NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

(A State University Est. by Act 27, 2005 of Kerala State Legislature)

KOCHI, KERALA

Vinayak S Nair
1st Semester - B.A. LL.B. (Hons.)
ROLL NO. : 1981

ASSIGNMENT SUBJECT

Rights of Prisoners; The Indian Context

SUBMITTED TO: Mr Jacob Joseph

Faculty- Legal Methods(National University of Advanced Legal Studies, Kochi)

DATE OF SUBMISSION: 16 October 2023

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 CONTENT

 Introduction……………………………………..4

 Background of Indian prisons…………………..4-5

 Constitution and Legal framework……………...5-10

 Challenges and issues…………………………...10-12

 Juvenile prisoners rights…………………………12-13

 Conclusion……………………………………….13-14

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 ABSTRACT

The citizens of a nation have a certain set of fundamental rights which are to be upheld by the
existing government and other authorities. Prisoners should be given their deserving rights,
whose absence can question the spirit of democracy and the power of the Constitution. This
project clearly explains the current legal framework concerning prisoners' rights in the Indian
context. This project also delves into different aspects like education, health, and proper
reform measures for the prisoners.

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 INTRODUCTION
India, the largest democracy in the world is a conglomeration of people speaking different
languages, following distinct religions and belonging to different geographical locations.
Even with a proper legal framework and manpower sometimes it becomes almost impossible
to stop crimes from happening and as a result, the number of prisoners is increasing day by
day in Indian prisons. The main issue arises when these prisoners' rights are violated daily. It
is the duty of the government to ensure there is a proper implementation of their rights to
ensure a proper flow of justice. By doing this the state sets an example to follow the laws of
the land. It indicates that laws also apply to the government, encouraging a culture of justice
and legitimacy. The rights of prisoners include a wide range of principles, including the right
to life, access to proper healthcare facilities and communication with their families. They
should also have the right to practise any religion or belief. Even many conventions regarding
this issue on both national and international levels. The reform path of the prisoners should be
assisted so that when they have completed their sentence and are free again they can be a
good part of the society and possibly contribute to its development. 1Yet the path to achieving
the ensurement of these rights is challenging.

BACKGROUND OF INDIAN PRISONS

The word ‘prison’ means a place of confinement where the offender or culprits of the law
were held against their will as they had violated the laws of the respective periods. It is not a
new concept as it was introduced centuries ago. In ancient India ‘Arthashastra’ by Kautilya
gives a clear explanation of offences and penalties. There were mainly three groups of
offences – offences against god, offences against faith and offences against the private
classes. There was a wide range of punishments ranging from fines to capital punishment.
Even though imprisonment was considered the best form of punishment during these times
offences against the state like treason were treated with great concern. The modern prison
system has its advent during the colonial period in British India. Lord Macaulay can be
regarded as the founder of prison reform as the Mulla Committee was formed in 1836 to
deeply look into the conditions of jails and in 1838 the submitted report showed the sordid
conditions of Indian prisons2. In 1870 the Government of India passed the Prison Act. This
act coupled with the Act from 1894 lays the foundation of the present prison administration
1
Swathy, J., & Bhat, M. A. (n.d.). Rights of Prisoners. Legal Service India. Retrieved October 15,
2023, from https://www.legalserviceindia.com/legal/article-75-rights-of-prisoners.html

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and other procedures. The Prison Act of 1894 is a great multifaceted act as it considers many
factors and conditions in its layout like the separation of prisoners under the age of 21 from
people who are above 21. The flaw of this act was that it gave much importance to the prison
offences and punishments rather than their effects. The Revolt of 1857 was a decisive
moment in prison administration as a huge number of political leaders were transferred to
Andaman Islands and the punishment for any prisoners who tried to escape was immediate
execution. This undermined the basic human rights of the prisoners like the right to life and
the right to liberty and many more.

