the third Geneva Convention states that POWs must at all-time be humanely
treated. Any unlawful act or omission by the country, under whose captivity, the POW is in,
which leads to death or seriously endangers the health of a prisoner of war in its custody is
prohibited. This will also be as a grave violation of the Convention.

The POWs cannot be exposed to physical injury or to medicinal or scientific experiments of

any kind which are not acceptable by the medical, dental or hospital, which is healing the
POW in question. It also disallows POWs from being intimidated and outraged and or be
subjected to public.70

The Indian government said, “India also strongly objected to Pakistan’s vulgar display of
injured personnel of the Indian Air Force in violation of all norms of International
Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be
well advised to ensure that no harm comes to the Indian defence personnel in its custody.
India also expects his immediate and safe return. If the POW declines to reply to any question
by the opposite party, the POW must not be exposed, offended, or exposed to any hostile or
disadvantageous treatment. POW if injured must be given for medical treatment. It also states
that all personal things except for military kit and military documents must remain with the
POW. The POW must always have identity papers on his or her person. POWs must be
moved to a place far away from the place of capture and the evacuation must be done in a
humane way.71

Following the rights provided to a prisoner under Third Geneva Convention, Indian Air Force
pilot Wing Commander Abhinandan Varthaman was released by Islamabad on March 1, and

70
As per Information Disclosed in the Joint Press Conference of all 3 forces held on 28th Feb 2019
71
www.latetslaws.com

27 | P a g e
Pakistan’s Prime Minister Imran Khan told parliamentarians during a joint session, that “As a
peace gesture we are releasing Wing Commander Abhinandan of Indian air force,”

. 2. TAYLOR V. ATTORNEY GENERAL,72

FACTS :

Is a New Zealand High Court judgment which made a formal declaration that a statute that
prohibited prisoners from voting is inconsistent with the New Zealand Bill of Rights Act
1990.The action was brought by Arthur Taylor, a high-profile prison inmate.

Section 5 of the Bill of Rights Act states, “Subject to section 4, the rights and freedoms
contained in this Bill of Rights may be subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.” 73
JUDGEMENT:

In his decision, Justice Heath declared that the Electoral (Disqualification of Sentenced
Prisoners) Amendment Act 2010 which stripped all voting rights in general elections from
prisoners was an unjustified limitation on the right to vote contained in S.12 of the Bill of
Rights.74

The judge who looked into this appeal matter pronounced that according to the electoral
amendment act, all voting rights were taken off from prisoners and the New Zealand Bill of
rights prohibited the prisoners voting system.

3. MANNA V. THE PEOPLE OF ILLINOIS,75

The Supreme Court of US once stated that life is not merely animal existence”. And the
lives behind the bars are having souls in them and cannot be denied for the same. No one can
indeed deny Article 21 and not even the state can go beyond it, even for the prisoners. Those
standing prisoners are free people but have some restrictions laid down on them. Being a
prisoner does not make a person into a non-person and the life is not ceased from him, he is
72
[2015] NZHC 1706
73
New Zealand Bill of Rights Act 1990, section 5
74
www.scoop.co.nz
75
48Ill. App. 2d 114 (1964)

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only given the punishment for any heinous activity. The Indian thought process is based on
non-violence, mutual respect and dignity. Supreme Court has stated in many cases that a
convict is also a human being, a natural person and also a legal person. The condition of
prison and prisoners are getting brutal day by day. The importance of the framed rights of the
prisoners cannot be denied in any situation and they are affirmed made for them.76

The Principle of Liberty states that the prisoners are the sole arbiters to choose what is best
for themselves, and here if they are under the custody of law then it should be the duty of the
law to protect the convicts and their rights. Also, the higher authorities who are related to
these activities need to be trained and oriented so that they can take the rights of prisoners
seriously.77

Human Rights of prisoners

The Indian socio-legal 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. It is the human life that necessitates human rights. Being in
civilized society organized with law and a system as such, it is essential to ensure for every
citizen a reasonably dignified life. Even if the person is confined or imprisoned because of
his wrong, he is entitled to their rights unaffected by the punishment for wrongs, simply
because it a person under trial. his rights cannot be discarded as a whole.78

76
https://lawcirca-com.cdn.ampproject.org/v/s/lawcirca.com/solitary-confinement
77
India, L. (n.d.). Taking Prisoner’s Rights Seriously. Retrieved July 05, 2020, from
http://www.legalserviceindia.com/articles/po.htm.
78
https://www.scribd.com/document/217403945/Human-Rights-of-Prisoners

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 UNDER THE INDIAN CONSTITUTION:
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.

Article 21- Protection of life and personal property

No person shall be deprived of his or personal liberty except according to procedure

established by law.

The Article 20(1) protect the person from ex post facto laws or retroactive criminal
legislation Le when at the time, he committed the crime, if no conditions of harsh labour was
prescribed by the court, then, it cannot be enacted or inflicted upon him, for which the
imprisonment is prescribed.

The Article 20(2), it has been provided that no person shall be put into trouble twice, for the
same offence. (rights against double jeopardy) Le the principle of nemo debet vis vexari.

Article 20(3). provides for the protection against Testimonial compulsion, i.e. the protection
against compulsion to be a witness is only confined to persons accused of an offence. A right
against self-incrimination is given under this:

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. 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 right of
accused. It is in the interest of all concerned the guilt or innocence of the accused is
determined as quickly as possible in the circumstances.

Article 19, Freedom of speech and expression freedom to become member of an association
and also the rights to acquire, hold and dispose property are enjoyed by the prisoners even
they are behind bar within the limitations of the prison.

To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of

movement, under which a detainee is entitled to under Article 19. cannot be cut down by the
application of handcuffs. Handcuffs must be the last refuge as there are other ways for
ensuring security.

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Article 14 gives the right to equality and equal protection before laws. So, prisoners to have
their own rights. It any excesses committed on a prisoner, by the police is considered as a
violation of rights and it warrants the attention of the legislature and judiciary. The right to
meet friends, relatives and lawyers are provided under article 14 and article 21. Such rights
are reasonable and non-arbitrary. Even prison regulations recognize the right of prisoners to
have interview with a legal adviser necessary, in a reasonable manner. Right to tree legal aid
is also provided under this article 14 and 21.

Article 22(1). The prisoner also has the right to consult and to be defendant by a lawyer under
this article.

Article 22(4) to (7) provides special safeguards for the protection of prisoner’s nights. A
prisoner has the right to be informed about the ground on which he was arrested under this
article.

Article 39A. The state shall secure that the operation of the legal system promotes justice, on
the 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

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. Where the prisoner is disabled from
engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the
court shall it the circumstances of the case, the gravity of the sentence, and the ends of justice
so required, assign competent counsel for the prisoner’s defence, provided the party doesn't
object to that lawyer.79

ROLE PLAYED BY INDIAN JUDICIARY

79
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The Indian Supreme Court has been active in responding to human right violations in Indian
jails and has, in the process, recognize a number of rights of prisoners by interpreting Articles
21, 19, 22. 32. 37 and 30 A of the Constitution in a positive and humane way

Given the Supreme Court's overarching authority, these newly recognised rights are also
binding on the State under Article 141 of the Constitution of India which provides that me
Law declared by the Supreme Court shall be binding on all courts within the territory of
India80

Judiciary in every country has an obligation and a Constitutional role to protect Human
Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to
the superior judiciary namely the Supreme Court of India and High courts The Supreme
Court of India in the recent past has been very vigilant against encroachments upon the
Human Rights of the prisoners. Article 21 of the Constitution of India provides that “No
person shall be deprived of his life and Personal Liberty except according to procedure
established by law”. The rights to life and Personal Liberty is the back bone of the Human
Rights in India. Through its positive approach and Activism, the Indian judiciary has served
as an institution for providing effective remedy against the violations of Human Rights. By
giving a liberal and comprehensive meaning to “life and personal liberty,” the courts have
81
formulated and have established plethora of rights.

A) RIGHT TO FREE LEGAL AID

The Indian Constitution does not expressly provide the Right to Legal Aid. But the judiciary
has shown its favour towards poor prisoners those who are not in a position to engage the
82
lawyers of their own choice because of their poverty.

In M.H. Hoskot v. State of Maharastra 83the Supreme Court laid down that right to free
legal aid at the cost to the state to an accused who could not afford legal services for reason
of poverty, indigence or incommunicado situation was part of fair, just and reasonable
procedures implicit in Article 21.

B) RIGHT TO SPEEDY TRIAL

80
https://www.scribd.com/document/217403945/Human-Rights-of-Prisoners
81
http://www.legalservicesindia.com/article/1616/Role-of-Judiciary-in-Protecting-the-Rights-of-Prisoners.html
82
http://www.legalservicesindia.com/article/1616/Role-of-Judiciary-in-Protecting-the-Rights-of-Prisoners.html
83
AIR 1978 SC 1548

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The right to speedy trial has become a universally recognized human right. The main
procedure for investigation and trial of an offence with regard to speedy trial is contained in
Section 309 of the Code of Criminal Procedure. If such provision is followed in its letter and
spirit, then there would be no question of any grievance. But it is not properly implemented
in its spirit.

The Supreme Court in Hussainara Khatoon (I) VS. Home secretary84 case held that
“Obviously procedure prescribed by law for depriving a person of his liberty cannot be
reasonable, fair, or just unless that procedure ensures a speedy trial for determination of the
guilty of such person. No procedure which does not ensure a reasonably quick trial can be
regarded as reasonable, fair or just and it would fall foul of Article 21. There can be no doubt
that speedy trail and by speedy trail we mean reasonably expeditious trial, is an integral and
essential part of the Fundamental Right to Life and Liberty enshrined in Article 21. Thus, the
right to speedy trial is implicit in broad sweep and content of Article 21 of the Constitution.
Hence any accused that is denied this right of speedy trial is entitled to approach the Supreme
Court for the purpose of enforcing such right.