CONSTITUTION AND LEGAL FRAMEWORK

The Indian constitution is regarded as one of the most versatile and long-written constitutions
in the whole world. It gives fundamental rights to all of its citizens including the prisoners.
Even though by law some rights of the prisoners are controlled to an extent it does not mean
that they should be stripped of all their rights and live an unfair life. Many inmates even
today are denied their basic rights. The judiciary struggles to provide the right treatment to
these prisoners as the only solution to this issue is complete coordination between all the
government authorities and subsidiary bodies. In many of the landmark cases DBM Patnaik
v. State of Andhra Pradesh it was said that a prisoner was also a natural and legal person and
laws of the prison administration cannot simply snatch their rights. 3Some of the basic and
important rights of prisoners in India include:

 RIGHT TO FREE LEGAL AID:

Even though it's not given in the constitution it empowers the prisoners who may not be able
to afford a legal representative. Free legal aid is an important feature of the
Indian constitution and it was inserted in 1976 by the 42 nd amendment as a part of the
Directive principles of state policy. In 1987 the parliament enacted the Legal Services
Authority which directed the state government to set up advisories and legal aid. In the case

2
PACHAURI, S. K. (1994). HISTORY OF PRISON ADMINISTRATION IN INDIA IN 19TH CENTURY :
HUMAN RIGHTS IN RETROSPECT. Proceedings of the Indian History Congress, 55, 492–498.
http://www.jstor.org/stable/44143401

3
Sehgal, D. R. (2020, November 6). Rights of prisoners and major judgments on it. iPleaders. Retrieved
October 15, 2023, from https://blog.ipleaders.in/rights-prisoners-major-judgments /

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of Madhav Hayawadanrao Hoskot v. the State Of Maharashtra Justice Krishna Iyer
emphasised the fact that the right to free legal aid was the state's duty and not the
government's charity. Section 304 of the Criminal Procedure Code clearly states that it is the
duty of the state to provide the accused with a legal representative at its own expense in
certain cases.

 RIGHT TO A SPEEDY TRIAL:

The phrase” Justice delayed is justice denied” is an important concept as it shows how
a speedy trial plays an important role in a fair trial. It describes that the accused in a crime
should be tried within a reasonable period. Article 21 of the Indian constitution gives the
reference for the right to a speedy trial. The Indian judiciary currently has millions of cases
pending on different levels and addressing this issue has become quintessential to the proper
flow of justice.

 RIGHT TO LIVE WITH DIGNITY:

The Constitution of India respects every citizen's right to live with dignity which also
includes the prisoners. The mere conviction of these prisoners doesn’t imply that they are not
allowed their lives with their deserved dignity. In the case of Maneka Gandhi Vs Union of
India, the court expanded the scope of Article 21 and propounded a new 4dimension of it. The
judgement explained that the right to life does not mean mere physical existence but also to
live with dignity. In the case of Pandit Parmanand Vs the Union of India, the court
expanded the concept and meaning of life. The context of this judgment was that after the
execution of a convict, the body was left to hang for another half an hour even after the death
was confirmed by the doctor. The judge proclaimed that this act was in clear violation of
Article 21 of the Indian constitution.

 RIGHT TO HEALTH AND MEDICAL TREATMENT:

4
Chauhan, D. S. (n.d.). Rights Of Prisoners Under Indian Laws. Legal Service India. Retrieved October 15,
2023, from https://www.legalserviceindia.com/legal/article-6228-rights-of-prisoners-under-indian-laws.html

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 Health is defined as a state of well-being in physical, mental and social aspects. Though
the right to health is not a fundamental right, it is an important right. Part IV of the
Directive principles of the state policy 5along with Article 23 gives reference to health as
a right. The role of the Supreme Court in this matter is crucial as it is the Supreme Court
that from time to time gives new meaning to legal terminologies. The majority of convicts
in India are impoverished, illiterate members of marginalised communities with
inadequate knowledge of health and lifestyle concerns. They thus make up a unique
vulnerable health population that needs particular treatment. In the case of Parmanand
Katara v. Union of India, the court assessed that a physician appointed by the
government is obligated to provide any kind of medical assistance for life preservation. In
actuality, to preserve his life, a doctor has a professional duty to provide his services to
patients whoever they may be with appropriate care and skill. 6 Thus the need to address
the health issue of prisoners in Indian prisons has become critical.