C) Right of Prisoners to be Treated with Humanity

The Supreme Court of India in several cases has taken a serious note of the inhuman
treatment on prisoners and has issued appropriate directions to the concerned authorities for
safeguarding the rights of the prisoners. The Supreme Court read the right against torture into
Articles 14 and 19 of the Constitution. The Court observed that “the treatment of a human
being which offends human dignity, imposes avoidable torture and reduces the man to the
level of a beast would certainly be arbitrary and can be questioned under Article 14”.

However, the Supreme Court in Charles Sobhraj v. Superintendent, Central Jail, Tihar,85
New to life' is Delhi, recognised that the ʼright to life’ is more than mere animal existence or
vegetable substance. Even in prison a person is required to be treated with dignity and one
enjoys all the rights specified in Articles 19 and 21. In this case the petitioner had contended
that barbaric and inhuman treatment was hurled at him and intentional discrimination was
done with him. The Court restricted such treatment and regarded it as a violation of the right
to life guaranteed under Article 21 of the Constitution. The Court restricted the punishment of
solitary confinement and recognised the putting to the prisoners in bar-fetters for an
unusually long period only in those cases where 'absolute necessity demanded them'. The
84
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85
AIR 1978 SC 1514

33 | P a g e
Court ordered the removal of bar-fetters on Shobraj on the ground that though the prisoner
had no right to liberty since he was lawfully detained in prison for an offence, he had a right
to life. The right to life in Article 21 meant something more than animal existence. The
provision also prohibits the mutilation of the body or amputation of an arm or leg or the
putting out an eye or the destruction of any other organ of the body through which the soul
communicates with the outer world.

In the case, D.K. Basu VS State of West Bengal 86 the court while addressing the letter to
the chief justice as a writ petition stated that in almost every state of the country the
frequency of deaths in the police custody are increasing which generally the newspapers refer
to as Lock-up Deaths. Presently, there is no such machinery which deals efficiently with
these kinds of cases.

Custodial deaths are a naked violation of human dignity and degradation which destroys to a
very large extent the individual personally. It is un assault on the human dignity,
Fundamental rights in the Indian Constitution occupy a place of pride. Article 21 of the
Indian constitution says that no person shall be deprived of his life or personal liberty except
according to the procedure established by law. Besides Article 21. Article 22 as well
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 on what ground he is
being arrested and shall not be denied the right to consult a lawyer and defended by the same
of his choice. The court gave certain requirements to be followed in all cases of arrest or
detention till further legal provisions are made in that behalf as preventive measures:

1) The Policemen who is authorized of handling the interrogation of the accused and to carry
out the arrest must bear accurate, visible and clear identification and name tags with their
designation. The particulars of all the police officers carrying out the arrest must be recorded
in a register.

2) The police officials must maintain a memo of the arrestee at the time of arrest.

3) The person who has been arrested holds a right that when he is arrested anyone one of his
family members or close relatives must be informed about that.

4) The police must inform the next friend or the relative of the arrestee about the exact time
place of arrest and the venue of custody of the arrestee. If the arrestee lives outside the

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34 | P a g e
district or the town, this information must be communicated through the Legal Aid
Organisation in the District and the police station of the area concerned telegraphically within
a period of 8 to 12 at maximum after the arrest of the arrestee.

5) When the accused is arrested, he must he informed of his right of informing of his arrest
to his family members or close relatives as soon as he is put under arrest or is detained

6) At the place of the detention of the arrestee, a diary must be prepared bearing the entry
including the place of detention of the arrestee which shall also disclose about the next friend
of the arrestee who has been informed about the arrest and the name and designation of the
police officials under who's custody the arrestee is held.

7) When the accused is detained, he has the option to get himself examined at the time of
arrest. All the major and minor injuries on his body must be recorded at that time. Both the
arrestee and the police officers must sign the "Inspection Memo" which contains the details
of all such injuries after effecting the arrest and a copy of it must be provided to the arrested.

D) Rights against Hand Cuffing

In Prem Shankar v Delhi Administration87 , Justice V.R. Krishna Iyer held that hand
cuffing is prima facie inhuman and therefore, unreasonable, is over harsh and at the first
flush, arbitrary. The Supreme Court found the practice of using handcuffs and fetters on
prisoners violating the guarantee of basic human dignity, which is part of the constitutional
culture in India and thus not standing the test of Equality before Law (Article 14),
Fundamental Freedoms (Article 19) and the Right to Life and Personal Liberty (Article 21).
The Supreme Court observed: “To bind a man hand-and-foot’, fetter his limbs with hoops of
steel; shuffle him along in the streets, and to stand him for hours in the courts, is to torture
him, defile his dignity, vulgarise society, and foul the soul of our constitutional culture”.
denouncing handcuffing of prisoners as a matter of routine, the Supreme Court said that to
“manacle a man is more than to mortify him, it is to dehumanize him, and therefore to
violate his personhood....”

E) Right against solitary confinement and bar fetters

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35 | P a g e
Solitary confinement is a kind of imprisonment in which the convict or prisoner is kept in a
different cell with little or no contact from other inmates. In addition to that strict monitoring
is done on the habits and behaviour of the person. The idea behind solitary confinement is to
88
teach notorious convicts discipline and provide safety to other inmates from them.

The validity of solitary confinement was considered by the Supreme Court in the famous case
of Sunil Batra v. Delhi Administration89 wherein the honourable court highlighted that
imposition of solitary confinement is only to be made in exceptional cases where the prisoner
is of such violent or dangerous nature that his segregation becomes an utmost necessity. The
court also observed that keeping prisoners in bar fetters day and night reduces them to the
level of an animal and deteriorates their mental health. The courts, therefore, have presented
strong resentment against solitary and stated its confinement as highly dehumanizing and
derogatory in nature. They have also held such confinements to be against the spirit .

F) Right to have Interview with Friends, Relatives and Lawyers

The horizon of Human Rights is expanding. Prisoner’s rights have been recognized not only
to protect them from physical discomfort or torture in person, but also to save them from
mental torture. The Right to Life and Personal Liberty enshrined in Article 21 cannot be
restricted to mere animal existence. It means something much more than just physical
survival. The right to have interview with the members of one’s family and friends is clearly
part of the Personal Liberty embodied in Article 21. Article 22 (1) of the Constitution directs
that no person who is arrested shall be denied the right to consult and to be defend- ed by a
legal practitioner of his choice. This legal right is also available in the Code of Criminal
90
Procedure under Section 304.

In Sheela Barse v. State of Maharashtra,91 the court held that inter- views of the prisoners
become necessary as otherwise the correct information may not be collected but such access
has got to be controlled and regulated.

THE PRISONS ACT, 1894

88
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89
AIR 1978 SC 1675
90
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91
(1983) 2 SCC 96

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 An imprisonment is the usual punishment for offences. The problem of housing of
hundred criminals in one institution requires a code of rules and regulations for the safety
and efficiency in running the prison institution. The Prisons Act of 1894 was one such an
attempt made by the British government prior to independence. This act is the first
legislation regarding prison regulation in India. This Act was enacted on 22nd March,
1894 and enforced on 1st July, 1894. This act contains 62 sections and XII Chapters. It is
an exhaustive act which contains law relating to smooth functioning of the prisons. The
Act contains provision regarding the prison, prisoner, prison staff, medical officers,
superintendent of prison, etc92.

The following are some of the important provisions regarding prisoners’ rights under this
act.

 “prison” means any jail or place used permanently or temporarily under the general
or special orders of a State Government for the detention of prisoners, and includes
all lands and buildings appurtenant thereto, but does not include—
a) any place for the confinement of prisoners who are exclusively in the custody of the
police;
b) any place specially appointed by the State Government under Section 541 of the
Code of Criminal Procedure, 1882.
c) any place which has been declared by the State Government, by general or special
order, to be a subsidiary jail

MAINTENANCE AND OFFICERS OF PRISONS

 An Inspector General shall be appointed for the territories subject to each State
Government, and shall exercise, subject to the orders of the State Government, the
general control and superintendence of all prisons situated in the territories under
such Government (Section-5)
 For every prison there shall be a Superintendent, a Medical Officer (who may also
be the Superintendent), a Medical Subordinate, a Jailer and such other officers as
the State Government thinks necessary (Section-6)
 Whenever it appears to the Inspector General that the number of prisoners in any
prison is greater than can conveniently or safely be kept therein, and it is not
convenient to transfer the excess number to some other prison, or whenever from

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37 | P a g e
 the outbreak of epidemic disease within any prison, or for any other reason, it is
desirable to provide for the temporary shelter and safe custody of any prisoners,
provision shall be made, by such officer and in such manner as the State
Government may direct, for the shelter and safe custody in temporary prisons of so
many of the prisoners as cannot be conveniently or safely kept in the prison.
(Section-7)

DUTIES OF THE OFFICERS

 No officer of a prison shall, nor shall any person in trust for or employed by him,
have any interest, direct or in direct, in any contract for the supply of the prison: nor
shall he derive any benefit, directly or indirectly, from the sale or purchase of any
article on behalf of the prison or belonging to a prisoner. (Section-10)

Superintendent of Jail

 All the matters in the prison relating to discipline, labour, expenditure, punishment
and control are to be managed by the superintendent. (Section-11)
 The following records are required to be kept under the supervision of the
superintendent, (Section-12)
1. a register of prisoners admitted;
2. a book showing when each prisoner is to be released;
3. a punishment-book for the entry of the punishments inflicted on prisoners for
prison-offences;
4. a visitors’ book for the entry of any observations made by the visitors touching
any matters connected with the administration of the prison;
5. a record of money and other articles taken from prisoners.