 RIGHT AGAINST INHUMANE TREATMENT:

Every human has a right to be treated in a right and just manner even in prison. They
should not be treated like slaves. The Indian Supreme Court has called attention to the
inhumane treatment of inmates in a number of cases and has ordered state and jail
officials to monitor and control such practices. The court prohibited the use of
straitjackets, shackles, handcuffs, and irons as forms of punishment for the detainees.
Other forms of constraint are acceptable, but only under specific situations. In the case
of Kadra Pehadiya v. the State of Bihar, the thing that happened was that four petitioners
who were under trial were put in leg irons. The court clearly expressed its anger and
ordered the superintendent to remove the chains. The court also ruled that such unfair
treatment shall not be treated and the degree of such acts should be in guidelines of the
Sunil Batra case.

 RIGHT TO EDUCATION:
5
Sehgal, D. R. (2021, May 28). Healthcare of prisoners in India. iPleaders. Retrieved October 15, 2023, from
https://blog.ipleaders.in/healthcare-prisoners-india /
6

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Nelson Mandela once said that education was the most powerful weapon that could change
the world. Education is the fundamental right of all citizens including the prisoners. The
inmates are provided with both educational and vocational training. Today almost all prisons
in India have libraries with books on different topics. There are even some prisoners who
study and crack competitive exams during their sentences. Vocational training like stitching,
embroidery and doll-making will equip the inmates to have income-earning skills and be a
part of society again.

 RIGHT TO RECEIVE BOOKS/MAGAZINES:

The court heard the case of George Fernandes v. State, in which the superintendent of
the Nagpur Central Jail imposed a limit of twelve books that each prisoner may have. He
did not, however, have the authority to exercise such choices, even if as a superintendent
he could prohibit a book by declaring it to be "unsuitable."The court additionally added
that books were a source of joy and knowledge and placing a restraint on it was least
justifiable.

 RIGHT AGAINST SOLITARY CONFINEMENT:

Solitary confinement refers to the confinement of a single prisoner in a different cell away
from all the other inmates. In the infamous case of Sunil Batra v. Delhi Administration,
the Supreme Court examined the legitimacy of solitary confinement and emphasised that
it should only be used in extreme circumstances where the prisoner is so violent or
dangerous that segregation becomes necessary. As a result, the courts have expressed
great disdain for solitary confinement and declared that it is a very cruel practice. They
have also said that such imprisonment violates the essence of the Indian Constitution.

 RIGHT TO PRIVACY:

One of the most important rights that Indian residents enjoy is the right to privacy.
According to the Indian Constitution, they are a vital part of the right to life and personal
liberty. Through several judicial rulings throughout the years, they have also been
extended to inmates and criminals. However, this is arguably the most infringed right in
India. The issue of the right to privacy with regard to search and seizure was first brought
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 up in the 1950s. At that time, the Indian Supreme Court declared that a search does not in
and of itself violate the Indian Constitution, nor does it injure or negate a person's right to
property.
The prisoners are entitled to their mental well-being and they should be allowed to meet
their family members from time to time basis.

 RIGHT TO MEET THEIR FAMILY AND FRIENDS:

As the concept of human rights continues to evolve, prisoners' rights are now recognized
as a necessary protection against physical and psychological abuse. One of the
fundamental personal liberties guaranteed by Article 21 of the Indian Constitution is the
right for prisoners to communicate with their friends and family through interviews, phone
calls, and mail. The Indian prison system provides these means of communication, and
guidelines for their facilitation are outlined in the Manual. However, the implementation
of these guidelines and objectives largely depends on the state governments since prisons
fall under the State List. The Prison Act of 1894 clearly explains the right of prisoners to
meet their families at proper times under proper restrictions. In the case of Ramamurthy v
State of Karnataka, the three categories of persons who can visit a prisoner are friends
and relatives, lawyers and laymen. The court allows these three categories of persons to
visit because of incarceration and to avoid additional mental trauma to the prisoners by
cutting off their interaction with the outside world completely.