Medical Officer

38 | P a g e
  The Medical Officer is required to report to the Superintendent t the cases of prisoners
in which he has reason to believe that the mind of such prisoner is, or is likely to be,
injuriously affected by the discipline or treatment to which he is subjected (Section14)
 On the death of any prisoner, the Medical Officer shall forthwith record in a register
the following particulars, so far as they can be ascertained, namely: -(Section-15)
(1) the day on which the deceased first complained of illness or was observed to be ill,
(2) the labour, if any, on which he was engaged on that day,
(3) the scale of his diet on that day,
(4) the day on which he was admitted to hospital,
(5) the day on which the Medical Officer was first informed of the illness,
(6) the nature of the disease,
(7) the deceased was last seen before his death by the Medical Officer or Medical
Subordinate,
(8) when the prisoner died, and
(9) (in cases where a post-mortem examination is made) an account of the
appearances after death, together with any special remarks that appear to the Medical
Officer to be required.

JAILER-

 The Jailer is duty bound to reside in the prison unless the Superintendent permits him
in writing to reside elsewhere. (Section-16)
 Jailer is also required to give immediate notice in case of death of any prisoner to the
Superintendent and the Medical Subordinate. (Section-17)
 The Jailer is responsible for the safe custody of the records, documents and other
articles taken from prisoners. (Section-18)
 The prisoners are examined and searched on the admission and all weapons and
prohibited articles shall be taken from him. (article-24)
 The Medical Officer makes a record of the state of the prisoner’s health, and the class
of labour he is fit for if sentenced to rigorous imprisonment, and any observations
which the Medical Officer thinks fit to add. (Section24(2))

DISCIPLINE OF PRISONERS-

39 | P a g e
  The requirements of this Act with respect to the separation of prisoners are as
follows :(Section-27)
1. in a prison containing female as well as male prisoners, the females shall be
imprisoned in separate buildings, or separate parts of the same building, in such
manner as to prevent their seeing, or conversing or holding any intercourse with,
the male prisoners;
2. in a prison where male prisoners under the age of twenty-one are confined, means
shall be provided for separating them altogether from the other prisoners and for
separating those who have arrived at the age of puberty from those who have not;
3. unconvicted criminal prisoners shall be kept apart from convicted criminal
prisoners;
4. civil prisoners shall be kept apart from criminal prisoners.
 No cell shall be used for solitary confinement unless it is furnished with the means of
enabling the prisoner to communicate at any time with an officer of the prison, and
every prisoner so confined in a cell for more than twenty-four hours, whether as a
punishment or otherwise, shall be visited at least once a day by the Medical Officer or
Medical Subordinate (Section 29)
 Every prisoner under sentence of death shall, immediately on his arrival in the prison
should be searched and all articles shall be taken from him which the Jailer deems to
be dangerous or inexpedient to leave in his possession. It further provides every such
prisoner shall be confined in a cell apart from all other prisoners, and shall be placed
by day and by night under the charge of a guard. (Section-30)

FOOD, CLOTHING AND BEDDING OF CIVIL AND UNCONVICTED CRIMINAL

PRISONERS-

 The Act provides that a civil prisoner or an unconvicted criminal prisoner shall be
permitted to maintain himself, and to purchase, or receive from private sources at
proper hours, food, clothing, bedding or other necessaries, but subject to examination
and to the rules provided by the Director of Prisons. (Section-31)
 No part of any food, clothing, bedding or other necessaries belonging to any civil or
unconvicted criminal prisoner shall be given, hired or sold to any other prisoner; and
any prisoner transgressing the provisions of this section shall lose the privilege of
purchasing food or receiving it from private sources, for such time as the
Superintendent thinks proper. (Section-32)

40 | P a g e
EMPLOYMENT OF PRISONERS-

 The civil prisoners are entitled to work and follow any trade or profession with the
Superintendent’s permission (Section-34)
 The civil prisoners finding their own implements, and not maintained at the expense
of the prison shall be allowed to receive the whole of their earnings; but the earnings
of such as are furnished with implements or are maintained at the expense of the
prison shall be subject to a deduction to be determined by the Superintendent,
(Section-34(2))
 The Act further provides that a criminal prisoner cannot be subjected to more labour
except nine hours in a day (Section35(1))
 If the Medical Officer is of opinion that the health of any prisoner suffers from
employment on any kind or class of labour, such prisoner shall not be employed on
that labour but shall be placed on such other kind or class of labour as the Medical
Officer may consider suited for him. (Section35(3))
 Provision shall be made by the Superintendent for the employment (as long as they so
desire) of all criminal prisoners sentenced to simple imprisonment; but no prisoner
not sentenced to rigorous imprisonment shall be punished for neglect of work
excepting by such alteration in the scale of diet as may be established by the rules of
the prison in the case of neglect of work by such a prisoner. (Section-36)

HEALTH OF PRISONERS-

 In every prison an hospital or proper place for the reception of sick prisoners shall be
provided. (Section-39)

VISITS TO PRISONERS-

 The Act takes care of the visiting rights of the prisoners. The Act provides for the visit
of the persons with whom the civil and unconvicted criminal prisoners desire to
communicate. Into every prison of persons with whom civil or unconvicted criminal
prisoners may desire to communicate, care should be taken that consistent with the
interests of justice, prisoners under trial may see their duly qualified legal advisers
without the presence of any other person (Section-40)

OFFENCES IN RELATION TO PRISONS-

41 | P a g e
  The Act provides for imprisonment of six month or to fine of two hundred rupees for
certain categories of offences the same are discussed below:(Section-42)
1. Prisoner who Supplies prohibited article in or outside the prison. Every officer of
a prison who knowingly allows the introduction, removal and possession of
prohibited article by any prisoner, or to be supplied to any prisoner outside the
limits of a prison. Whoever, contrary to any such rules, communicates or attempts
to communicate with any prisoner, whoever abets any offence made punishable
by this section. shall, on conviction before a Magistrate, be liable to imprisonment
for a term not exceeding six months, or to fine not exceeding two hundred rupees,
or to both.

PRISON-OFFENCES-

 The following acts are declared to be prison-offences when committed by a prisoner: -

(Section-45)
1. such wilful disobedience to any regulation of the prison as shall have been
declared by rules made under Section 59 to be a prison offence;
2. any assault or use of criminal force;
3. the use of insulting or threatening language;
4. immoral or indecent or disorderly behaviour;
5. wilfully disabling himself from labour;
6. contumaciously refusing to work;
7. filing, cutting, altering or removing handcuffs, fetters or bars without due
authority;
8. wilful idleness or negligence at work by any prisoner sentenced to rigorous
imprisonment.
9. wilful mismanagement of work by any prisoner sentenced to rigorous
imprisonment;
10. wilful damage to prison-property;
11. tampering with or defacing history-tickets, records or documents;
12. receiving, possessing or transferring any prohibited article;
13. feigning illness;
14. wilfully bringing a false accusation against any officer or prisoner;
15. omitting or refusing to report, as soon as it comes to his knowledge, the
occurrence of any fire, any plot or conspiracy, any escape, attempt or preparation

42 | P a g e
 to escape, and any attack or preparation for attack upon any prisoner or prison-
official; and
16. conspiring to escape, or to assist in escaping, or to commit any other of the
offences aforesaid.
 The Superintendent is empowered to examine any persons who have committed such
offences and award punishment for the same. The punishment provided for the
aforesaid offences are: (Section-46)
1. a formal warning personally addressed to a prisoner by the Superintendent and
recorded in the punishment book and on the prisoner’s history-ticket;
2. change of labour to some more irksome or severe form for such period as may
be prescribed by rules made by the State Government;
3. hard labour for a period not exceeding seven days in the case of convicted
criminal prisoners not sentenced to rigorous imprisonment;
4. such loss of privileges admissible under the remission system for the time
being in force as may be prescribed by rules made by the State Government;
5. the substitution of gunny or other coarse fabric for clothing of other material,
not being woollen, for a period which shall not exceed three months;
6. imposition of handcuffs of such pattern and weight, in such manner and for
such period, as may be prescribed by rules made by the State Government;
7. imposition of fetters of such pattern and weight, in such manner and for such
period, as may be prescribed by rules made by the State Government;
8. separate confinement for any period not exceeding three months; — (Separate
confinement means such confinement with or without labour as secludes a
prisoner from communication with, but not from sight of, other prisoners, and
allows him not less than one hour’s exercise per diem and to have his meals in
association with one or more other prisoners;
9. penal diet, however in no case it is to be applied to a prisoner for more than
ninety-six consecutive hours, and shall not be repeated except for a fresh
offence nor until after an interval of one week;
10. cellular confinement for any period not exceeding fourteen days. Provided that
after each period of cellular confinement an interval of not less duration than
such period must elapse before the prisoner is again sentenced to cellular or
solitary confinement. The cellular confinement means such confinement with