 RIGHT TO RELIGIOUS AND CULTURAL PRACTISES:

Article 25 of the Indian constitution guarantees all the citizens of India the right to
practise any religion or belief. It extends to all the prisoners also to exercise this right.
Acknowledging the significance of religious and cultural expression in the prison system
is essential to preserving the dignity and well-being of inmates as well as being required
by law. The Prison Act 1894 also acknowledges the importance of the religious rights of
prisoners.

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 ARTICLES 14,19 AND 21:

In The case of T.V. Vatheeswaran Vs the State of Tamil Nadu, the judgement stated that

articles 14,19 and 21 are available to both the freemen and the prisoners. Article 14 of the

Indian Constitution states that no one should be denied equality before the law or equal

protection under the law everywhere in India. Article 19 states the right to freedom of

speech and expression. Article 21 says that no person shall be deprived of his/her liberty

unless according to procedure established by law. As personal liberty is guaranteed by

Article 21 of 7the Constitution, it is illegal to treat anyone—native or foreign—

inhumanely, brutally, or in a degrading manner.

 RIGHTS UNDER THE PRISONS ACT 1894:

There are also many additional rights given under the Prisons Act like providing proper
shelter and accommodation, provision for sanitary conditions and the maximum number
of prisoners that can be kept in a prison safely, separation of criminals based on gender,
nature of crime etc. and provisions related treatment of undertrials, parole, temporary
release etc.

These are some of the brief rights that are provided to prisoners in Indian prisons. Some
of them are implemented but some need to be executed in a better manner to ensure that
prisoners are not robbed of their deserving rights.

CHALLENGES AND ISSUES

The Indian prison system faces many issues which are dragging down its development in
many aspects including infrastructure and proper functioning. Some of the issues are:

7
Chauhan, D. S. (n.d.). Rights Of Prisoners Under Indian Laws. Legal Service India. Retrieved October 15,
2023, from https://www.legalserviceindia.com/legal/article-6228-rights-of-prisoners-under-indian-laws.html

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 OVERCROWDING:

Overcrowding is a significant problem in present-day Indian prisons and it leads to many

other subsidiary issues. Living circumstances that are subpar, a lack of hygiene, and a
higher chance of disease transmission are all caused by overcrowding. Indian prisoners
frequently endure subpar living circumstances, such as insufficient access to clean
restrooms, food, and water overcrowded prisons, inadequate medical care and treatment
programmes are also major problems. Prolonged detention of under-trial inmates, who are
held without charge or trial for extended periods, is a result of overcrowding and violates
their right to a prompt trial A staffing shortage is another effect of overcrowding, and the
current shortage of staff and training of the existing staffs lead to poor management of
these prisons.

 CORRUPTION:
Corruption has also affected the prison system along with the other fields. There have
been numerous instances of bribery, extortion, and other types of corruption by jail
officials in India, making corruption inside the prison system a serious issue. Every jail in
the world has a high rate of staff corruption, which is made worse by guards' often
meagre pay. Inmates bribe guards to get more money or preferential treatment in return
for contraband. It has been stated that dishonest jail officials embezzle prisoner food and
resell it to interested parties for personal profit. The presence of corrupt officials enables
criminal organisations to operate outside the law, resulting in many issues such as drug
trafficking, violence, and extortion.

 PROLONGED DETENTION OF UNDERTRIAL PRISONERS:

Currently, Indian prisons are congested due to the high number of undertrial prisoners.
There are two separate prisons for undertrial prisoners in India. First-time offenders in
jails usually face group violence. The vast majority of poor and oppressed inmates facing
trial are either unable to provide the necessary bonds for their release or are unaware of
their legal right to request bail. Every prisoner has the right to a trial within a reasonable
amount of time. In addition to violating the right to liberty that every citizen is given,

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 prolonged confinement and trial delays also amount to a deprivation of the undertrials'
human rights.

 POOR LIVING CONDITIONS:

The Indian prison system faces many infrastructural issues which lead to poor conditions
for prisoners in Indian jails. India's prison population frequently suffers subpar living
circumstances, such as limited access to clean restrooms, food, and water. Another major
problem is the absence of appropriate medical care and treatment programmes.