43 | P a g e
 or without labour as entirely secludes a prisoner from communication with,
but not from sight of, other prisoners;
11. Penal diet as discussed above combined with cellular confinement, whipping,
provided that the number of stripes shall not exceed thirty, the female and civil
prisoners are exception to this rule i.e., they are not liable for imposition of
any form of handcuffs or fetters, or to whipping.
 In the punishment-book every punishment inflicted the following must be recorded,
the prisoner’s name, register number and the class (whether habitual or not) to which
he belongs, the prison-offence of which he was guilty, the date on which such prison-
offence was committed, the number of previous prison-offences recorded against the
prisoner, and the date of his last prison-offence, the punishment awarded, and the date
of infliction.
a) In the case of every serious prison-offence, the names of the witnesses proving
the offence shall be recorded, and, in the case of offences for which whipping is
awarded, the Superintendent shall record the substance of the evidence of the
witnesses, the defence of the prisoner, and the finding with the reasons therefore.
b) Against the entries relating to each punishment the Jailor and Superintendent
shall affix their initials as evidence of the correctness of the entries (Section-51)
 No punishment of whipping shall be inflicted in instalments, or except in the presence
of the Superintendent and Medical Officer or Medical Subordinate. (2) Whipping
shall be inflicted with a light ratan not less than half an inch in diameter on the
buttocks, and in case of prisoners under the age of sixteen it shall be inflicted, in the
way of school discipline, with a lighter ratan. (Section-53)
 Having regard to the state of the prison or the character of the prisoners the
Superintendent may, subject to such rules and instructions as may be laid down by the
Director of Prisons with the sanction of the State Government, confine them in irons.
(Section-56)
 The Act further provides that the prisoners who are under sentence of imprisonment
for life may, subject to any rules made by the State government, be confined in fetters
for the first three months after admission to prison. These fetters can be retained on
any such prisoner for more than three months, with the sanction of the Director of
Prisons. (Section-57)

44 | P a g e
  No prisoner shall be put in irons or under mechanical restraint by the Jailer of his own
authority, except in case of urgent necessity, in which case notice shall be given to the
Superintendent. (Section 58)

Rule Making Power of the State Government-

 Lastly the Act empowers the State government to make rules with respect to the following
matters.

1.defining the acts which shall constitute prison-offences;

2.determining the classification of prison-offences into serious and minor offences;

3.fixing the punishments admissible under this Act which shall be awardable for
commission of prison-offences or classes thereof;

4.declaring the circumstances in which acts constituting both a prison-offence and an

offence under the Indian Penal Code (45 of 1860) may or may not be dealt with as a
prison offence;

5. for the award of marks and the shortening of sentences;

6.regulating the use of arms against any prisoner or body of prisoners in the case of an
outbreak or attempt to escape;

7.defining the circumstances and regulating the conditions under which prisoners in
danger of death may be released; 1

8. for the classification of prisons, and description and construction of wards, cells
and other places of detention;

9. for the regulation by numbers, length or character of sentences, or otherwise, of the

prisoners to be confined in each class of prisons;

10. for the government of prisons and for the appointment of all officers appointed
under this Act;

11. as to the food, bedding and clothing of criminal prisoners and of civil prisoners
maintained otherwise than at their own cost;

12. for the employment, instruction and control of convicts within or without prisons;

45 | P a g e
 13. for defining articles, the introduction or removal of which into or out of prisons
without due authority is prohibited;

14) for classifying and prescribing the forms of labour and regulating the periods of
rest from labour;

15) for regulating the disposal of the proceeds of the employment of prisoners;

16. for regulating the confinement in fetters of prisoners sentenced to transportation;

17. for the classification and the separation of prisoners;

18. for regulating the confinement of convicted criminal prisoners under Section 28;

19. for the preparation and maintenance of history-tickets;

20. for the selection and appointment of prisoners as officers of prisons;

21. for rewards for good conduct;

22. for regulating the transfer of prisoners whose term of transportation or

imprisonment is about to expire subject, however, to the consent of the State
Government of any other State to which a prisoner is to be transferred;

23. for the treatment, transfer and disposal of criminal lunatics or recovered criminal
lunatics confined in prisons;

24. for regulating the transmission of appeals and petitions from prisoners and their
communications with their friends;

25. for the appointment and guidance of visitors of prisons;

26. for extending any or all of the provisions of this Act and of the rules thereunder to
subsidiary jails or special places of confinement appointed under Section 541 of the
1Code of Criminal Procedure, 1882 (10 of 1882), and to the officers employed, and
the prisoners confined, therein;

27. in regard to the admission, custody, employment, dieting, treatment and release of
prisoners93

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46 | P a g e
Critical Analysis of the Prison Act-

1. The prisons Act is an antique legislation passed by the colonizers to further the
ends of their regime and thus included provisions more concerning maintenance of
prison discipline. The welfare aspect of the prisoners is missing in the Act..

2. The Act provides for the punishment of whipping and the manner in which the
same to be inflicted. These provisions have lost relevancy in today’s scenario when
the more stress is placed on the protection of human rights of the prisoners.

3. The provisions of the Act mandatory provide putting iron fetters for the first three
months to the prisoners who are life convicts. The rule for putting iron fetters has
been challenged in the court of law and now there is absolute bar on putting iron
fetters except in the certain category of offences.

4. The Act does not envisage special provisions for the female prisoners except the
fact that the search and examination of female prisoner is to be carries out by the
matron in the jail and they be kept in the separate part of the building of the prison.