 REHABILITATION AND REFORM INITIATIVES:

Most prison officials and members do not pay attention to the reform path of the
prisoners. Though the law encourages the proper reform of these convicts implementation
of educational and vocational. The lack of rehabilitation programs contributes to the
problem of recidivism, as prisoners who are released without any skills or education are
more likely to reoffend issue of stigma still existing regarding hiring ex-convicts for
different occupations needs to be addressed with much care. 8

JUVENILE PRISON RIGHTS

The Juvenile Justice Act 1986 lays down the guidelines and rights of juvenile prisoners in
India. The legal rights of minors and young adults who have broken the law are handled by
the juvenile justice system. This area of law handles cases involving minors who are
suspected or have been charged with committing crimes and range in age from 10 to 18. The
Juvenile Justice Board is the statutory body to look after the implementation of this act. 9The
8
Anand, A. (2021, July 12). The Need for Rehabilitative Incarceration in India. Youth Policy Review. Retrieved
October 16, 2023, from https://www.youthpolicyreview.com/post/the-need-for-rehabilitative-incarceration-in-
india
9
Juvenile Justice & Children's Rights. (2023, January 7). The Times of India. Retrieved October 16, 2023, from
https://timesofindia.indiatimes.com/readersblog/lawpedia/juvenile-justice-childrens-rights-48941/

Cite

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Juvenile Justice (Care and Protection of Children) Act, 2015 was formed after many
discussions and filling the loopholes in the previous laws. The main reason for the passing of
the new legislation was an increase in the number of crimes, including rapes, perpetrated by
juveniles (those between the ages of 16 and 18). The new law created various problems, more
of a retributive than a reformist one. The main aim was to decide on legal guidelines
concerning teenagers who committed an offence and pave the path to their reform so that
after they complete their sentence they can be normal citizens contributing positively to
society. One issue brought up by several campaigners is that Article 20(1)—which says that
an individual cannot be given a punishment worse than what would have been imposed on
them by national law—is not being followed by the 2015 law. The new rule allows for the
appropriate punishment of a sentenced minor to jail if he has not served out the entire
sentence after reaching the age of 21. The spirit of Article 20 is undermined by this new law.
Sensitization regarding the depth and consequences of crimes is important to reduce the
crime rates among children and teenagers.

CONCLUSION

Existence is not limited to animals in life. One cannot deny the same to the souls
incarcerated. Article 21 of the Constitution guarantees it to all people, and not even the State
has the power to take away that right. Whether convicted or not, a prisoner retains their
humanity. They are also granted all the rights of a free man, albeit with certain limitations.
Their basic rights are not violated by their mere incarceration. He retains access to all of his
fundamental rights even while incarcerated. Even after being found guilty of a crime and
having their freedom taken away from them in line with the legal process, prisoners are
nevertheless entitled to their remaining constitutional rights. The Indian jail system has
numerous challenges that show the urgent need for improvements, including overcrowding,
extended pre-trial detentions, and inadequate infrastructure. Problems like systemic abuse and
corruption underline how crucial total transformation is. According to Mahatma Gandhi,
prisons should operate similarly to hospitals, and prison guards ought to be like hospital
nurses. This implies that inmates ought to be helped to grow and be rehabilitated so they can
rejoin society. They also ought to have human rights, and the prison administration ought to
treat inmates kindly. In India, the Constitution and legal system recognize the fundamental

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truth that all inmates are human beings. The days of using prisons as segregated holding
facilities are long gone. Nowadays, prisons should primarily serve as places for rehabilitation
rather than for the retributive and deterrent aspects of punishment - such as torture. As a
result, prisoners should have the opportunity to exercise their rights under Articles 14, 19, and
21.Many rights are listed in various acts that ensure the basic rights of prisoners and the only
thing left to do is the proper implementation of these rights.10

10
Varsha. (2022, October 18). Rights Of Prisoners In India: Prisoner Rights Under Indian Laws And Judgments.
B&B Associates LLP. Retrieved October 16, 2023, from https://bnblegal.com/article/rights-of-prisoners-in-
india-prisoner-rights-under-indian-laws-and-judgments/

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