5. The Act contains various provisions, which puts restriction on the prisons in one
form or the other94.

CASE LAWS
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47 | P a g e
CASE:- The right to speedy trial has become a universally recognized human right. The main
procedure for investigation and trial of an offence with regard to speedy trial is contained in Section
309 of the Code of Criminal Procedure. If such provision is followed in its letter and spirit, then there
would be no question of any grievance. But it is not properly implemented in its spirit. Therefore in
A.R.Antulay v. R.S.Nayak,95 the Supreme Court has laid down following propositions which will go
a long way to protect the Human Rights of the prisoners. In the instant case the Apex Court held that
the right to speedy trial flowing from Article 21 of the Constitution is available to accused at all stages
like investigation, inquiry, trial, appeal, revision and retrial.

CASE:- Selvi V. State of Karnataka,96 the Supreme Court has declared the method Narcoanalysis,
Polygraph test and Brain Mapping is unconstitutional in nature and violates the human rights. This
decision is less acceptable to various investigation authorities as it will be creating a hurdle to future
investigation and many alleged criminals will find a way to escape from conviction with this concept.
But after a lot of debates, Supreme Court mentioned that an accused can only be used to such tests
when he gave willful consent to them. The result of tests will not be taken into account and not used
as evidence in front of court against him but can only be used for further investigation.

CASE:- In Jogindar Kumar v. State of U.P97, the court opined that the horizon of Human Rights is
expanding and at the same time, the crime rate is also increasing and the court has been receiving
complaints about violation of Human Rights because of indiscriminate arrests. The court observed
that there is the right to have someone informed. The court ruled: “The law of arrest is one of
balancing individual rights, liberties and privileges on the one hand and individual duties, obligations
and responsibilities on the other; of weighing and balancing the rights, liberties of the single
individual and those of individuals collectively.........”.

CASE:- It has expanded the connotation of the word “life” given by Field J. in the much-known case
of Kharak Singh v. State of UP98. In the said case, the court ruled that the term “life” connotes more
than mere existence like that of an animal. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the
body by the amputation of an arm or leg, or the putting out of an eye or the destruction of any other
organ of the body through which the soul communicates with the other world. It can be said that right
95
(1992) 1 SCC 225
96
(2010) 7 SCC 263
97
AIR (1994) SC
98
1963 AIR 1295

48 | P a g e
to live is not restricted to a mere animal existence. It connotes something more than just the physical
survival of a being.

Case:- In the case of People's Union for Democratic Rights v. Union of India, 99"the court
explained that: when an individual offers labour or service to another individual and remuneration
which is paid to him is less than the minimum wage in comparison of the labour or service offered by
him clearly covered under the scope and meaning of the words "forced labour" under Article 23 of
Indian Constitution.

Inside the prisons, for prisoners reform, they will provide work in the prison and they must be offered
which is sound and reasonable. The wages offered should not be below the minimum wages."

CONCLUSION
It can be said that the prisoners are also entitled to all his fundamental rights while
they are behind the prisons. Indian Constitution does not expressly provides for the

99
(1982) 3 S.C.C. 235.

49 | P a g e
prisoners’ rights but Articles 14, 19 and 21 implicitly guaranteed the prisoners’
rights and the provisions of the Prisons Act, 1894 contains the provisions for the
welfare and protection of prisoners. The Court has ruled that it can intervene with
prison administration when constitutional rights or statutory prescriptions are
transgressed to the injury of the prisoner. Supreme Court in many cases held that
prisoner is a human being, a natural person and also a legal person. Being a prisoner
he does not cease to be a human being, natural person or legal person. Conviction
for a crime does not reduce the person into a non-person, whose rights are subject to
the whim of the prison administration and therefore, the imposition of any major
punishment within the prison system is conditional upon the absence of procedural
safeguards.

The Indian State is a signatory to various international instruments of human rights,

like the Universal Declaration of Human Rights and International Covenant on Civil
and Political Rights etc. The Universal Declaration of Human Rights states that “No
one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment”.100

The International Covenants on Civil and Political Rights states that “all persons
deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person”.101 Therefore, both under national as well as
international human rights law, the state is obliged to uphold and ensure observances
of basic human rights.

REFERENCES
1. https://www.lawaudience.com/rights-of-prisoners-in-india-a-legal-analysis/ - accessed
on January6, 2021

100
The Universal Declaration of Human Rights, Article 5.
101
The International Covenants on Civil and Political Rights, Article 10(1).

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commander-abhinandan-varthaman - accessed on January 19, 2021
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13. http://www.legalservicesindia.com/article/1616/Role-of-Judiciary-in-Protecting-the-
Rights-of-Prisoners.html - accessed on January 22,2021
14. https://www.scribd.com/document/217403945/Human-Rights-of-Prisoner - accessed
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15. http://egyankosh.ac.in/bitstream/123456789/38950/1/Unit - accessed on January
24,2021
16. https://blog.ipleaders.in/rights-prisoners-major- / accessed on January 24,2021

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